How to Brief a Case

The following is adapted in part from: 1) “Reading and Briefing Cases in Law School: Guidelines and Helpful Tips” by Nicole Raymond Chong; and 2) “Cracking the Case Method: Legal Analysis for Law School Success” by Paul Bergman, Patrick Goodman, and Thomas Holm.

Case briefs are the tools that law students use to summarize the material in the numerous cases they have to read for their classes and to prepare for class. In this course, we’ll use case briefs not so much to prepare for class, but rather to organize our thinking about judicial opinions that have been assigned. In other words, by writing the case brief, you force yourself to struggle with and make sense of the material, in the same way that law students and lawyers do. Case briefs will also help with active reading and reading comprehension. Deconstructing cases actively (that is, rhetorically) encourages you to notice which portions of cases are worthy of greater attention and deliberation, and which parts you can skim. Furthermore, preparing briefs that re-state judges’ legal reasoning in your own words encourages you to read opinions critically, thus advancing your own rhetorical skills. Judicial decisions illustrate the process of legal analysis, a process by which judges distill legal issues from stories and present arguments in support of holdings. Of course, courts’ legal conclusions matter, as they typically establish legal principles. But the process of legal reasoning is at least equally important. A focus on the issues and arguments helps you prepare case briefs that target the most significant portions of opinions and avoid the “equal dignities” trap of thinking that everything stated in opinions is of identical importance. Rhetorical case briefing doesn’t add to your reading burden. Instead, case briefing helps you to read more selectively, increasing both the speed and effectiveness of your reading. The case brief should be brief. Lengths of case briefs vary, but they should be short enough to be usable (in other words, if they’re too long, you might as well be looking at the entire opinion). However, while they should be short (under two pages), case briefs also need to be accurate and thorough, so you’ll need to find that balance for each case. Since briefs are primarily a study tool, there is no absolute right way to brief a case. In the real world, people use many different formats, depending on what works best for them. For our purposes, though, let’s use the following five-part case brief format:

  1. Citation. Give the full citation for the case, including the name of the case, the date it was decided, and the court that decided it. The name of a case can occasionally tell you a lot about the circumstances giving rise to the dispute. For example, the case name Estate of Smith v. Big Boom Blasting Corp. suggests a violent series of events that ended badly for Smith.
  2. Facts. Briefly indicate a) the reasons for the lawsuit; b) the identity and arguments of the plaintiff(s) and defendant(s), respectively; and c) the lower court’s decision (if applicable). Facts are important rhetorical tools. They are the gateway to disputed legal issues, and they often are the bases of arguments about a holding’s impact on future disputes. Your case brief should include determinative facts—that is, facts on which a court relied to justify its decision. Stated differently, determinative facts are facts that, if they had been different, would likely have changed the result of the case. You cannot rely on the factual summaries with which many opinions begin as an indication of which facts are determinative. Nor can you count on judges to make statements along the lines of, “For the benefit of law students, here are the determinative facts.” On the other hand, opinions often point you to determinative facts. For example, a judge may re-state a fact in the context of a holding. One way of limiting briefs to determinative and necessary contextual facts is to delay preparing this section until you have completed the other parts of a brief. As an example, assume that a disputed issue in a case is whether the plaintiff’s cause of action was barred by the applicable statute of limitations (i.e., whether the plaintiff waited too long before trying to assert his or her rights by legal action). The court’s initial factual summary may indicate the plaintiff’s age and marital status, and a description of the events that culminated in the lawsuit. But only the facts that figure in the court’s arguments concerning the timeliness of the lawsuit are determinative. Note that your facts section should not include the reasoning (what the court said) from the judicial opinion that you are briefing; instead, the facts section should only include what happened before the case got to the court who issued the decision you’re reading.
  3. Issue. This is the question before the court. Concisely phrase, in the form of a question, the essential issue before the court. Typically, each issue should join a legal principle to determinative facts. For example, consider this version of a legal issue: “Was P’s cause of action barred by the statute of limitations?” This statement hints at a legal principle, but it is totally devoid of determinative facts. Thus, it is too broad to serve as a guide to the court’s arguments or its holding.Consider next this version: “Was P’s cause of action barred by the four year fraud statute of limitations, in a situation in which P filed the complaint one year after discovering that, five years after they were married, her husband had misinterpreted his net worth in order to induce her to enter into the marriage?” This version includes determinative facts, but perhaps too many descriptive facts as well.How about a third version of the legal issue: “Was P’s fraud cause of action barred by the statute of limitations when she filed her complaint five years after her husband’s misrepresentation, but one year after she discovered it?” This version is an improvement over the prior one. The determinative facts remain; the unnecessary descriptive ones have been shorn away. If more than one issue is involved, you may have two—or even more—questions here. In the case of multiple questions, separately number each question, and then address each of the issue in kind when you develop the later Decision and Reason sections.
  4. Decision. This is the court’s answer to the question. A decision (sometimes called a “holding”) is a court’s answer to an issue. It should begin with a “Yes,” or “No,” answer for each question in your issue section, along with a legal principle and determinative facts. For example, return to the legal issue, “Was P’s fraud cause of action barred by the statute of limitations when she filed her complaint five years after her husband’s misrepresentation, but one year after she discovered it?” In this instance, you might state the decision as, “No. P’s fraud cause of action was not barred because the statute of limitations in a fraud claim does not begin to run until discovery of the facts that gave rise to the cause of action.” As you see, like the legal issue itself, the decision combines a legal principle with determinative facts. Objectively correct statements of decisions are often impossible to arrive at. Good legal minds often differ as to the “proper” statement of a decision. Using a case to support either a broad or a narrow legal proposition, depending upon a client’s desired legal outcome, is itself a component of legal analysis.
  5. Reason. This is why the court answered the question in the way it didSummarize as briefly as possible the reasons given by the court for its decision (or decisions) and the case or statutory law relied on by the court in arriving at its decision.Unfortunately, this section is often much more of a creative act than you would imagine. The reality is that judges’ arguments are often murky. For example, an opinion may be poorly organized, making it hard for you to link outcomes to determinative facts. An opinion may omit assumptions or leave inferences unidentified. Some opinions consist of ipse dixit, in which judges say little more than, “Because facts A, B, and C occurred, I hold X.” In such circumstances, do your best to tease out the arguments that a judge seemed to rely on.

For some cases, you may add either or both of the following “optional” case brief elements:

  1. Separate opinions. Appellate decisions may include concurring opinions, in which the writer arrives at the same conclusion as the majority, but with different reasoning, and/or dissenting opinions, in which the writer disagrees with the decision of the majority. Concurring and dissenting opinions are important because they present the reasoning of the judges (or “justices,” if on the Supreme Court of the United States) that did not agree with the majority. That reasoning may be accepted in a future case, especially if on or more judges in the majority have been replaced and the new judges are more inclined to rule with the previous minority. In the judicial decision you have been assigned contains separate opinions, write a brief description of each, with an emphasis on the reasoning used by the author.
  2. AnalysisThis section is optional and can be included for any judicial opinion. This is your opportunity to record/share your thoughts about the significance of the case, its relationship to other cases, its place in history, what you think the court got wrong, or just your overall comments. I enjoy reading these sections; you’re entirely free to disagree with the Supreme Court (or any court), for example, and when you do, it’s very interesting for me to learn why you do.

Some Practical Tips for Case Briefing

  • I strongly suggest printing out the judicial opinion, and reading it in an environment with as few distractions (computers, other people talking, TV, etc.) as possible. Reading these judicial opinions will require your full attention.
  • Often, LexisNexis or other legal databases will include editorial front matter, written by lawyers who have read the judicial opinion, that can help you identify some of the key facts, the issue, the decision, and the reasoning. Don’t overlook this front matter, as it can aid your understanding of the case, but it is certainly not a replacement for reading the full decision.
  • You should read the judicial opinion at least twice. On the first reading, don’t take notes or type up your case brief; instead, just focus on getting a general understanding of what the case was about and what the court said. Then, on the second reading, you’ll be much more prepared to see which parts of the opinion are important, and what should go in your case brief.
  • During your second reading of the judicial opinion, write notes in the margins and use several different colors of highlighters to note the important sections (yellow for Facts, green for Issue, pink for Decision, etc.). This will make writing the case brief much easier.
  • For some cases, there are a lot of facts included in the opinion, and many of them will not be relevant to your case brief. To help figure out which ones are important, here’s a simple tip: look at the facts that the court repeats in its reasoning. Those are the facts that the court finds to be determinative.

Helpful Legal Terminology

Answer: the defendant’s first pleading that addresses the merits of the case, usually by denying the plaintiff’s allegations; an answer usually sets forth the defendant’s defenses and counterclaims
Appellant: the party who has filed an appeal requesting that a higher court review the actions of the lower court—note that the appellant can be either the plaintiff or the defendant
Appellee: the party against whom an appeal is taken (usually the prevailing party in the lower court)—note that the appellee can be either the plaintiff or the defendant
Complaint: the initial pleading that starts a civil action and states the basis for the court’s jurisdiction, the basis for the plaintiff’s claim, and the demand for relief; this is sometimes called a petition; in criminal law, this is a formal charge accusing a person of an offense
Concurring opinion: a separate opinion explaining a judge’s decision to vote in favor of the judgment reached, but on grounds differing from those expressed in the majority opinion
Counterclaim: a claim for relief asserted against an opposing party after an original claim has been made; it is usually a defendant’s claim in opposition to or as a setoff against the plaintiff’s claim
Defendant: the party against whom a complaint is filed in a civil action or against whom an indictment or information is brought in a criminal action
Dicta or Obiter Dictum: language that is not critical to a court’s decision in that it goes beyond the actual facts presented
Discovery: compulsory disclosure, at a party’s request, of information that relates to the litigation; the pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted
Dissenting opinion: an opinion by one or more judges who disagree with the decision reached by the majority
Holding: the conclusion of law (the rule) reached by the court pivotal to its decision based on the actual facts presented
Judgment: a court’s final determination of the rights and obligations of the parties in a case; this can include an equitable decree and any order from which an appeal lies
Majority opinion: an opinion joined in by more than half of the judges deciding a particular case
Motion to dismiss: a request that the court dismiss the case because of settlement, voluntary withdrawal, or a procedural defect
Overrule: the court disavows its interpretation of the law in a later, different case
Per curiam: an opinion written by the court rather than by one particular judge or justice; it is usually a short opinion on a well-established rule of law
Plaintiff: the party who initiates a civil action against another party (the defendant)
Petitioner: the one who starts an equity proceeding or the one who takes an appeal from a judgment
Plurality opinion: an opinion without enough votes to constitute a majority, but receiving more votes than any other opinion
Respondent: the party who is defending the petition in an equity proceeding—similar to a defendant in a civil action
Reverse: a higher court decides that the lower court made the wrong decision in the same case the doctrine providing that courts will decide cases based on prior binding authority or precedent
Stare decisis: the doctrine providing that courts will decide cases based on prior binding authority or precedent
Summary judgment: a judgment granted on a claim or defense about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law; the court considers the contents of the pleadings, the motions, and additional evidence adduced by the parties to determine whether there is a genuine issue of material fact rather than one of law; this procedural device allows the speedy disposition of a controversy without the need for trial


Last Modified Jun 12, 2017 @ 8:14 pm