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The HTS Law School Guide to

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1 The HTS Law School Guide to
Preparing a Case Brief

2 Appellate Briefs versus Student Briefs
What is a Brief? Appellate Briefs versus Student Briefs Confusion often arises over the term “legal brief.” There are at least two different senses in which the term is used. Student Brief: A student brief is a short summary and analysis of the case prepared for use in classroom discussion. It is a set of notes, presented in a systematic way, in order to sort out the parties, identify the issues, ascertain what was decided, and analyze the reasoning behind decisions made by the courts. Appellate Brief: An appellate brief is a written legal argument presented to an appellate court. Its purpose is to persuade the higher court to uphold or reverse the trial court’s decision. Briefs of this kind are therefore geared to presenting the issues involved in the case from the perspective of one side only. Appellate briefs from both sides can be very valuable to anyone assessing the legal issues raised in a case. Unfortunately, they are rarely published. next

3 Preparing a Case Brief What is a brief?: Why brief a case?
Essentially, a case brief is a well structured summary of a case.  Why brief a case?  Learning by doing (ie. writing) is often better than passive learning. (ie. merely reading the case). A summary often helps one remember the facts and issues of a case. Briefing a case helps to isolate legal rules, tests, and standards. Briefing provides practice in isolating relevant facts from irrelevant facts. Briefing provides practice in framing an issue. next

4 Format of a Case Brief There are many common formats for case briefs. Formats are often tailored to suit the needs of the student or the course. Key characteristics of an effective format include: consistency in structure concise / efficient writing relevance in choice of material Although student briefs generally include the same items of information, the form in which these items are set out can vary. Before students commit to a particular form for briefing cases, they are always well advised to check with their instructor to ensure they are using an acceptable format. next

5 Key aspects of a case to be included within a brief:
case citation nature of dispute procedural status relevant facts key issues relevant rules of law holding ratio dicidendi next

6 Case Citation parties [style of cause], date published, case-reporting publication, pg. no., court) Date Published Style of cause: Criminal R. Stands for “Rex” (King) or “Regina” (Queen) In other words, the state versus an individual. R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.) Volume 1 of the Supreme Court Records, page 103. Supreme Court of Canada. next

7 Case Citation parties [style of cause], date published, case-reporting publication, pg. no., court) Date Published Style of cause: Civil First name is plaintiff. Second name is the defendant. Martin v. Perrie, [1986] 1 S.C.R. 41 (S.C.C.) Volume 1 of the Supreme Court Records, page 41. Supreme Court of Canada. next

8 An Acceptable format for a Case Brief
Case Citation Facts of the Case: Here the student should outline the essential facts of the case, particularly those facts bearing upon or leading up to the issue. (More…) Statement of Issue(s): Here the student should outline the dispute to be resolved by this particular court. For example, which rule of law should be applied? How should a given element of a rule be defined? What general principle(s) of law are illustrated by the case? What legal test(s) should be applied? (More…) Rationale (Ratio Dicidendi): Here the student should outline the reasoning behind the court's decision. (Was the court reasoning based on precedent, economics, politics, sociology, fairness, etc..?) The reasoning, or rationale, is the chain of argument which led the judges in either a majority or a dissenting opinion to rule as they did. This should be outlined point by point in numbered sentences or paragraphs. Court Holding: Here the student should indicate the decision of the court in this case. Analyses: Here the student should evaluate the significance of the case, its relationship to other cases, its place in history, and what is shows about the Court, its members, its decision-making processes, or the impact it has on litigants, government, or society. It is here that the implicit assumptions and values of the Justices should be probed, the “rightness” of the decision debated, and the logic of the reasoning considered hat was the decision of the court in this case? next

9 Facts of the Case A good student brief will include a summary of the pertinent facts and legal points raised in the case. It will show the nature of the litigation, what occurrences transpired, and, if the case is an appeal, what happened in the lower court(s). The fact section of a good student brief will include the following elements: A one-sentence description of the nature of the case, to serve as an introduction. A statement of the relevant law, with quotation marks or underlining to draw attention to the key words or phrases that are in dispute. A summary of the complaint (in a civil case) or the indictment (in a criminal case) plus relevant evidence and arguments presented in court to explain who did what to whom and why the case was thought to involve illegal conduct. A summary of actions taken by the lower courts, for example: defendant convicted; conviction upheld by appellate court; Supreme Court granted certiorari. Note: The facts are often conveniently summarized at the beginning of the court’s published opinion. Sometimes, the best statement of the facts will be found in a dissenting or concurring opinion. Why? Sadly, judges are not above being selective about the facts they emphasize. This can become of crucial importance when one tries to reconcile apparently inconsistent cases, because the way a judge chooses to characterize and “edit” the facts often determines which way he or she will rule and, as a result, which rule of law will be applied.

10 Statement of Issues The issues or questions of law raised by the facts particular to the case are often stated explicitly by the court. Constitutional cases frequently involve multiple issues, some of interest only to litigants and lawyers, others of broader and enduring significance to average citizens. Students should be se sure to include both types of issues. With rare exceptions, the outcome of an appellate case will turn on the precise meaning of a law, a judicial doctrine, or a provision of the Constitution. Students are well advised to capture that provision or debated point, and to set it off with quotation marks or underlines. This tactic will help students later when they try to reconcile conflicting cases. When noting issues, it helps to phrase them in terms of questions that can be answered with a precise “yes” or “no.” NOTE: Students who misread cases generally do so because they fail to clearly see the issues involved. There is no substitute for taking the time to carefully frame the issues in terms of questions that are capable of being given precise answers. It may also help to label the issues, for example, “procedural issues,” “substantive issues,” “legal issues,” and so on. Remember that the same case may be used for different purposes, so part of the challenge of briefing is to identify those issues in the case which are of central importance to the current topic under consideration in class. next

11 For a Case Brief template, click on the button below:

12 Rules of Law In any form of case analyses, it is important to be able to distinguish between a “law” and a “rule of law.” Law: A command enacted by a legislature, formally recognized as binding, and enforced by a controlling authority. Rule of Law: An accepted principle, test, or perspective that assists the judiciary in interpreting and applying a law. Rules of law can find their source in many places. For the most part, such rules are developed and recorded within case law. Over time these rules may become popularly known under certain names or terms, and they can often be expressed as a legal “test” that can then be applied to future cases. For example, the “Oakes Test,” developed in the landmark case R. v. Oakes (1986), is used to determine if Canadian legislation can survive an Article 1 (limitations clause) challenge. Still other rules of law may be contained in ancient and commonly accepted legal axioms, and are often expressed using a Latin phrase, such as “res judicata” – meaning that once a legal dispute has been decided, it cannot be litigated (tried) again. Finally, statute law itself can provide rules of law. Statutes will often define certain terms that are used within the statute. These definitions are intended to guide judges as they interpret and apply the statute, and can therefore be thought of as a peripheral rule of law.

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