SARAH STEWART WARE: I
have a longer time to talk to you at this point. And what I'm going to talk
to you about this afternoon is briefing cases. Now, on a simple
level, a case brief is just a summary of
a judicial opinion. That's it. It's a summary, in your own
words, of a judicial opinion. But it is a step
beyond taking notes, which is something
you know how to do, because a case
brief is typically a little more structured. And we're looking to
capture certain things about the case in this summary. So I'm going to
recommend to you, and many people will
probably recommend to you, that you brief all
your cases that you're reading for all your
classes this year as a 1.0. And as you start to read for
your classes, many of you will think, you are insane. I barely have time to
read all this stuff, much less write a freestanding
summary of each and every case. So I want to start
off today, before we get into the nitty gritty
of how to brief a case, I want to talk a
little bit about why you might take the trouble
to brief all your cases. So people have
done lots and lots of studies about how
we learn information and how we retain information. And one of the
worst things you can do if you're trying to
learn something is reread. Reading something multiple times
can create something called the illusion of competence. The illusion of competence,
that's not good. And I'm sorry to tell you this,
but highlighting is right down there at the bottom
of things that are good for learning and
retaining information. I'm not saying don't highlight. I'm just going to suggest that
you don't want to stop there, because rereading the bits you
highlighted may have the same effect of giving you the feeling
that you know something when in fact you don't. And the reason you
develop that feeling is because you recognize it. But recognizing
it on rereading it is not the same as
really knowing it. If you want to find a truer
test of whether you really know something, you
can try to explain it to someone else right. You've probably heard
this before as well. If you can't explain it, then
you don't really know it. And if you can put
it in simple words and explain it to
someone, then you've really taken ownership of
it and you know the thing. So you can think
of your case brief as sort of a way in which you're
explaining this case to someone else. The first opportunity
you'll actually have to explain the
case to someone else may happen in your class,
if you're called on to talk about the case. So an immediate
benefit to a briefing is knocking out your
moment in class. So you're writing
up the summary, as if you were going to
present it to somebody else. And you may in fact
have the opportunity to do that if you're
called on in class. Now, even if you don't
get everything right in that conversation
with your professor, your professor will be able
to see that you prepared and that's a good
thing in and of itself. Now, in order to have that
good conversation in class, where the professor's impressed
and your classmates are going, hey, you need to write
up the brief, that is to say summarize the
case, in your own words. This is critical. If you just copy and
paste a bunch of quotes into your notes,
you haven't really taken ownership of the case. So you need to summarize this
short brief in your own words. So ownership of the
case in this way means good class discussion. That's benefit number one. Benefit number two,
as exams approach, you'll have these nice case
summaries in your own words. And you can also think of
this as explaining the case to someone else. This time, the
someone else is you, because you read the
case eight weeks ago and you don't remember it. So you're reading
your case brief and either you'll think,
ah ha, oh yeah, OK. I remember this. And now, based on
this little summary, I remember what
the case is about. Or you'll look at the case
brief and think, what? And that'll tell you you need
to spend a little more time with this case. Having these briefs
prepared in advance will let you do the more
important work for preparing for exams, which is figuring
out how all these bits and pieces you've been
reading all semester fit together into some sort of
system of contracts or torts or whatever you were studying. So even if it's a very short
brief, it'll have that benefit. Those little briefs
will form the basis of your outline
or your flow chart or whatever tools you're
going to use for exams. That's up to you. You'll do what
works best for you. But having these little briefs
will be beneficial there. And then, the third benefit
is going to happen out there, outside of school. To be a practicing
lawyer, you're going to need this skill. You need to be able to
make sense of the law and state it clearly and
simply in your own words. The most brilliant
legal minds in practice excel at this, taking
a bunch of stuff and boiling it down and making
it sound, simple, and clear. And then, writing it
up so that it sings. That's something we'll
talk about in my class. So these case briefs that are
so handy for class prep, when you write them,
you're also honing one of most critical
skills for law practice. You're exercising your
brain in this process. And your brain's going to
build up some strong muscles for doing this work. In fact, I recently read
an ethnographic account of what lawyers do all day. Yes, I did. I read an ethnographic account
of what lawyers do all day. And the authors of
this article determined that lawyers spend a
huge amount of time reading, reading and reading and
reading and reading and reading and reading, all kinds of
things, not just cases. In fact, mostly not cases in
some of the practice areas. They read discovery
materials and court filings and newspaper
articles and books and all kinds of things. And what they all express, their
most repeated wish and goal, was to read efficiently,
so that they can find the stuff they really
need as fast as possible and move on to the
work they need to do. That's what case
briefing teaches you to do, to read this
case, read it efficiently, find the crux of the case,
write it down, and then move on to the next thing. Now, you won't be
efficient in week one. And so it will take
some time and practice to get good at this and to
be able to do it quickly. So I encourage you not to
just drop it after week one, this is too much time, I
can't do it, and let it go. Instead, keep practicing it,
because it does get faster. Now, you may discover at
some point, you may already you know, there are ready-made
case briefs out there for you. They're in Horn books. They're in outlines
from previous students at this law school. There on Lexis these
days, I've just learned. And you might think, I don't
need to do the briefing, because somebody has
already done it for me. And efficiency is good. But here's my warning
to you about those. Using someone
else's case brief is like watching someone
else work out at the gym. It might teach you
something about form. And that's a good thing. So you could use them for that. But you will not
get any stronger. So this work of
doing the case briefs yourself is very important. With those goals
in mind, I'm going to talk through how you might
go about briefing a case. You've been given
a case to read. Hopefully, you've
had time to read it. It's Parker v. 20th Century Fox. And after this
session, you're going to have a sort of model
class conducted around about that case. So you'll see what that
classroom discussion is going to look like. So that's the case we're
going to use for our sample brief today. But before we get
into that case, I'm going to talk generally
about the categories that are typically included in a case
brief, because along the way, there's some vocabulary
that you may not know that I want to get you familiar with. So your brief is
likely to include the following information. first the case name, the court
it arose in, and the year. That's easy. It's going to be
in your case book. You'll just copy
it into your notes. Then, you're going to
summarize the facts, but we don't want all the facts. We only want the relevant facts. And here's an interesting
thing about reading judicial opinions. You'll discover
that many of them follow a fairly similar pattern. And included in that pattern
is a summary of facts, usually at the beginning
of the judicial opinion. And when you're
reading that summary, you won't know yet which
facts are important. So in a little bit, I'm going
to introduce a two-step process for creating these briefs,
because as you're reading, you won't know which
facts to pull out. And we don't want all
the facts, we only want those facts that were
significant in the court's decision making process. We'll call those
the relevant facts. We only want those
facts that really impacted how the
court decided the case or serve as useful background. So you've got your facts. Then, you have something
called the, I think, procedural posture. This has stopped working. Oh, there it is. Procedural posture. What is the procedural posture? It doesn't mean
stand up straight. The procedural posture
is a fancy way of saying, what happened in the legal
case before it got here? So not facts in
the outside world, like Parker had a
contract and she thought she was doing
this movie and then they tried to get her to
do this other movie, but the facts in
the lawsuit itself. So something like Parker sued. The trial court granted her
summary judgment for $750,000. And 20th Century Fox appealed. That's the procedural posture
that got us to this opinion that we're reading. That'll get a lot
easier to do when you're more familiar
with court systems and with civil procedure. But it's just worth
sort of paying attention to what it is you're reading
and what stage of the litigation it represents. Then, you have the issue. And this is where putting
things in your own words becomes really important. The issue is the
particular legal question that the court needs to answer
in order to resolve the case. In Parker, the court
calls it out for us. And I'll show you in a minute. But if you're struggling to
figure out what the issue is, you have some help at hand. Look at your syllabus and/or the
table of contents of your book. Those may tell you why you're
reading this case before you read a single word of it. And the syllabus may tell you
exactly why your professor assigned this case. Wouldn't that be nice? And now, you can read it
with that goal in mind. And that also is what you'll
be doing out there in practice. You have a client. They have a problem. You're reading it
for that reason. You're looking for
the stuff related to your client's problem. I didn't go to law school here. My professor's syllabus
offered nothing more than a list of pages
to read for each day. Not helpful. However, the Parker case was in
a chapter in my textbook called "Remedies for Breach" and
in a subsection called "Limitations on Damages." And that would allow me,
if somebody had given me this advice, which
nobody did, that would allow me to
read the case, knowing that I was looking
for stuff about when damages might be limited after
a contract's been breached. Now, I'm reading the case
with a lot more focus. I can't emphasize
enough how helpful it is to have some
idea, even a very vague idea, of what the case
is for, as you're reading it. So before you read it, as you
read it, after you read it, constantly think
about where it fits. What is the point of this case? It's supposed to be teaching you
something about contracts law. And if you have that point in
mind or you're figuring it out along the way, that'll be
a great benefit to you. Out in practice, you'll
be doing the same thing. As I said, you have
something you're trying to do or a problem you're
trying to solve. And you're reading materials
with that goal in mind. So you have that dynamic between
the thing you're looking for or the thing you know you're
supposed to be looking for and the text before you and it's
a very active form of reading. So again, this work of
reading and briefing will help you build the mental
muscles you need out there in practice. So if the issue is the question
that the court needs to answer, the answer is the holding. Now, this is a word
you've encountered before, maybe holding hands
or holding a grudge. But in law, hold and holding
have a different and particular meaning. So when somebody says, what's
the holding of the case, here's what you need to know. The holding can mean
slightly different things depending on who
you're talking to that are closely enough related that
it won't matter a whole lot. But some might think of
it as the principle of law that you could
pull from this case and apply to a future case. And some might think of it
as something a little closer to the outcome of the case. Because of this law and
these facts, this party wins. And that information,
the outcome, is something you
could generalizing to that principle of law
that could then be applied to a future similar case. Sometimes a court will
announce in its opinion, we hold, blah, blah, blah, blah. And that's handy. That's nice. But they don't always do that. So sometimes you have to kind
of figure out what it is. And what you're
looking for is the crux of why this case came
out the way it did. What bit of law or certain
facts drove the court to decide in Parker's favor? That's the holding. That's the thing you're
trying to capture. That'll make more sense
when I give you an example and you'll get used to
identifying holdings with practice. So if it's a little murky
at the outset, that's fine. You'll get there. Now that you've got
the court's reasoning, this is the last piece. The reasoning is
where we really dig into the court's justifications
for deciding the case the way it did. And you can have quite
a bit of detail here. We might include
something that-- I've written the word rule. The rule would be the general
law that the court is applying. So the rule it
applies to the case to the facts of the case
to figure out the outcome. You're familiar
with the word rule. Sports have rules that
impact how things turn out. Games have rules. We might say something
like, as a rule, students admitted
to UVA Law have strong academic credentials. Good job. Congratulations. But there are some
parts to that rule and factors and
other considerations. And so in the
admissions office, they have that general rule in mind. And then, there's a bunch
of other things going on. And a lot of individualized
reasoning for each case. So how do you distinguish
holding from rule from reasoning. Don't sweat it. These categories are not crisp. You'll get used to
them moving forward. Right now, what you're
trying to just figure out is why the court decided
the case the way it did. What does this tell me about
how the law of contracts works that I could pull
out and perhaps apply to a future case, that
future case being your exam? So remember, as you're
looking at these categories, you're writing this
case brief for you. No one is going to collect
it and look at it ever. So if you've got the
rule and the holding or the holding and the rule
or the issue in the facts, it's fine, as long as
it makes sense to you and helps you
understand the case and move forward in your class. Now, related to that, these are
the categories of information you're looking for. And you might have all
of these in your brief. But if you look at how
people brief and what a case brief looks like, here's a
textbook that some of you will be using, The
Lawyer's Craft. It says a case brief should
include the facts, including important procedural facts, the
issues, the law, the holdings, and the reasoning. That's a workable form. Another textbook says, a brief
should include facts, issues, holding, legal rule
and reasoning policy, and evaluation. That evaluation is
presumably your own thoughts that you put together before
class, which is ambitious, if you ask me. But go for it. You should study the
way that works for you. You got here for a reason. And my briefs, when I was a 1L,
lo these some number of years ago, were kind of condensed. I had sort of facts, including
the procedural posture. Sometimes I combined
the issue and holding, because they were kind of
flip sides of the same coin. I might ask the question
and the answer's yes. Sometimes I separated them. I then had the
reasoning and I tended to pile a lot into
that reasoning section. That's where I was understanding
the details of the case. And then, I would
have my class notes that I would add later,
where I would write down all the things that I got
wrong and all the things that I didn't include
that my professor thought was really important. And that's OK. I did well in the class. Life turned out great. So these are the
elements of a brief. And like I said,
you've read this case. So we're going to talk a little
bit about how you would brief Parker v. 20th Century Fox. Now, before I show you the
process, the most critical bit of this, in whatever form
it takes, is figuring out, and I've said this before,
the principle of law that the case stands
for, because that's the thing you're going to take
forward into your outlines and onto your exam. As I said, the syllabus and
book chapters may help you. Ask yourself over and
over, what does this case add to my understanding
of contracts law? And if you do nothing
else, write that down in your own words. So here we have this case,
Parker v. 20th Century Fox. Step one for
briefing your cases, make notes while you read,
because as I mentioned, your first read through,
you won't know exactly what to pull out of the opinion. And so you're going to
make notes as you read. And that could take a
lot of different forms. It could be a draft
of your brief. You could go ahead and start
putting things into categories. It could be highlighting,
if that's a practice that has worked for you. There's no reason to
stop doing that now. It could be notes in the margin. Now, just in case me mentioning
reading an ethnographic study of what lawyers
doing during the day didn't convince you
that I'm a huge nerd, I still have my contracts book
from 1L year it turns out. And I've taken this picture. This is my book. These are my notes. Sorry. This thing isn't working
super well for me. So I was a write in my
book kind of student. And so here are my notes. And I'm just going
to kind of walk you through my process a little bit. Your process might be
a little bit different. So here's what I
wrote, as I was reading the case for the first time. Maybe a little hard to read. So I'll tell you,
I wrote up top, "summary judgment for contract
amount granted at trial." So I flagged the
procedural posture there. And then, I identified this
whole paragraph as the rule. And that's the part
of the case that talks about the
general law that's going to be applied
to resolve this case. And I've underlined
some parts of it, "the measure of recovery
by wrongfully discharged employees, the amount
of salary agreed upon for the period of
service less the amount, which the employer affirmatively
proves the employee has earned or with reasonable
effort might have earned from other employment." If you read that and you
think, what, and then you have to read
it six more times, promise yourself you
won't do that as a writer. That's me putting on
my writing teacher hat. You don't have to
write like that. Anyway, so that's some
sort of general law that's going to be applied. And then, I underlined
some more stuff down below. The employer must show that the
other employment was comparable or substantially similar. The employee's
rejection of or failure to seek other
available employment of a different or
inferior kind may not be resorted to in order
to mitigate damages. Great. And then, in the margin,
I've got this note here, "reasonableness
is not a factor." I've basically flagged
that the court's not going to consider reasonableness. Great. Good to know. This is all very general,
that is the general rule to be applied in the
case, but the real action happens on the next page,
because this general rule isn't really in dispute. What we really
need to know is how it applies to Parker who
is Shirley MacLaine, who may or may not be familiar
with, depending on how much you like older movies. So here, on this page,
this is the next page of the opinion in my textbook. I've written a box
around the words, "both different and inferior." And it's at this
point, on this page, that I realize those
words, which were also on the previous
page, it turns out those words are the test the
court's applying to figure out whether the movie being
offered was substantially similar, such that
it should be have been accepted in mitigation. And then, I've
got in the margin, "different role,
inferior contract." So I flagged the two key
reasons the court gave for why Parker should win this case. So step one, take notes. Like I said, you
can draft a brief as your way of taking notes. You might think that saves time. But you have to go back
and edit the brief. The first time you
draft it, it'll probably be too
long, because you're including too many things
that aren't important. And you haven't done
that critical thinking where you take
ownership of the case, if you're just taking
notes as you read. So it's when you go back and
trim it down and reword things that you're really doing that
critical work of briefing the case. So here's how my brief
ended up looking. And then, this is my 1L brief. I did fine in the class. So it's not a bad example. And I want to
emphasize, again, yours could look very different. And that would be OK. It's for you. It's your study tool. So here's where my brief is. And you want to summarize,
in your own words. That's where you really
understand the case. You summarize in your own words. So first, I have the facts. And I tended to
bullet point them. I have the setup of the case. Parker Shirley
MacLaine had contract to perform in a
musical production. Contract guaranteed minimum
payment of $750,000. Studio canceled and
offered this other film. MacLaine sues for some
due under the contract. That bid is actually part
of the procedural posture-- like I said, I tended to
kind of lump them together-- and for damages of brief,
studio manages to deny both. Apparently, I had an
opinion about this, on the grounds that Shirley
failed to mitigate-- we were apparently on
a first name basis-- because she turned
down the Western. And then, I have this
quoted contract provision, "we shall not be obligated
to utilize your services in or in connection with the
photo play," which is actually not that significant to how
the court decided the case. And looking back, one
of two things happened. One, it wasn't
something I originally included in my brief,
but my contract professor had a very particular
view of this case. I may have added it, because
he said it was important. Or I may have known
him well enough by this point in the
semester that I put it in there, because I saw it
and thought, oh my gosh. That's what Goldberg's
going to want to talk about. So probably not relevant to you. And then, summary judgment
for MacLaine, that's your procedural posture. Right summary judgment
from a client at trial. Then, we have the issue. And I framed the issue as
how is similar employment to be interpreted when judging
mitigation of duty of plaintiff in breach of contract case? So that's a pretty
broad way of framing what this case is about. That's a general legal question. It's not specific to MacLaine. But it probably
was useful as a way of thinking about what this case
was teaching me in my contracts class and how it
was going to fit in with other
cases about how you handle a breach of a contract. I mentioned earlier, the court
opinion calls out the issue. The court opinion
says, "the sole issue is whether plaintiff's refusal
of defendant substitute offer of Big Country may
be used in mitigation. That's also a perfectly
fine way to frame the issue. That way of framing
it is focusing on this particular case. Is this refusal of the movie-- so that's the issue the
court was trying to resolve in this particular case. Then, when I wrote
the holding, I got more specific
about the case itself. I wrote "the alternative
movie did not qualify as similar employment. MacLaine was not
obligated to accept it. Summary judgment affirmed." That's very specific
to the case. And that actually doesn't tell
me anything about the law. So somewhere between these two
pieces, what you want to do is capture both things. You want to capture somewhere
between these two pieces the nugget of law that,
generally, you understand this case stands for
and the specifics of why this particular case
came out the way it did. So if you can capture those
two things, whether you call it issue or holding,
question and answer, you'll be in good shape. Finally, we have all
the courts' reasoning. And like I said, I tended
to pile a lot in here. First, I have a quote. I actually typed in
a quote of that rule. Again, putting things in your
own words is generally better, but this wasn't really
in dispute in the case. So maybe I felt because
it wasn't really the crux of the case,
I could just quote it. And then, I have "court finds
that the offer of the Western was different and inferior." See? I'm picking up those
words and saying that those words are the
magic words that the court is using as a standard to apply. Different because using
different talents. It was a musical, instead
of dancing versus drama. And inferior, because she
had no say on the director and the script in the new deal. Those were the critical
facts that decided the case. I didn't have those
in my fact section. I might should have. But it was OK. For some reason, I thought
it was easier to have them here in the reasoning. And it worked for me. Again, don't get too hung
up on these categories. You need the
information presented in a way that works for you. That's a pretty short
reasoning section, because the court
actually didn't say that much in this case. I mean, you've got
the court saying, well, obviously, a
musical's different than a Western I don't know. I don't know how
obvious that is. Maybe it was back
in the day, in 1970, when this case was decided. So we don't have a lot of
reasoning from the court. And so this reasoning
section is pretty short. Finally, in my brief
that I wrote as a 1L, I have the dissent. What? None of my categories
were dissent. That was not on
any of the versions of the brief I showed you. Again, don't worry about
the list of topics too much. Do what works for you and
add and subtract as needed. A dissent is an opinion
written by a judge who was outvoted on an appellate panel. It's not the law. It's just the opinion
of that judge. The judge is basically saying,
I think we got it wrong. Here's why. We'll talk, in my
class, about when or why you might make use of a
dissenting opinion as a lawyer. But if your casebook
includes one, I strongly urge you to read it. Same is true for a concurring
opinion, where the judge says, I agree with the outcome, but I
think the reasoning was wrong. Those opinions can
be super helpful, because they clarify what
the majority was doing. I have read opinions
where I read the majority and I thought, what? And then, I read
the dissent saying, you got this and this
wrong and I think, oh. That's what the majority
was trying to say. So they can be very helpful. So you can read them,
even if your professor isn't in the habit
of calling on them. They'll help you
understand the case. So I encourage
you to read those. After this, I had
some class notes. I'm not sharing them with you. Like I said, my professor
had a very idiosyncratic take on this case. He wrote a whole
article about it. So those notes would
only confuse you, because that was him,
not everybody else. But you can add
your notes in there. So your class
discussion, and you're about to see a mock class
of this case presented, will likely cover a lot
more than these details you included in your brief. The goal isn't to
write down everything. The goal is to boil it
down to its essence. And if you've done
that work, which means you've really
thought about the case, then you'll be ready to
have that class discussion about many more things. Case briefing is a
powerful tool for thinking through what the case is about. You got to force yourself to
do it, to really boil it down, to put it in your own words. And then, you'll be ready to
explain it to someone else, in class or on the exam. And you'll be well on
your way to building those mental muscles that will
make you a superstar lawyer. So final thoughts. This case brief is for you. It doesn't have
to look like mine. Make it work for you. Don't stress over the
particular format. You're going to figure it out. The first couple of weeks
might be challenging. I don't know what goes
in the facts section. I can't figure out
this reasoning stuff. Just keep at it. It'll come. Be curious. If you're sitting in class and
you've got this beautiful case brief and the professor
is talking about something entirely different and you're
thinking, I got it all wrong, be curious. It's OK. You're not here
because you already know how to do the stuff
you're here to learn about it. So be curious. Ask your classmates. Go see your professor
during their office hours. Figure out where you
went wrong and learn. And finally, you're
going to be great. That's why we invited you here. Take a deep breath. I recommend you brief
all of your cases. And we can't really do
questions in this format. And I think my time is up. But if you do have
questions, feel free to email me or
come by my office, even if you aren't my student
for Legal Research and Writing. I'm happy to answer questions
about case briefing. Good luck to you all.
