Thursday, September 20, 2012

Critiquing One's Case Briefs

Law students spend a great deal of time on their case briefs while preparing for class.  They then listen carefully in class and take copious notes.  But sometimes in the hurry to get on to the next reading and briefing assignment, they forget to take time after class and compare their briefs to the professor's class discussion.  By critiquing afterwards, the briefs can become tools to see how one can do a better job of analysis for the next case.

One professor may go into great detail on all aspects of a case while another professor will just  hit the highlights of the same case.  Each professor is different, so a student's brief may include more or less detail depending on how the professor teaches and what questions typically come up in class.  Students' briefs will also differ in length and format because of their learning styles.

Despite these factors, students still should to use their case briefs as a learning tool for how to become more adept at analyzing and briefing cases.  Student want to learn how to select all of the correct essentials for a brief rather than including too much that is extraneous or too little that ignores important points.  Critiquing ones briefs increases one's ability to find the balance needed.

Take the facts section, for example.  One wants to be able to differentiate between the legally significant facts and the storytelling facts in the case.  The court usually includes both types of facts because the reader needs to know the facts that relate to the court's holding as well as enough facts to understand the scenario of the case.  

If a brief includes all of the facts given, then it is not making the distinction about what is important.  If a brief includes too few facts, then it may miss the legal significance of some facts. 

By analyzing why one missed some facts that the professor emphasized as important to the outcome, one gains greater understanding on how to spot legally significant facts among the overall facts.  By asking oneself why the professor left out some facts that the student thought were important, one begins to see why some facts are merely storytelling facts and not necessary to the legal analysis.

Next think about the issue in the brief.    Student issue statements are often too narrow or too broad rather than in line with the professor's version.  Issue statements that are too narrow restrict the court's question to fewer legal scenarios than are meant to be included.  Issue statements that are too broad apply the question to more situations than are meant to be encompassed.  Because the holding is the answer to the issue, an incorrect issue statement will then be mirrored in an incorrect statement of the holding of the case. 

By evaluating why one's statement is too broad or too narrow, the student learns how to understand the court's specific purview and the reach of the law.  One learns how to analyze the impact the case will actually have.

Because casebooks edit cases for a specific teaching purpose, students may not realize initially that cases are often far more complex than what is being assigned for the reading. They may not be aware that there are multiple issues in a case.  

 Also consider the reasoning section in the brief.  Students sometimes miss the logic of the case because they skip steps in their briefs rather than delineate the entire reasoning process of the court.  They mistakenly focus on just getting to the holding rather than learning how courts reason so they know how one would argue a client's position.    

By evaluating whether one left out steps in the reasoning or misunderstood the importance of various aspects of the discussion, the student learns to work through the analysis logically and to weigh the importance of arguments.  One's ability to reason persuasively increases as one gains knowledge in how courts make their decisions.

A student may find that critiquing her briefs indicates where the problem is but then the student is unsure how to fix it.  For example, the issue statements may be frequently wrong, but the student may not see why and what to do differently.  I would suggest that the student visit with the professor during office hours and show the professor a selection of briefs with issue problems.  The professor is likely to see the pattern of error and be able to make suggestions to correct it.  (Amy Jarmon) 

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