Thursday, August 22, 2013
Students often ask how to determine which concepts in a case should end up as part of the case brief’s reasoning section. Because judges do not simply ramble in their opinions, every sentence is an important part of the reasoning that drives the opinion. Therefore, what should students capture in their case briefs?
The answer lies in one of the key purposes of briefing cases: identifying the legal principles and the logical steps that will be necessary for resolving similar issues on an exam. In other words, students should learn to brief cases the way lawyers brief them – to draw out the analytical templates courts use when addressing particular issues. In doing so, students will not only begin preparing themselves for their exams, they will accomplish the most important purpose of briefing cases: training themselves to think like lawyers and judges.
They should focus the reasoning portion of their briefs on the future. They should ask themselves which concepts will be useful to them when they are answering an exam question; those are the ones they want to capture and later put into an outline that will guide their analyses on the exams.
Below is a list of the types of concepts students should watch for, not only in the cases but also in class discussions. In fact, if they print off this list and keep it next to them when they are in class and when they are reading and briefing for class, they may find it easier to separate the important concepts from the background and case-specific concepts that will not likely drive a future analysis.
WHAT SHOULD YOU BE GETTING FROM READINGS AND CLASS DISCUSSIONS?
Key themes running through the course
Accurately stated rules
Precise understanding of the logic underlying the rules, tests, definitions, and their
corollaries and exceptions
Key policy aims underlying each rule, etc.
Essential steps in the logic of applying each rule, etc.
Critical similarities and differences among rules, among tests, etc.
Critical attributes of facts that satisfy or do not satisfy the rules, definitions, etc.
Archetypal fact patterns that implicate each rule
i.e., what dynamics are always present when a particular rule is implicated?
E.g., transferred intent in battery: one person always propels something toward another and hits a third person instead. The means could be throwing, driving, mailing, pushing, or any of a thousand other means. The dynamics always boil down to the same thing.