Boxers or Briefs?

"Think of your briefs like...well briefs. You always want them to be clean and neat in case someone else happens to see them. They should be comfortable fit for you without being covering too much or too little. Most importantly you should always use your own unless its an emergency for best results"
-As explained by a LARC professor and told to me by a peer

I think before we get too deep into the law school career I should take some time to explain what it is exactly I spend most of my time doing, namely, Briefing. The above quote is probably the best way to illustrate the concept of what briefs should be, though it may not be too helpful if you don't know what it is. So what are these briefs that lawyers carry in those cases (hence "briefcase" in case you ever wondered where it came from)? I am here to answer that my dear friend

In short, a brief is a "short". That is to say it is a short and abbreviated note on a particular case. As a student I may read anywhere between 7 and 12 cases per week conservatively. It would be nearly impossible to recall every relevant aspect of every case for every class without some short hand technique. That is where briefing comes in handy. Again, briefs are tailored to the person using them. As a 1L my briefs are highly formalistic because i am still using a very structured set-up to ensure I get all the important information. So what do my briefs look like?

Facts
Procedural Posture
Issue
Holding
Reasoning
Rule
Concurring/Dissenting Opinions

Facts
The facts of the case are those particular elements of the case that make it unique. These tend to be the parties, their relation to each other, alleged acts, circumstances, and scenarios. Often there can be many relevant facts in any particular case, but the key is to find the Outcome Detriment Factors (ODF). While it may be true and a fact that the defendant was a man, doctor, or wore glasses if that factor didn't help the court make a decision, then it probably doesn't need to be in the brief.

Procedural Posture
Sounds hard, but is actually simple. It's just the "How". How did this case get to where it is now? Who sued whom, what did the judge/jury say at lower courts, who appealed and what was the outcome there, and if there were any relevant motions/objections. This is the technical part of the case and can be difficult to find sometimes. Personally I think it is really helpful, because often if you know the "how"of where the case is, it helps with he "Why" as ill talk about in the issue portion. I know lots of people who skim this part, I think it is a mistake to, especially considering a question that always stumps students is the simple "Who won?". You'd be surprised how many students simply don't know, who actually appealed a case or who actually won.

Issue
The "why", "heart of the matter", or "the legal issue" of any case is the issue. Often there can be more then one legal issue, and the court does not have to respond to every one of them if they don't want. Often you can point the issue out by searching for language like "We are considering","We are looking to", or "The argument to". All of these are signals that the court is going to explain what is at issue in the case. If you think about it, every case comes down to one sides interpretation of an issue vs. the other sides. With that in mind, I try to frame the issue in simple yes/no questions, which helps when I get to the Holding. For instance an issue a court my face is "Does gun regulation in a school zone fall within Congress' power to regulate via the Commerce Clause?".

Holding
"No, possession of a gun in a school zone is not commercial activity and does not directly effect interstate commerce. Thus it is not within the scope of power of Congress to regulate". The holding then, is what the majority of the case thinks is the appropriate response to the issue at hand. The holding is often tricky to pick out, that is why a good expression of the issue is so vital. It is rare that the court will directly state its holding. Often I have to piece together various thoughts and synthesis them into the courts holding. At which point I must then explain how they came up with that holding

Reasoning
Which leads to the reasoning. Why did the court rule the way it did? This portion often bogs students down. Judges talk, a lot, about a lot, and have opinions about a lot. It is critical that you wade through the fluff and distill the reasons that directly apply to the holding. Sometimes I'm lucky and they neatly number the reasons or use language like "First, Foremost, We believe, or We accept/deny" Those tend to clue me into the courts reasoning. Often they refer to past cases or general hypotheticals. I know people who spend lots of time looking up the cases Judges mention or working through the hypothetical. I don't do that. One way is not better or worse. Personally though, If a judge alludes to a case the applies it in context, I assume that was the relevant portion I need. Would it give me more depth of knowledge if I knew the context of the mentioned case? Of course! Do I need it to apply to the case at hand? Not likely. In the end it is a cost-benefit analysis that you have to make. I judge it more important to get the breadth of the reasoning and its application vs. a deep and thorough understanding of any one particular reason.

Rule
The reason I think that is because in the end, all you really need is the Rule anyway. The dirty little secret to Law school is that most of the time and energy you spend preparing for class is "wasted". Not to say it is unimportant to learn to think like a lawyer and know the context of cases, BUT what you NEED to know for practice or more importantly for the EXAM is THE BLACK LETTER LAW! The rule is just that. Often enumerated in numbered or lettered form, the rule is what the case used in its ruling as a general principle. Think about it, if every case had the same facts and issues, we would never have disputes. We would know from the past what the court said about those facts concerning that issue. But that is not what happens is it? In theory, each case has new facts and issues and the court has to deal with them. They do that by applying these general rules. An example of a rule may be: In order to prove the civil allegation of Infliction of Intentional Emotional Distress, a plaintiff must show
1) The defendants actions were extreme and outrageous
2) The defendant knew or should have reasonably known said actions would inflict emotional harm
and
3) The defendants actions had to ACTUALLY cause the injury.

As you can see, the facts of a case may change, but this rule does not (for the most part, but there are exceptions. Not important for these purposes). Thus a Judge or lawyer (or law student) can apply the Rules they know to new fact patterns and reasonably come to some guess as to how the courts will act. Now obviously reasonable people can disagree on that outcome, that is in fact why there is litigation the first place, but if everyone is using the same rule you can debate the facts and not the law.

Concurring/Dissenting Opinions
You don't tend to run across these that often unless it is a big case or a Supreme Court case. I do take the time to read them, and if there is any particularly persuasive argument I might jot it down in this section. The important thing to remember is that for the most part, while it may be persuasive, it is unimportant By definition they are not the majority, thus there opinion does not "matter". However, often there are valid lines of reasoning in dissents that can be used later for new cases so it may be helpful to know what the court says about those facts. Also in rare instance the "minority" can become the "majority". Take the dissents from Plessy V Ferguson (separate but equal) and you will find they became basically the majority opinion in Brown v. Board of Education (desegregation).

That in general is briefing. It is important to note that reading and briefing are more helpful before class so you have a understanding in case you are called on. I have seen really long briefs and really short ones. I like to think mine are somewhere in the middle. One thing I didn't mention, but that I do and maybe helpful, is funny case names. See enough Jones v. Smith or Roe V. Wades and they all start to run together. Often case names aren't helpful in helping recall of the subject matter of the case. So to help myself I often give each case another title. In my torts class they tend to be funny names because the cases are funny i.e. "Electric lasso boy electrocutes self" "Shower glass Fall" and "No look train crash". As you can see they are general, but specific enough to a case to recall A) what was at issue B) help with what happened and C) what class it was from. Often I, and other students, forget what class we read a case for, so it helps a little.

So now that I have showed you my briefs, what do you think? I hope they are clean and neat enough. I happen to think they are comfortable and just the right fit. You?

Marqus A Cole