On Briefing

I. Briefing Generally.

A. Why Brief?

Why are we doing this?

Remember, you are doing it for yourself. You need to find a format that makes sense to you, that works for you, that serves your ends. Those ends may change in practice, but here in law school I have two serious candidates for reasons to brief all your cases:

First, if you learn to brief well and if you are honest with yourself, the process of briefing will force you to read each case with the sort of critical eye and detailed analytic sense that your instructors intend.

Second, you read the cases one at a time, but when you go to apply them you’ll be thinking about them in bulk, and about how they interact. They seem vivid now, but they fade with the passage of time. Briefing cases helps you to recapture them and to synthesize them. Briefing is an exercise in, and an embodiment of, the legal reasoning process. Walk the path often enough and you’ll come to understand it. Viscerally. So, the best test of a brief is to look back at it in two months and see if when you read it you want to ask any questions that it doesn’t answer. If so, you left something out, which is far worse than having left too much in. One way to avoid this pitfall is to bend over backwards to answer any question you can think of, more than once if necessary. Repetition is a better flaw than ambiguity.

Which raises the question of whay we call them ‘briefs’. If repetition is a better flaw than ambiguity, is there any way to keep them short? Err on the side of over-inclusion.

B. The Parts of a Brief:

Here’s how I think the parts of a brief work, and what they should do for you:

  • 1. FACTS
  • The facts tell a story. They are narrative. They should be understandable by a layperson and explain why the parties decided to go to court. You will forget this case. acts are a nice way to refer to it and remember it. Facts make cases cuddly; they insert humanity into them, breathe life into them, put flesh on their bones. Which is all very nice, but there are three sorts of facts that you should capture in your brief: Essential facts: the bare bones of what you need to know to understand what the case is all about. Important facts: the items that you think made a difference to the judge; that is, facts that connect to how the case turned out. Neat facts: stuff that turns you on about the case even if the judge couldn’t care less (after all, part of the point is to help you remember the case later on).

    The procedural history is also a bunch of facts, and it’s tempting to put some of that here. You can choose to put all of it here and not use a Procedural History section, but for the reasons detailed below, I strongly disapprove of that. So, since you have a section for this stuff, use it, and don’t let it slop back over into the Facts. Use a distant non-lawyer relative whom you only see at holiday gatherings as your guide &emdash;&emdash; don’t talk about anything that’s too legalistic for him. What he wants to know is why these people got so caught up in their dispute that they lost all of their most basic instincts, let go of common sense, and went out and hired lawyers to muck about in their affairs. That’s more or less like throwing all of their belongings off a cliff in slow motion. What drove them to it???? Just the facts, ma’am.

    Bring us up to the courtroom door, but don’t cross the threshold. That’s what comes next.

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    2. PROCEDURAL HISTORY

  • These, too, are facts, but they’re the ones that warm the cockles of your lawyer friends’ and relatives’ hearts. Begin at the beginning. Who sued whom, over what, under what law, in what court. Why? Take us step by painstaking step, through each phase of their legal shenanigans. Write Bleak House without the adjectives. The point is to detail, as best you know it, where this case has been.

    Why? Because as often as not that has an impact, frequently a dispositive impact on what the court did in the case you read. It certainly tells you what the court thought it was doing, and what standards it thought it would be held against. A trial court views facts and makes decisions in different ways from an appellate court (appellate courts give great deference to trial courts; trial courts are bound by precedents set by appellate courts). Appeals of decisions are very different from appeals of summary judgments. Federal courts interpreting state laws are different from state courts doing so, no matter what they say. An Article 78 is not a contract action. Title VII is not the Constitution. Trust me. They’re not. And the difference may be precisely what makes the difference in how two otherwise similar cases turn out. And the court may never whisper a word about this. [It’s just another Masonic signal, a secret wink or handshake to separate the cognoscenti from the great unwashed; we lawyers know the significance of procedure, so we don’t have to mention it. It goes without saying. . . .]

    So Procedural History is crucial because it provides the legal context for the facts, and the decision is a function of the facts viewed in context. This is what yanks your great-uncle’s chain &emdash;&emdash; knowing the facts isn’t enough; once lawyers get involved you need to know more than simply what happened between the parties. You need to know where they went, what happened in court, and how they got to where they are right now. All of this stuff belongs here.

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    3. ISSUE

  • Very few new students get the Issue right. But even fewer get it wrong. Most people get it muddy. In my book, to understand the notion of what you put down here you need to understand two things: how courts think they work, and why you care what the issue is.

    Courts in general think that they interpret or uncover law, not create it. The judiciary is anti-majoritarian. Sure, some places elect their judges (including NY), but do you remember the name of the last NY Supreme Court judge you voted for. And have you ever looked to see what sort of decisions (if any) he or she wrote, before or after the election? Judges are, for very good reasons, little dictators. Their decisions are usually not accountable in political ways. Judges take this aspect of their role very seriously, and even the most aggressive of them don’t set out to legislate (they just have a broader and somewhat divergent notion of what the pre-existing law is).

    So what? So, judges care about the specific facts before them, about the specific legal backdrop against which those facts appear, and about defining the question before them to be as narrow as it can sensibly be limited to being. They will try to avoid reaching the hard questions if there is an easier one that will dispose of the case. They will avoid making more law than they absolutely have to. They will try as hard as possible to make their decision appear to be an uncontroversial restatement of prior decisions or of the law itself. They don’t get to the Constitution if some lesser law will do. They don’t overturn another judge’s decision if they can let it ride. They don’t overrule precedent easily or happily (look at how much vigor Roe v. Wade has in a Court that was calculated to be as hostile as possible to that specific decision).

    Again, so what? So the issue(s) should be framed in as narrow, fact-defined, and legally-bounded a fashion as you can, because that’s the way the court saw them.

    Second, the reason why you are briefing this case is to help you recall and use it. And you will want to do that because this case is a piece of the broader fabric of a part of the law. It fits into the evolution of some area of doctrine. Despite what the judge may say, if the case is worth briefing it wasn’t an easy case. It addressed something new. It was, in some sense, a case of first impression (the first time a court of relevant jurisdiction addressed the issue raised by the case). The cases pushes the envelope of the law, or else no one would have been stupid enough to let lawyers get involved. The issue is going to be about the ways in which the judge believes the envelope id being stretched.

    So what? So when you try to craft the issue of a case, it should be detailed enough to reflect what was special about this case. It shouldn’t be so broad that this and a zillion other cases could all be described the same way. The issue should tell you what this particular case stands for; why it is distinct from all other cases and why it adds to our understanding of the law.

    Which all boils down to saying that then Issue(s) should capture the essence of what makes the case important to the judge and to you, with enough details about its facts and its law to explain why it differs from all those other cases out there and is entitled to ink of its own. It should be as detailed as you can make it while keeping it broad enough to state something that might be relevant to others who care about the jurisprudence of the area it covers.

    Simple, no?

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    4. HOLDING

  • If you’ve got the issues right, the holding should be comparatively easy. Basically, this is what the court has to say in answer to the questions raised by the issues. In a one issue case, it can seem almost trivially redundant, but remember that repetition is a better flaw than ambiguity. In a mullet-issue case it can get rather more helpful, clarifying, and distinct. In any case, it’s the single most important p[art of the brief in terms of using it down the road. The Issue may set up the questions that make the case important to read, but it’s the Holding that you will repeat when asserting just exactly what it is that the case stands for. The Issue alone won’t be enough. Like a Yodel without an echo, an Issue sallies forth and never returns.

    You could work backwards in drafting your brief, starting with the holding, if you’re the sort of person who thinks that questions are the way we address answers (and if you think this way you should try to get on Jeopardy). In any case, it’s a good way to check your work (like subtracting one of the numbers from a sum to check a 1st grade addition problem). Ask yourself what the case stands for as a contribution to the law of Mumbledypeg. Well, Carnac, if that’s the answer, what was the question? That gives us the Issue. And so on, backwards through the facts (there’s no better test of whether a fact is relevant than figuring out if you need to know it to explain the Holding).

    So the Holding echoes the Issues and explains what the case means. Like the Issue, it should be narrow, rooted in facts and law.

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    5. JUDGMENT

  • Aside from its spelling, this one’s pretty straightforward. It is the next step in the Procedural History, or where we go from here. What did the court actually decide to do. Not why. Not what did it do to the issue. Rather, what did it do with the case. Who wins, who loses. What happens to the case. If there are dissents and concurrences and other sloppy stuff, here’s where the description of that goes (the contents go elsewhere in separate sections of the brief). If you’ve set up the Procedural History, the Issue, and the Holding properly, the Judgment will be short and pithy and you’ll hear the gavel hitting the bench in the background.
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    6. REASONING

  • This is the hardest part, the one that most tries your ability to do legal analysis. You have to sort out the things that count as reasons from the things that only amount to dicta, from the random verbiage, list them, prioritize them, organize them in terms of which issues which arguments address, and encapsulize the court’s reasoning as though the judge had ever heard of the concept of an outline.

    Try to include all the reasons that seemed to make a difference to the judge. Try to organize them so that you have some sense of which were most important to the judge when you come back to this case late at night sometime in December and you have a million other cases swimming before your eyes. If there is dicta, identify it as such. If the judge relies on policy arguments, flag them as such (because they have a different relation to argument than precedent or law does). If the judge writes about his or her summer vacation, skip it. Tighten it up, give it explicit order, connect it to the issues and the holding.

    On a process level, this is where you’ll learn to think like a judge, which is very like thinking like a lawyer only with a bigger stick. Not only will it help you as you try to hone your own analytic skills, it will help your advocacy skills because you’ll develop a sense of the trappings of what appeals to judges.

    A word on Policy. Some people think it can sustain a separate section in a brief. I can’t understand why. Policy arguments used to be a lot less acceptable than they are these days, but even then if a court bought them the law the court made was no different from law based on precedent. The key is swaying the judge, not how you do it. Pulling policy reasons out makes them seem like non-reasons, and that’s a misrepresentation. What is important is that if you use a section on Policy, it doesn’t mean that you should try to turn the decision into a policy. The decision is a decision. It is precedent for relevant courts, but it neither is, nor embodies, nor generates a policy. It may be based on policies the judge identifies, but it does not invite you to become a political science major and write a policy analysis of the decision. That’s like trying to scan the meter of a mathematical proof.

    •

    • II. Style and its Opposite, Legal Writing.

    JUDGMENT, not judgement. I know it looks lousy and counter-intuitive, but it’s like a secret handshake, a way to tell the initiated from the riffraff. Spell it this way and other lawyers will know you’re one of them. You can even indulge in snobbery against people who spell it the right way.

    APOSTROPHES. Learn the rules about them. Read Strunk & White (Elements of Style). Commit it to memory in your spare time. Some of what they say about style is even applicable to legal writing. Everything they say about grammar and diction applies here in the same way as it does to the rest of the English language.

    In general, style is a luxury that lawyers subordinate to clarity. Certainly, at the outset of law school much of your job is to get rid of any sense of ownership of your prose, and open yourself to the fact that all you care about is whether it does the job. Elegance means zip, conveying the content you want to convey (and doing so unambiguously) is the name of the game. As a lawyer, most of the time you own both sides of any given communication. That is, you are not just responsible for what you say but also for what the other person hears. If the other lawyer reads your contract language in a way that is different from the way you meant (but plausible because of its ambiguity), your client will have to live with at least the potential for a dispute and quite possibly an ultimate resolution that he or she can’t abide. If the judge doesn’t understand your argument it’s as though you didn’t make it. Being pretty don’t count when it comes to legal drafting and argument. Being unambiguous does.

    One secret solace for those who care about their prose style: if you really, truly let go of your attachment to your prose style now, eventually, you will be able to care again, though in a somewhat different and more constrained way (unless you become a judge, in which case anything goes, unless you care at that point about getting appointed to a higher court someday). Unfortunately, only other lawyers are likely to appreciate your effort, laud your language, or laugh at your jokes.

    One note of solace to those who don’t know or see why anyone would care about what a prose style is (a very defensible point of view): neither does the law (or most judges). You start with a leg up on the rest of your colleagues.

    What does this have to do with apostrophes? Mostly that they are just a special case of grammar generally, and courts are grammatical snobs (as are those who read the Bar Exam). Get the grammar and usage points right and you’re (not ‘your’) halfway home. In the case of the curly little devils, "it’s" means "it is" not "belonging to it." The Court of Appeals claims authorship of a decision with an apostrophe after the ‘s’: "the Court of Appeals’ decision," because the court’s name has the ‘s’ already in it and the apostrophe follows after. I wouldn’t make such a big deal if this affliction didn’t trouble more than half of my students every year and if I thought you could get by anyhow. SPELL CHECKERS DON’T CATCH THIS STUFF, and none of us can afford the sort of secretary who can.

    Someday you may draft a contract where the difference in where you put the apostrophe is the difference between winning and losing. Think I’m nuts? "Henderson’s car" belongs to one person; "Hendersons’ car" belongs to a family. When the Hendersons split up, who gets the car?

    TERMS OF ART. I know it’s like the Mad Hatter’s Tea Party, but the words really do mean what I say they mean, and much of the early part of your legal education involves learning the ways in which legal language, writing, and speaking are the same as the rest of English, versus the ways in which they differ, and accommodating one’s style to the special ways that some words are used by lawyers. Terms of art are words that have one or more uses in everyday English and a narrower, more precisely defined use in a particular context. Many disciplines have terms of art. "Acute" is a perfectly good English adjective with a myriad of meanings to native speakers. To those doing geometry, however, it has a single precise meaning (an angle less than 90 degrees). "Normal" means a different things to different people, but the same thing to all statisticians. Go figure. Law is full of terms of art. "Parent" is a term of art. Figuring out what it means in that sense is our task for the semester.

    LEGALISMS. New law students tend to be blessedly free of legal jargon. STAY THAT WAY. Only paralegals, lawyers from Evansville Indiana, and pro se litigants use things like "hereinbefore." The way to be a snob these days is to use plain English (and to recognize which plain English words &emdash;&emdash; like ‘judgment’ &emdash;&emdash; have been co-opted into terms of art). Write directly, forcefully, clearly, but above all else unambiguously, even if subordinating the first three to the last of these makes you dull. [See handout by Wydick on Plain English.]

    AMBIGUITY. Speaking of ambiguity (and of repetition and dullness), ambiguity is our primary foe. Probably our biggest job this semester is to wring all ambiguity out of your writing (the task is in competition with making you conscious and aware of your reasoning process as you read, write, and speak). Ambiguity is everywhere, and for much of the way in which we write it is secretly encouraged. [See the poem by Wallace Stevens, "Thirteen Ways of Looking at a Blackbird."] This is where ‘style’ becomes a gremlin &emdash;&emdash; generally speaking, ‘style’ is just an artful form of ambiguity. Lawyers write, but woe unto those lawyers who think of themselves as authors. Not only will you hemorrhage from the criticism you are subjected to, but you’ll wince with every little bit of clarity that is inserted at the expense of grace, density, elegance, felicity, allusion, metaphor, or wit.

    Risk flabby style to root ambiguity out.

    That means avoid pronouns, ellipses, things that refer back to prior sentences.

    Repetition is a better flaw than ambiguity, at least at first. But ambiguity comes from other places, too. Self-assuredness is one major source: You assume that because you see it today it’ll be obvious tomorrow. You also assume that others see what you see.

    These are two fatal errors. Take the tedious route and lay each argument out carefully.

    I repeat, repetition is a better flaw than ambiguity. You can’t go too far wrong saying something too often, or in too many different ways. All those times that Ms. Dever wrote "Redundant" in the margin of your 6th grade compositions she was doing you a disservice. You should have let her know that you wanted to grow up to be a lawyer. Even in a brief, repetition is a better flaw than ambiguity. See what I mean &emdash;&emdash; by now you may think I’m a tedious bastard but you sure do know that I prefer repetitiousness to ambiguity. But will you do something about it?