How+To+Brief+a+Case文档格式.docx

1、ORWHY DIDNT I CHOOSE TO GO TO MEDICAL SCHOOLBy Dana L. Blatt, Esq.You are just about to start law school. You buy all of your required casebooks they are about two feet thickonly “slightly” intimidating, and you receive your first assignment. You are simply told, “read the first 100 pages in each bo

2、ok and BRIEF all of the cases!” O.K., you know how to read hopefully, but what does it mean to “brief” a case? You have heard of “briefcases,” but that is something that you carry around. The last time you sang at a karaoke bar someone may have asked you to be “brief,” but instinctively you know tha

3、t that is not the kind of brief that is being discussed here. And you may even be wearing “briefs.”But, what is a brief of a case? For that matter, what is a case?The purpose of this article is to teach exactly what briefs are, why they are important, and how to draft them. You will learn most of th

4、e various ways to brief a case, the basic elements of each brief, and how briefs are used in various contexts. Additionally, you will read sample cases and briefs of those cases in every format. By the time you finish reading this, you will be so sick of briefs, that you will wish this writing were

5、much briefer! So, now lets get down to business.What is a case? A “case” starts out as a lawsuit between two or more people. The parties to the lawsuit have a trial and one party wins while the other loses （or possibly there is no trial but one of the parties wins because of a decision based on lega

6、l procedure）. Next, the party who lost the case gets angry and bitter. So, he or she decides to file an appeal. An appeal is a request that a “higher court” “” examine what was done in the trial court to make sure that no legal errors were committed. （The “higher court” is usually referred to as an

7、appellate court. The “highest” appellate court is the Supreme Court.） Generally, there are no trials in appellate courts. Rather, an appeal is strictly a review by a panel of judges of what transpired in the trial court. The appeals courts usually make their decisions in writing. The written decisio

8、n is called an opinion. It is called an opinion because it reflects the opinion of the justices as to what the law is for that particular factual situation. Since the decision is in writing, it is saved. Not only is it saved, but it is cataloged and indexed ad nauseam. Since the opinion has been sav

9、ed, it can be located in the future whenever it is needed. Opinions have been saved and catalogued for hundreds of years. It is the fundamental theory of our entire legal system that once a case is decided, if there should ever be another case in the future that is the same as the decided case, that

10、 future case should be decided exactly the same way as the first case was decided. This is called stare decisis. In other words, the opinion effectively establishes a rule that is to be followed in the future for all similar cases. Moreover, since all of the opinions over the past hundreds of years

11、have been saved, they can always be located and used as a basis to resolve a current legal dispute. The Common Law is the result of the collection of hundreds of years of written decisions by appellate courts in England before the United States was formed. The United States adopted the Common Law an

12、d it is the basis of our legal system. Thus, to answer the question a case, for purposes of this definition, is a written appellate court opinion which reviews the decision of a lower court and is, accordingly, now the “Law of the Land” according to the doctrine of stare decisis. In law school, what

13、 you will study is the aforementioned collection of appellate court opinions because they are “the law.”What is a brief? A brief is nothing more than a summary of an appellate court opinion. Thats itnothing more! Now that you know, there is no reason to read the rest of this article. A brief is a wr

14、itten synopsis or digest. It is just a concise rendering or explanation of the opinion. Your primary job as a law student （even your job as a lawyer） is to brief （i.e., summarize） cases.Why bother summarizing cases? Suppose that you asked a friend if she had seen that old classic movie, “Green Alien

15、s of Reptar?” Your friend frankly concedes that she doesnt remember that movie and asks, “What was it about?” You could insist that she go see the movie. Better yet, you could “briefly” explain what the film was about （that would surely refresh her memory）, and then the two of you could discuss the

16、importance of the flick to your conversation. In law school, you will be asked to read hundreds of cases. Most of the cases are NOT particularly memorable. In class, when it comes time to discuss a particular case, it is “best” if all students are thinking about and discussing the same case at the s

17、ame time. The professor will select a student （usually at random） to “brief” the case for the entire class. If you are called upon, then after you catch your breath, you must summarize the case at issue, on the spot, before the entire class. In this manner, the entire class can be reminded of what t

18、he case is about before it is discussed. If you are called upon and cannot brief the case, you will be told to stand in the corner. You will be graded by how well you brief a case and by how prepared you are to discuss the ramifications of the case in class. Accordingly, it is essential and fundamen

19、tal that you read every case and brief every case. You absolutely must be prepared, in every class that you attend, to thoroughly discuss every case; that means that you must be able to recite a brief of every case in every class, every time! With so many unmemorable cases to remember, the only way

20、that one can be prepared to brief every case every time, is to write out a summary of every case in advance of class. To put it another way, it is the job of every law student to read all of the cases and to summarize （i.e., brief） every case. It is extremely time-consuming to write briefs. Thus, st

21、udy time must be budgeted accordingly. Here we will explain the long, hard, tried and true methods of briefing a case. Later we will show you some short cuts.Are there other kinds of legal briefs? Yes. You can skip this section if you only want the “beef”! Throughout your career as a lawyer you will

22、 be required to prepare various kinds of writings, all of which are referred to as “briefs.” A trial brief or appellate brief is simply a summary of your legal argument or a collection of “briefs of cases” organized in such a manner and interspersed with legal contentions in such a way as to persuad

23、e a trial or appellate court that a particular legal position that is being advocated is correct. The trial or appellate brief is usually “brief” （i.e., only as long as necessary） and rarely, if ever, contains the full text of any case. Rather, such a brief refers the court to the full text of a cas

24、e by summarizing the important points of the case and providing the citation a book volume and page number where the case can be found. If the court needs more information from a case than what is provided by the excerpt, the judge can read the entire opinion by reference to the citation. In one for

25、m or another, briefs of cases are used in every kind of legal activity that exists whether it be a trial brief, writing a law review article, drafting an inter-office memo in a law firm, studying for a law school examination, conducting legal research, or making an argument to the United States Supr

26、eme Court. In other words, briefing is WHAT YOU DO in law school and a major part of WHAT YOU WILL do as a lawyer. Thus, learning how to brief a case is an essential skill that must be mastered and will be used throughout every persons legal career. By now you ought to be really scared! Briefs can b

27、e many pages long or they can be as short as a single sentence. The length of the brief depends on the purpose for which it is going to be used. In this discussion we will focus on briefs for use in the law school classroom. However, we will also provide examples of other types of briefs. Rest assur

28、ed, however, if one can brief a case for classroom purposes, all other types of briefs will fall naturally into place.Are there different kinds of briefs intended for classroom purposes? Yes; and we will learn about all types in this article. The types are: （1） Standard Classroom Format, （2） Bullet

29、Point Briefs （3） Book Briefs, （4） Professional Briefs, and （6） “Jockey.” How To Brief A Case. Finally, at last, thought we would never get there! There are certain elements which are found in every brief. They are found in every brief because they are the fundamental elements of every case. They are

30、:CASE NAMEFACTSISSUEDECISIONBriefly, the Facts are the circumstances which occurred between the parties that resulted in a lawsuit. The Issue is the legal question to be answered by the court. And, the Decision is what was decided by the court. Many commentators advocate the use of a system called “

31、IRAC” for the taking of law school examinations. “IRAC” stands for Issue, Rule, Application, Conclusion. The IRAC elements can also be found in every brief. They represent a basic method of analyzing any legal problem. Actually, “IRAC” is a sub-part of the above basic brief elements. The only reason

32、 that the word “facts” does not appear in “IRAC” （i.e., FIRAC） is that the facts are always supplied in a law school examination and “IRAC” is usually thought of as a test-taking tool. We will incorporate “IRAC” into our brief format as follows:ISSUE ISSUEDECISION RULEAPPLICATIONCONCLUSION For purposes of understanding a case, we will add one more element, the rational. Thus, our basic approach to a brief is as follows:（1） CASE NAME（2） FACTS（3） ISSUE ISSUE（4） DECISION （4a） RULE（4b） APPLICATION RATIONALE（4c） CONCLUSION Each of t