Posted: September 9th, 2015

Real Estate Law.

Elements of a Brief

A brief is primarily a self-teaching tool; as such, you should structure them to meet your own needs. Many formats have been proposed by various writers. The method to use is the one that makes the most sense to you. For an introductory law class, the purpose of a brief is more limited than for either a law student or a lawyer. Also, a brief should be brief! A long brief eliminates the most important role of a brief: the boiling down of a complex case to its essence.

Several basic components of a brief are present in almost all brief styles. If your brief style includes the following elements, you should do well:

• Facts
• Issue or issues
• Holding, including the rule of law and the Court’s Rationale
• Opinion- Your Opinion.

Facts

State the facts of the case in your own words. Indicate which facts are operative, and which bear on the issues to be decided. Do not just repeat the judge’s words. Be brief. Often a sign of how well you understand the case is your ability to identify the relative importance of facts. Some cases may have many extraneous facts that do not need to be in your brief. Most certainly, some facts will be more important than others. Your task is to frame the problem by describing the facts that count, the ones that matter.

Issue

Issue spotting is the skill of recognizing in the facts a pattern that implies a certain type of issue. For instance, facts that describe two people both claiming ownership rights over a chair should spotlight an issue of ownership of personal property. In reading cases, often the parties and the court do this work for you. Ask yourself what legal questions are posed by the appealing party. The appealing party is alleging that an error of law was made. What is that error? What question is the court answering? Sometimes a court will see the issue differently than the parties and present a different twist on the issue. State the issue cleanly and crisply. Avoid stating it in technical or procedural terms. Some believe that beginning your issue statement with “Whether” will allow you to focus your statement.

Example: Whether Smith established legal ownership of the chair by physically possessing it for seven years.

Holding

What is the ruling by the court? Who won? Answering these questions forces you to identify the outcome of the case. You must understand the procedural setting enough to know what happens as a result of the decision. For instance, if the court rules “in favor of the appellants,” what does this mean? More importantly, you need to find the holding on the issue itself. How did the court decide the issue? What rule of law is provided by the case? Using the chair ownership example from above, a holding that resolves the issue might be:

Example: The court found that Smith had not established ownership of the chair by virtue of possessing the chair for seven years.

Notice how the above statement ignores who owns the chair. A newspaper headline would be more focused on the personal story: “Smith Loses Chair to Green.” In briefing a case, however, you are not a reporter; you are a student of the law. For that reason you must stick to the issue and its resolution as the primary focus.

Rationale (Included in the holding section)

The length of each part of the case brief need not be evenly distributed. In fact, the rationale section is usually the longest section. In the rationale section you explain why the court ruled the way that it did. This means that you need to describe the court’s reasoning, sometimes even quoting the court’s choice of words. You also must explain which facts the court depended upon and which ones it discounted or ignored. You should also note what prior decisions it looked at and whether it chose to follow them, overrule them, or differentiate them. The court might also interpret or cite particular statutes or other laws in reaching its decision. Finally, notice whether the court relies upon public policy to reach its decision. Thus the potential components to a court’s rationale include:

• Facts: which ones were dispositive and which ones not
• Prior cases that were followed, differentiated, or overruled
• Statutory law and how it was interpreted
• Public policy principles

Your task is to organize these components and explain how the court used them to reach its decision. You are trying to find the rule of law that may flow from this case. The rule of law is the “why” of the decision, not the “what.” This is very important, as unless you can determine the why of a case, it is very difficult to use the case to predict the outcome of similar disputes when they arise.

Returning to the chair ownership issue above, the holding does not tell us the “why” and, as such, it is not really that useful. The rationale of the court, however, might describe how the court relied upon a long history that ownership is not automatically determined by mere possession, but instead depends on how possession and control was lost by a previous owner.

Opinion

Did you agree or not? When would you agree? When would you NOT agree? What was compelling about this case that forced you to choose one way or another? What policy or theory are your supporting with your decision?

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