Thursday, May 27, 2010

Briefing a case.................

The major part of your first year study will be to learn how to break apart a court opinion. To do this, you will learn to “brief” a case. Through learning this process, I felt stupid, frustrated, and if I was the only one in the classroom who was not “getting it.” What no one tells you is this simple fact: No one is getting it. And really, a brief is nothing more than notes so that you can remember the case when you are being called on unexpectantly in class. Also, you will use these to study as well.

In order to demystify this experience I am going to break down the process of briefing a case. Every LRW [legal research and writing] class will teach you this skill. And every professor will have a different way of breaking it down. But this is what I learned to do.

Here are the parts to a brief: procedural history, facts, issue, holding, judgment, reasoning, dissent. That’s it! What you want to do is read the case through the first time, without trying to analyze. Then go back and read the case again, looking for the highlights and important information in the case. The pivotal points, so to speak. Then you start writing your brief. I actually have another step that I use. I have a highlighter with a different color for every part of the brief. And the second time through reading, I will highlight the points before writing. As a second year, I stopped briefing, and instead used the book brief method.

For this illustration, we will look at the case Wisconsin v. Yoder [one of my favorite 1st Amendment cases]. The case can be found at:

Procedural issue is how the case made its way through the courts. In Wisconsin, the case came from the Wisconsin Supreme Court. This is a state route, rather than through the US District Court, to the Court of Appeals, to the Supreme Court.

The facts of the case are the important things that happened during the case. Facts is really a term of art and hard to pinpoint the actual meaning. I have had many professors tell me the facts are what you make them. And this is true. Every litigator slants the facts in their direction and how the facts are presented often determines the outcome of the case. So you don’t want the minute detail, but the important factors that the court relied on.

The issue is the question before the court. This is what each side is arguing over and is the point of law that is being decided.  And a clue to find it in the case is to look for, "The issue in this case is whether...." If you see "issue" or a question starting with "Whether" early on in the opinion, you are probably being signaled that this is a point of law that is going to be argued.

The holding is the legal decision made in the case.
The judgment will have one [or several depending on how many points of law argued] of these outcomes: affirmed, vacated, reversed, or remanded. Basically whether the higher court agreed or disagreed with lower court decision.

The reasoning is analyzing the law and seeing what overarching themes the majority of the court used to decide the outcome of the opinion. This is where the hard work of your brief is done. You have to decide what is important and what the key points of the legal reasoning is. This takes lots and lots of practice.

The dissent is opinion and reasoning of those in the minority of the decision and the reasons why they could not agree with the majority opinion.

Here is my brief:

WISCONSIN V. YODER, 406 U.S. 205 (1972).

PROCEDURAL ISSUE: Criminal conviction in Wisconisin criminal court. Wisconsin Supreme Court reversed from which the state appeals.

FACTS: Amish parents are convicted under compulsory attendance laws for not sending their children to school after the 8th grade. Parents claim 1st Amendment protection as the Amish seek to protect their children from outside, worldly influence and education after the 8th grade does not aid them in the practice of their religion or life within the Amish Community.

ISSUE: Whether Wisconsin’s compulsory attendance laws requiring children over 14 to attend school, violates the Amish’s 1st Amendment free exercise right incorporated through the 14th amendment to the states?

HOLDING: Yes. Wisconsin’s law violates the free exercise clause.

JUDGMENT: Affirmed.

REASONING: Very narrow holding, applied almost exclusively to the Amish. There is a rich history in the Amish community for holding their children out from worldly influence. The Amish continue to educate their children after the 8th grade, but in subjects and trades that will help them to practice their religion and to aid them in providing for their community and family. Formal education does not help this, but burdens the exercise of religion of both the parents and the children.

The state has the right to require education when it is reasonable. However, the Amish have a firmly rooted religious belief that is being burdened as is proven by their history and tradition and their constant adherence to their beliefs over the years. The burden is great as the sanction is a criminal conviction for not sending their children to school.

Wisconsin’s law is generally applicable and this decision in no way challenges the compulsory attendance law as a whole. However, the state cannot meet the burden of proving that the interest it serves in requiring two more years of education to the Amish children is so compelling as to override the religious liberty and practices of the parents and children.

DISSENT [in part]. The court focused more on the rights of the parents, than the rights of the children who may well want to continue in their education.

Once you get the hang of writing these things, it becomes second nature.  You will begin to read cases and hunt out the sections.  And by the third year, you can skim a case and know what you are looking for.

Tuesday, May 25, 2010

Choose your response now......

Graduation comes and all of the sudden you are fair game.  Seriously.  What do I mean?  Simply that everyone comes to you with every legal ailment that plagues them.  These people want advice, and they want it for free.  Nevermind that you spent upwards of 150,000 on your education and you only have that to fall back on and earn your keep.

Now, one situation that has come to my attention does not bother me at all......I have a "first" case I could have once I pass the bar that I am chomping my bit at.  But I digress......

Start figuring out what you are going to say to your friends and family, and casual acquaintances now.  Practice some kind of nice line that lets them know that you will help them [after taking the bar] but it will cost them.  I haven't figured out my line yet, but I will and when I do I will post it.

Monday, May 24, 2010

What to say....

I have not forgotten about my has come along with some dark times.  I lost a friend to cancer this last week and it has been a tough road.  Makes you take stock of life in general.

So, I have put off the bar study for a week and will start posting as soon as I am back to normal.

Monday, May 17, 2010


Today was the day that I worked seven, long hard years for.  Once I picked up my degree, my daughter ran to me to hug me and she said over and over in my ear, "You did it mommy, you did it!"  I think we did it.

Today was surreal....I cried.  When they called my name, and I walked across the stage, I could hear my daughter screaming, "Yeah mommy!"  My other loved ones yelling for

Here is the moment: 

Thursday, May 13, 2010

Grad Dinner Class of 2010

My LRW Class from First Year

Oregon Supreme Court Justice Paul DeMuniz and Me.

Last night was the night that Class of 2010 got together and broke bread was a time of letting loose with relief, and socializing as only soon to be lawyers can.  What struck me the most was looking around and realizing that I was actually going to miss some of these people.  Even if I did not know some  deeply, and intimately, their faces were familiar and we were bonded! How?  By the lawyer club as I call it---we made it through law school alive and well!

Last Night, the Oregon Supreme Court Justice gave a speech.  First, let me say I took a class from this man in the Fall of 2009 and he is BRILLIANT.  But beyond that he is a genuinely nice man and wise, very, very wise.  He talked to us about what to remember as we become young lawyers.  I found his speech to be honest, frank, and truthful as well as good reminders.

Here were his high points:  1)  You integrity goes before you and lingers after you.  Always, always do what is right.  2)  You make your own facts.  Examine things closely and learn to use the power of your lawyer skills.  Don't accept what seems obvious, be examine the documents of life.  Don't let the facts dictate who  you are, you dictate the facts.  3)  Believe:  Make your priorities and always remember that the practice of law is your life, but not at the expense of your family.  Believe in your priorities and stick to them.  4) Go do some good.  Give of yourself and give back.  We have a responsibility to the people and the courts.  Represent both well.

Words of wisdom I will carry with me.  Last night was a night of joy, but a night of sadness, because I am not sure that I will see many of these people any time soon...........good times, great memories, and the newest Alumni at Willamette University Colloge of Law.

Sunday, May 9, 2010

Happy Mother's Day

To all those reading my blog, Happy Mother's Day.  Hope today was one filled with blessings and the making of many, many wonderful memories.

Speed Bumps on the way to Victory!

Not sure if I have shared this on my blog.....but I am a HUGE Nascar fan.  As I was watching the race last night in Darlington, I began to see the race as a metaphor for my law school journey.  That's right, racing in circles, a few bumps on the way, and then a lap in victory lane.

I would be remiss not to share the speed bumps, or crashes that I experienced along the way.  Each time something happened, I felt as if I had crashed and there was no getting back in the race.  But that was through my humanistic, near sighted vision. 

The first semester of law school sped along like a non-restrictor plate race, my engine was running, I was not to be stopped, and I was breaking all speed records.  I loved this semester.  I loved law school.  And then, finals hit me........and it was like nothing I have ever experienced.  My body just shut down with an upper respiratory infection.  Yet, I still had to study, I still had to take those exams.....somehow I made it through and made some pretty darn good grades along with it.  God's hand was on me, I have no doubt.

The second semester of my first year saw a personal tragedy.  While I cannot go into specifics, something happened with my daughter that nearly tore me in two.  I remember the specific day, three weeks into the semester.  I walked around in a haze, stressed out, dealing with things I had never dealt with before.  I was a raw mass of anger, of hurt, or deep sadness.   I went to the law school dean, explained my situation because I was worried that I would violate the mandatory attendance policy.  I was told maybe I should withdraw for the semester.  But if I did that, I would have to wait another year, and that was no an option.  The school was not supportive.  Yet I continued to fight through with the help of an awesome pit friends and family.  I still don't know how this semester was possible, but all I know is that God is faithful.

Second year, first semester was a stretch.  There was still fall out from earlier in the year, add to that the fact that I was now working a stressful, emotional draining job, and it was a mix.  Also, for some reason, I had drawn the ire of one of the paralegals who just flat out did not like me.  But I chugged along until finals.  The morning before my second finals, I bent over to tie my shoes and felt a pop in my back....I began to scream and I passed out.  My daughter called my mom, who came and took me to the doctor.  Verdict?  I had put my back out.  I took four finals high on vicodin.  I don't remember these finals at all, but I did make it. 

Second year, second semester was full of highs and lows.  I welcomed my first niece into the world, the second week of classes!  I was there she was born, and held her to me [ironically the room overlooked my law school campus].  But the stress was coming..........personal tragedy came knocking again.  I had to turn someone I loved into CPS for failure to protect.  This tore me absolutely apart.  I thought I was going crazy.  I couldn't focus, I cried, I had a hard time focusing on work or school.  Things were awful.  I felt like my car had been struck at 180 mph, everything had burst into flames, and I was in the fall out.  But looking back, it was but another speed bump in the path to victory.

Third year, first semester chugged along.  This time though, I knew that personally school was getting to me.  I became depressed.  And work became awful.  I was working in an enviornment where awful things were said about me, and no one could stop this woman.  This effected me on every single level of my life.  My confidence was taking a beating.  Yet good things were happening too.......the judge I appeared in front of loved me, and was vocal about how good I was.  My big boss loved me.  It wasn't all bad, but the bad was hard and sometimes I felt like giving up.  On top of this, the CPS issues of the semester before still loomed large.  When finals came, I ended up with an upper respiratory infection again.  But I made it through.

Third year, last semester was probably the easiest.....nothing at this point would stop me.  The end was in sight, and as I turned the fourth corner, I could see the finish line.  My issues were internal.  Senioritis had hit, and my sister moved away with my little niece.  I was in a funk, it was hard, but not nearly as hard as the five times before.  And there was the knowledge that this was the last time I would ever have to feel this way again.

Each struggle I faced was tough.  Sometimes I wanted to give up, to lay down and wave the white flag.  I would curl in a ball and cry.  In those times my family and friends would crowd around me, holding me up, and supporting me through it.  I am here today because of these great people, and because of the grace and strength of God.  I am a stronger person today then I was then.  I know that I can face down unspeakable situations and make it through.  These were tough times, but the victory now is only sweeter for them.

Saturday, May 8, 2010

Learning to "be"

These past two weeks have been bizarre to say the least.  For seven years I have had a goal that I focused on singularly.  My life revolved around school.  I have had no time to just "be."  No homework, very little demands on my time......I get to be a mom, shuttling my daughter around.  I am meeting friends for lunch, spending time with my mom, catching up on laundry, and reading books. 

I find myself at a loss at night.  I don't know what to do with myself.  I stalk facebook, am bored with youtube, and just have no direction.

On another note, my bar study kit was ordered!  So it is on its way.  Another two weeks off, and I will be studying for the bar..........but I know it won't be the same.

The clock seems to be ticking somewhat....the registar's office announced that professors must have our grades in to the office by Monday.  Wednesday is the day that they would call and tell us there was a problem and we were not graduating.  Friday, at 2:00 p.m. our grades come out.  There is a certain timeline to look forward too....NOT!

Wednesday night will be our grad dinner for our class.  I am looking forward to seeing "the class" the second to last time.......

I said I needed a project last week and have found one.  I used some money that I received for graduation from family members and purchased a really nice DSLR Digital Camera.  I wanted something that I could capture motion shots with of my daughter when she dances.  So for the past few days, and in the future days, I am going to work on learning to use this new fangled thing............this will give me something to apply myself to!

So upcoming articles......still going to do a brief for you all.  Working on my outline bank.  And keeping you all updated on bar study, and job hunting..........Also, any other law related things I can come up with!  And of course, being available for any questions you all might have!