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: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=406&invol=205.

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.