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Writing a Case Note: The Ultimate Guide

How to Write a First-Class Case Note

Being able to write case-notes is crucial to your success studying law. As well as being a common form of assignment, they make very handy revision aids. Common law cases are often long-winded and dense, and sometimes it can be difficult to see the wood for the trees – let along remember the key parts! This post will provide you the ultimate guide to writing first-class case summaries using the FIRODA Case-Note Method.

The FIRODA Method

The FIRODA Method is an excellent way of structuring your case notes so that you summarise and remember all the key elements. Start by noting down the name of the case and the court which decided it. We’ll use Fagan v Metropolitan Police Commissioner as an example.

Give a brief overview of the key facts of the case. The key facts are those which are relevant to the outcome of the case – the facts which the judge actually took into account when reaching their legal conclusions. If a fact is not relevant to the outcome, you probably do not need to include it. In some cases there might be a relevant dispute over what the facts were: note this down too.

Any given case will involve deciding one or more points of law, or applying one or more legal principles to a particular set of facts. Work out what the court was actually being asked to do in the case, and summarise it.

For each issue you have identified, read the majority judgments of the court to determine the ratio decidendi . The ratio decidendi is the application of the legal rule which leads the court to reach the case’s outcome. It is distinguished from obiter dicta , which is everything else in the judgment.

Not sure whether a statement is the ratio decidendi or obiter dicta ? There is no clear cut method for deciding, unfortunately, but here is a useful guide. Ask yourself: if the judge had not made this finding of fact, or used this particular legal principle, would they have reached the particular conclusion they did? If it would make no difference to the outcome, then you are probably looking at obiter dicta. Otherwise, it is probably ratio decidendi .

For example, it is common for judges to decide a case based on a particular legal principle or finding of fact, but then say ‘if I am wrong’ or ‘I would reach the same conclusion if…’ and then consider how the case would be decided if the facts or legal principles were different. The first part of such a judgment is usually the ratio decidendi , and everything afterwards is usually obiter .

In some cases, there may not be a unified ratio decidendi . For example, in Re Baden (No 2) [1972] EWCA Civ 10, the three judges all agreed on what the outcome of the case should be. However, they all reached their conclusions using completely different reasoning. If you are writing a note on a case where the majority judges disagree, explain the ratio decidendi of each judge’s decision. Compare and contrast them.

O: Obiter Dicta

While most of the obiter dicta in a case can safely be forgotten by the average law student, sometimes judges say interesting things obiter that can influence how future cases are decided. For example, the judge might:

• Speculate on how the law might apply to a novel set of facts;
• Discuss how future courts ought to decide related areas of law;
• Disapprove of a past case, but not overrule it;
• Approve of a past case.

If you think the judge has said anything in the obiter dicta which gives you insight into the law beyond the case, note it down in this section.

In some cases, a judge dissents from the majority of the court and disagrees with the outcome. Often these dissents are ignored by the legal community, but sometimes they become a powerful argument that the case was wrongly decided. If you are reading a case with a dissenting judge, note down the points on which they disagree with the majority, and why. Consider whose argument you think is stronger.

A: Assessment

Finally, assess and evaluate the decision. It may help you to read academic commentary on the case in law journals or case-books. You should be looking to answer questions such as:

• How does it fit with previous and subsequently decided cases in the same area?
• What policy, principle and social factors might have influenced how the judges decided the case?
• Do you agree with how the law was decided and applied to the facts? If not, how would you have decided this case?

With that, you will have a solid case-note. This will not only help you get top marks in your assignments, but will also make it much easier to remember principles of law for your exams. Got any personal tips for writing case notes? Leave us a message in the comments!

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The Case-Note Guide: The Fundamental Skills for Writing a Case-Note

James a. turley.

Introduction

Academic writing for publication may seem daunting to many law students, especially if it lacks the direction and prescribed scope of a college assignment. Consequently, while students frequently complete case-notes or other forms of legal writing for their modules, many refuse to reach beyond that for fear of having their work rejected, or spending countless hours correcting commas in the footnotes in an attempt to comply with the Publisher’s House Style (OSCOLA in our case).

However, for those with intellectual curiosity, passion and the relevant skills, writing a case-note or engaging in academic writing more generally can be a truly fruitful experience, granting an author not merely the potential prize of publication, but also a deeper understanding of the subject they take on. This piece will seek to deal with two questions:

• The first being simply – why submit a case-note?
• The second – what skills can aid one in doing so?

Writing a Case-Note

There is a certain appeal to writing a case-note. It grants prospective authors a semblance of structure for their research and enables them to explore current or compelling legal issues through the form of a summary and analysis of the developments brought about by a single case.

Potential authors may wish to express a novel piece of analysis they found in a case, expand an argument which they picked up from their time in law school or simply pursue a Case-Note as a means of getting published. Whatever one’s reason, there are plenty of resources a person may use to aid them in their research. Whatever one’s reason, what matters is that there is a point or view which can be expressed which the author thinks pertinent to convey. If you find it to be important, others might agree. Various resources exist to support author’s in articulating their points, from module reading lists to legal databases to the varied collection of reposted articles found on X (i.e. Twitter), hence there is no need to dismiss good ideas for the fear that they might not be good enough. It is, however, important to double check your sources. Not everything published online merits attention and thus, peer reviewed academic articles, cited by other academics in the field will often prove more valuable and indeed, more reliable.

 As our own Sam Walsh expressed at the most recent Author’s Night event “you may not get published, but you will learn a lot from the process”. [1] What has been written will not simply disappear and hence, a rejection does not always have to be determinative. Articles are frequently reworked and resubmitted; thus  an initial rejection rarely equates to an absolute dismissal or defeat.

Mr. Adam Elbert also spoke at the event. [2]   He noted that Case-Notes can fall under a range of categories, including but not limited to:

• Practitioners’ Guides – a descriptive summary and succinct analysis of a case, often intended to enable solicitors and barristers to understand or argue a point of law in a courtroom setting.
• A Dissenting Note – a piece centering on a disagreement with the judgment of a case. This piece will examine how the judge ruled on a particular issue by taking on the facts and legal precedence for a particular case to examine the judge’s reasoning, before making an argument that they erred in some way or misapplied the law in some way.
• A Constructive Reassessment – a piece that involves the author taking a new perspective on a case, re-evaluating it or using a case as a means of indicating a potentially novel direction within a legal field. Authors may seek to re-examine a case through a different lens, whether it be republican, unitarian, utilitarian, deontological etc.

The Skills of Case-Note Writing

Though  case-notes can vary drastically in their structure and content, the legal reasoning of the argument and the accessibility of the piece are paramount in all. Thus, prospective author’s should take note of the following essential skills:

• Be Clear - It is essential to be clear when writing a case note. Clarity of language and thought are incredibly important in conveying legal reasoning. There is always a temptation in case-notes and legal writing to lean into Latin maxims and highfalutin phrases, though there is rarely a need to do so if the legal reasoning is sound. Accessible language and a capacity to explain complex ideas in succinct terms will always prevail over sesquipedalian screeds. Furthermore, where possible, avoid the passive voice. If there is a tendency in the piece towards phrases such as “it is submitted” or “it is asserted”, this will need to be dealt with during the editing process. Though this style was once commonplace in barristerial practice, it is increasingly antiquated and rarely transmits well into legal writing. Similarly, an excessive use of personal phrases and pronouns can be equally problematic. The reasoning of the piece should be based in law, not one’s opinion or belief. Hence, the overuse of “in my opinion” or “I believe” only serve to erode the confidence of the piece’s argument. If a point is significant, state it confidently. It is the legal argument that readers care for, hence rely on your argument instead of forcing it to rely on you.
• Content and Critical analysis – In respect of case notes, it is essential to lay out the facts of the case. The reader must be able to grasp what the case is about, how it came to court and what the judgment of the court was in that particular case. If the case-note delimits its exploration to a particular issue, judgment or section thereof, the summary should reflect that and limit its discussion to facts relevant to the case-note at issue. Once this has been adequately conveyed, the remainder of the piece should centre upon the author’s analysis of the fundamental issues at the heart of the case. A strong degree of independent critical analysis is key to any great Case-Note. Author’s must cut to the core of an issue, placing emphasis on what they consider to be the central developments or themes of a judgment. If the case-note centres upon a disagreement with a judgment of the court, this should certainly be expressed, albeit while being somewhat reverent to the judgment’s author. It does not serve an author to refuse engagement with judicial reasoning or to condemn its arbiter for ignorance and incompetence. A good case-note will afford opposing viewpoints the greatest benefit of reason and strive to contextualise their findings in a way which does not artificially bolster the author’s arguments through crafty phraseology and emotive or normative language. This is especially true of historical case-notes which may require additional context so as to place the judgment, especially a controversial one, in its contemporary setting. From there an alternative perspective or rebuttal can be offered in a transparent and balanced fashion.
• Read the Case – Though one can afford to rely on secondary materials and university databases for the vast majority of assignments, the skill of actually reading a case is essential to undertake a case- Ideally, the author should read it more than once and take note of their own opinions before secondary literature is consulted. In some cases, reading the main judgment will suffice, but there will be loftier, more substantial cases which may benefit from an analysis of a lower court’s judgments, or even arguments made by counsel. These resources can prove pivotal for ascertaining the issues which a judge was considering in their determination of the relevant case. Reading other case notes may also prove helpful for a prospective author. Beyond this it is also worth noting that wide reading can improve a prospective author’s familiarity with a field and as such where possible, footnotes and links within articles should be utilised as a means of deepening one’s knowledge of the law. This is not a suggestion that every article must be consulted. Indeed many great authors recognise the value of sufficiency over perfection. Though striking that balance is important for the deliverance of a well-articulated piece of legal writing. Various sources, including the Law Quarterly Review, the Irish Judicial Studies Journal and our very own Trinity College Law Review can prove beneficial in that regard.
•  Structure – There is no absolute requirement on structure. To the contrary, authors have a broad prerogative over how they design their piece. However, there must be a structure which is discernible and accessible to the reader. Streams of consciousness, superfluous or lengthy citations and confused maelstroms of legal scholarship, far from endearing an author to a publisher, can prove fatal for its prospects at publication. There must be adequate signposting as well as a succinct and effective introductory paragraph which indicates the form which the structure will take. It is essential to draft a piece and scrutinise it such that it can be refined for an audience beyond that of the author. Engaging others and asking them to read, critique or give feedback on a piece can result in useful guidance for the author and also may result in various spelling mistakes, grammatical errors or jarring structural issues being resolved before the piece is presented to a potential publisher.

Case Note Suggestions

There are numerous cases and statutes which could serve as an ample foundation for a note. Authors may choose from a plethora of judgments or legislative developments which occur in Ireland and beyond. That being so, I have created a short, non-exhaustive list of cases which are current, compelling, or underexplored in their respective fields.

Irish Constitutional Law

Heneghan v Minister for Housing [2023] IESC 18 – The Supreme Court found that sections of the Seanad (University Members) Act 1937 which governed the election of senators was unconstitutional and hence, the Oireachtas must enable graduates from universities and third level institutions outside of the National University of Ireland and the University of Dublin (i.e. Trinity College) to vote in elections for the University panel seats in the Seanad. The case deals with numerous issues including the rights of students at third-level, the distribution of Seanad seats and more practically the doctrine of suspended declarations and prospective effect for declarations of unconstitutionality. This case would be ideal for first time authors given the relatively short length of the judgment as well as the direct implication of the contents for students.

Law of Torts

Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4 – A recent landmark ruling by the UK Supreme Court in the tort of nuisance, the court held that the viewing platform in the Tate Modern Gallery had allowed visitors to cause nuisance by overlooking into the adjacent apartment blocks. There was an expansion of the scope for nuisance in this case as well as a refutation of the ‘public utility’ defence. This case has been ongoing for years and the Supreme Court only issued judgment a year after hearing oral arguments. The case provides an overview to the area of the Tort while also grappling with questions including whether ‘mere overlooking’ can constitute a nuisance and ultimately the implication of the decision for planning authorities will prove substantial. Finally, given the trenchant minority in this case, it could also prove intriguing for author’s pursuing a dissent-based case-note.

Evidence and Criminal Law

DPP v Quirke (No. 1) [2023] IESC 5 – The first of two supreme court judgments relating to Patrick Quirke who had been convicted of the murder of Bobby Ryan in a case grounded on circumstantial evidence. The issue in this case was whether the warrant obtained to search his home applied to the seizure of computers which were used by An Garda Síochana to find that Mr. Quirke had conducted searches relating to body decomposition and DNA. The court here ruled such seizures were unlawful and laid out a distinction between physical and digital spaces in respect of warrants obtained and noted that both which separate special authorization. The case represents fertile ground for a discussion on the increasing prominence of electronic and digital evidence, particularly in light of other electronic initiatives such as the Garda Síochána (Recording Devices) Bill 2022 or it could be used with the later case of DPP v Quirke (No. 2) IESC 20 as a means of exploring the development of the test from DPP v JC [2015] IESC 31 in practice.

Historical Law

Godden v Hales (1686) 11 St Tr 1165 – The issue of this case was whether King James II and VII of England and Scotland respectively, could grant dispensation to Catholics from Penal Laws which barred them from office. The court here ruled that he indeed could and that dispensing from religious laws was one of various ancient rights inherent to monarchical executive power. This judgment itself has long been overtaken in UK Constitutional law and is less so recommended here for its fact than for the wider issues dealt with as well as the legal philosophy which it prompted. The role of the courts in policing and expanding the boundaries of powers, parliamentary supremacy, the role of the Monarch following the Bill of Rights 1689 compared with that which existed prior and the question of how freedom of expression subsequently developed.

Intellectual Property Law

Case T- 172/21 Valve v Commission – This 2023 case concerns copyright protected video game content and restriction to its cross-border provision within the EU. Therein the General court suggested that restricting passive selling would prove restrictive by object unless a domestic court were to declare such sales to amount to an infringement of copyright. The case presents some critical questions surrounding the exhaustion doctrine as well as the rights of copyright holders and as such could serve as a launchpad for more confident law students to engage with the novel developments in digital IP law.

Additional Suggestions from the Author's Night Event

Costello v Government of Ireland [2022] IESC 44 – Concerned the potential seizure of judicial jurisdiction by the CETA Tribunal and issues surrounding constitutional identity.

Burke v Minister for Education [2022] IESC 1 – Concerned the potential infringement of homeschooling rights by the government’s calculated grade scheme as well as the issue of delegations of executive power and the ability of the court to review such delegations.

C.W v Minister for Justice [2023] IESC 22 – Concerned the potential unconstitutionality of s. 3(5) of the Criminal Law (Sexual Offences) Act 2006, which stated that in cases of unlawful carnal knowledge, a reasonable mistake as to age was to be proved to the standard of ‘proof on balance of probabilities’. The court considered whether such a standard was incompatible with the presumption of innocence and Constitutional protection of rights of accused in Article 38.1. Issues ranging from the burden of proof to the policy consideration of protecting vulnerable victims are also discussed therein.

The Exciting World of Legal Writing

In summation, the world of legal writing is ripe and ready for new contributions. Diversity of thought and interest is crucial for the field and hence, where some authors will have strong views on deeply rooted issues of International law or developments abounding from the European Union, others may have equally valuable insights into areas as diverse and niche as Defamation reform, M&A procedures, injunctions or indeed, the legal developments surrounding the Glorious Revolution and the Bill of Rights. I myself, as well as many others, fall into the latter camp and as such, authors who feel strongly about a point should not feel prohibited by the scope of their subject. Impactful points do not always come with impactful reading times. Regardless of what subject you choose to explore, we very much hope writing a case-note will be an endeavour that you pursue, and one that you, above all, enjoy.

[1] Sam Walsh is a Final Year Law and French Undergraduate at Trinity College Dublin. He is the author of the piece ‘G.E v Commissioner of An Garda Síochana & Others: Sea Changes Rejected and an Age Old Tort Reassessed’ (2022) HLJ 140.

[2] Adam Elbert is a current PhD Candidate and Scholar of Trinity College Dublin specialising in Constitutional Law. He is also a former editor at Trinity College Law Review.

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• Sep 9, 2014

How to Write a Case Note

Central to writing a good case note is developing your ability to distil the key facts and ratio decidendi and capture all of this in a few handy, easily memorised bullet points. Simple in description but maddening in practice, especially when some cases span hundreds of pages.

Much of your ability to sift the vital points of law and facts from broad historical outlines of the law or seemingly irrelevant segues will come from mastering your bulk reading skills and constant practice.

Once you have read a case and feel you have a grasp of some of its major issues, you will need to organise them as a case note.

Case Notes for Assessment

If you are being assessed on your ability to make a thorough case note – beyond the brief revise-as-you-go needs of your own study notes – you are really being asked for your critical analysis of the case. That is, whether the case, in your opinion and by reference to your own logical and legal analysis, was correctly decided. What follows is merely one approach to addressing this kind of an assessment; there are many approaches to writing case notes, each suited to different and individual styles. Below is a list of other guides and examples to which you may refer.

Begin by introducing the case

State its name, which court it in which it was decided and its legal significance – what did it change? Perhaps offer some context, such as prior law it affected. Outline whether you think the case was indeed correctly decided or not – and list your reasons. Keep brief. A good introduction is succinct, compelling and provides a ‘bird’s eye view’ of your whole argument.

Outline the key facts

Don't forget to include any contradictory facts or evidence that arose in the judgment. The purpose of this section is to provide a broad-sweep background to your analysis, so stick to relevant facts and again, stay brief. Case notes are often quite short, and it is in your analysis that you will score well, as this demonstrates your ability to argue in a legal context.

Identify the ratio

This involves identifying the decisions reached by each judge, noting any dissents. This will be important if you disagree with the outcome of the case.

Analyse the decision(s)

If there were several different judgments, as if often the case, it might be convenient to combine identifying each judgment with your analysis of the judgment as you go.

Analysis is often where you encounter the most difficulty. Remember – analyse, don’t describe. Consider the decision in light of existing law (often referred to within the judgment itself) – does it contradict prior decisions? Does it seem logical to you? Does it seem consistent? If the decision departed from prior cases, was this appropriate? Often judgments will depart from prior law, specifically to keep up with the changing values of an evolving society – for ‘policy’ reasons. Or a judgment may simply reflect the prejudice and hysteria of its time. Show you are aware of this.

What would you decide?

Having evaluated and analysed the case, would you agree with the majority or dissent? Would you agree/disagree – but for different reasons to those of the judges? Explain why. Refer to past cases, refer to international law, refer to second reading speeches (which are a good way to grasp the intentions behind the creation of legislation) – to explain why you believe your approach might be more appropriate, or achieve greater justice. Be original. Be outrageous. Demonstrate that your ability for deep thinking and analysis.

Then conclude.

Some Tips and Tricks for Finding the Ratio

Firstly, a very lawyerly disclaimer: this ability is perhaps one of the most difficult to master, and is often one that newcomers to studying law find so frustrating and challenging.

Finding the ratio – the key point of law to be taken from a case is a crucial skill given that our common law system allows both legislation and cases to determine the shape of current law. Judgments, however, can range from one page to an epic hundred or so. Even judges that agree on orders to be made or even on certain points of law may differ on others. While this may have the immediate effect of raising the blood pressure of law students and legal practitioners, it also might serve the purpose of ensuring diversity of legal views at the judicial level. That is, if this point of law comes up again in a different case, the arguments of a dissenting judgment might be seized upon by the majority and made law.

Enough of philosophy. Now the frustration. Unfortunately, there is no clear-cut method to distilling the ratio from judgments – it is simply an ability best honed by practice. We do have a few suggestions: Read the case and read a summary. Referring to what a third party – usually a lecturer, who may have made a case summary for lecture – regards as the ratio will help you refine your own skills as you read through the case and look for why this point of law was more important than others.

Clarify. Ask study group friends, students in your class or more approachable tutorial leaders about what they saw as the ratio from cases you are studying. Again, it’s a matter of regular practise and humility – as one Taoist philosopher put it, “True knowledge is to know when you don’t know.”

FROM THE ARCHIVES: This story was first published on Survive Law on 7 February 2010.

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• Writing case notes

Case notes usually require you to provide a summary of the case which outlines the relevant facts, explains the legal issues and the judge's reasoning (ratio). This is followed by a critique of the judge's decisions and a discussion of the implications of the case. In doing this, you are evaluating the court's decision.

Writing process

More information on assignment writing

There is no one way to structure case notes. The table below outlines requirements and possible elements of case notes. Always refer to assignment instructions.

Style considerations

Key features of the professional, academic style required in writing case notes includes:

• formal language; avoid idiom or slang, using I, no contractions
• an objective tone that avoids emotive language
• headings, sub-heading and numbering to separate your arguments
• paragraphs and complete sentences to develop your position, not dot points
• arguments based on evidence from case reports and scholarly sources, which must be cited using AGLC4
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What is a Case Note?

For some writers it means a summary; for others, a summary plus a critical commentary.  Check the assignment instructions.  If you have to write a summary plus a critical commentary, it's usually best to answer in two sections.  Some assignments have four sections, basically covering the same divisions.

What goes into a case summary?

This is your understanding of the case in your own words, as briefly and succinctly as possible (aim at less than 10% of the word count, or else proportional to the marks).  It may start with:

• the case citation (choose the most authoritative report series)
• parties (legal terminology) and brief facts
• type of court and history of the case

and should then objectively cover the major aspects of the judgment, including:

• the major arguments presented by counsel
• ratio per judge, including commentary on the arguments presented

Read your assignment instructions carefully to make sure you are emphasising those areas highlighted by your lecturers.    Below is an example of some initial notes on a case, with some 'prompts' to move from the summary to the critique.  It is an aid to your reading, but you will need to be selective about what you include in your summary. 

Example of Notes from a Case   (from Monash University)

What is a Case Critique?

In a case critique you need to write analytically, creating an argument. This is your opinion on the case and the judgment, analysing why you consider the case important.

Your claims must be substantiated and referenced, and with a clear and logical argument defined by sub-headings.  You should adopt a clear position from which to examine the significance of the case.  In developing your argument, you will draw on the case and other materials to reveal that significance.

Depending on the assignment, you should: 

• look for one or more major features, either procedural or substantive, such as dissenting arguments, legislative base, use of evidence, cases presented, considered, applied etc.
• analyse the strengths and weaknesses of the case, especially those points that may give rise to policy amendments.
• comment on how the legal arguments made by counsel have been used by each judge.
• identify and analyse differences in the judges' reasoning.
• discuss the impact or significance of a case, carefully considering current legislation and precedent.  Sometimes you have a very recent case to critique, so you need to go back to the legislation and to previous cases on the same topic. 
• consider possible areas of legislative reform, if included in the instructions.

Look at published Case Notes

Most law journals regularly publish case notes, especially on recent decisions.  You can choose:

• a general legal journal, such as the Law Institute Journal available for access in AUSTLII
• a general academic journal, such as Monash University Law Review
• or a journal dealing with a specific area of law such as the Journal of Equity available for access in Lexis Nexis.

See an example of a case note in AUSTLII.  

Another approach is to use a case citator, such as CaseBase, to find the case and associated commentary.  The articles referred to may be case notes or more general commentary covering the legal issues involved in the case.

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How to write a case brief for law school: Excerpt reproduced from Introduction to the Study of Law: Cases and Materials ,

Third edition (lexisnexis 2009) by michael makdisi & john makdisi.

C. HOW TO BRIEF

The previous section described the parts of a case in order to make it easier to read and identify the pertinent information that you will use to create your briefs. This section will describe the parts of a brief in order to give you an idea about what a brief is, what is helpful to include in a brief, and what purpose it serves. Case briefs are a necessary study aid in law school that helps to encapsulate and analyze the mountainous mass of material that law students must digest. The case brief represents a final product after reading a case, rereading it, taking it apart, and putting it back together again. In addition to its function as a tool for self-instruction and referencing, the case brief also provides a valuable “cheat sheet” for class participation.

Who will read your brief? Most professors will espouse the value of briefing but will never ask to see that you have, in fact, briefed. As a practicing lawyer, your client doesn’t care if you brief, so long as you win the case. The judges certainly don’t care if you brief, so long as you competently practice the law. You are the person that the brief will serve! Keep this in mind when deciding what elements to include as part of your brief and when deciding what information to include under those elements.

What are the elements of a brief? Different people will tell you to include different things in your brief. Most likely, upon entering law school, this will happen with one or more of your instructors. While opinions may vary, four elements that are essential to any useful brief are the following:

(a) Facts (name of the case and its parties, what happened factually and procedurally, and the judgment)

(b) Issues (what is in dispute)

(c) Holding (the applied rule of law)

(d) Rationale (reasons for the holding)

If you include nothing but these four elements, you should have everything you need in order to recall effectively the information from the case during class or several months later when studying for exams.

Because briefs are made for yourself, you may want to include other elements that expand the four elements listed above. Depending on the case, the inclusion of additional elements may be useful. For example, a case that has a long and important section expounding dicta might call for a separate section in your brief labeled: Dicta. Whatever elements you decide to include, however, remember that the brief is a tool intended for personal use. To the extent that more elements will help with organization and use of the brief, include them. On the other hand, if you find that having more elements makes your brief cumbersome and hard to use, cut back on the number of elements. At a minimum, however, make sure you include the four elements listed above.

Elements that you may want to consider including in addition to the four basic elements are:

(e) Dicta (commentary about the decision that was not the basis for the decision)

(f) Dissent (if a valuable dissenting opinion exits, the dissent’s opinion)

(g) Party’s Arguments (each party’s opposing argument concerning the ultimate issue)

(h) Comments (personal commentary)

Personal comments can be useful if you have a thought that does not fit elsewhere. In the personal experience of one of the authors, this element was used to label cases as specific kinds (e.g., as a case of vicarious liability) or make mental notes about what he found peculiar or puzzling about cases. This element allowed him to release his thoughts (without losing them) so that he could move on to other cases.

In addition to these elements, it may help you to organize your thoughts, as some people do, by dividing Facts into separate elements:

(1) Facts of the case (what actually happened, the controversy)

(2) Procedural History (what events within the court system led to the present case)

(3) Judgment (what the court actually decided)

Procedural History is usually minimal and most of the time irrelevant to the ultimate importance of a case; however, this is not always true. One subject in which Procedure History is virtually always relevant is Civil Procedure.

When describing the Judgment of the case, distinguish it from the Holding. The Judgment is the factual determination by the court, in favor of one party, such as “affirmed,” “reversed,” or “remanded.” In contrast, the Holding is the applied rule of law that serves as the basis for the ultimate judgment.

Remember that the purpose of a brief is to remind you of the important details that make the case significant in terms of the law. It will be a reference tool when you are drilled by a professor and will be a study aid when you prepare for exams. A brief is also like a puzzle piece.

The elements of the brief create the unique shape and colors of the piece, and, when combined with other pieces, the picture of the common law takes form. A well-constructed brief will save you lots of time by removing the need to return to the case to remember the important details and also by making it easier to put together the pieces of the common law puzzle.

D. EXTRACTING THE RELEVANT INFORMATION: ANNOTATING AND HIGHLIGHTING

So now that you know the basic elements of a brief, what information is important to include under each element? The simple answer is: whatever is relevant. But what parts of a case are relevant? When you read your first few cases, you may think that everything that the judge said was relevant to his ultimate conclusion. Even if this were true, what is relevant for the judge to make his decision is not always relevant for you to include in your brief. Remember, the reason to make a brief is not to persuade the world that the ultimate decision in the case is a sound one, but rather to aid in refreshing your memory concerning the most important parts of the case.

What facts are relevant to include in a brief? You should include the facts that are necessary to remind you of the story. If you forget the story, you will not remember how the law in the case was applied. You should also include the facts that are dispositive to the decision in the case. For instance, if the fact that a car is white is a determining factor in the case, the brief should note that the case involves a white car and not simply a car. To the extent that the procedural history either helps you to remember the case or plays an important role in the ultimate outcome, you should include these facts as well.

What issues and conclusions are relevant to include in a brief? There is usually one main issue on which the court rests its decision. This may seem simple, but the court may talk about multiple issues, and may discuss multiple arguments from both sides of the case. Be sure to distinguish the issues from the arguments made by the parties. The relevant issue or issues, and corresponding conclusions, are the ones for which the court made a final decision and which are binding. The court may discuss intermediate conclusions or issues, but stay focused on the main issue and conclusion which binds future courts.

What rationale is important to include in a brief? This is probably the most difficult aspect of the case to determine. Remember that everything that is discussed may have been relevant to the judge, but it is not necessarily relevant to the rationale of the decision. The goal is to remind yourself of the basic reasoning that the court used to come to its decision and the key factors that made the decision favor one side or the other.

A brief should be brief! Overly long or cumbersome briefs are not very helpful because you will not be able to skim them easily when you review your notes or when the professor drills you. On the other hand, a brief that is too short will be equally unhelpful because it lacks sufficient information to refresh your memory. Try to keep your briefs to one page in length. This will make it easy for you to organize and reference them.

Do not get discouraged. Learning to brief and figuring out exactly what to include will take time and practice. The more you brief, the easier it will become to extract the relevant information.

While a brief is an extremely helpful and important study aid, annotating and highlighting are other tools for breaking down the mass of material in your casebook. The remainder of this section will discuss these different techniques and show how they complement and enhance the briefing process.

Annotating Cases

Many of you probably already read with a pencil or pen, but if you do not, now is the time to get in the habit. Cases are so dense and full of information that you will find yourself spending considerable amounts of time rereading cases to find what you need. An effective way to reduce this time is to annotate the margins of the casebook. Your pencil (or pen) will be one of your best friends while reading a case. It will allow you to mark off the different sections (such as facts, procedural history, or conclusions), thus allowing you to clear your mind of thoughts and providing an invaluable resource when briefing and reviewing.

You might be wondering why annotating is important if you make an adequate, well-constructed brief. By their very nature briefs cannot cover everything in a case. Even with a thorough, well-constructed brief you may want to reference the original case in order to reread dicta that might not have seemed important at the time, to review the complete procedural history or set of facts, or to scour the rationale for a better understanding of the case; annotating makes these tasks easier. Whether you return to a case after a few hours or a few months, annotations will swiftly guide you to the pertinent parts of the case by providing a roadmap of the important sections. Your textual markings and margin notes will refresh your memory and restore specific thoughts you might have had about either the case in general or an individual passage.

Annotations will also remind you of forgotten thoughts and random ideas by providing a medium for personal comments.

In addition to making it easier to review an original case, annotating cases during the first review of a case makes the briefing process easier. With adequate annotations, the important details needed for your brief will be much easier to retrieve. Without annotations, you will likely have difficulty locating the information you seek even in the short cases. It might seem strange that it would be hard to reference a short case, but even a short case will likely take you at least fifteen to twenty-five minutes to read, while longer cases may take as much as thirty minutes to an hour to complete. No matter how long it takes, the dense material of all cases makes it difficult to remember all your thoughts, and trying to locate specific sections of the analysis may feel like you are trying to locate a needle in a haystack. An annotation in the margin, however, will not only swiftly guide you to a pertinent section, but will also refresh the thoughts that you had while reading that section.

When you read a case for the first time, read for the story and for a basic understanding of the dispute, the issues, the rationale, and the decision. As you hit these elements (or what you think are these elements) make a mark in the margins. Your markings can be as simple as “facts” (with a bracket that indicates the relevant part of the paragraph). When you spot an issue, you may simply mark “issue” or instead provide a synopsis in your own words. When a case sparks an idea — write that idea in the margin as well — you never know when a seemingly irrelevant idea might turn into something more.

Finally, when you spot a particularly important part of the text, underline it (or highlight it as described below).

With a basic understanding of the case, and with annotations in the margin, the second read-through of the case should be much easier. You can direct your reading to the most important sections and will have an easier time identifying what is and is not important. Continue rereading the case until you have identified all the relevant information that you need to make your brief, including the issue(s), the facts, the holding, and the relevant parts of the analysis.

Pencil or pen — which is better to use when annotating? Our recommendation is a mechanical pencil. Mechanical pencils make finer markings than regular pencils, and also than ballpoint pens. Although you might think a pencil might smear more than a pen, with its sharp point a mechanical pencil uses very little excess lead and will not smear as much as you might imagine. A mechanical pencil will also give you the freedom to make mistakes without consequences. When you first start annotating, you may think that some passages are more important than they really are, and therefore you may resist the urge to make a mark in order to preserve your book and prevent false guideposts. With a pencil, however, the ability to erase and rewrite removes this problem.

Highlighting

Why highlight? Like annotating, highlighting may seem unimportant if you create thorough, well-constructed briefs, but highlighting directly helps you to brief. It makes cases, especially the more complicated ones, easy to digest, review and use to extract information.

Highlighting takes advantage of colors to provide a uniquely effective method for reviewing and referencing a case. If you prefer a visual approach to learning, you may find highlighting to be a very effective tool.

If annotating and highlighting are so effective, why brief? Because the process of summarizing a case and putting it into your own words within a brief provides an understanding of the law and of the case that you cannot gain through the process of highlighting or annotating.

The process of putting the case into your own words forces you to digest the material, while annotating and highlighting can be accomplished in a much more passive manner.

What should you highlight? Similar to annotating, the best parts of the case to highlight are those that represent the needed information for your brief such as the facts, the issue, the holding and the rationale.

Unlike annotating, highlighting provides an effective way to color code, which makes referring to the case even easier. In addition, Highlighters are particularly useful in marking off entire sections by using brackets. These brackets will allow you to color-code the case without highlighting all the text, leaving the most important phrases untouched for a more detailed highlight marking or underlining.

Highlighting is a personal tool, and therefore should be used to the extent that highlighting helps, but should be modified in a way that makes it personally time efficient and beneficial. For instance, you might combine the use of annotations in the margins with the visual benefit of highlighting the relevant text. You may prefer to underline the relevant text with a pencil, but to use a highlighter to bracket off the different sections of a case. Whatever you choose to do, make sure that it works for you, regardless of what others recommend. The techniques in the remainder of this section will describe ways to make full use of your highlighters.

First, buy yourself a set of multi-colored highlighters, with at least four, or perhaps five or six different colors. Yellow, pink, and orange are usually the brightest. Depending on the brand, purple and green can be dark, but still work well. Although blue is a beautiful color, it tends to darken and hide the text.

Therefore we recommend that you save blue for the elements that you rarely highlight.

For each different section of the case, choose a color, and use that color only when highlighting the section of the case designated for that color. Consider using yellow for the text that you tend to highlight most frequently. Because yellow is the brightest, you may be inclined to use yellow for the Conclusions in order to make them stand out the most. If you do this, however, you will exhaust your other colors much faster than yellow and this will require that you purchase an entire set of new highlighters when a single color runs out because colors such as green are not sold separately. If instead you choose to use yellow on a more frequently highlighted section such as the Analysis, when it comes time to replace your yellow marker, you will need only to replace your yellow highlighter individually. In the personal experience on one of the authors, the sections of cases that seemed to demand the most highlighter attention were the

Facts and the Analysis, while the Issues and Holdings demanded the least. Other Considerations and

Procedural History required lots of highlighting in particular cases although not in every case.

Experiment if you must, but try to choose a color scheme early on in the semester and stick with it. That way, when you come back to the first cases of the semester, you will not be confused with multiple color schemes. The basic sections of a case for which you should consider giving a different color are:

• Procedural History

• Issue (and questions presented)

• Holding (and conclusions)

• Analysis (rationale)

• Other Considerations (such as dicta)

Not all of these sections demand a separate color. You may find that combining Facts and Procedural History or Issues and Holdings works best. Furthermore, as mentioned above, some sections may not warrant highlighting in every case (e.g., dicta probably do not need to be highlighted unless they are particularly important). If you decide that a single color is all that you need, then stick to one, but if you find yourself highlighting lots of text from many different sections, reconsider the use of at least a few different colors. Highlighters make text stand out, but only when used appropriately. The use of many colors enables you to highlight more text without reducing the highlighter’s effectiveness. Three to four colors provides decent color variation without the cumbersomeness of handling too many markers.

Once you are comfortable with your color scheme, determining exactly what to highlight still may be difficult. Similar to knowing what to annotate, experience will perfect your highlighting skills. Be careful not to highlight everything, thus ruining your highlighters’ effectiveness; at the same time, do not be afraid to make mistakes.

Now that we have covered the basics of reading, annotating, highlighting, and briefing a case, you are ready to start practicing. Keep the tips and techniques mentioned in this chapter in mind when you tackle the four topics in the remainder of this book. If you have difficultly, refer back to this chapter to help guide you as you master the case method of study and the art of using the common law.

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Bluebook Guide: Basic Case Citation

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Case Citation

Basic Citation

The precise format of a case citation depends on various factors, including the jurisdiction, court, and type of case.  Review the rest of this section on case citations and the relevant rules in The Bluebook before trying to format a case citation for the first time.  See R10, pp. 95-118.

Elements of a Citation

1.  Case Names 2.  Reporters & Other Sources 3.  Court & Jurisdiction 4.  Date or Year 5.  Parenthetical Information 6.  Prior & Subsequent History

In court documents (the former examples), a full case name is generally italicized or underlined.  For a law review article footnote (the latter example), such as a law review article, the full case name is not underlined or italicized.

In its Q uick Style Guide,  The Bluebook  provides some  online examples  to illustrate how to cite commonly used sources in accordance with the Whitepages, which are intended for use in law review footnotes.

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Policies: Examples and Hypotheticals

1. Students X, Y and Z are sitting around a table in the library working on a group research exercise assigned by the professor which is due tomorrow. The objective of the assignment is to build on the research skills of the students. The students are talking about how to navigate the books to find the answers to the questions posed. The students confirm with each other the cases they found and correct the one student who went off on a research tangent. They discuss and decide what went wrong in the research trail.

Ans: This is NOT a violation. Assignments which are designated to be small group exercises are designed so that students can work together to increase their skills. Here the exercises are created to support the text and lecture materials previously assigned by the faculty member in the area of research skill development.

2. Students X, Y, Z are sitting around a table in the cafeteria discussing research strategies and about how to approach Assignment # 3 which was just handed out in class. They take out their notes from the research group work and generally strategize on a plan of attack. Students do not discuss search terms, specific volumes of digests or secondary sources. They leave to write their own individual research plans due on Friday.

Ans: This is NOT a violation. General review of available materials such as secondary materials, digests, reports and Sheppards are appropriate discussion points. A violation WOULD OCCUR if the students moved beyond skill development and began to discuss specific aspects of a graded assignment.

3. A week later students X, Y, Z get back together to compare notes about which articles and cases they found. They swap articles and cases to make sure each of the friends has the same material. All agree to come back next week to talk about writing their papers.

Ans: This IS a violation. The students have crossed an ethical line. Research skills, both with primary and secondary source materials, directly tied to a graded assignment are meant to be assessed on an individual basis. While the assessment of researching skills within each LRW section may be done in a variety of ways, students who share materials for graded assignments take away the ability for individual assessment and counseling regarding their skills.

4. In the third week, students X, Y, Z get back together. They have all been given back comments on their second papers. No rewrite is scheduled for the assignment. They have a variety of organizational, analytical and technical writing issues. Students spend the time looking at what each student did right and wrong on the second assignment. They run out of time to discuss the third assignment so they agree to meet again the following week.

Ans: This is NOT a violation. After graded assignments are returned, as long as they are not subject to a rewrite, students are permitted to compare results. While permitted, this is up to the individual student to make this determination .

5. In the fourth week, students X, Y, Z get back together. This time they compare cases and articles which each had found during research. They discuss how each may or may not be applicable to the hypo and decide which cases to use and which to toss.

6. Student Q is really struggling in her LRW class; the scores on her first two papers have her worried. She does not understand how to structure Explanation and Application paragraphs. Student Q goes to Student A and asks her to explain how to pattern competently drafted E and A paragraphs. Student A talks through the appropriate pattern for E and A paragraphs using samples given out by the professor.

Ans: This is NOT a violation. Students Q and A are discussing skill development. They are reviewing texts, lectures and materials discussed in class which are designed to allow each student to learn to draft competent Explanation and Application paragraphs. This kind of interaction is encouraged by the LRW Faculty.

7. Student X meets with his teaching assistance during his office hours. The TA has been directed by the faculty member to confirm with the students if their case selection is headed in the right direction. Student X has an appropriate case for the first issue tested in the assignment but is not on track for the second issue. The TA confirms that the case selected by Student X is one of the acceptable cases for the first issue and gives the appropriate guidance which will allow student X to continue his research for the second issue. Student X sends an email to students Y and Z that he has the correct case for the first issue and suggests that the others try their cases with the TA to determine the correct case for the second issue.

Ans: MIXED RESULT. Student X and the TA have engaged in pre-designed communications. These types of interactions are encouraged by LRW Faculty. These interactions allow for students to be encouraged that they are on the correct paths and to be given guidance if they are not on the correct heading.

Communications between Student X, Y and Z are violating the ethics code. Not only are the students limiting their own research skill development, Student X is encouraging manipulation of TA/Student relationship. The students are attempting to gain an advantage over the rest of the students in the class.

8. Student Y has a conference scheduled with her faculty member to go over a portion of her paper that she is struggling with. During the conference the faculty member and the student use highlighters to diagnose the challenges the student is having with paragraph structure and depth of analysis. Student Y has a "light bulb" moment about paragraph construction. The faculty member also reads the student's Question Presented. The faculty member helps the student to determine that all necessary items are contained within the Question Presented and will likely achieve a competent score on this part of the paper. After the conference, student Y emails her friends that the highlighting exercise is the way to go to understand paragraph construction; she suggests that they all perform this exercise on their papers. In a second email the student cuts and pastes her Question Presented and tells her friends to use it as a guide.

Ans: MIXED RESULT. Student Y and the faculty member are engaged in individual assessment and counseling with the aim of developing the student's writing skills. Skill building exercises such as the use of highlighters to identify various portions of paragraphs are essential to skill development. Sharing and encouraging other students to utilize these types of exercises is encouraged by the LRW faculty.

9. However, once the student emailed her upgraded individual work to other students to copy and use as a guide, the student crossed the ethical line. Work that is to be assessed on an individual basis needs to be produced by the student on his/her own. 10. The week before their final papers are due, the students return to their study group with drafts which are 90% complete. They would like a fresh eye for their papers so they all exchange. They do not revise each other's papers because they know that is not allowed, but they comment on what they have read. They also point out typos, citation errors and the like to one another.

Ans: This IS a violation. The students have crossed an ethical line. Student's progress in their writing skill development is to be assessed on an individual basis. Production of drafts and final written products are to be the work of the individual. The only exception to this would be if the TA or the faculty member is commenting on the draft the student has produced.

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