MORE FROM THE LAW SCHOOL TOOL CHEST

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Law school did more than stuff my head with the arcane language of the law and credential me to sit for the bar.  Even now, eight years officially retired from practice, I still occasionally resort to a method I learned there for addressing knotty problems.

It is the procedure known as “briefing the case.”  Nobody forces any law school student to do it.  But it’s one of the first things you’re taught before you’re taught anything else, and once you’ve mastered it, it continues to help whenever you find yourself in a situation or face a dilemma you feel you can’t untangle or think about clearly.

New students are urged to brief cases — at least during the first year — because American law schools rely on the casebook method of instruction.  There is no “textbook” per se. There are “hornbooks,” which are rather like textbooks, but you’re not required to buy them;  at best, they provide auxiliary help in understanding what you’re supposed to be learning about. Instead, for each course you purchase a book of opinions  — usually from appeals courts, sometimes from federal trial courts — known as the “casebook.”

A “case” (the reported opinion) is not so easy to read.  The plot part — namely the facts of what happened to bring the matter to court — is usually succinctly summarized near the beginning, without characterization, dialogue, suspense, or anything else that might make the story pleasurable reading. Then the court goes off into lengthy discussion of precedents, legal argument from both sides, its own reasoning on the matter, and at long last the result — in all of which it is very easy for the novice to get lost.

What was the case about?  Why was it assigned?  How does the willing but bewildered student deal with assignments of two or three cases for each class in each subject, when there are three subjects that meet for class three times a week and two that meet  twice a week?  Six to nine cases to prepare for Monday, for Wednesday and again for Friday, and four to six for Tuesday and for Thursday.   (Not to mention assignments for your Legal Writing classes.)   “Prepare” means “get yourself ready to answer aloud questions about any aspect of the case that may, arbitrarily, be directed at you in class.”

Aha!  That’s where the “briefing” comes in.  With this handy helper, you will have every case down pat in no time.  Or your notebook will.  (Well, not exactly “no time.”  But more quickly than if you tried to struggle on without briefing.)  It’s an armature on which to build your notes of the case, and this is how it goes:

Question Presented:
Short Answer:
Facts:
Analysis:
Conclusion:

The “Question Presented” is of course the legal question that has been brought before the court.  You may have to read the whole case before identifying what you should put down here, but you will eventually find it somewhere in the forest of text.

“Short Answer” usually has to wait until you’ve filled in everything else.  [The very new student may get it wrong and have to correct the briefing after class, but that’s okay.  You learn by doing.]

The “Facts” section is relatively easy to do, once you remember to keep it terse and leave out absolutely everything extraneous to the Question Presented.

The “Analysis” section will contain the detailed pros and cons of answering the Question Presented one way or the other, with citation to legal authority — namely, other past decisions that seem to be on point with the Facts of the case, or can be distinguished from them.

The “Conclusion” should provide the outcome of the court’s analysis, with explanation.  The student can then boil down the Conclusion into a sentence or two for the Short Answer.  [When studying for the examination at the end of the year, Short Answers will be more helpful in making an outline than having to re-read the entire Conclusion of every case covered in the nine months of the course.]

Briefing cases is laborious at first.  After a few months, it gets easier and goes more quickly.  After the first year, you don’t really need to do it anymore.  You will have learned how to read cases like a lawyer — which will be important when you begin to practice law, because you will have to read many cases to find the ones supporting your client’s position and also the ones that don’t (so you can argue away their relevance in court).

How is all this of use to you, the non lawyer?  Or to me, now that I’m a retired one?  Well, this is how.  When you’re really stuck, it works to unstick you.  Take the hypothetical of an unhappily married person who feels he or she cannot go and cannot stay.  Not our problem, I know — but as good an illustration as any.

Question Presented: This is not the place for “either…or.”  Put down,”Go?” Or put down,”Stay?” You’ll come out at the same point in the end however you phrase it, but it’s simpler to ask just one question.

Short Answer:  Wait on this one until you’ve written out the “Conclusion.”

Facts: All the pro facts, all the con facts.  But facts, not feelings.  If a feeling is a fact, then it needs a “because.”  As in, “I hate her because….”

Analysis: Do the good things about the marriage (as identified in “Facts”) outweigh the bad?  By how much?  Or is it vice versa? Here’s also the place for your knowledge, if any, of how divorce affects the various members of families who have experienced it. What benefits are likely to ensue from a decision to go? A decision to stay?  How well are you able to address the sorts of difficulties that will almost certainly arise if you leave? Be honest: Consider financial, emotional, parental, social results, as well as everything else you can think of that seems relevant to reaching a conclusion.  In addition, consider what might/ would make the present, seemingly untenable, situation better?

Conclusion:  This may, in the end, be to not  come to a conclusion just yet, but first try another less drastic solution to the problem. If so, let your “court” make some suggestions as to possible directions in this part of the briefing, such as counseling,  or spiritual guidance (if that’s important to you).  Alternatively, by the time you’ve written everything out, the conclusion may unquestionably be a “Stay!” or a “Go!”  Now you can fill in the Short Answer you were unable to reach before.

See how it clears the air to be so methodically rational? But of course that’s just a hypothetical, to show you how it works.  Since we’ve already agreed that nobody here is thinking of fleeing the nest, let’s try something more likely to occur in day-to-day life.  How about: whether you should subscribe to an expensive concert series you’d love to attend but would have to charge because you haven’t got ready cash right now?  Or whether you should accept a nomination to chair something, be president of something, supervise something — when you’ve got enough on your plate already but don’t want to offend, disappoint, be ill-thought of? And like that.

If in the end you conclude you don’t want to be rational about it, that’s fine.  That’s a Short Answer, too.  See how considering what would be involved in a rational decision has helped you come to an irrational one? Now you know exactly what you’re doing, and will be able to answer any questions about it directed to you in class!

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