Legal Basics and Ethics – Day 1B and 2A Goals: Students will Learn the Cornell Note-taking method and be expected to utilize it during this class. Understand how to read and brief a case. Study for vocabulary quiz A – C.

Cornell Note Taking Method You need a system of note taking that is simple and keeps all your notes in one place. The Cornell method is most widely used in universities where you live or die by your notes. http://viewpure.com/Lu7WM_fmR1k http://viewpure.com/ogHIyREqLd4

Cases and Casebooks Briefing a case is the acting of creating a “brief” summary of relevant facts, issues, rule and reasoning of a particular you have read. When this this torture begin? In 1870 at Harvard a professor decided the best way to teach law students was to have them read actual law instead of textbooks that just state the law. Make the students “mine” the cases. Cases are the stuff of real life.

Socratic Method Dialogue wherein the professor grilled each student on what the cases meant. Idea is that each case illustrates one tiny rule out of the entire body of law By using this method, the student progressively learns not only the law but the process of legal reasoning. The method has not changed much in 130 years.

Why brief a case? Out of fear that the professor may call on you to answer a question! Cases are written by lawyers for lawyers Consequently there’s a unique structure and method unlike anything you have ever seen before. Once you learn it, it is easier to get by investing less time in the process.

It’s actually an outline . . . The brief should distill a case down to its elements, which allows you to immediately understand the principal legal issues at a glance. Three reasons to brief a case: Rewriting the material leads to better understanding Creates a cheat sheet for questions re the case Serves as a starting point for outlining

How to brief a case . . . (Briefing is a phase you will eventually grow out of as you learn to pick up the nuances of the cases and write in the margins of the case) Briefs should be a one-page summary of the case Not every case can be summed up in one page, more complex cases take more time and energy. If the judge or his/her law clerk are poor writers, it’s more difficult to brief.

Elements of Briefing Procedural History How did the case get to this particular court? Typically you will be reading a case up on appeal. What does this mean? Typically, the lower courts do not write opinions on their decisions. The case has already been decided at a lower level and appealed to a higher court. Ask: Who is appealing what issue? What happened in the lower court?

Elements of Briefing Legal Issue A well-written opinion begins by telling the legal issue up-front. If you are having trouble spotting the issue, look for the key word “whether” Look for language like: The question before the court I whether . . . This case was brought before us to decide whether . . . Appellate courts hear a case on appeal when there has been a problem in the lower court. Appeals give the higher court a chance to give guidance and establish precedent for lower courts to follow.

Elements of Briefing . . . Facts of a Case Statement of Rule A well-written case gives enough of the relevant facts that brought the parties to court so you can understand the procedural history. Statement of Rule The court should give a clear statement of the rule of law that controls the issue. The court often traces the development of law within its own jurisdiction The court refers to look within its own jurisdiction before it goes anywhere else for guidance. The judge then reaffirms the case holding or fashions a new rule that is hopefully consistent, yet evolves the law

Elements of Briefing . . . Policy Rules of law need reasoning behind them If there isn’t a sound policy behind the rule, then the court tries to fashion one that serves the principles of justice and equity. Sometimes a statute binds the judge and the opinion will follow the law, but the opinion will be written to give the legislature the guidance to encourage them to change the law.

Elements of Briefing . . . Dicta - refers to anything that isn’t relevant to the case’s holding. Often judges will use a case to expound upon their theories of the law. These theories may not be relevant to the case at hand, but it gives the judge a chance to give direction to the lower court for future similar cases. Dicta is not precedent, but is useful to determine how an appeals court would handle the case under a different set of circumstances.

Elements of Briefing . . . Reasoning – this is the analysis Holding The how and the why the court fits the particular facts and circumstances of this case into the rule. Holding This is the court’s decision on the issue The holding may be very narrow and only on one issue or be very broad. Tells “who wins” May be prefaced by “We hold that . . .” Should include the disposition of the case Affirm, overturned, remanded

Elements of Briefing . . . Concurrence Dissents A separate opinion in which one of the judges agrees with the result but has different reasoning Dissents Disagrees with the holding, and one or more appeals judges may write separate opinions telling why the decision is incorrect and tell what they would do. Sometimes are indications of a direction the court may eventually move towards when the composition of the court changes.