Law School Case Briefs:
Don't Waste Time Briefing Cases

If I could give just one piece of advice, it would be: "In law school case briefs are useless; don't brief cases."

With the students I tutor, it is literally the first piece of advice I give.

I also have tutored 1L students starting in their second semester. Usually they were unhappy with their first semester grades. My first question is always, "Did you spend the whole semester briefing cases?" The answer is often a dejected "Yes."

Okay, let's take a step back. You are thinking, "What the heck are law school case briefs? And why should I not write these things?" Answered below in two parts.

Part 1: What the heck are law school case briefs?

Scott Turow--best-selling author, the most famous Harvard Law School graduate ever, and still-practicing lawyer--described reading the legal opinions in a law school casebook as like stirring cement with your eyelashes. It really is, at first. They are confusing blocks of text that don't explain themselves.

In law school case briefs are a way of helping the beginning law student impose order on these opinions by taking the various parts of the case and identifying them. It is very much like, say, a practical examination in high school biology lab where you dissect a (hopefully dead) animal and identify the body parts: there is the spleen, brain, liver, etc. (Not the most appetizing analogy, right? Sorry.)

A case brief is a written guide, usually drafted by a law student as she does her case reading, that dissects a case and identifies various parts of the case, such as:

  • Parties: Identifying by name the plaintiffs, defendants, and any third-parties dragged in--or, since you mostly read appellate cases, appellant and appellee, or petitioner and respondent (in the U.S. Supreme Court).

  • Facts: Usually a short narrative that can include any or all of the journalistic 5Ws and H: Who, What, When, Where, Why and How. What happened?

  • Procedural Posture: In other words, what court wrote this opinion, and how did it reach that court? What did the lower courts (usually a trial court) decide?

  • Issue(s): Usually phrased as a question susceptible to a yes/no response, identifying what exactly the court was asked had to decide ("Was defendant liable for fraudulent misrepresentation when he claimed that the car was in good shape when the day before a mechanic told him the car should be sent to the junk yard?").

  • Holding(s): What did this court decide? What, in one line, was the court's answer to the legal question identified as "The Issue."

  • Reasoning: The court's means of justifying its holding, usually referring to previous case law, statutes, the Constitution, or whatever source provides the court the means of deciding the issue raised.

  • Rule: The more abstract formulation of the court's holding that might apply to other cases.

  • Dicta: Other interesting things the court may have said on its way to deciding the case.

  • Concurring/Dissenting Opinions: Other interesting things the court may have said on its way to deciding the case.

Part 2: What is wrong with law school case briefs again? Why should I not write them?

Indulge me, for a moment, and allow me to make a highly entertaining, heartfelt, but apparently (at first glance only) far-fetched analogy between writing case briefs and a pivotal scene in the The Karate Kid (the original one with Ralph Macchio and Pat Morita, not the one with Jackie Chan and Will Smith's son that was about kung fu and not even about karate). Skip what follows if you just want to accept my point that in law school case briefs should be banned. But, you know, your loss if you want to miss out on total awesomeness.

So here starts my amazingly moving and awesomely poetic analogy between case briefs and The Karate Kid:

So in The Karate Kid, after noticing Daniel-san's repeated problems with well-trained bullies (all of them blonde, it's California, after all), Mr. Miyaga promises to teach Daniel-san some karate. He starts by forcing Daniel-san to perform a bunch of apparently pointless, labor-intensive menial tasks--wax on, wax off on an endless series of cars, paint the fence (up, down, up, down), etc. The work is endless and Sissyphian, if that is the adjective.

Daniel-san does everything he is told and is patient with this apparently pointless work. Until he isn't. One day he snaps and yells at Mr. Miyagi: "When are you going to teach me karate?" At which point Mr. Miyagi says, "Show me 'Wax on, wax off.'" Just as Daniel-san starts doing it unenthusiastically, Mr. Miyagi screams and throws a lethal volley of punches and kicks at him, yet Daniel-san blocks them all. Amazed with his new-found skills, Daniel-san walks off into the warm, California night confident that . . . he's got a good start on learning karate.

Here is the analogy:

In law school case briefs are just like doing wax-on, wax-off.

It is an initially helpful training to help the totally new law student develop the skill to do one fundamental thing: read legal cases and pick out the critical parts of them Similarly, wax-on, wax-off was an initial training for a totally new, raw karate student on how to do the most fundamental thing: not get hit.

But notice: In The Karate Kid, after he learned to defend himself, Daniel-san did not continue to wax-on, wax-off, paint the fence, paint the fence--he stopped these apparently useless exercises because for him they became actuallyuseless. He had to learn other skills--punching, kicking, and standing on one leg--in order to learn all of karate.

To me, briefing all of the cases you read the whole semester is like an alternate version of the Karate Kid in which Daniel-san, after learning to block punches and kicks, then spends the rest of the damned movie happily practicing wax-on, wax-off, paint the fence, paint the fence until the tournament, at which point, he loses because he earns no points, failing to throw a single punch or kick at the first glass-jawed moron he fights. That also means he never gets to crane-kick Johnny in the face.

Turns out that punching and kicking are pretty critical skills to karate, letting alone winning a tournament.

In many schools, and at mine, you were only required to brief cases perhaps the first week, and maybe only in your legal writing course. Here is my rule of thumb:

Only write law school case briefs for the first week, and then never, ever do it again.

Indeed, you never stop using the skill of reading cases and finding the issue, the holding, the reasoning, etc. It becomes second-nature, and you do it unthinkingly and without writing everything down. If you want, you can just write notes or underline things in your case book after that identifying key parts of the cases you read.

Nevertheless, many law students continue to write case briefs for every single case they read the rest of the semester.

Do you have any idea how much work this is?

For any given class, you might read 3-5 cases for each hour you spend in class. You've got anywhere from 12 to 15 class hours per week, meaning that on top of doing the reading (which itself takes a while), you're going to write (let's be conservative) 36 case briefs per week? And let's say you just take 15 minutes on each case brief: That is still an 9 extra hours of work every week.

Oh, well, spending 9 hours a week is not a big deal, right? It's time well spent, right?

Wrong.

Some students I have worked with spent so much time on case briefs that they did not have time to do two absolutely critical things in studying for their final exams: outline their courses and take practice exams.

Outlining and taking practice exams--to stretch this analogy beyond recognition--are like learning to punch and kick. You can't succeed in law school without doing these things.

Remember, this site is called Law School Hacker, not Kill Yourself With Pointless Work in Law School.

If in law school case briefs seem like something you want to do, because you heard from someone that you had to do them to get good grades, or because your classmates are writing them, or because it makes you feel like you're working hard, ask yourself:

After briefing cases, do I have sufficient time to outline well and take multiple practice exams for each of my classes?

If your answer is yes, think again, really think again and be sure you are not deluding yourself, because you don't have much time. But if you are sure that the answer is "yes", then brief away.

Otherwise, you should not write case briefs.

Work smarter and skip them: you will already work hard enough.

And, honestly, ask yourself if you are going to use most of the information you put in your law school case briefs: Do you really think any exam will test you on the procedural posture or dissenting opinions of a particular case?

(Here's a hint: No, absolutely not.)

To sum up: Waxing a car, painting a fence, and writing law school case briefs? Critical skills that should be left behind once you've mastered them so you can go on to learn all of the others skills you'll need. Otherwise, Johnny and Cobra Kai (or the equivalents thereof in your section) win.

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