Negotiation Method

Topics: Appellate court, Appeal, Common law Pages: 51 (17675 words) Published: April 15, 2013


By Dana L. Blatt, Esq.

You are just about to start law school. You buy all of your required casebooks [they are about two feet thick–only “slightly” intimidating], and you receive your first assignment. You are simply told, “read the first 100 pages in each book and BRIEF all of the cases!”

O.K., you know how to read [hopefully], but what does it mean to “brief” a case? You have heard of “briefcases,” but that is something that you carry around. The last time you sang at a karaoke bar someone may have asked you to be “brief,” but instinctively you know that that is not the kind of brief that is being discussed here. And you may even be wearing “briefs.”

But, what is a brief of a case? For that matter, what is a case?

The purpose of this article is to teach exactly what briefs are, why they are important, and how to draft them. You will learn most of the various ways to brief a case, the basic elements of each brief, and how briefs are used in various contexts. Additionally, you will read sample cases and briefs of those cases in every format. By the time you finish reading this, you will be so sick of briefs, that you will wish this writing were much briefer! So, now let’s get down to business.

What is a case? A “case” starts out as a lawsuit between two or more people. The parties to the lawsuit have a trial and one party wins while the other loses (or possibly there is no trial but one of the parties wins because of a decision based on legal procedure). Next, the party who lost the case gets angry and bitter. So, he or she decides to file an appeal. An appeal is a request that a “higher court” [“™”] examine what was done in the trial court to make sure that no legal errors were committed. (The “higher court” is usually referred to as an appellate court. The “highest” appellate court is the Supreme Court.) Generally, there are no trials in appellate courts. Rather, an appeal is strictly a review by a panel of judges of what transpired in the trial court. The appeals courts usually make their decisions in writing. The written decision is called an opinion. It is called an opinion because it reflects the opinion of the justices as to what the law is for that particular factual situation. Since the decision is in writing, it is saved. [Not only is it saved, but it is cataloged and indexed ad nauseam.] Since the opinion has been saved, it can be located in the future whenever it is needed. Opinions have been saved and catalogued for hundreds of years. It is the fundamental theory of our entire legal system that once a case is decided, if there should ever be another case in the future that is the same as the decided case, that future case should be decided exactly the same way as the first case was decided. This is called stare decisis. In other words, the opinion effectively establishes a rule that is to be followed in the future for all similar cases. Moreover, since all of the opinions over the past hundreds of years have been saved, they can always be located and used as a basis to resolve a current legal dispute. The Common Law is the result of the collection of hundreds of years of written decisions by appellate courts in England before the United States was formed. The United States adopted the Common Law and it is the basis of our legal system. Thus, [to answer the question] a case, for purposes of this definition, is a written appellate court opinion which reviews the decision of a lower court and is, accordingly, now the “Law of the Land” according to the doctrine of stare decisis. In law school, what you will study is the aforementioned collection of appellate court opinions because they are “the law.”

What is a brief? A brief is nothing more than a summary of an appellate court opinion. That’s it–nothing more! [Now that you know, there is no reason to read the rest of this article.]...
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