Advanced Briefing Issues

By this time you are well into the briefing process, have begun to focus on the "legal" aspects of the cases, and have already begun that nebulous process of thinking like a law student. You "speak" in terms of "legal obligations," "promises," "subjective and objective manifestations of intent." And, if you are blessed, your friends, parents and significant others are still speaking to you despite your odd and sometimes annoying behavior. To assist in continued communication between you and the rest of the non-law school world AND to continue your development as a lawyer (v. law student), consider adding these additional comments to your briefs.

Contextual Summarizing Paragraph

This paragraph is best drafted after you have briefed the case. It should include:

Identify the Party Relationships:
The plaintiff and defendant had a relationship before they became "parties." That relationship could have had several components to it, could have existed apart from the transaction at issue, or could have arisen solely as a result of the transaction. Often aspects of this relationship affect the court's analysis in implicit or explicit ways. Examples of party relationships include:

  • neighbor/neighbor employer/employee
  • father/daughter adult/child
  • lender/borrower seller/buyer
  • buyer/seller (w/history of prior dealings)
  • buyer/seller (w/o history of prior dealings)

Identify the Party Objectives:
Before arriving in court, the parties obtained lawyers. Identify what the party hoped to accomplish by obtaining a lawyer. In most opinions this question can be answered by viewing the party's objectives from the point at which the litigation began. Do not confuse these objectives (to collect/avoid paying money) with procedural objectives (proving error/seeking to have document admitted) or legal objectives (proving a promise/duress).

The information describing the parties' objectives is often found within the first few paragraphs of the opinion. If the opinion describes the plaintiff's objective but does not indicate the defendant's objective, assume the defendant's only objective is to prevent the plaintiff from obtaining his or her objective. If there is no clear indication in the opinion of the parties' objectives, infer the objectives from the nature of the dispute and from any other clues you find in the opinion. Examples of party objectives might include:

  • Plaintiff wants to recover $ for services. Defendant wants to avoid paying for performed services.
  • Plaintiff wants to recover $ for damaged goods. Defendant wants to avoid paying for damaged goods.
  • Plaintiff wants to pay less than Defendant. Defendant wants to be paid what the work demands are worth.
  • Plaintiff wants to be paid more. The Defendant wants to pay only what parties originally agreed.
  • Plaintiff wants to avoid performing. Defendant wants to force Plaintiff to perform.
  • Plaintiff wants to perform. Defendant wants to prevent Plaintiff from performing.

Identify the Legal Theory advanced (by the lawyer) to obtain the party's objectives:
The lawyer "translated" the party's objective into a legal theory. A legal theory for obtaining relief is based on a legal principle that would entitle the aggrieved party to the relief s/he seeks. A legal theory for defeating the request for relief is called the defense. At the trial level the legal theories become the "substantive" issues. At the appellate level the legal theories become the "procedural" issues.

A theory must be based on one or more legal principles. ie., there was no contract because the plaintiff did not promise to do anything. In many cases, the defense's theory is simply the opposite of the plaintiff's theory. I.e., Plaintiff did promise to do something. However, sometimes the case indicates the Defendant advanced more than one defensive theory.

In addition to being based on a rule of law, the legal theory or defense could also involve reference to a precedent case. i.e., These facts are the same as the facts in X, therefore the court should apply the rule the same way in this case.

Concluding/Reflective Paragraph
This paragraph is best drafted after you have briefed and studied the case. However, to help you "generate" reflections, consider the following:

  •  After reading the facts and before reading the opinion, ask yourself who should win. In your gut, which party is in the right? If you were the lawyer listening to the story, which party would you rather represent? (This is the "visceral" response).
  • After reading the court's opinion, ask yourself if you agree with the legal outcome. Is it well-reasoned? Does it make unwarranted assumptions? Did the opinion persuade you? (This is the "intellectual" response).
  • Finally, include any further reflections you might generate based on the comparison of your visceral and intellectual responses? If they do not coincide, does this make you look at the court's opinion differently? More closely? More critically? Where is the point/statement that you disagree with and why? If they coincide, does it make you look at the court's opinion differently?
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