Should you Case Brief in Law School?
Today I’d like to talk about whether you should case brief in law school. What's the answer?
No! Do not case brief.
If you're not sure what a case brief is, here's a quick overview.
A case consists of many different parts; some of which are theoretical, and some of which are actually labeled in the case itself. For example, the parties, who was involved in the case; the procedural posture, how the case got to the court of appeal. Was it an appeal from a trial, a motion to dismiss? Was it appealed from an intermediate court to the Supreme Court?
The questions presented: what legal questions did the court of appeals, or the parties, were they interested in? The facts, the reasoning, the policy of philosophical questions, dissenting opinions, dicta, et cetera, et cetera, et cetera.
Case briefing means that you've summarized those different sections of the case, into some written summary. Book briefing, the cousin to case briefing, is where you take out a different-colored highlighter and meticulously highlight each different section in the case.
That's why it's also known as rainbow briefing. This process takes hours, and unfortunately, this kind of briefing is a huge waste of time. It’s just pure busy work.
Why?
Because you can't use the information that's found in those cases, on the final. It's almost all irrelevant. This is shocking to most people, but think about how you're going to use cases on a final exam, in law school. We have a whole video on what you should know about law school exams, and we'll put a link down below.
But in summary, a law school exam is a test of applying the law, just like a real lawyer would, in the real world. You pretend to be a lawyer for one side, and then mentally flip to being a lawyer for the other side. You're constantly arguing for claims and counterclaims, and defenses. In those circumstances, there is no room at all for most of the information that you put in a case brief.
When you're arguing like a lawyer in court, you don't care about the questions presented in the court of appeal. You don't really even care about the procedural posture, except in rare cases, in like civil procedure. Even the reasoning and the rationale, and policy, it's not helpful in a courtroom setting.
What you will use on a final exam are one of two things: one, either the bare recitation of the facts; or a bright line legal rule.
For example, let's say on the exam that you have a simple hypo about a man who drives through an intersection while the light is yellow, and they hit a pedestrian.
In class, you read two cases: in the first case, a person is liable when they drove through an intersection while the light turned red; in another case, the court simply held that a driver is liable for any inherently dangerous activity. Using those two cases, you might argue that the man is liable by drawing an analogy to the red-light case; you'd say something like driving through an intersection with a yellow light is similar to driving through on a red light, and therefore, that person is liable.
Or, you might say that based on the rule of the second case, driving through an intersection with a yellow light is an inherently dangerous activity, and therefore, they are liable.
You might argue the opposite: it's not analogous to the red-light case, or it doesn't fit the rule that driving through a yellow light is an inherently dangerous activity and therefore he's not liable.
But the way you use cases is that you use the rule, or you use the facts, and that is it. It's why it's so bad to brief a case; you're just putting down, and recording, irrelevant information that you are not going to be able to mobilize on your final exam.
So, why would people do this busy work? Because it's the kind of work that seems like it might be helpful, it's the kind of discrete activity that you can check-off your to-do list.
You can set a goal and you can do it, in terms of case briefing, and during the regular semester, there just simply aren't that many things that you can check-off your list of things to do.
Without mid-terms, or papers, or pop-quizzes, there are just no indications during the regular semester, that you're on the right track. You feel largely adrift without hard deadlines and discrete tasks, except of course for the final exam at the end. So, case briefing provides a sense of accomplishment, but unfortunately, that is an illusory feeling.
Your only resource in law school is time.
If you give it up by studying the wrong things, you're dead in the water. Don't get sucked in to briefing your cases; it's just a waste of time. Instead, focus on distilling the information. Just use the parts of the case that you're actually going to use on your exam, put it in a good outline and start taking practice tests. Apply the information, apply the cases that you get, and you'll see that case briefing is just a total waste of time.
So don't give up your time without a fight. Focus on the things that matter, and cut out the time-wasters and you'll do much better on your next law school exam.
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