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Professor Byron Warnken and Professor Elizabeth Samuels
University of Baltimore School of Law

Citation Parties Disposition Sought
Legal Theories Procedure
Trial level
Appellate level
Legally Significant Facts
Issue(s) Holding(s) Court's Reasoning
Dictum Separate Opinions Disposition/mandate 


 At a minimum, every case brief should note (1) the last names of the parties (the first-named party on each side, if there is more than one party), (2) the jurisdiction and name of the court, (3) the year of decision, and (4), if applicable, the page of the casebook on which the case begins.  (The second and third items provide the information necessary to determine the precedential value of the case, whether it will be mandatory or only persuasive, in a particular subsequent case.) 

Legal citation is a shorthand method both for conveying the information above and for identifying the exact page or pages on which, and volume or volumes in which, the opinion has been published.  The most widely used standard system of legal citation is The Bluebook: A Uniform System of Citation, which is currently in its sixteenth edition.  The legal analysis phase case briefs should each begin with a full and proper citation to the case, in Bluebook form.  [Example]


 The parties to the case are the litigants.  Each party can usually be identified by one or more factual categorizations, e.g., employee, agent, landlord, invitee, the State.  Also determine the litigation status of both parties for each trial level and each appellate level of the proceedings.  For example, at the trial level, it is usually a plaintiff versus a defendant, or the State (or Commonwealth or People) versus a defendant.  At the appellate level, it is appellant versus appellee or petitioner versus respondent, usually depending nowadays upon whether it is an appeal of right or a discretionary appeal.  Sometimes the decision below will be appealed by both litigants.  In such cases, an appellee or respondent may also be a cross-appellant or cross-petitioner, making the appellant or petitioner a cross-appellee or cross-respondent. [Example]

Disposition/ mandate sought

What was the legal objective or result sought by the moving party when instituting legal proceedings, and what was the legal objective or result sought by the non-moving party when confronted with the legal proceedings?  At each trial and appellate level of the proceedings, identify the disposition or mandate sought by the parties.  For example, in a civil case at the trial level, the moving party may seek to establish the liability of the non- moving party and to be awarded monetary damages.  The non-moving party then seeks to avoid liability and monetary damages.  A civil case may be brought to obtain remedies other than damages.  For example, at the trial level the moving party may seek an injunction to force the other party to refrain from doing something or to do something, such as an injunction against an employer to prevent the firing of an employee.  The moving party may seek a change in legal status, such as divorce or child custody.  In a criminal case, at the trial level the prosecution seeks a criminal conviction and sentence, and the 
defendant seeks to avoid them. 

 For those civil and criminal actions that go to the appellate level, the moving party, who may or may not have been the moving party at the trial level, usually seeks a reversal, either a vacating of the judgment or a modification of the legal result at the trial level.  The non-moving party, on the other hand, usually seeks an affirmance. [Example]

Legal theories

Any time that a moving or non-moving party at the trial or appellate level seeks a particular disposition or mandate, that litigant must have a legal basis for his or her objective.  At the trial level in a civil case, the moving party must have one or more "causes of action."  Common law or enacted law must provide one or more grounds for obtaining a legal remedy.  In a criminal case, the moving party, which is the state or federal government, bases its legal action on the commission of one or more common law or statutory criminal offenses.  The legal theory of the non-moving party, in either a civil or criminal action, is referred to as a defense, which is usually in the form of a general denial (e.g., "I did not commit the offense," or "I did not breach the contract,") or in the form of an assertion of one or more affirmative defenses (e.g., "If I committed the offense, it was done in self-defense or was done under duress"). 

 At the appellate level, the moving party, who is the appellant or petitioner, usually bases the appeal upon a claim that the trial court has made one or more errors of law.  The non-moving party, the appellee or respondent, usually contends that the trial judge made no legal errors or that if the trial judge did make a legal error, the error does not require reversal. [Example]


 Understanding the procedural history and current procedural posture of every case is essential.  The case brief should list all procedural steps, from the initial proceeding through the present proceeding.  Each step in the procedural history of the case should be identified by (a) the nature or type of proceeding, e.g., a civil tort case, a divorce action, a suit for an injunction, a criminal case, (b) the party initiating that step in the proceeding, (c) the court or agency hearing that level of the proceeding, and (d) the result, i.e., the disposition or mandate. 

There may be many steps in the procedural history of the case or there may be only one.  Most judicial opinions are written by appellate courts.  Thus, there is usually at least one prior level in the procedure, i.e., the trial level below, plus the current procedural posture, i.e., the current appeal.  Listed below are a number of the major procedural steps that may be encountered.  No single case has every step, but most cases have two or more.  

a) Trial level: 

(i) Pretrial motions and hearings:  Before a case comes to trial, the parties may submit a variety of motions to the court, such as a motion to dismiss the case because the plaintiff's complaint does not contain a legally sufficient cause of action.  A pretrial hearing is a trial-like proceeding prior to trial.  The purpose of a pretrial hearing is usually the resolution of preliminary matters and motions, which may greatly affect the outcome of the subsequent trial on the merits, e.g., a hearing on a motion to suppress evidence.  Motions and pretrial hearings may lead to the trial court disposing of the case without a trial, e.g., a motion to dismiss based upon the statute of limitations. 

(ii) Trial:  A trial on the merits of the case is conducted before a jury or before a judge sitting without a jury.  A trial usually produces a result based upon the merits of the case, e.g., a judgment or a conviction or acquittal. 

(iii)  Post-trial motions and hearings:  Post-trial motions and hearings are subsequent steps required or permitted by the resolution of the case on the merits, e.g., a motion for a new trial or a sentencing procedure. 

(iv) Collateral proceedings:  For example, a criminal defendant by means of a habeas corpus petition may be afforded a chance in a separate legal proceeding to challenge the result of a trial on the merits. 

(v) Administrative hearing:  An administrative hearing before an administrative agency is a judicial type of proceeding conducted by the executive branch of a government acting in a quasi-judicial role.  The administrative case is heard by an official called an administrative law judge, a hearing officer, or a hearing examiner. 

 There may be a second or subsequent round of one or more of the trial-level proceedings after a remand from an appellate court (i.e., an order sending the case back because of an error of law), or following the termination of the initial proceeding (e.g., a retrial following the grant of a motion for a mistrial). 

 (b) Appellate level: 

  (i) Appeal of right:  The appellate level may be an appeal of right heard by an appellate court from a decision in a pretrial, trial, post-trial, or collateral proceeding. 

         (ii) Denial of certiorari:  The appellate level may include a decision to deny the second or third appellate level proceeding.  The appellate court may deny a petition seeking a discretionary appeal.Ô 

        (iii)   Discretionary appeal:  The appellate level may include a discretionary appeal, heard by an appellate court that has granted a writ of certiorari, following or in lieu of an appeal of right heard by a lower-level appellate court. 

        (iv) Administrative appeal of right:  The administrative appellate level may be an appeal of right heard by an administrative agency appeals board, by a trial court sitting as an appellate court, or by an appellate court. 


Legally significant or Key Facts:

Because like cases should be decided in like manner under the principle of stare decisis, it is necessary to understand the facts of the case to which the law has been applied.  The reader must determine which facts were significant to the court in reaching its result.  Legally significant facts are also referred to as operative facts, key facts, material facts, and salient facts. 

The law school process, particularly in the first-year curriculum, does not require the student to do much factual analysis.  The first-year student does not have to investigate the facts, sift them out, and determine how to establish them in a court of law.  Only rarely does the student have to review a voluminous trial transcript to determine which facts should be argued on appeal.  Consequently, a first-year law student may place too much emphasis on law and not enough on the facts, while a busy practitioner, on the other hand, may sometimes place too much emphasis on the facts and not enough emphasis on law -- either not keeping up-to-date on the law generally or not researching it in a particular case.  As a result, a law student may have difficulty adjusting to the law school "hypothetical," the problem method of applying the law to factual situations different from the facts in the assigned cases.  But mastery of such problems is essential in the long run for practicing law, and is essential in the short run for law school classes and examinations. 

Facts are determined at the trial level.  Evidence is produced by the litigants, and the facts are ascertained by the "finder of fact," also referred to as the "trier of fact."  If three prosecution witnesses testify that they saw the defendant shoot the victim, and three defense alibi witnesses testify that the defendant was playing pool with them at Joe's Bar and Grill at the time of the murder, it is the finder of fact who will decide where the defendant was and what he did.  The finder of fact will be either a jury, in a jury trial, or a judge, in a non-jury trial.  A non-jury trial is also referred to as a court trial or bench trial. 

 The reader of the appellate opinion will learn the facts solely from the appellate court, which is not the fact finder.  To determine what facts were found below, the appellate court relies on the appellate briefs of the parties, the oral arguments of the parties, and the record of the case, or at least pertinent parts of the record, including the written decision of the lower court.  The reader's understanding of the appellate court's understanding of the facts is crucial.  Certain signals in the court's opinion will help the reader understand what the court understands to be the facts found below: 

(a) The appellate court states that the record directly supports certain facts. 

(b) The appellate court states that certain facts can be inferred from the record. 

(c) The appellate court states that certain facts were agreed upon or stipulated to by the parties. 

(d) The appellate court states that the trial court took "judicial notice" that certain facts exist (which is a court's determination that a fact exists without requiring proof of the fact, e.g., a determination that the White House is located in Washington, D.C.) or that the appellate court itself takes judicial notice that certain facts exist. 

(e) The appellate court accepts allegations of one of the parties that certain facts exist. 

(f) The appellate court makes unsupported assumptions that certain facts exist. 

 It is also helpful to consider indications of what facts the appellate court determines the court below found did not exist: 
(a) The appellate court expressly states or implies that certain facts do not exist. 

(b) The appellate court rejects allegations made by one or more of the parties that certain facts exist, or refuses to take judicial notice that certain facts exist. 

 A fact is legally significant if altering or eliminating that fact would change the legal conclusion or result of the case.  . . .   The reader must understand the appellate court's view of which facts are legally significant.  Certain signals in the court's opinion may help the reader.  For example, 
(a) the appellate court expressly states or implies that certain facts are legally significant. 

(b) Facts that the appellate court mentions first, emphasizes, or repeats are likely considered by the court to be legally significant. 

(c) The facts as described by the court of prior cases relied on by the court in the present case may aid the process of determining which facts the court considered legally significant in the present case. 

 Because facts gain their legal significance only in light of the controlling law, the relevant factual categories depend upon the legal issues.  Thus, the same facts may acquire or shed their legal significance depending upon the issue.  Assume that the facts include a green 1981 Chevrolet Camaro, with the serial number 6857109. 

 "Green," "1981 Chevrolet Camaro," and "serial number 6857109" may all be irrelevant, and the legally significant fact or factual category may be "automobile," if the issue is the automobile exception to the requirement for a search warrant under the Fourth Amendment. 

"Green" and "serial number 6857109" may both be irrelevant, and the legally significant fact or factual category may be "1981 Chevrolet Camaro," if the issue is an automobile recall. 

"Serial number 6857109" may be irrelevant, and the legally significant fact or factual category may be "green 1981 Chevrolet Camaro," if the issue is an eyewitness identification of the getaway vehicle in a robbery. 

 When evaluating facts for legal significance, the reader must evaluate the facts of the case as a totality to the extent possible.  And when determining factual categories, the reader should use the broadest factual category for which the result would be identical for every fact within that factual category. [Example]


An issue is a question of law.  It is usually a question that asks, "What is the result when you apply this rule of law to these facts?"  Lawyers constantly look for the legal problem or problems at hand; they are problem solvers, and sometimes the toughest problem is pinpointing the problem.  In an appeal the lawyers on both sides have selected their legal battlegrounds and put forth their theories, both at the trial and on appeal.  The court selects from among, and may reframe, the issues presented by the parties.  Nonetheless, it may still be difficult for the reader of the court's opinion to precisely identify the legal issues. 

 Most cases raise more than one question of law.  A case may involve three issues, but have only one or two of them resolved by the court.  When this happens, it is often because the multiple issues are related in such a way that whether one issue must be resolved depends upon the resolution of another issue.  If "issue one" must be decided in order to determine whether "issue two" must be addressed, then the first question is referred to as a "threshold issue."  For example, if a statute of limitations question is resolved in favor of the defendant and the cause of action is dismissed, then the case is concluded without the court considering issues related to the merits of the suit.  (If you are writing about the pending case, you must discuss all of the issues that the court might possibly reach, of course, because you do not know what the court will conclude about the threshold issue.) 

 An issue can usually be framed in the form of a question that can be answered "yes" or "no."  In order to yield a legal conclusion that can be applied under the principle of stare decisis to future similar situations, the issue must be stated neither too narrowly nor too broadly.  Two examples are included below to illustrate this point. 

Students should note well that the process of formulating issues when one is acting as an advocate and writing an appellate brief is a very different enterprise from framing issues for a case brief or an objective memorandum of law [or an essay exam].  The process of writing issues for appellate briefs will be studied and practiced next semester 

Issues should have two components -- one legal and one factual.  If the source of the legal component is enacted law, it is necessary to refer specifically to the law, e.g., constitutional provision, statutory section, or administrative regulation.  The factual component includes facts legally significant to the issue.  Depending on the nature of the legal question, the issue might read as follows: 

"Do [legally significant facts] constitute [particular portion of the rule of law] within the meaning of [the rule of law]?"  Two examples follow. 
Example One   
Well-framed issue Whether a person who does not register brain waves is a human being for purposes of common law murder, which is the felonious killing with malice of a human being? 
Inadequate factual component (no factual category or factual category too narrow)   Whether Mr. Jones is a human being for purposes of common law murder, which is the felonious killing with malice of a human being? 
Inadequate factual component (factual category too broad)  Whether a person with no chance of recovery is a human being for purposes of common law murder, which is the felonious killing with malice of a human being? 
Inadequate legal component (no rule of law)  Whether a person who does not register brain waves is alive? 

 In the first of the two examples of the issue with an inadequate factual component, the rule of law is provided but nothing is known about Mr. Jones.  An answer of "yes" or "no" will not be helpful because there will be no way to consider whether the next set of facts is sufficiently similar to dictate the same answer.  In the second example, the facts are stated too broadly.  Even if the answer is "yes" to the well-framed issue, it could only be "maybe" to this issue because "an individual with no chance of recovery" is broad enough to include a terminally ill cancer patient, who also has no chance of recovery but who is a human being for purposes of common law murder and in every other legal context. 

In the example of the issue with an inadequate legal component, the person may no longer be a human being from the standpoint of common law murder, meaning that a doctor or nurse who "pulls the plug" cannot be charged with murder, but he may still be a human being and still be very much alive from the standpoint of contract law or the law of trusts and estates.  While he may no longer be a potential murder victim, his life insurance policy beneficiary may not be able to collect and his estate may not be subject to probate.  Example Two   

Well-framed issue Is a non-motorized bicycle a vehicle within the meaning of section 53(a) of the Elm City Code, which prohibits "all vehicles, other than Elm City transit authority vehicles, in the far right-hand traffic lane from 4:00 to 6:00 p.m."?
Inadequate factual component (no factual category or factual category too narrow)  Did Mr. Jones violate section 53(a) of the Elm City Code, which prohibits "all vehicles, other than Elm City transit authority vehicles, in the far right-hand traffic lane from 4:00 to 6:00 p.m."? 
Inadequate factual component (factual category too broad)   Is a non-motorized bicycle a vehicle? 
The characterization of the factual component depends, of course, on the law.  If "vehicle" means anything with wheels, then "non-motorized" is not a significant fact and a bicycle is a vehicle.  If a vehicle means at least four wheels, a bicycle is not a vehicle.  Of course, there are numerous other possibilities, such as "vehicle" meaning modes of transportation that require registration or for which you need a driver's license to take them onto a public road.  In the issue with the inadequate factual component, Mr. Jones presents the same problem he presented in the murder issue.  In the example of the issue with an inadequate legal component, the answer may be "maybe."  What is a vehicle within section 53(a) of the Elm City Code may be different from what is a vehicle within another section of the Elm City Code requiring annual emission inspection under the Elm City Air Pollution Ordinance.  A third meaning of vehicle may apply in a vehicular manslaughter statute. 




  A holding is a conclusion of law.  It is generally the affirmatively stated "yes" or "no" answer to the legal issue, to the question that asks, "What is the result when you apply this rule of law to these facts?"  [Example]


Court's rationale or [reasoning]

The court's rationale consists of both its [legal] reasons and its policy considerations.  While the holding provides the "what," the rationale provides both the "how" and the "why."  If every case that arose thereafter were exactly the same as the case being briefed, then knowing the "what" would probably be enough.  However, because later cases will not be exactly "on point," or "on all fours" with the present case, it is necessary to understand the court's rationale in order to consider how the law of the case may be applied to future cases. [Example



Obiter dictum, usually shortened to dictum, is Latin for "a remark by the way."  It is "an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination; any statement of the law enunciated by the court merely by way of illustration, argument, analogy, or suggestion.  Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are obiter dicta, and lack the force of an adjudication."  Black's Law Dictionary 541 (6th ed. 1990) (citation omitted).  Dictum is not mandatory authority but may be persuasive.  Dictum often takes one or more of the following forms. 

(a) The court may analyze facts different from those before the court, e.g., "Had the bicycle been a motor bike, our conclusion would be different." 

(b) The court may analyze rules of law not necessary to resolve the issues before the court, e.g., "Had this cause of action arisen today, under the amended statute, the claimant would be entitled to benefits." 

(c) The court may analyze an issue not before the court, e.g., "Although the question is not raised by this case, it appears that the statute would have precluded coverage had the injury occurred on the first day of employment." 

(d) The court may analyze an issue not necessary to resolve in light of the resolution of one or more threshold issues, e.g., "While reversing the judgment below and remanding for a new trial because of the erroneous admission of evidence, we note that the award of punitive damages could not have withstood appellate review because this is not a case of pure tort but a case of tort arising out of contract." 

It is essential to distinguish holding from dictum -- the former is the law, the latter may or may not be the law but is certainly not the law of the case. [Example]


Separate Opinions

 Separate opinions are extra opinions that are written by individual judges and are not the opinion of the court.  These opinions are either concurring or dissenting ones and do not contain the court's holding.  These are not mandatory authority but may be persuasive.  The author of a concurring opinion agrees with the majority's disposition of the case but for different reasons, for additional or more expansive reasons, or for fewer or more limited reasons.  The author of a dissenting opinion disagrees with the majority's disposition of the case.  The separate opinions should be summarized and analyzed. 



 In light of its conclusions, the court disposes of the case and enters its mandate, instructing the lower court from which the case came and to which the case usually is remanded, what action must be taken.  The court usually affirms, reverses, modifies, or vacates the judgment of the lower court, or mandates some combination of these actions, e.g., judgment reversed and case remanded for new trial. 




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