Professor Byron Warnken and Professor Elizabeth Samuels
University of Baltimore School of Law
| 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.
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]
|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
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
| 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
(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
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
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
It is also helpful to consider indications of what facts the appellate
court determines the court below found did not exist:
(b) The appellate court states that certain facts can be inferred from
(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
(a) The appellate court expressly states or implies that certain
facts do not 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,
(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) the appellate court expressly states or implies that certain
facts are legally significant.
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.
(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.
"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
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
||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
|Inadequate factual component (factual category
||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
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
||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
|| 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
|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
(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 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.