Brief Texas v. Johnson located on page 166 of your text.  Follow the briefing format explained on pages 13-16:  citation, facts, rule, issue, holding, reasoning, and criticism.  

Recall that the facts should include any fact that you think affected the court’s decision as well as the main procedural facts.  The rule should be the rule as it existed prior to this decision.  

The issue statement should contain two main components:  the rule (label plus definition) and specific facts.  After reading the issue, the reader should know exactly why each side thought it had a chance of convincing the court that it should win.  

The holding should be very specific so that your reader will know the limits that the court placed on its decision.  

The reasoning section should be as complete as possible so that your reader can fully understand why the court decided as it did.  

Finally, the criticism section should include a short accounting of what the dissent had to say.  Your criticism section should also point out any logical failings or limitations that you found in the majority opinion’s thinking.  Make sure anyone reading your criticism section can tell when you are giving your own criticism versus when you are simply reporting on what the dissent had to say.

The project is due as follows:

Part A — Citation, Facts, and Rule – Week 1

You only have do the citation, facts, and rule!!!!!!!

The following pages are the e-text steps you’ll hav e to follow to create the case brief.

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(3) Briefing court opinions

The word brief has several meanings in the legal field. When we refer to briefing a case or to case briefs, we are referring to a written summary of a court opinion. This is to be contrasted with an appellate brief, which is a formal written argument to an appellate court, in which a lawyer argues why that court should affirm or reverse a lower court’s decision.

(a) Reasons for briefing cases Briefing court opinions serves two purposes. First, and most important, it makes you read the case thoroughly. You have to go back and dig out the essentials, organize them, and state them in your own words. This is necessary for an adequate understanding of the court opinion. Second, it is a form of note taking that provides a condensed record of the most important information about the case you briefed. You can use these case briefs to refresh your memory when preparing for class or studying for exams.

(b) Format of a case brief While most case briefs share many common features, there is no single format that is universally accepted within the legal community. Indeed, there are almost as many different briefing styles as there are attorneys writing briefs. What we present here is an approach that we think will help you organize your thoughts and understand the opinion.

The case briefing method described here breaks the case down into the following elements: (i) case citation, (ii) facts — both procedural and substantive, (iii) rule, (iv) issue, (v) holding, (vi) reasoning, and (vii) criticism. Although you list the items in a specific order, you may find yourself filling them in out of order. That is fine because case briefing is a circuitous process. You will often rewrite one part of your brief as your understanding of that part changes based on your work on other parts. As with any type of writing, thinking and writing are intertwined.

A more detailed explanation of the content and purpose of each section of a case brief is provided below. As you finish reading the specific directions for each part of the brief, try your hand at briefing Dillon v. Legg. Then look at how that section was worded in the sample case brief on page 16.

(i) Case citation The case citation goes at the top. The citation should contain enough information to let the reader know (1) the name of the case, (2) the court that decided it, (3) where the reader can locate it, and (4) the year of decision. It is important to include the date of the opinion as precedents are sometimes overruled by more recent decisions. You may also want to indicate the page number in your textbook.

(ii) Facts Include a summary of both substantive and procedural facts. The most difficult part of this section is determining how much detail to include. Omit any facts that you think did not form the basis of the court’s decision, but be sure to include all facts that the court relied on in reaching its decision, being as precise as possible. For example, if the case involves an eight-year-old girl, and

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you think her age and sex matter, do not simply say the case involved a child. However, if an accident occurred at 222 Main Street, but the precise location is not important, there is no need to mention the address.

For the procedural facts, be sure to include what happened in the lower court or courts. For example, indicate which party won at the trial court level. Also, report the final disposition of the case — for example, did the court affirm or reverse, and if it reversed, did it also remand? Some legal writers prefer to put the court’s disposition in a separate section rather than including it with the other procedural facts. If you include the disposition with the procedural facts, however, then the reader can see the “whole story” right at the beginning of the brief.

(iii) Rule The rule is a general legal principle in existence before the case began that the court uses to reach the decision in this case. These rules can come from a constitution, statute, regulation, or a previous court decision.

(iv) Issue(s) A court opinion will include one or more issues. An issue is the legal question created by the facts and relevant rule that the court must resolve. Traditionally, issue statements start with the word whether and include enough of the relevant facts and law for the reader to be able to see why the parties are in court — that is, what the fight is all about. Learning to state the issue precisely is one of the most difficult parts of the case brief, so do not get discouraged if this takes some practice.

(v) Holding The  holding is the court’s answer to the issue. The holding is the new version of the rule, a rule that future courts will look to for assistance in deciding similar cases.

If you have given a complete issue statement, technically the holding could be a simple yes or no answer. However, it is always best to give the holding as a complete declarative sentence using the same elements as you did for the issue.

One of the most difficult aspects of developing the holding is determining how narrow or broad it should be. A narrow holding contains many of the case’s specific facts, thereby limiting its future applicability to a narrow range of cases. A broad holding states the facts in very general terms so that the holding will apply to a wider range of cases. See Figure 1-2.

To be useful, a holding should be broad enough to help courts resolve similar cases, but not so broad as to stand for no more than a general legal principle. Learning how to state a holding either very narrowly, by including very specific facts, or very broadly, by stating the facts as generalizations only, is a skill you will acquire over time. It is best to start with a narrow holding because you will find it easier to amend a narrow holding to make it broader than you will to amend a broad holding to make it narrower. However, even with a narrow holding, include only those facts that you think truly affected the court’s decision.

Also be sure to include any possible limitations to the holding. If the court specifically states that its decision covers only a certain set of circumstances, your brief should make that clear. For example, in a case dealing with a social host’s liability for serving alcohol to a minor, a court might relieve the social host of any responsibility but limit its holding to situations where alcohol is not being served for a profit.

Figure 1-2 Possible Holdings for a Case

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Finally, note that the court’s procedural answer — reversed, remanded, affirmed, and so on — can never be the holding. The holding is always a statement of the new rule that results from the court’s decision.

(vi) Reasoning In this section of the brief you explain, in your own words, why the court ruled as it did. The court’s reasoning gives you your best clue as to how the court may act in the future in a different but similar situation.

Pinpoint as far as is possible the explicit and implicit reasons that the court gave to justify its holding, but do not quote the court’s exact language unless the precise phrasing is critical. It will be easier for the reader to understand your summary if it is primarily in your own words.

In analyzing the reasoning, you need to distinguish between the ratio decidendi and obiter dictum. The ratio decidendi is a decision on the legal issues raised in that specific case, whereas obiter dictum(sometimes just referred to as dicta) refers to a comment a judge makes that is not necessary to the resolution of the case. For example, it is dictum when a judge talks about what might have been if the facts had been different from the ones presented. Even though courts have power to decide only the precise case with which they are faced, human nature being what it is, judges often cannot resist discussing issues that were not really presented to them. While that part of the opinion will have no effect on the litigants, it could give you a very good clue as to how the court might decide a different case in the future.

(vii) Criticism You should use this section of the brief to evaluate the court’s decision. Do you think it was appropriate and well justified? If not, why not? If you agree with the result, do you think the court gave the best or only reasons for reaching that result? If the court included a limitation in the holding, what problems do you think that will cause for future litigants?

If there were concurring or dissenting opinions, include a discussion of their reasoning. Although only the majority opinion represents the court’s view, what individual concurring and dissenting judges have to say can influence later courts.

Do not be discouraged if you find the criticism section one of the most difficult parts of the brief to write. It is the court’s job to convince you that it has reached the right result for the right reasons. Therefore, your first reaction may

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be to simply agree with everything it says. Resist that inclination. Remember that the case would not have been appealed unless someone thought there were two sides to the issue. Take a look at Figure 1-3 for some additional helpful hints for briefing case.

(4) Sample brief for Dillon v. Legg

Dillon v. Legg
68 Cal. 2d 728, 441 P.2d 912 (1968)

Facts:            Mother saw her daughter run over and killed by a negligent driver. She sued for the emotional distress she suffered in witnessing the accident. The trial court dismissed her claim; reversed.

Rule:             There can be no recovery for emotional distress from simply observing the death of another.

Issue:            Whether a mother can recover for the emotional distress she suffered upon seeing the negligently caused death of her daughter despite the current rule that denies recovery for an injury caused by observing the death of another.

Holding:      Yes, a mother who witnesses the negligently caused death of her child can recover for emotional distress.

Reasoning: Traditionally, there have been two arguments advanced for precluding such suits: 1) a fear of fraudulent claims and 2) a fear of indefinable claims. The court discounted both fears. As to the fear of fraudulent claims, the court stated that even if some fraud were to occur, that does not justify denying recovery for valid cases. Besides, in every type of case, it is ultimately the responsibility of the courts to distinguish the valid from the fraudulent claim. As to the second concern, a fear of indefinable claims, the court said that was no reason to deny recovery in this specific case, where no one would deny that a mother seeing her child killed would suffer great harm, and that guidelines could be established to set the extent of liability in future cases. The guidelines the court developed provide that the following factors should be taken into account: 1) how close the plaintiff was to the scene of the accident; 2) whether the plaintiff observed the accident or heard about it later; and 3) how closely related the plaintiff was to the victim.

Criticism:     The dissenting judge thought the guidelines raised more questions than they answered and that such an important change in the law should come from the legislature, not the courts.
   I agree that the guidelines are a bit vague and will be difficult to apply in new situations. For example, will “closely related” be determined by familial status or by an actual investigation into how involved the plaintiff was in the victim’s life?