The Study of Law
Currier, K.A., Eimermann, T.E. (2016). The study of law: A critical thinking approach (4th ed.).
New York: Wolters Kluwer
Aspen College Series
The Study of Law A Critical Thinking Approach
Katherine A. Currier • Thomas E. Eimermann
• ®Wolters Kluwer
Introduction to the Study of Law
The study of the law qualifies a [wo]man to be useful to self, to neighbors, and to the public.
– .:….er reading this chapter, you should be able to:
• Explain why it is important to study law. • Define cause of action and explain why one does not always exist. • Discuss why enacted law frequently contains ambiguities. • Contrast mandatory with persuasive authority. • Use case briefing to summarize court opinions. • Define stare decisis and explain why it is important.
e designed this textbook to provide you with a general introduction to the -~e of our legal system. Our main goals with this text are to help you under- :aad how the American legal system operates and to introduce you to the legal
-=– · ciples that form the basis of our law in areas such as criminal law, torts,
• 4 Chapter 1: Introduction to the Study of law
contracts, property, business organizations, and family law. We also designed this text to develop the critical thinking skills you will need to understand stat- utes, court opinions, and administrative regulations.
Throughout the text, we illustrate what can often be difficult legal concepts with references to “famous cases” you may have heard about and to short fac- tual scenarios we created to illustrate how the law affects people and businesses. Let’s get started by introducing the first two of these hypothetical cases. Keep them in mind as you read the rest of this chapter and the chapters that follow.
Case 1: The Distressed Grandfather
Approximately one year ago, Donald Drake and his six-year-old grandson, Philip, were walk- ing down a residential road on their way home from visiting one of Philip’s friends. Philip was walking on the sidewalk approximately 30 feet in front of Mr. Drake. Suddenly, a car sped past Mr. Drake, seemingly went out of control, jumped the curb, and hit Philip. Mr. Drake ran to Philip’s side, but it was too late. Philip had been killed instantly. The driver of the car, Mrs. Wilma Small, was unhurt. Based on skid marks and testimony from both Mrs. Small and Mr. Drake, the police investigation following the accident determined that excessive speed was the cause of the accident.
Mr. Drake said that at the time of the acci- dent his only concern was for the welfare of his grandson because he himself was clear of the danger. Naturally, Mr. Drake suffered a great deal of mental pain and shock because of seeing his grandson killed. While being driven home from the accident, he suffered a heart attack that neces- sitated a lengthy hospital stay.
One year later, he still does not feel com- pletely recovered and often suffers from night- mares reliving the accident and his grandson’s death. He wonders if he can sue Mrs. Small to recover for his hospital bills and for his pain and suffering.
Case 2: The Harassed Student
Wanda Smith, a 22-year-old college student, was walking past a construction site on cam- pus when several of the construction workers began to whistle and make cat calls. Wanda did not appreciate being treated as a sex object and greatly resented the way in which these construc- tion workers were behaving.
After talking it over with a few of her friends, Wanda decides to talk to an attorney to see if she can take legal action. She does not want other women to have to undergo similar treat- ment and wonders if she can collect damages for mental suffering.
B. legal Analysis 5 •
A. WHY STUDY LAW
Why study law? First, law plays an essential role in everyone’s life. It provides guidelines on how people should interact with one another. The criminal codes • rohibit theft, assault, battery, rape, murder, and many other offenses. The tax codes require that individuals and businesses give part of their income to the government. Environmental laws prohibit the dumping of raw sewage into lakes and rivers. Civil rights laws protect against discrimination and harassment.
In addition to defining what constitutes appropriate behavior, the law pro- ‘!.'”ides a mechanism for resolving the conflicts and disagreements that arise among us without resorting to personal violence. When individuals violate a section of me criminal law, the government takes responsibility for bringing them to trial and for administering an appropriate punishment. If one person’s negligence injures others, that person can be required to compensate the injured parties ‘or the damages caused by this negligent act. When persons fail to carry out the erms of a contract, the state can either force them to do so or force them to pay
damages that resulted from their failure to live up to their agreement. Second, you have no doubt heard the saying “Ignorance of the law is no
excuse.” Every educated citizen should have a basic understanding of our legal system and our laws.
Third, learning about the law and how the legal system works is a lot of fun. Although most legal disputes never make it to trial, those that do often involve high drama, with captivating rhetoric and surprising testimony. When a select few of those cases reach the appellate level, we see judges crafting new law that can have a tremendous impact on our lives. One only needs to think of the United States Supreme Court case Roe v. Wade and the continuing controversy over a woman’s right to abortion.
Finally, the study of law is a challenging and rewarding intellectual exer- cise. Interpretation of the law involves the application of logic and other critical thinking skills. These critical thinking skills can be usefully applied in many dif- ferent fields of endeavor.
B. LEGAL ANALYSIS
The critical ability to understand the relevant law and apply it to a new fact situ- ation is known as legal analysis. It involves:
• Reviewing the underlying situation that is creating the legal problem and analyzing the “relevant” facts;
• Reading and understanding the appropriate legal rules; and • Applying those legal rules to the relevant facts.
1. Identifying the Relevant Facts
The first step in legal analysis is to review and identify the relevant facts . The answer to any legal question depends on the specific facts of the individual case. Even a minor change in the facts may alter the outcome of the case.
legal analysis The process of applying the law to specific facts . Also known as legal reasoning.
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Fact bound Legal issues are said to be fact bound when even a minor change in the facts can change the outcome.
Cause of action A claim that, based on the law and the facts, is sufficient to support a lawsuit.
Enacted law Constitutions, statutes, ordinances, and regulations.
Constitution The fundamental law of a nation or state.
Just as a medical doctor cannot give a competent medical diagnosis with- out a thorough examination of the patient, a lawyer cannot render legal advice without a complete understanding of all the relevant facts. Some areas of the law, such as those dealing with negligence or landlords and tenants, are particularly fact bound. For example, assume a stranger approaches an attorney at a party with a question such as: “My landlord is trying to evict me. Can he do that?” or “My husband is trying to get custody of my kids. Will he succeed?” It would be impossible for the attorney to answer without gathering a lot more information and personally reviewing key documents.
2. Reading and Understanding the Appropriate legal Rules
After meeting with a potential client, the first thing that an attorney needs to determine is whether the client has a valid cause of action or, if the client is charged with a crime or is being sued, a valid defense. A cause of action can be defined as a claim that, based on the law and the facts, is sufficient to sup- port a lawsuit. For example, in Wanda Smith’s case, she was clearly upset and disturbed by what had happened to her. However, that does not mean she has a legal remedy. Her lawyers will have to prove not only that the construction workers harassed and upset her, but also that these actions violated some law. It is important to understand that not every problem is a problem for which the courts will supply a remedy.
Thus, the second stage of legal analysis involves the identification of the spe- cific provisions of the law that are applicable to the situation. Because there are so many laws at the federal, state, and local levels, and because the law covers such a wide variety of topics, it is impossible for anyone to know everything there is to know about the law. The law is far too complex for any individual to be able to commit it all to memory. Furthermore, because the law is constantly changing, one’s legal knowledge must be continually updated. Therefore, even lawyers who specialize and strive to keep current by reading legal newspapers, journals, and bar publications on a daily basis may still need to do legal research. Law books and online computer databases are the tools of the trade for the legal professional.
When conducting legal research, attorneys focus on the two main sources of law:
1. enacted law and 2. court-made law (common law).
Enacted law can be further subdivided into constitutional, statutory, and admin- istrative law.
What follows is a brief overview of enacted law and court-made law. We will continue this discussion on the sources of law in Chapter 2.
a. Understanding Enacted Law: Constitutions, Statutes, and Regulations
While some of the most important laws, such as freedom of speech, can be found in the U.S. and state constitutions, most everyday legal problems
B. Legal Analysis 7 .
::e governed by statutes, local ordinances, or agency regulations. Statutes are cted by the U.S. Congress or state legislatures; ordinances are laws enacted local governments; and regulations are laws promulgated by state and federal
=..::.ministrative agencies. All three lay down general rules that apply to future – duct.
The challenge faced by those drafting enacted law is to precisely describe .12.t they want to require or prohibit without being able to fully anticipate all
–,. circumstances in which the law may be applied in the future. Trying to lay wn rules today for situations that will arise in the future is a difficult task.
Consider a situation in which a town council received citizen complaints ut a group of teenagers who had been riding their motorcycles ·on the paths
i the town’s parks. Not only are motorcycles noisy, but the citizens were afraid — r one day an accident would occur and a child walking down one of the paths _ uld be injured. So to deal with this problem, the council passed the following -dinance:
·- shall be unlawful to operate any vehicle on town park paths. Violators will be subject 😮 a $100 fine for the first offense and up to a $500 fine for each additional offense.
Following the passage of this ordinance the following four events took e in a town park:
1. For a “lark,” two teenagers drove a Jeep Cherokee down one of the park paths.
2. The garbage collector backed his truck approximately six feet down one of the park paths to pick up garbage from one of the trash receptacles.
3. A child pushed her doll’s baby carriage along a park path. 4. An ambulance drove down one of the park paths to pick up a man who
had collapsed in the middle of the park.
Based on a literal reading of the town’s new ordinance, all four of these :uations are violations of the law. All four involve a “vehicle” being on a park
– – . However, while the town council undoubtedly wished to ban joyriding Jeep “‘erokee drivers as much as it wanted to ban joyriding motorcycle riders, it is ghly unlikely that it actually wished to prohibit situations two, three, and four.
–:’ e problem is that the language they chose was more inclusive than they really .::::.ended, and now all four parties are technically guilty of violating the ordinance.
This example illustrates how difficult it is to draft a law that encompasses y what you are trying to prohibit. It also illustrates how ambiguities in a statute
-y not appear until new, unanticipated events occur. Therefore, though on its face _ statute may seem straightforward, always remember that even the most seem-
– y clear language can be ambiguous when applied to a new factual situation. In addition to statutory ambiguities resulting from sloppy draftsmanship
– applications to unanticipated circumstances, there are also times when the ers purposely write the ambiguity into the statute in order to provide a
2Si.s for compromise by glossing over conflicts among the legislators. In situa- where such ambiguities occur, it ultimately falls to the courts to interpret
Statute A law enacted by a state legislature or by Congress.
Ordinance A law enacted by a local government; a subcategory of statutory law.
Regulation A law promulgated by an administrative agency.
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Mandatory authority Court decisions from a higher court in the same jurisdiction.
Persuasive authority Court decisions from an equal or a lower court from the same jurisdiction or from a court in a different jurisdiction.
Stare decisis The doctrine that normally once a court has decided an issue, other courts in the same jurisdiction will decide the same way.
Substantive facts Things that happened to the parties before the litigation began and that are relevant to their claims.
Procedural facts Actions taken by lower courts or administrative agencies before the case reached the court issuing the opinion you are reading.
the language in the context of specific cases. Throughout this text, we will see examples of the courts grappling with such problems of statutory interpretation.
b. Understanding Court Opinions
In this text, you will be reading many court opinions. In court opinions, the judge drafting the opinion will give a summary of the relevant facts-the law that is being applied to those facts and the court’s decision as to the outcome of the case. The law being discussed could be based upon enacted Jaw, a consd-
tutional provision, statutory language, or a regulation, or it could be based on something known as the common law. Common law is court-made law created when there is no enacted law covering the situation.
(1) How to read a court opinion
The first thing you need to do, when reading a court opinion, is to take note of the court-for example, whether it is a state or federal court-and the date on which the case was decided. These are critical factors because they relate to the very important differences between mandatory authority and persuasive authority. Whereas judges are expected to decide cases consistently with those of higher courts in the same system, they can consider but do not have to follow the decisions of other courts at their same level or from another system.
Figure 1-1 shows the hierarchical nature of mandatory authority. A deci- sion handed down by a court is mandatory authority for those courts below it connected by an arrow. For example, a federal district court in the First Circuit is required to follow the decisions of the federal court of appeals for the First Circuit. But the decisions of the Second Circuit court of appeals are only per- suasive authority for the First Circuit district courts. Likewise, the decisions of state Ns highest appellate court are mandatory authority for state Ns intermedi- ate appellate and trial courts, but they are only persuasive authority for state B’s courts. This process of looking to precedent-prior cases-for guidance is known as following the doctrine of stare decisis. Stare decisis literally means the decision stands.
The first section of a court opinion usually starts with a discussion of the facts of the case. These facts can be divided into two groups: substantive facts and procedural facts.
The substantive facts deal with what happened to the parties before the litigation began-that is, with why one party is suing the other.
When reading a court opinion, look for answers to the following questions:
• Who were the parties in this legal dispute? • Who did what to whom that created the conflict being litigated? • Which party initiated the legal action (either civil suit or criminal pros-
ecution)? What did the various parties want the court to do?
Procedural facts refer to what happened in the lower courts or adminis- trative agencies as well as the action taken by the appellate court issuing the
B. Legal Analysis 9 .
U.S. Supreme Court
::: urt of – peals, :-Circuit
Court of appeals, 2nd Circuit
State A trial court
State A trial court
1-1 Mandatory Authority
-: ·on. For example, in the trial court did the plaintiff win after a jury verdict, – ··d the plaintiff lose on a motion to dismiss? These procedural facts are some- -es referred to as the judicial history of the case.
After reviewing the facts, the court will move on to discuss the legal issues in the case. It is not unusual for a court opinion to address multiple issues
a single opinion. These legal issues usually relate to how the law should be -erpreted or applied to the facts of the case being decided. The discussion of : · sue will often include references to cases that the court wishes to rely on as -~-edent. There may also be references to prior cases that the court rejects as -xedent either because they are not relevant to the precise issue being decided – .Jeeause the court disagrees with the prior court’s reasoning.
The opinion will conclude with a section that announces the official deci- reached by the majority of the judges participating. In addition to declaring
– the law is to be interpreted, it will usually include directions as to what is appen next. These directions constitute what is called the disposition of the
– . If the court agreed with the actions of a lower court, it will simply affirm
Legal issues Questions about the interpretation and application of the law.
Disposition The result reached in a particular case.
Affirm A decision is affirmed when the litigants appeal the trial court decision and the higher court agrees with what the lower court has done.
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Reverse A decision is reversed when the litigants appeal the trial court decision and the higher court disagrees with the decision of the lower court.
Remand When an appellate court sends a case back to the trial court for a new trial or other action.
Concurring opinion An opinion that agrees with the majority’s result but disagrees with its reasoning.
Dissenting opinion An opinion that disagrees with the majority’s decision and reasoning.
TO BRINER, Justice.
the lower court’s decision. If the court found that an error was committed, ir will reverse the actions of the lower court and remand the case back for further actions consistent with the way the court interpreted the law.
In cases where there is more than one judge, those not fully agreeing with the majority may choose to file either a concurring or dissenting opinion. While these concurring and dissenting opinions have no legal effect on the outcome of the case, concurring opinions can affect the way the law is interpreted in the future, and dissenting opinions can provide arguments that may sway other judges in future cases.
The following is a court opinion dealing with facts similar to those Mr. Drake experienced. As you read the case, pay careful attention to the facts, the rule the court applied to those facts, how the court resolved the case, and finally its reasoning for finding as it did. Keep in mind that court decisions can be quite complex, and judges often use a writing style that is different from the sorts of writing to which you have become accustomed. Therefore, always plan on read- ing the case at least twice. The first time, focus on getting the “big picture.” On the second reading you can pay more attention to the details and take notes. We will be discussing one method of note taking, called briefing a case, in the next section, after you have read Dillon v. Legg.
(2) Sample case: Dillon v. Legg
[O]n . . . September 27, 1964, defendant drove his automobile in a southerly direction on Bluegrass Road near its intersection with Clover Lane in the County of Sacramento, and at that time plaintiff’s infant daughter, Erin Lee Dillon, lawfully crossed Bluegrass Road. [D]efendant’s negligent operation of his vehicle caused it to “collide with the deceased Erin Lee Dillon result- ing in injuries to decedent which proximately resulted in her death.”
defendants [she] sustained great emotional dis- turbance and shock and injury to her nervous sys- tem” which caused her great physical and mental pain and suffering.
[D]efendant … moved for judgment on the pleadings, contending that “No cause of action is stated in that allegation that plaintiff sustained emotional distress, fright or shock induced by .. . witnessing of negligently caused injury to a third person.” The court granted a judgment on the pleadings against the mother [and she] appealed from the judgment. Plaintiff’s [complaint] alleged that [the
mother] “was in close proximity to the . .. colli- sion and personally witnessed said collision.” She further alleged that “because of the negligence of
That the courts should allow recovery to a mother who suffers emotional trauma and physi- cal injury from witnessing the infliction of death
jury to her child for which the tort-feasor is – :e in negligence would appear to be a compel- -:= proposition.
_ evertheless, past American decisions have – -ed the mother’s recovery. Refusing the mother –=-right to take her case to the jury, these courts _ :.md their position on an alleged absence of a
· ed “duty” of due care of the tortfeasor to –~mother. [They state] the imposition of duty
r-e would work disaster because it would invite -::. dulent claims and it would involve the courts
– e hopeless task of defining the extent of the – deasor’s liability. In substance, they say, defini-
:l of liability being impossible, denial of liabil- is the only realistic alternative.
We have concluded that neither of the feared gers excuses the frustration of the natural jus-
-e upon which the mother’s claim rests. 1. This court in the past has rejected the argu- that we must deny recovery upon a legiti-
“!Jle claim because other fraudulent ones may _urged.
The possibility that some fraud will escape – ection does not justify an abdication of the
·cial responsibility to award damages for _ :md claims: if it is ‘to be conceded that our pro- – ural system for the ascertainment of truth is
dequate to defeat fraudulent claims … , the ==suit is a virtual acknowledgment that the courts
=-e unable to render justice in respect to them.’ Indubitably juries and trial courts, constantly
ed upon to distinguish the frivolous from the _ stantial and the fraudulent from the meritori-
-, reach some erroneous results. But such fal- iliry, inherent in the judicial process, offers no
on for substituting for the case-by-case resolu- n of causes an artificial and indefensible barrier.
s not only compromise their basic responsi- rry to decide the merits of each case individu- . but destroy the public’s confidence in them by · g the broad broom of ‘administrative conve- ence’ to sweep away a class of claims a number
: hich are admittedly meritorious. 2. The alleged inability to fix definitions
recovery on the different facts of future cases
B. legal Analysis 11 •
does not justify the denial of recovery on the spe- cific facts of the instant case; in any event, proper guidelines can indicate the extent of liability for such future cases.
In order to limit the otherwise potential infi- nite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.
Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foresee- ability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis. We cannot now predetermine defendant’s obligation in every situation by a fixed category; no immu- table rule can establish the extent of that obliga- tion for every circumstance of the future. We can, however, define guidelines which will aid in the resolution of such an issue as the instant one.
In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contempora- neous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the vic- tim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
The evaluation of these factors will indi- cate the Degree of the defendant’s foreseeabil- ity: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person’s injury is
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far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, wit- nessing mother will cause physical harm than to anticipate that someone distant from the acci- dent will suffer more than a temporary emo- tional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case.
In light of these factors the court will deter- mine whether the accident and harm was reason- ably foreseeable. Such reasonable foreseeability does not turn on whether the particular defen- dant as an individual would have in actuality foreseen the exact accident and loss; it contem- plates that courts, on a case-to-case basis, analyz- ing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected.
In the instant case, the presence of all the above factors indicates that plaintiff has alleged a sufficient prima facie case. Surely the negligent driver who causes the death of a young child may reasonably expect that the mother will not be far distant and will upon witnessing the accident suf- fer emotional trauma.
We are not now called upon to decide whether, in the absence or reduced weight of some of the above factors, we would conclude that the accident and injury were not reasonably foreseeable and that therefore defendant owed no duty of due care to plaintiff. In future cases the courts will draw lines of demarcation upon facts more subtle than the compelling ones alleged in the complaint before us.
To deny recovery would be to chain this state to an outmoded rule of the 19th century which can claim no current credence. No good reason compels our captivity to an indefensible orthodoxy.
The judgment is reversed. BuRKE, J., Dissenting The majority, obviously recognizing that
they are … embarking upon a first excursion into the “fantastic realm of infinite liability,” undertake to provide so-called “guidelines” for the future. But notwithstanding the limitations which these “guidelines” purport to impose, it is only reason- able to expect pressure upon our trial courts to make their future rulings conform to the spirit of the new elasticity proclaimed by the majority.
Upon analysis, [the majority’s guidelines] seeming certainty evaporates into arbitrari- ness …. What if the plaintiff was honestly mis- taken in believing the third person to be in danger or to be seriously injured? … How “close” must · the relationship be between the plaintiff and the third person? I.e., what if the third person was the plaintiff’s beloved niece or nephew, grandparent, fiance, or lifelong friend, more dear to the plain- tiff than her immediate family? Next, how “near” must the plaintiff have been to the scene of the accident, and how “soon” must shock have been felt? Indeed, what is the magic in the plaintiff’s being actually present? Is the shock any less real if the mother does not know of the accident until her injured child is brought into her home? On the other hand, is it any less real if the mother is physically present at the scene but is nevertheless unaware of the danger or injury to her child until after the accident has occurred? No answers to these questions are to be found in today’s major- ity opinion.
It appears to me that in the light of today’s majority opinion the matter at issue should be commended to the attention of the Legislature of this state …. [I]f all alleged California tortfea- sors, including motorists, home and other prop- erty owners, and governmental entities, are now to be faced with the concept of potentially infinite liability beyond any rational relationship to their culpability, then surely the point has been reached at which the Legislature should reconsider the entire subject and allow all interests affected to be heard.
I would affirm the judgment.
B. Legal Analysis
~ -ow that you have read Dillon v. Legg, it is time to turn our attention to ed legal note taking, called case briefing.
3) Briefing court opinions
The word brief has several meanings in the legal field. When we refer to ~ g a case or to case briefs, we are referring to a written summary of a court Case briefing
–·on. This is to be contrasted with an appellate brief, which is a formal writ~ A method for argument to an appellate court, in which a lawyer argues why that court summarizing court
d affirm or reverse a lower court’s decision. opinions.
(a) Reasons for briefing cases Briefing court opinions serves t.wo pur- – . First, and most important, it makes you read the case thoroughly. You ~ to go back and dig out the essentials, organize them, and state them in your
words. This is necessary for an adequate understanding of the court opin- Second, it is a form of note taking that provides a condensed record of the
-important information about the case you briefed. You can use these case 6 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 :.ues, there is no single format that is universally accepted within the legal ~ unity. Indeed, there are almost as many different briefing styles as there are
– rneys writing briefs. What we present here is an approach that we think will ::- you organize your thoughts and understand the opinion.
The case briefing method described here breaks the case down into the owing elements: (i) case citation, (ii) facts- both procedural and substan-
=.. iii) rule, (iv) issue, (v) holding, (vi) reasoning, and (vii) criticism. Although _ ilit the items in a specific order, you may find yourself filling them in out
rder. That is fine because case briefing is a circuitous process. You will often ~ “te one part of your brief as your understanding of that part changes based our work on other parts. As with any type of writing, thinking and writing
-:: intertwined. A more detailed explanation of the content and purpose of each section of
-= e brief is provided below. As you finish reading the specific directions for – part of the brief, try your hand at briefing Dillon v. Legg. Then look at how -section was worded in the sample case brief on page 16.
(i) Case citation The case citation goes at the top. The citation should -:ain enough information to let the reader know (1) the name of the case,
_ – e court that decided it, (3) where the reader can locate it, and (4) the year . eecision. It is important to include the date of the opinion as precedents are ~erimes overruled by more recent decisions. You may also want to indicate ~ ” age number in your textbook.
OiJ Facts Include a summary of both substantive and procedural facts. ~most difficult part of this section is determining how much detail to include. ·-any facts that you think did not form the basis of the court’s decision, but
– :ue to include all facts that the court relied on in reaching its decision, being :-::-ecise as possible. For example, if the case involves an eight-year-old girl, and
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Rule In a case brief, the general legal principle in existence before the case began.
Issue In a case brief, the statement of the problem facing the court.
Holding In a case brief, the court’s answer to the issue presented to it; the new legal principle established by a court opinion.
Narrow holding A statement of the court’s decision that contains many of the case’s specific facts, thereby limiting its future applicability to a narrow range of cases.
Broad holding A statement of the court’s decision in which the facts are either omitted or given in very general terms so that it will apply to a wider range of cases.
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, how- ever, 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) lssue(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 par- ties 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 discour- aged 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 simi- lar 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 hold- ing, 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 soci:L. host’s liability for serving alcohol to a minor, a court might relieve the social hos: of any responsibility but limit its holding to situations where alcohol is not being served for a profit.
des · 1c facts
Includes general facts
1-2 Possible Holdings for a Case
B. legal Analysis
Includes general pol icy statements
Finally, note that the court’s procedural answer-reversed, remanded, rmed, and so on -can never be the holding. The holding is always a state- – 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, _ the court ruled as it did. The court’s reasoning gives you your best clue as to
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
e to justify its holding, but do not quote the court’s exact language unless ~ recise phrasing is critical. It will be easier for the reader to understand your ~ ary if it is primarily in your own words.
In analyzing the reasoning, you need to distinguish between the ratio deci- di and obiter dictum. The ratio decidendi is a decision on the legal issues Ratio decidendi
·ed in that specific case, whereas obiter dictum (sometimes just referred to as The court’s reasoning -.a) refers to a comment a judge makes that is not necessary to the resolution for its decision. — e case. For example, it is dictum when a judge talks about what might have
if the facts had been different from the ones presented. Even though courts Dictum -~e power to decide only the precise case with which they are faced, human A statement in a judicial
e being what it is, judges often cannot resist discussing issues that were not opinion not necessary -= r presented to them. While that part of the opinion will have no effect on for the decision of the ~ litigants, it could give you a very good clue as to how the court might decide case. :.’ifferent case in the future.
(vii) Criticism You should use this section of the brief to evaluate the ‘s decision. Do you think it was appropriate and well justified? If not, why
? If you agree with the result, do you think the court gave the best or only -=.sons for reaching that result? If the court included a limitation in the holding,
problems do you think that will cause for future litigants? If there were concurring or dissenting opinions, include a discussion of
,;..r reasoning. Although only the majority opinion represents the court’s view, ~t individual concurring and dissenting judges have to say can influence later :!rt.S .
Do not be discouraged if you find the criticism section one of the most dif- t parts of the brief to write. It is the court’s job to convince you that it has
-hed the right result for the right reasons. Therefore, your first reaction may
Chapter 1: Introduction to the Study of Law
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)
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. There can be no recovery for emotional distress from simply observing the death of another. 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. Yes, a mother who witnesses the negligently caused death of her child can recover for emotional distress. 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 guide- lines 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. 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?
B. Legal Analysis 17 •
the Case First, Then Brief -·try to brief the case as you read it for the first time. Read it through,
ning if you wish and making notes in the margin, before you start ief.
elop a Workable Style p a briefing style that works best for you. As mentioned above, there
_ r ght or wrong method. However, if your brief is to serve its intended … 5€, you must write it in such a way that you can return to it later and
‘ ind the information for which you are looking.
“te Based on the Needs of Your Reader _ .vii i be using the brief just as a reference for yourself, abbreviate com-
used terms. For example, use 11 or P. for plaintiff and D. or D. for defen- . ou may also want to write in phrases rather than complete sentences.
ross-reference _ op a cross-reference system that will allow you to find the court’s full
– ~ssion of the points you summarized in your brief. For example, you place numbers in the margin of the case to correspond to the points
_ ·scuss in your brief.
phrase ·e the brief in your own words. A brief should not be a long series of
_:-2tions, so do not copy large parts of the opinion. A brief is your sum- – of the case, not merely a listing of quotations from it.
se a Dictionary e sure you understand every unfamiliar legal term. Initially, you will find
“”‘courts using many unfamiliar terms, some of which will be specialized terms. Others, however, will simply be “normal English” you do not
.. Do not hesitate to turn to a legal dictionary or an English language :– onary for help.
_ 1-3 Six Hints for Better Brief Writing
plying the legal Rules to the Facts
– al stage of legal analysis involves applying the legal rules found in enacted and court decisions to a specific set of facts, such as those of Donald Drake .mda Smith. This process is known as legal reasoning. If the legal rules ::~ to be unambiguous and to apply to the client’s situation, an attorney :onfidently advise clients as to the legal consequences of anticipated acts or ~ end steps that they should take to protect themselves. Frequently, however, the law will be ambiguous, and there will be no prior . ;ith the exact same set of facts. Then the attorney should alert the client as – uncertainty and assist the client in deciding on an appropriate course of . Should the matter end up in court, the attorney will need to use legal rea-
“‘ to develop the best available arguments to support the client’s position.
Legal reasoning The application of legal rules to a specific factual situation. Also known as legal analysis.
• 18 Chapter 1: Introduction to the Study of Law
However, there will be no clear answer as to how an ambiguous rule will be applied until an appellate court resolves the issue. Those are the cases that are often the most interesting to read as the ambiguity in the law’s language or its applicability to a new set of facts forces the court to also consider the policy concerns behind the law.
For example, think about Mr. Drake’s situation and the Dillon v. Legg court decision. If a court were asked to apply that decision to Mr. Drake’s facts, how do you think he would fare? Factually, do you think the court would view a
mother and a grandfather as similar? On policy grounds, do you think the court would tend to resolve the issue of recovering for emotional distress the same in those situations involving mothers and those involving grandfathers?
If you discuss this with your classmates, you may find that you differ as to the “right” answer. But in reality, there are no “right” answers, only better or worse arguments. Any decision about what the law should be is a choice between competing values.
Finally, sometimes there are no rules that govern the situation. For exam- ple, while there are both federal and state statutes that protect employees from sexual harassment, under current law Ms. Smith does not appear to have a cause of action against the construction workers.
Prior to the enactment of those state and federal statutes giving protection to workers against sexual discrimination, Ms. Smith would not even have had a cause of action if she had been harassed by her employer. But as societal values change, the law usually changes as well. In recent years, our society has become more sensitive to issues of gender equality, and new laws have been developed to provide new protections. Sometime in the future, someone in Ms. Smith’s posi- tion may have a cause of action that does not exist today.
1. Why do you suppose there are certain types of harm, such as the humiliation Ms. Smith felt when the construction workers whistled at her, that courts will not help individuals resolve?
2. Do you think it is right that employees can go to court and sue their bosses for sexual harassment? Why? If the harasser were a co-worker instead of a boss, how would you view the situation?
··cl=fA.PT.E”If’sOMMA Law is an important topic for study because it directly or indirectly affects almost every aspect of your daily life. Besides defining what constitutes appro- priate behavior, the law also provides a mechanism for resolving conflicts and disagreements without resorting to personal violence. It is also good to study the law because it is a challenging intellectual exercise that involves the application of logic and other critical thinking skills that can be useful in many differen endeavors.
B. Legal Analysis
Legal analysis involves analyzing the “relevant” facts, reading and under- – · g the appropriate legal rules, and applying those rules to the relevant -. In order to understand legal rules, you need to learn how to read and ~. ret constitutions, statutes, and court decisions .
. -\ case brief provides a condensed record of the most important informa- about the case you read, and the process of briefing a case helps you to
-~rstand what was actually decided and how the court justified its decision. Do not be dismayed if you are sometimes overwhelmed by the complexity
.:. ilie sheer volume of legal concepts and materials. Learning law is a lot like ~g a foreign language. Although many of these terms may be new to you
. they will become increasingly familiar as you progress through the text. In end you will be amazed at how these diverse pieces end up fitting into a logi- a.nd effective system.
1. Assume John shipped obscene music CDs from Massachusetts to =omia. He has been charged with violating a federal criminal statute that
.:jbits interstate shipment of any obscene “book, pamphlet, picture, motion e, film, paper, letter, writing, print or other matter of indecent character.”
– – he violated the statute? 1. John Smith tried to buy cocaine from an undercover officer. Instead
.:ash, he offered to sell his fully automatic MAC-10 firearm. According to ~ ;::ourt, the MAC-10 is “a favorite among criminals. It is small and compact,
_-:weight, and can be equipped with a silencer. Most important of all, it can .:evastating: A fully automatic MAC-10 can fire more than 1,000 rounds per – e.” After Mr. Smith was arrested, he was charged with drug-trafficking -es, including an attempt to possess cocaine with intent to distribute. He was
harged with violating a federal statute that mandates a 30-year sentence – defendant “during and in relation to any crime of drug trafficking uses a :::s..rm.” The defendant argued that within the context of the statute, “uses”
to use the firearm as a weapon, which he did not do. One method that :ts frequently use for interpreting statutes is known as the plain meaning
• -oach. In this case, the prosecution argued that the plain dictionary meaning –e term “uses” meant the defendant “used” the firearm to try to purchase the -= · e. If you were the judge, how would you resolve the case?
3. A Florida motorist was issued a citation for having flashed his vehicle’s .: “ghts, apparently to warn on-coming motorists of a speed trap. The statute
-er which he was charged states: “Flashing lights are prohibited on vehicles _ as a means of indicating a right or left turn, to change lanes, or to
– – te that the vehicle is lawfull_y stopped or disabled .tJPPJJ. th.t.IJ.b!!.hw&-;:.” W.bat =::ment could the motorist make to show that he did not violate this statute?
would the prosecution argue he did violate the statute? Who do you think – e better argument?
• 20 Chapter 1: Introduction to the Study of law
4. List all of the ways in which you think Mr. Drake’s case is similar to that of Dillon v. Legg. Then list all of the ways in which you think Mr. Drake’s case could be likened to that of a bystander. Do you think a court would see Mr. Drake’s case as more similar to that of the mother in Dillon v. Legg or to that of a bystander? Are there additional facts that you think the court would want to know before reaching its decision?
1. Go to lp.findlaw.com. Under “News Headlines,” click on the “Legal News” tab. Scan the headlines and select one. a. What is the title of the article you read? b. Give a brief summary of the article. c. Why did you select that particular article?
2. In this chapter you were introduced to the case of Donald Drake, the grand- father who suffered emotional distress when he saw his grandchild hit and killed b_y a ne_gli_gent driver. Most states now allow a person to recover for the emotional distress they suffer when they see someone else injured or killed so long as they have a close relationship with the person injured. But do you think someone who witnesses her pet dog being attacked and killed by another dog should be able to recover for the emotional distress this caused her? That was one of the issues raised in a case from Indiana. Your task is to find that case and see how the court answered the question of whether pet owners should be able to recover for emotional distress. a. Most states maintain a website on which they publish their most recen
appellate court decisions. To find this Indiana case, first go to www.in.gov judiciary/opinions/pdf/113 00501 pds.pdf.
b. Read the first few pages of the case and especially the description of the attack on Ms. Lachenman’s dog that occurred on September 30, 2002.
c. Return to the beginning of the case and do a search for “pet dog.” (Yo·- can simply type the words “pet dog” in the search box and press enter. Read what the court says on page 16 about the claim for negligent inflic- tion of emotional distress. Why didn’t the court allow the Lachenmans to .cecover?
d. Do you agree with the court’s decision?
B. Legal Analysis
~oes the study of law involve more than simply memorizing rules? – -legal reasoning? – iS the doctrine of stare decisis, and why is it important?
– it important to know whether a set of facts are analogous to or dis- – – able from those in prior court decisions? — · a cause of action? What does it mean to say that a person does not ;: a valid cause of action?
oes law change? Should it? ·- there no one “right” answer to a legal problem?