How to Brief

Three pedagogical tools have persisted since time immemorial in American law schools: case briefs, cold calls, and outlines. I’ve written about outlines before.1 Here I discuss the brief. 

Briefs serve basically two purposes. The first is to help students answer cold calls. The second is to help students analyze cases with an eye toward preparing for the exam. The problem is that these purposes conflict.  

 Let’s start with the first purpose. Obviously, law professors cold-call students to ask about the details of the assigned cases. Students can rely on their memories or their highlighters to answer these questions, but most will want to prepare a brief that records the answers for them. Professors have different styles. Some professors ask mostly conceptual questions about the case’s reasoning and hypotheticals that apply it to other scenarios. Others will ask heavily descriptive questions about the parties, facts, or procedural posture. The more a professor falls into this latter category, the more useful briefs are. Students may be able to recall the holding of a case with memory, a quick review of the reading, or concise notes, but it is hard to recall all the details of a case without a lengthy brief. 

The other purpose of briefs is to unpack cases as the first step in learning the legal doctrine, outlining, and succeeding on the exam. Understanding this aspect of briefs requires understanding the goals of law school teaching. Unlike some undergraduate courses, law school exams are not really about memorization. Instead, the key to success is to distinguish the holding of the case from dicta, to ignore the dicta, and to apply the holding to new facts. A brief is helpful to the extent that it displays the legal rule and outcome-determinative facts. Personally, I cringe when I see outlines where each case gets a long brief copy-pasted in, most of it with no plausible relevance to any exam question. 

It should be clear why these goals conflict. For cold calls, briefs are most helpful when they are comprehensive, containing all the information that one might be asked about, even idiosyncratic factual details. For the exam, briefing is best when it targets the key reasoning. Ideally, briefs would train students to dissect cases to separate the important from the extraneous material. But I worry that they do the opposite, training students to put equal value on everything that appears in a case, as if the parties’ backstories are as important as the case’s holding. 

 Now, assuming you don’t want to whiff cold calls, you may still put a lot into your brief. But don’t let it fool you. In the end, the only really important part of your brief will be the holding. 

And don’t worry too much about the brief. Briefing is time-consuming; it’s difficult to do your reading and then force yourself to write out a document. I recall that briefs were drilled into us in 1L orientation, and they can feel like the one thing you control as you start law school. Yet although it’s embarrassing to be unprepared for a cold call, it’s the exam that determines your grade. And that will come more from your attentiveness and comprehension in class than from the brief you did beforehand.