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Lawyering Skills
University of Kansas School of Law
Six, Betsy Brand

Lawyering I
 
B. Case Briefs
Case-general term for an action, cause, suit, or controversy, at law or in equity
                -a ? contested before a ct of justice
                -aggregate of facts which furnishes occasion for the exercise of jurisdiction of a court of justice.
                -judicial proceeding for determination of controversy btwn parties wherein rts are enforced/protected, or      wrongs are prevented/redressed
                -any proceeding judicial in nature
Ways to decide cases(in order of process):
motion to dismiss-simply on basis of pleadings themselves
motion for summary judgment-after discovery, decide case on basis of pleadings and evidence brought to attention through discovery process
trial-parties move for directed verdict, even when you look at all evidence presented by one side, they have not proved their case
verdict itself
motion for judgment nov (judgment as matter of law)-jury concluded what one party sees as incorrect judgment, therefore move to have judge dismiss it
appeal for new trial
Case Brief: Purposes:
Helps you to read cases carefully
Brief = Analysis of if/not you understood case properly
Preparation for class, outlines
Practice of law
Elements of a Case Brief:
Title/Identification: names of parties, ct, yr (Baxter v. Fugett, Okla Sup Ct, 1967)
Facts: material facts relevant to the issue and holding as you remember them, include facts ct uses to reach it’s decision and applies law to the facts
Procedural History: party who initially brought action, relief sought, lower ct’s disposition, errors claimed, deciding ct’s disposition
Issue(s)/Holding(s): Material ? of fact/law arises from claims, defenses, and arguments of parties. MUST be narrow enough to id substantive legal ? (the law) the ct is deciding
Issue is usually a question of law in civil cases (rarely a question of fact)
Holding: Answer to the issue, the case’s rule of law (precedent)
Holding v. Dicta: not an exact science, deciphering extent of ct’s ruling as precedent
Dicta: statements in opinion that explain court’s reasoning, but address questions not squarely presented in the dispute before the ct (essentially the rationale)
Read opinion critically (don’t simply take ct’s word), what ct does in total is key
Reasoning: Summary of reasons ct gives to justify its rule of law (ct’s rationale)
Common reasons: authority, practicality/workability, policy
Cases, legislation, and why ct relied on it
Evaluation: Whether reasoning is convincing, policy considerations, practical implications, your opinion
Other: Figure out what you don’t understand and write it down
Synthesis: Comparing critical elements of each case in a series
formulate general principle that explains each decision
OR compare/evaluate inconsistent approaches of diff. cts or same ct over time (Bridges gap btwn brief & outline)
Brief cases, understand legal rules, think about rules in context of facts of cases and context of problem presented-finally apply rules
First sentence: state the issue, then articulate law/legal principles, explain how law applies to new facts, give prediction to answer problem
C. LEGAL INSTITUTIONS
Sovereignty: the legitimate authority to govern, in the U.S. power to govern is given by the people
States put together from their respective constitutions, the preamble then constitution (set forth powers given to federal gov.) i.e. Congress has ability to regulate interstate commerce
10th Amendment: everything not given to fed gov in constitution is given to the states to govern themselves
–          patents/trademarks, bankruptcy, foreign affairs, etc. (federal gov)
–          family laws, adoption, divorce (state gov)
–          grey areas exist: edu (traditional state gov) but no child left behind (fed gov)
–          Fed gov got involved in education b/c said wouldn’t give $$$ to states for highways if they didn’t allow no child left behind policy
Municipalities: county/city gov. powers are delegated by the states (not from people like fed gov)
Judicial Branch
Trial cts-Appellate cts-Supreme cts
Federal Courts: trial ct is US District Ct
Each state has at least one district (some have more)
District ct judges are spread out throughout the state though serve on the same ct
States have at least 1 bankruptcy judge, several senior judges (who have technically retired but still hear cases on occasion), and magistrate judges (hear early motions, discovery disputes)
Trial cts hear general cases that are filed, but some specialized cts exist i.e. ct of intl. trade (can choose to file claim there or in US district ct)
If states bring suits against one another (must file claim in US Supreme Ct)
Jurisdiction: 2 types exist-personal and SMJ: also to hear case in federal ct, must be at least $75,000 at stake as a result of the lawsuit
Personal jurisdiction-of the person/company
SM Jurisdiction-of lawsuit, 2 kinds: federal question (if dispute arises over issue of federal law) & diversity jurisdiction (one party to lawsuit lives in 1 state, other party lives in diff state)
Ct determines what facts are and then what the law is, finally apply law to facts
If p and d agree on wanting judge to decide case, they can always, in any instance have judge be fact finder and waive rt to trial by jury
You can always have a jury in these cases as well if you’d prefer
Even when you have jury, judge always determines what the law is
Judge tells jurors what law is and instructs them on how to decide case
Judge writes an opinion (sometimes it is published if it has relevance to other cases)
If case is published it will be in F. Supp, rules decision (F.R.D.) i.e. 121 F.Supp 12 (D.Kan 1990)
Case above is volume 121 in fed sup. On pg 12 in the district of KS
If you appeal in fed ct, goes to Circuit Ct of Appeal

left to the chancellor who gave orders after hearing cases i.e. specific performance, etc.
Merger of Law and Equity: done first in England (1873), then soon after in US, but in KS was before England(1854), Federal cts (1938)
Transplanted to US: settlers were English and used same common law system
Many who came to US were colonial lawyers and used English commentaries and case law to practice law in US
What is Common law?
Case law developing from one precedent to the next
Its not planned and it functions in response to needs
Answers specific questions
Promotes constant uncertainty b/c scope of rule is not known until next case (don’t know for sure how it will apply)
Beneath the hierarchy of constitutional law and then statute law is common law
Stare Decisis: idea that previous decisions of cts can directly affect later decisions
1. Related doctrines exist:
2. Res Judicata (litigant who lost previous case cannot retry same matter in subsequent action) “claim preclusion”
Collateral Estoppel: litigant cannot retry issues of fact litigated/determined in prior suit “issue preclusion”
Stare decisis allows you to decide present cases consistently w/past cases
Impacts all case law
Purposes: efficiency w/in judicial system, predictability, fairness
Effect of Stare Decisis: w/in legal system, ct must follow its own decisions (usually) and those of higher cts
But not bound by cts below you or cts at your level in other jurisdictions, i.e. KS Sup Ct doesn’t have to follow decisions of MO Sup Ct, or 8th circuit doesn’t have to follow decisions of 9th circuit
Controlling v. Persuasive Authority
Precedentis controlling authority and is binding(ct must apply precedent)
i. Opinion must be published
ii. Majority or per curiam (unanimous)
iii. NOT plurality, equally divided, concurring, or dissenting (or denying certiorari)
How factually similar are the “precedent” case and current case? And what exactly is the precedent? (2 important issues to look at when determining if precedent is binding)
                i. Is reasoning similar in prior case to current case?
                ii. What facts were relevant for ct to reach its decision?
Other decisions are “persuasive” authority (i.e. even though don’t have to apply it, may follow ct on same levels decision b/c of similarity btwn cases)