BRIEFING CASESKeeping Review of Case Law Simple and Useful

BRIEFS KEEP JUDGES HAPPY!

COMPONENTS OF A LEGAL BRIEF

• Case Citation

• Facts of the Case

• Procedure

• Issues

• Holding

• Reasoning of the Majority Opinion

THE CASE CITATION – OFFICIAL NAME OF THE CASE

FACTS OF THE CASE

• This is a very Important Part of the Brief because it outlines the particular factual situation that the Court is Reviewing to make its decision as to how the law should be applied• Caution Should Be Take to Only Include the Information Needed to Resolve the Case Issues Before the Court – [this is actually hard to do and takes the most practice]

COURT PROCEDURE

• Most Cases That Are Used in Casebooks Such as the Text in This Class are Decisions Rendered by Appellate Courts

• Appellate Court Decisions Do Not re-try the facts of the case: The Appellate Court Reviews the Record of the Trial To Make Sure The Trial Judge Didn’t Make any Errors in Applying the Appropriate Law

• In This Portion of The Brief You Want to List What Happened in The Lower Court – for example: The jury returned a verdict for the Plaintiff in the case and the Trial Judge entered the Court’s judgment on that Verdict

• You only need to list a sentence or two describing this aspect. The party appealing the case must suggest to the appellate court what legal errors the trial court made.

ISSUES TO BE DECIDED IN THE CASE

• This is a CRITICAL part of the Brief: It asks the Appellate Court a Question as to Whether the Trial Judge Correctly Applied the Law (substantive or procedural) in the case• The Questions (there will be at least one) posed should be

set forth in a way that a “yes or “no” answer can be given• Example: Did the Trial Judge Error in Refusing to Permit the Introduction of Parol Evidence to Suggest What Defendant Understood Defendant’s Obligations to be Under the Contract?

HOLDING

• This Part of the Brief Answers the Question(s) Posed in the Issues Portion of the Brief

• Example: No [to the question as to whether or not the Trial Judge Committed Error in refusing to admit Parol evidence of what Plaintiff thought Defendant’s Obligations Were under the Contract) The Judgment of the Circuit Court of St. Louis County, Division 41 is AFFIRMED

REASONING OF THE COURT MAJORITY

• THIS IS THE MOST IMPORTANT PART OF THE BRIEF!

• List and explain the elements of the decision rendered by the Majority of Judges on the Appellate Panel

• This portion of your brief can be quite detailed.

• It should state what the law was prior to this opinion and (if applicable) how this decision changed the established law and why

• In law school classes professors analyze the various elements of the decision and grill students in the class on those elements and whether or not the changes made by the decision are “right.”

CONCURRING AND DISSENTING OPINIONS

• Decisions rendered by Appellate Courts will follow the reasoning of the Majority of the Judges on the Appellate Panel. In the U.S, Supreme Court, if the Chief Justice is in the Majority, he assigns the writing of the Opinion to himself or one of the other Justices in the Majority

• There may be concurring opinions – judges concurring vote with the majority but believe that different principles should be applied in the application of that decision

• There also may be dissenting opinions where the Judges or Justices dissenting believe that the legal principles applied by the Majority Judges or Justices are incorrect. The dissenting opinion will explain why. Usually you don’t need to brief dissenting opinions

JUDICIAL PANELS

SUPREME COURT OF THE UNITED STATES

OTHER CONSIDERATIONS

• Rules don’t stand by themselves without some sort of policy behind them

• If there’s not a sound policy behind a rule, the court tries to fashion a rule that serves the principles of equity or justice.

• Sometimes a policy that does not further the policies of equity or justice binds the judge – in these cases, the judge upholds the law as written but structures his opinion so as to bring the injustice to the attention of the legislature so that they can change it.

• Dicta refers to anything in the opinion that isn’t relevant to the case’s holding. Dicta has no precedential value but is an indication of how a court might rule given different circumstances.

EXAMPLE: JAPAN – TAXES ON ALCOHOLIC BEVERAGES

• This WTO Case appears (in summary form) on pp. 352-354 of the text)

• The Facts of the case indicate that the United States, Canada, and the European Union complained that Japan imposed lower taxes on shochu, a locally produced alcoholic beverage, than it did on imported Alcoholic beverages, including vodka, in violation of Article III, paragraph 2 of GATT 1994

THE ELEMENTS OF A BRIEF• Case Citation

• Facts of the Case

• Procedure Used in the Case

• Issues to be Decided

• Holding

• Reason of the Tribunal, Court, Arbitration Panel, etc.

THE CASE CITATION

• The Case Citation gives the names of the major parties, The deliberative body and where the printed opinion is recorded.

• The Case Citation for the Example Used in this Powerpoint:

• United States, Dominion of Canada, European Union, Panel Reports WT/DS8/R, WT/DS10/R, WT/DS11/R (there are actually three separate cases, one for each party complaining)

• This is a Dispute Settlement Panel Report can be found on the World Trade Organization’s website at: http://www.wto.org/English/tratop_e/dispu_e/cases_e/ds8_e.htm

MORE TYPICAL EXAMPLE OF A U.S. COURT CITATION

• Bush v. Gore, 531 U.S.; 121 S.Ct. 525; 148 L.Ed 2d, 388

• This was a law suit originally filed with the Florida Court System regarding irregularities in the Beach County Canvassing Board’s handling of the voter returns in the hotly contested 2000 election between Governor George W. Bush, the Republican candidate and Vice President Albert Gore, Jr., the Democratic candidate. Ultimately the decision of the Florida Supreme Court was appealed on an emergency basis to the United States Supreme Court.

• 531 U.S. indicates that the case opinion is found in Volume 531 of the official U.S. Reports (Supreme Court Cases) and appears on page 98 of that volume; it is also published in the Supreme Court Reporter (S.Ct.) published by the West Publishing Co. in Volume 121, page 525 and in the reports published by the Lawyers Cooperative Publishing Corporation (L. Ed.) in Volume 148, page 388. The opinions are identical.

MORE ABOUT CITATIONS

• Case reports for the United States Circuit Courts of Appeal are contained in the Federal Reporter– abbreviated capital F.

• There are a small number of Federal District Court cases reported in these are reported in the Federal Supplement – F. Supp.

• Reports from the appellate courts of the 50 states are reported in a regional reporter system based roughly on the geographic location of the court. These are abbreviated as follows: Atlantic Reporter (A.); Southeastern Reporter (SE); Southern Reporter (S.), Southwest Reporter (SW) Northern Reporter (N.); Northeast Reporter (NE); Northwest Reporter (NW); Pacific Reporter (P.)

• Example: Missouri cases are reported in the Southwestern Reporter and a case citation would look like this: Doe v. Smith, 131 S.W.3d, 434, (Mo.Banc) indicating a Missouri Supreme Court Report

FACTS OF THE CASE

•The key factors here relate to the nature of vodka and shochu, a similar Japanese alcoholic beverage•The facts in this case fall into two categories: (1)characteristics of vodka versus shochu as to manufacture ingredients, and user market, and others; and (2)facts as to how the tax rate for each product is composed.

PROCEDURE USED IN THE CASE

• In this case the procedure is in the nature of an arbitration conducted before a Dispute Settlement Panel of the WTO in Washington, D. C.• If the matter was before a court instead of an arbitration

panel, the description of the procedure might be: a trial was held in the United States District Court for the District of Columbia and the jury verdict was entered in favor of the plaintiff, United States of America; the Defendant has appealed the matter to the United States circuit Court of Appeals for the Federal Circuit.

ISSUES TO BE DECIDED

• The “Issue” portion of the brief should set forth questions relating to the dispute between the parties that need to be answered to resolve the dispute. In this case the brief should include two (2) issues:

• First: are the products which are the subject of this dispute “similar” products?

• Second: is the taxing country (in this case, Japan) violating the national treatment principle that is is it discriminating against imported products in favor of domestic products by taxing the imports at a higher rate?

THE HOLDING

• The “Holding” portion of the brief should contain the ultimate ruling of the court, the tribunal or the arbitration panel.

• The holding in this matter would be something like this: “because shochu and vodka are like products, Japan’s higher internal taxes on imported vodka then on domestic shochu violates the national treatment rule of GATT.”

REASONING

• This portion of the brief should contain a brief explanation of the tribunal’s, the court’ s or the arbitration panels reasoning as to how it arrived at the particular “holding” that it published. The reasoning needs to explain such things as how did this panel/court/tribunal apply the like-products rule to the specific comparison of vodka in shochu? What specific product and market factors were considered? The reasoning should also address the analysis of the application of the like products and national treatment rules within the context of the parties arguments and include the following:

• Japan imposed higher taxes on imported vodka than it did on shochu. Canada, the European Union (EU), and the United States claimed that this violated GATT’s national treatment rule requiring that imported products be taxed the same as like domestic products. Japan also countered with the argument that vodka and shochu were not like products and that it’s taxes on alcoholic beverages did not violate the national treatment rule because the tax/price ratio was “roughly neutral.”