Briefing a case , What-If, Write like a judge

Briefing a case: establish tangible record of your analysis so that later you can critique and assess it. compare analysis to class analysis..  a template from the book


Briefing the application of the rule of law adopted in Pierson v. Post to the facts
         Pierson vs. Post
    ( New York Supreme Court 1805 )

FACTS: Post was hunting with his dogs and hounds on an un-owned beach when he spied a fox. He and his dogs and hounds were in hot pursuit of the fox, and apparently were about the catch the fox when Pierson, who was walking up the beach from the opposite direction and saw all of this coming towards him, killed the fox.

Majority Opinion 

ISSUE: Whether Post, by his hot pursuit of the fox with his dogs and hounds and being on the verge of capturing it, acquired a property interest in it? what constitutes occupancy?
RULE: To establish occupancy, the claimant must prove that he 1) had an unequivocal intention of appropriating the animal to his individual use 2) deprived the animal of its natural liberty, and 3) brought the animal within his certain control.
PUBLIC POLICY: to promote certainty and preserve peace and order in society, and to minimize quarrels and litigation.
HOLDING: Post failed to establish occupancy in the fox and therefore has no cause of action against Pierson for trespass.
RATIONALE: Post could establish that he had the intent to appropriate the animal to his individual use as evidenced by his hot pursuit of the fox with his dogs and hounds; Post arguably had deprived the fox of its natural liberty because the fox was not free to do as it wished because it was being chased by the dogs and hounds; but Post could not prove that he had the fox under his certain control because the fox was still running down the beach and there was still the risk that the fox could have gotten away.

Dissenting Opinion

ISSUE: Whether  a person who, with his own hounds, starts and hunts a fox on waste and uninhabited ground, and is on the point of seizing his prey, acquires such an interest in the animal as to have a right of action against another, who in view of the huntsman and his dogs in full pursuit, and with knowledge of the case, shall kill and carry him away.
RULE:Property in animals feroe naturoe may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking what he has thus discovered with an intention of converting to his own use.
PUBLIC POLICY:to maximize the kill of foxes
HOLDING: Post established occupancy in the fox through his actions and therefore has a cause of action against Pierson for trespass on the case.
RATIONALE: Under the dissent's proposed rule statement Post would have a property interest in the fox because his action of pursuing the fox indicates that he had the intention of converting to his own use the fox that he and his dogs and hounds  had discovered, and because he was in hot pursuit of the fox and on the verge of capturing it, he was either within reach of it, or if not, he ha a reasonable prospect of capturing it.

1) FACTS - The facts are what led to the dispute, which is what started the case. Write the fact statement in chronological order and include all "outcome-determinative" facts - where the hunt occurred etc.
2) ISSUE - Majority Opinion primarily focus on the rule plane and no references to the particular facts of the case in the sentence while dissent issue statement has a lot of references to the facts.
3)  RULE - extract what you think is the rule statement the court adopted in the case and write it in your brief.  By practice this method, you learn to focus on the rule plane while reading the case, and easier to understand the court's analysis of the question of law and the rule it adopted. Bring this to class to assess your legal analysis skills; forces you to be more precise in your knowledge of rule ( detail knowledge ).
4) PUBLIC POLICY CONSIDERATION: the reason the court adopted this rule. what the did the court want to encourage, and why? what did the court want to discourage, and why? what type of society do we want, and why?
5) HOLDING: court's conclusion after applying the rule it adopted to the facts of this case?
6) RATIONALE: 2 rationales: 1st, explaining why the court adopted the rule that it did ( interaction between the rule plane and the public policy plane) 2nd, what was the court's explanation for it's holding.

"What-if" game

First hypothetical - what if Post kills the fox right before Pierson can get it but with a gun this time.
- outcome would be the same because post couldn't prove he brought the fox within his certain control even though he satisfied all other elements.

Second hypothetical - what if post came onto Pierson's property and kills the fox. Then this might consider a trespassing.. If this issue were one of first impression, then the court is free to adopt rule it thinks best. Whether the public policy of maximizing the kill of wild animal outweighs the public policy of protecting private property rights.If protecting private property rights is the paramount public policy consideration, it would come back to a new rule of law that promoted public policy consideration. in this case adopt " rationi soli" - a wild animal on private property deemed to be in the constructive possession of the owner of the private property.

Third hypothetical - what if the fox is exhausted and unable to move. But before Post can get it, Pierson walks up and grabs it. Post can prove the intent to appropriate the animal to individual use, deprived the animal of its natural liberty because it was unable to move. The issue is whether the fox is under his certain control. Post could argue that he did because the fox was unable to move while Pierson will argue that he did not because the fox could have gotten up and run off any moment or certain control not achieved until he grabbed the fox. To resolve the impasse, the court would look into relevant public policy consideration. Pierson has stronger argument because it is more consistent with the court's public policy considerations in trying to minimize quarrels and litigation.

Write like a judge 


The diagram depicts the semester the start of the classes until the end of classes.

Cases/ Facts > Analyze/Rules & PP > Outline/Rules & PP

The Exam Process

A fact pattern >  Spot Issues > Analyze / Apply Rules & PP > A well-written judicial opinion

That is a law student's circle of life. Each semester you start out reading analyzing opinions in a certain subject area of the law. By the end of the semester, the professor expects you to be able to write a well written judicial opinion about selected issues in that subject area.

Analyze/apply rules &PP means u need to apply rules and you get those rules from your Outline / Rules & PP  You should created an outline and take time to write a rule. When you are creating your outline, your mindset should be " If this rule were to come up on the exam, what should i write and why?". It is crucial to write an outline of your own and consult the commercial outline until after you finish one; this serves as a check on how well you know each rule. Know know a rule statement, understand it, know when to use it and how to use it. For each rule you learn during the semester, your goal is to write the rule, the whole rule, and nothing but the rule, in one sentence. be flexible, because it can be easier to write two short sentences.

In adopting the one sentence approach to writing your rule statement, paraphrase can run the risk of changing the rule. Every rule statement has 2 types of words : filler words and operative words - free to change the filler words to the extent you don't change the scope of the rule. be very careful about how you word the key operative words in your rule statements. Practice makes perfect, and the process of creating the outline forces you to think about, and practice writing, your rule statements.

I - Issue

R - Rule

RE - Rule Elaboration

A - Analysis

C - conclusion

For a rule statement with multiple elements

I - Issue

R - Rule

1. RE  (A +C)   2. RE (A+C)   3. RE (A+C)

I - Issue
R - Rule statement
RE for 1st element to be analyzed;
Application and Conclusion for element
       RE for 2nd element to be analyzed;
       Application and Conclusion for element

I - Issue

The issue statement starts with a reference to the party invoking the rule (Dude) and ends with a reference to the rule the party is invoking to support his or her claim. Can be a question "Can dude successfully claim the land based on adverse possession?" or a declarative sentence: "Dude will claim the land based on adverse possession?"

R- Rule
the one-sentence rule statement you have in your outline that constitutes t he rule, the whole rule, and nothing but the rule. no reference to the facts
RE - Rule Elaboration
The break the rule into its parts-it elements-and check to see if each statement is satisfied. Thus, creating an IRAC for each element. You get the rule elaboration from your outline.
The A in analysis requires discussion and analysis of the facts. Remember that it should explain why the element is satisfied. for example: "" Open and notorious requires possession that would give constructive notice to the true owner. Here, because Dude moved on to the land, built a house, lived in it, and farmed the land, if Wendel had walked the property he would have noticed Dude; the element of open and notorious is satisfied""

REMEMBER: start with the elements that are clearly satisfied and works it way to the elements in dispute.

For Competing rules:

I. who has a better claim to the fox?

Sub-Issue 1: T will claim it based on occupancy.
Rule: Occupancy requires...
Analysis: Here,....
Conclusion: T can establish occupancy over the fox.

Sub-Issue 2: L will claim the fox based on rationi soli.
Rule: Rationi Soli requires....
Analysis: Here,....
Conclusion: L can establish rationi soli with respect to the fox

Writing your outline


I - Generic issue statement - starts with a reference to the party invoking the rule and ends with a reference to the rule being invoked.
R - Rule Statement
R- Rule elaboration

For example: I. Can X claim the land based on adverse possession?
Adverse Possession requires actual entry that gives rise to possession that is open and notorious, exclusive, adverse/hostile, under a claim of right, and continuous for the statutory period.

EXAM FORMAT        vs.       OUTLINE FORMAT

I- Issue                         /           I - Generic Issue Statement
R- Rule Statement         /           R - Rule statement
R- Rule Elaboration       /           R - Rule elaboration
A - Application / Analysis
C - Conclusion


Remember: The issue is not stated on the factual plane. It does not include any express reference to the particular facts of the case. generic references include " a social host" not Zaks < defendant name or " an adult guest " not gwinnell " , and obviously " the victim " not use victim name kelly
Issue statement: ""This case raises the issue of whether a social host who enables an adult guest at his home to become drunk is liable to the victim of an automobile accident caused by the drunken driving of the guest. ""

When writing memorandum, do not say that the court "argued" . The attorney argue to the court, and the dissent may argue in opposition to the court. The court held, ruled, or stated is the proper terminology.

Above material involved common law "judge made law", while legislature drafts and creates statutory law < in this case the judiciary construes and applies it. 

PURPOSE: A concise summary of the book for me to refresh my memory. Also for anyone interests in reading the book. 
Wendel, Peter T. Deconstructing Legal Analysis: a 1L Primer. Austin: Wolters Kluwer Law & Business, 2009. Print.

Read and Analyze a case

What to study in law school and how does it transform a person to think like a lawyer...

Start with a case study..  Explanation below is limited to 1 competing rule

A1 has a conflict with B2 but can't resolve the issue so A1 decided to sue B2. A1 presented the fact to his lawyer from his perspective. Then, his lawyer would research the law and looking for the rule of law (aka cause of action) when apply to the facts entitled his or her client to the relief.

For example: Rule of Law - " Adverse possession " 1) actual entry onto the land that gives rise to possession 2 ) open and notorious  3 ) exclusive  

1,2,3 are the elements of a rule of law.

After finding the cause of action, the  lawyer would writes it up in a document called a complaint ( or a petition or a declaration). The party filing the complaint also known as plaintiff or petitioner. B2 served with a complaint, and would presented the fact to his lawyer from his perspective. B2's lawyer would research the cause of action that the plaintiff's lawyer has asserted to see if it is applied; the lawyer also write up the defendant reply to the complaint called an answer (or response which may contain "affirmative defenses" to counter plaintiff's cause of action (s). Pre-trial is the period of time after the defendant files his or her answer and before trial.


Dispute > Complaint > Answer > __pretrial__ > Trial

During Pretrial - Depositions, Interrogatories, Requests are the forms of discovery. "Discovery is the legal process by which one party is permitted to learn the other party's version for what happened".

In addition, the parties typically  file motions during pre-trial.

Pre-trial   :  Discovery and Motions

2 forms of motions: motion to dismiss and summary for judgment.

Motion to dismiss - requests the court to dismiss the cause of action because the facts do not satisfy the elements of the cause of action ( rule of law ) even though the facts are true.
Summary Judgment - both parties agree on the relevant facts produced during discovery. "Judge can decide whether the rule applies without the need for a trial"

In case, the dispute can't settled and is not resolved by motion, it will go to a trial.

At the trial, the plaintiff calling his witnesses to testify the facts then defendant turn. The judge instructs the jury on the law at the very end of the case, and the jury has to determine what happened factually and applies the law to the facts to reach the verdict in the case.

if either A1 or B2 is not happy with the verdict, they can authorize their attorney to appeal.

Dispute > Complaint > Answer > __pretrial__ > Trial  > Appeal

The fact are determined by the trial court, so the appellate court only handle the questions of law.
In law school, students read virtually all appellate court opinion rather than trial court opinion. The court is making law if the the questions of law is a new law, a question of first impression. "Before adopt the new law,the court has to take into relevant public policy considerations. what type of society do we want and what do we value? what should be encouraged, and conversely?"

Finally, there are 3 planes : the factual, the rule, and the public policy plane
.
So, the most important plane is the rule plane because it is the core of the case. What is the A1 vs. B2 case about? The answer would be: It was about the rule of adverse possession. Second most important is the public policy plane because it answers the question why did the court adopt the rule it did. The factual plane is the least important but still has it own value. The court adopts the rule of law, it applies the rule of law to the facts of the case to reach the holding in the case; and it would occur when the the facts satisfy the elements.


The court of appeals usually have 2 different rule statements to choose from when trying to decide how to answer the question on appeal - 1 offered by the plaintiff and the other offered by the defendant.

For example: What constitutes occupancy? 1) intent to appropriate to individual use, have a reasonable prospect of capturing it. or 2) intent to appropriate to individual use, bring the animal within certain control

The appellate court has to look into relevant public policy consideration to determine which rule statement is the better one?  the court will identify all the relevant public policy consideration to determine which are the most important, and the purpose of law in our society.

What constitutes occupancy?
Dissident rule: 1) intent to appropriate to individual use, have a reasonable prospect of capturing it. - public policy consideration : maximize kill of a certain animal
Majority rule: 2) intent to appropriate to individual use, bring the animal within certain control. - promote peace + certainty minimize quarrels 

In this case, the court's primarily concern is what is in society's best interest while justice and fairness of a single party should not prevailed. rule #2 would prevail and be chosen to apply to the facts. If all the elements within the rule statement satisfy the facts, then the plaintiff will entitle to the relief. For example: did the person intent to appropriate to individual use? did he bring the animal within certain control? if one of the fact that he didn't have the animal within certain control because the animal still running around, then he can't establish occupancy.

In this case, there is a scope of the rule.Dissident rule is broad and can easily satisfy.. reasonable prospect of capturing it. the majority rule is narrower because bring animal within certain control (the condition is harder to satisfy as one party has to prove that he has control of the animal).  "Reasonable" more softer and more fact-sensitive ( open-ended and ambiguous) compare to a bright-line rule - within certain control.


PURPOSE: A concise summary of the book for me to refresh my memory. Also for anyone interests in reading the book. 
Wendel, Peter T. Deconstructing Legal Analysis: a 1L Primer. Austin: Wolters Kluwer Law & Business, 2009. Print.