Briefing a case: Some standard questions to ask in strip-mining the court’s opinion

Here are some questions I’d like students to be able to answer about pretty much every case I ask them to read — in part because partners and in-house counsel want to know these things about cases being cited in memos, draft briefs, etc.

What was the overarching dispute – how did the parties end up in court?

This falls in the “duh” category. More generally, every case you read is a chance to acquire some “artificial experience” in human interaction, helping to make you a more-valuable resource for clients and other lawyers.

What kind of proceeding occurred at the trial-court level?

What the trial court or appellate court feels capable of doing can be greatly affected by the nature of the proceeding below.

The specific dispute addressed in the opinion

• What if any factual element(s) of a claim or defense were in dispute?
• Who had burden of coming forward with evidence?
• Who had the ultimate risk of non-persuasion?
• What was the standard of proof? (Usually a preponderance of the evidence, but on occasion it will be clear and convincing evidence.)
• Did the court apply any presumptions? Was the presumption overcome? If not, how (if at all) could it have been overcome?
• Was there a dispute about:
• what the law was?
• what the law should be?
• how the law should be applied to the facts?

Any issues with the evidence?

• Did either party claim it needed discovery that the other side hadn’t provided?
• What if any additional discovery or investigation could the losing party have done?
• Any relevant evidentiary disputes?
• Was there any evidence that was particularly compelling to the trier of fact, one way or another?
• Bonus question: Could the winning party have put in any more evidence to bolster its case on appeal? (Of course, there’s always the risk of boring the judge and jury by over-trying your case.)

For appellate cases (including district-judge review of a magistrate judge’s decision)

• For fact findings below, what standard of review did the appellate court apply? Some common possibilities:
• Substantial evidence
• Clear error
• De novo fact finding (This is rare.)
• For the actual decision below, what standard of review was applied? Some common possibilities:
• De novo review of questions of law
• Abuse-of-discretion review of case management decisions

Guidance / constraints on the court’s decision?

Some common possibilities:

• Constitutional provisions
• Statutory provisions
• Binding precedent
• Non-binding precedent

Tip: Consider how compelling the actual holding is — and for which side

Here are a couple of rules of thumb:

• Final judgments are perhaps the most compelling, whereas cases that essentially defer a final decision (e.g., because of some ancillary reason) are less so.

  For example, an opinion that denies a plaintiff’s motion for a preliminary injunction, on grounds that the plaintiff has failed to show irreparable harm, is far less compelling than if the court had granted the defendant’s motion to dismiss the plaintiff’s claim entirely.

• [UPDATED 2011-04-05:] A case whose outcome favors the party in your client’s factual position is (way) better than the other way around. Here’s a classic “gotcha!” moment that can result from sloppy lawyering: Litigation counsel for a plaintiff cites an opinion for a particular proposition of law. The statement of the proposition of law is accurate enough, but on the facts set out in the opinion, the court ruled in favor of the defendant. Defense counsel will no doubt point this out to the court, perhaps with a certain gleefulness. (TIP: If the facts stated in the opinion are uncomfortably close to those of the plaintiff’s case, the plaintiff’s counsel might do well to beat the defense counsel to the punch by proactively citing the opinion, and then distinguishing it; chances are that the plaintiff’s counsel’s willingness to raise and address the obvious problems in her own case will increase the judge’s willingness to rely on what she says.
• Tip: When citing a case, include a parenthetical summarizing the procedural posture and the actual relevant holding. Example: Citizens United v Federal Election Commission, 130 S.Ct. 876 (2010) (reversing three-judge panel decision; McCain-Feingold Act’s ban on use of corporate- and union general treasury funds for certain campaign-related purposes was unconstitutional) (multiple opinions).