Every Case Has Two Stories
by
Sue Liemer

It is the first week of fall semester and a roomful of 1Ls are staring at you as nervous as deer in the proverbial headlights. You know many of them consulted Black's Law Dictionary until the wee hours of the morning, trying to fathom meaning in the one case you assigned. Yet they still seem hopelessly lost. Perhaps you are not trying to play Kingsfield, and you are wondering if there is a kinder, gentler way to help students learn quickly to read and brief cases.

Try telling them this: "Relax. It's really very simple. Every case has two stories." And then, without the need for any high-tech equipment, you can have a visual aid just by holding up two fingers.

Two fingers. Two stories. What could be easier? Everyone loves a good story. And every case by definition is a little human drama, complete with settings, characters, tensions, plots -- well, two plots actually, the two stories.

The first story (hold up the first finger again) is the story of what happened in "real life." What happened in the world to get someone so upset he or she wanted to sue someone else? Did someone slip on a banana peel in the produce department? Did someone steal bananas from the produce department? You get the picture -- what was the real-life dispute, what happened up until the time someone filed a lawsuit? All of those details are the facts of the case.

Tell the 1Ls that is what they should tell you if you ask them to recite the facts of the case. That's what they should write under "Facts" in their case brief. If you want to hear facts and they veer off into the law or other areas, it's easy enough to chide them with a curt, "Just the facts." Just the real-world story.

The second story (and here you get to hold up a second finger) is the story of how the lawsuit wound its way through the courts. Tell the 1Ls that in law we call this second story "procedure." Sometimes they may hear it referred to as the procedural history or procedural posture of a case. The first story is facts, and then the second story is procedure.

This second story, how the case wound its way through the courts, is what they should write under "Procedure" in their case brief. It's what they should recite if you ask for the procedural posture of the case. And above all, it's what they should focus on when studying for that befuddling course called Civil Procedure. It's what their Civil Procedure professor will be focusing on. Professors in other courses are likely to put the focus elsewhere. Inevitably, some brand-new students will arrive at Contracts class clear on the standards for personal jurisdiction or they will come to Civil Procedure class more concerned about an intentional tort. The two-story approach should help them focus their efforts more productively right from the start.

So that's all there is to it. There are two stories for every case. The first is facts; the second is procedure.

I realize this two-story approach has its limits. It ignores any subtleties in determining exactly what triggers commencement of a lawsuit. It also delays for another day application of the axiom, "There are two sides to every story," a key element of legal training, of course. But in the first week of law school, the two-stories-per-case explanation preempts a lot of potential confusion among 1Ls.

You could hold up two fingers and explain this difference between facts and procedure during an orientation talk on briefing cases, during a first class in Legal Methods, or during the introduction to Civil Procedure I. I use this explanation in the first week of Legal Writing class, and it feeds well into coverage of writing a statement of facts a few weeks later.

I always see light bulbs go on when I explain to students that every case has two stories. In minutes they are confidently volunteering first the facts of the case, then the procedural posture. I write their contributions verbatim on the board under the appropriate headings, so they can see their efforts affirmed and feel encouraged to volunteer more. In the beginning, two stories makes for one easy way to start learning to read cases.