May 2015 Idea
By Rory D. Bahadur, Washburn University School of Law
It is probably safe to say that most schools have some form of skills training or introductory training session for new law students during which students are taught how to brief cases. As the National Academic Consultant for CLEO and in my own classroom I have seen so much emphasis being placed on briefing that students sometimes mistake the completion or mastering of a brief as an end onto itself.
The truth is that while case briefing forms an integral part of lawyering and law school success, students often mistakenly believe that good briefs translate into good grades on an essay exam. However this belief is erroneous because it ignores outlining, which is the link between briefing and success on law school exams.
Most briefs consist of the following components: Facts / Issue / Rule / Analysis / Conclusion (FIRAC). Most law school exams contain: Issue / Rule / Analysis / Conclusion (IRAC). The structural similarity of the briefs and exam answers make it clear that the processes are related. The IRAC structure and organization of a final can only be automatic and natural if the structure is repeatedly practiced via the briefing process during the semester.
Additionally, if students are taught to brief in such a way that they compose the analysis section of the brief before composing the fact section, the meaning of a “legally relevant fact” becomes self-apparent. Only those facts used in the analysis section of a case brief are legally relevant. And only legally relevant facts need be in the fact section of a case brief. Similarly students should understand that a good analysis on an essay exam should contain enough facts for the reader of the analysis to recreate the essential facts of the question asked.
The difference between briefing and exam answer structure however is essentially issue spotting. The brief is based on a casebook section with a topic heading which gives a clear indication of what the issue of the case should be. On a final examination the challenge is to figure out what issues or rules of law are invoked by a set of facts with no topic heading attached.
This recognition of rules invoked by new facts is called issue spotting or more precisely rule spotting. It is mastered only by creating an almost reflexive association between certain types of facts and certain rules of law. Creating this association is the function of outlining.
Students should be taught that briefs allow them to practice an analytical structure or format. Outlining involves scouring those briefs for the essential facts which invoked the rule of law developed or taught in that case. It is this extracted fact nugget that should be put in an outline next to the rule of law related to it. This process of mining the briefs and juxtaposing essential facts with a rule of law results in a document called an outline.
Review of the outline and the associated repeated exposure to this juxtaposition of rule and fact results in similar facts on an essay exam invoking the relevant rule or issue. We call this issue spotting.
While briefing (and the associated paraphrasing or explaining of the court’s opinion in the analysis section) is an important aspect of teaching the structure of legal analysis and of long term memorization, students also need to be made aware that outlining or fact/rule association is a separate step in the process without which they will not be able to issue spot on the final examination.