Principles of Contractual Liability

Semester 141
How to Brief a Case1
Not only are you expected to read assigned cases in advance of the classes
and tutorials to which they relate, you should also brief them. That is to
say, you should create your own written summary of the case to assist you
with learning the course content, acquiring legal reasoning and
argumentation skills, and preparing for the end-of-semester examination.
Make no mistake, you will probably find briefing a case difficult at first. But
unless you consistently apply yourself in this area, and struggle through the
initial challenge, it is unlikely that you will acquire the content-knowledge
and legal reasoning skills necessary to do well in the course (and you may in
fact be at risk of failing the course which is something that no one
wants!). Never rely on other peoples summaries of the cases. Even
assuming them to be accurate (they are not always so, even in published
texts), you will simply miss acquiring the vital legal analytical skills and
application conventions that come with being able to personally brief a case.
Below I supply a few notes on briefing a case, bearing in mind that there is
probably no single correct way to do it. (That you bother doing it at all is
probably more important than how you go about doing it.) The purpose of
the exercise is to summarise, as succinctly and accurately as possible, the
facts, issues, holdings and reasons contained in what can sometimes be a
very long and complex case. Once you are happy with your brief, you should
not have to re-read the case, at least for the purpose of the course. In the
early phases of the course, you will be able to cross-check the detail and
accuracy of your own brief against the oral case summaries that I shall
present (or else elicit from students) in the lecture or tutorial.
It would be useful, I believe, if your case brief conformed to the following
format:
CASE NAME and CITATION
(eg, Smith v Jones (1986) 44 CLR 345 (HCA))
The citation should be noted so that you are able to find and read the full
decision should that be necessary.
The citation also contains other
important information such as the year of the decision (or, as the case may
be, the reporting of a case decided in an earlier year), whether or not the
report is official, and the court that decided the case. Such information is
important in determining the legal status of the case (eg, whether the
1

This document draws on materials produced by Law Faculty staff in previous semesters. The
assistance provided by the continuing development of materials by colleagues is duly acknowledged.

decision is binding or merely persuasive, and, if the latter, then how

persuasive).
THE FACTS
You need only isolate the MATERIAL facts. Be as brief as possible. Material
facts are those that aid in understanding and resolving the issues before the
court. (The material facts are often provided in your Reading Materials
anyway, but that is not always the case.)
THE ISSUES
Each case may well have more than one issue, and there will sometimes be
sub-issues within main issues. List all of the issues and sub-issues from the
general to the specific. There might be counter-claims or defences by the
defendant, with their own set of issues and sub-issues.
THE HOLDING (CONCLUSION OR RESULT)
Record the finding(s) of the court on each of issues and sub-issues (if any).
Occasionally there will be alternative holdings.
THE REASONING THE LEGAL BASIS FOR THE DECISION
This is the most important part of the case brief so far as your learning is
concerned, so spend most of your time and focus here. How did the court
arrive at the decision it gave? Ask such questions as:

What legal principles were applied? Ignored?

Did the court intend the decision to have broad or narrow
ramifications? (eg, was the decision confined to its own unique
facts?)
Did the court mention or apply considerations of legal policy in
support of its decision or any part of its decision?
Did the decision break any new legal ground, or did it just follow
earlier precedents?
If precedents were not followed, on what basis were they
distinguished?
DISSENTING JUDGMENTS

Occasionally a dissenting voice becomes more important than the majority

decision. If a dissenting judgment is provided, consider such matters as the
seniority or reputation of the judge, the persuasiveness of the counterarguments given, and the manner in which the issues were resolved.
Todays dissent can become tomorrows law!
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