UNIVERSITY OF THE WEST INDIES

FACULTY OF LAW, MONA

LAW 1230 LEGAL METHODS RESEARCH AND WRITING
2015 - 2016
ADVANCED LEGAL ANALYSIS - CASE BRIEF METHOD TO ANALYSING CASES
This module discusses the use of the case brief to analyse cases in order to
determine the rule for which the case stands, identify flaws in reasoning and
discern the flexibility in its application to the facts presently before the court. A
case is a complex living thing and must be methodologically dissected to uncover
the nuances of its implication in much the same way that the biologist dissects in
order to get an accurate understanding of the functioning of a complex living
organism. Through this specially formulated structure of briefing a case, flaws in
reasoning and other deficiencies in an opinion can be readily identified.
Moreover, the briefing of two or more cases that address similar issues allows for
the formulation of a general principle that explains all the decisions or to
highlight and evaluate inconsistencies in approach.

1. Case Briefs
The case brief is one of the most important systematic tools in legal analysis. It is multipurposed and achieves a high level of understanding. As lawyers you will be called upon
to become experts in areas of law that you were never exposed to during your academic
training and yet you must quickly become as authoritative as a judge must be. The deep
reading of cases provides one of the quickest and surest ways to become authoritative in
an unaccustomed field of law.
Sarah E. Redfield. Thinking Like a Lawyer: An Educators Guide to Legal Analysis and
Research. (Carolina American Press, 2002) at pp. 108-9:
A case brief is an analytical summary of an opinion. Case briefs are personal tools to assist your
understanding of a case. Case briefs extract the important aspects of a court opinion from the
sometime lengthy dissertation of the delivering judge. Many people have their own briefing
format that they have developed over time. When you begin to write briefs it is easiest to follow a
standard form, and then as you gain more experience you can modify that form to fit your own
needs. Briefs provide a quick reference source that you can go back to when discussing a case.
In this context, to brief a case means to identify the essential components of an opinion. This kind
of brief serves two functions: to help you clarify your thinking on what the opinion really means;
and to provide you with a set of notes on the opinion to which you can refer later without having
to reread the entire opinion every time you need to use it.
Rarely will you be reading an opinion simply for enjoyment. The objective of a case analysis is to
determine whether the opinion, in whole or in part, is analogous or useful to your fact pattern or
situation in order to know how the law will deal with your next case. The basic methodology for
case analysis is to first compare the facts in the opinion with the facts in your situation, and then
compare the rule of law that was interpreted and applied in the prior opinion to the rule of law that
must be interpreted and applied to your situation.

To effectively analyse whether your case is analogous to another opinion, you must understand the
opinion. Briefing an opinion can help with this understanding. The problem is that reading and
briefing a case are not easy because judges tend to assume and imply a great deal in what they
write and because opinions often involve numerous issues and difficult points of law. Still, a
framework is helpful.

Charles R. Calleros. Legal Method and Writing 4th ed. (Aspen Publishers, 2002) at pp
115-6:
Perhaps the most important and the most challenging element of a case brief is the synthesis, in
which you explore the relationship between two or more cases that address the same issue or
closely related ones. After comparing the critical elements of each in a series of cases, you can
refine your view of the holding of each case in the series. With synthesis, you can either (1)
formulate a general principle that explains all the decisions or (2) compare and evaluate the
inconsistent approaches of different courts or of the same court over time. In synthesizing cases,
you take a critical step in legal analysis
***
Similarly, when studying law, you cannot fully appreciate the legal significance of a single judicial
decision without examining its role within a larger body of case law; yet you cannot master the
larger body of case law without first gaining at least an imperfect grasp of its parts, first one case
in isolation and then a growing group of cases. As you brief a series of cases, you gain new
insights by examining the cases relationships to one another. Those insights may cause you to
modify your early, less sophisticated understanding of a case standing alone or standing with
fewer cases in the series. Additionally, they may enable you to identify a general legal principle, or
at least a set of accepted criteria, that helps to explain the decisions.

2. Format of the Case Brief

Case briefs may be organized under the following headings:
1.
2.
3.
4.
5.
6.

Facts
Issues
Decision
Holding
Reasoning
Policy Analysis

I. Facts
Any set of facts, any story, can be written or told from as many perspectives as there are
people to write or tell. But the perspective of the lawyer is from the rule of law that is
identified as being implicated by the facts since the concern of every lawyer is the
application of rules to facts. You must dissect facts, sifting the relevant from the merely
related or fascinating, and to position the crucial facts in the very centre of the
controversy through a simple easy to read, concise narrative. What is relevant is
necessarily what is dictated by the factual elements of the rule or rules that are, at least
preliminarily, identified as most closely applicable to the facts presented by the events
that occurred. These may be referred to as the legal facts. The legal facts are the facts that

are central to the event in that that they will be measured against the factual element of
the rule identified as applicable to produce the legal consequence.
This means that no factual statement can be written without a clear sense of the rule that
most closely governs the situation; as the rule determines the facts that are relevant or
irrelevant. The statement of facts gives all the facts that are necessary to determine
whether the rule applies. This leads to another point. This is that the facts of a case can
only be preliminarily written and must be revisited and revised as the final step of the
judgment. This is because the rule is not always clear; meaning that one or more factual
elements of the rule itself is disputed. This occurs not only with regard to common law
rules but also to statutory rules. Indeed, it will be the very purpose why the parties appeal
to the court. One or more of the factual elements of the rule is not clear.
The other implication that this has for writing the facts is that you must necessarily
include every fact upon which a new interpretation of the rule might be given. This does
not invite confusion but rather, prepares your reader for the courts reasoning given as
justification for its conclusion. Both you and your reader (your audience) must engage the
entire spectrum of possible outcomes which the facts reasonably provoke. Thus the
statement in the opening chapter of this book that the lawyers thinking must be both
structured and open-ended, a lawyers reading, both rigorous and critical, and a lawyers
writing, expansive and precise.
It must be remembered that not all of the factual elements of the rule will be in dispute.
The controversy will normally concern only one or two, factual elements of the rule.
These facts will be central to the factual recitation because they are the foundation of the
issue in the case - the controversy in the narrative. Like all good narratives the central
point must not be lost and indeed, must be identified through the way in which the story
is told. The reader must intuitively know what it is that demands resolution. Put another
way, the facts must suggest the issue. In so doing, there is a seamless transition between
the segments of the opinion as the recitation intuitively communicates to the reader what
is to happen next. At the conclusion of the narrative, even a layman would be able to say
what the issue is.
The Procedural Background
Procedure is of critical importance to law; no factual recitation can be complete without
the inclusion of the procedural background of the case. This involves the point at which
the events arrive at the door of the legal system up to the present point where some kind
of a relief is requested. It is not separate from the factual narrative but a vital part of it.
Example
The story can be very simply told even though the case leads to a profound development
in the law. Take the example of the familiar case of Donoghue v. Stevenson. It would be
useful to compare the following with the actual facts recited in the judgment. This will
give you a sense of what has been culled.

Donoghue v. Stevenson
[1932] AC 652
Mrs. Donoghue brought an action to recover damages for the nervous shock and severe
gastroenteritis which she suffered after discovering the decomposed remains of a snail in
a bottle of ginger beer some of which she had consumed. The bottle was opaque
preventing inspection. The ginger beer was purchased for her by her friend from a
retailer. Her suit was brought in negligence against the manufacturer of the ginger beer.

In this recitation, no procedural history is recounted and no argument of counsel.

However, the issue can be clearly discerned. When the procedural history is added, it
becomes even clearer.
The manufacturers contention that the pleading disclosed no cause of action was upheld
by the Second Division on the basis that the manufacturer of the ginger beer did not owe
a duty of care to Mrs. Donoghue since she did not purchase the ginger beer from them
and there was no contractual relationship.
Mrs. Donoghue appealed to the House of Lords.

Sometimes with a little editorialising you can force the issue. For example:
Mrs. Donoghue brought an action against the manufacturer of a bottle of ginger beer that
she had partly consumed before discovering the decomposed remains of a snail in it. The
bottle was sealed and opaque, preventing intermediate inspection by Mrs. Donoghue
before she consumed it. Although the ginger beer was manufactured by the respondent, it
was not purchased from him. It was purchased for the appellant by a friend from a
retailer. Nonetheless, she sought to recover damages from the manufacturer for the
nervous shock and severe gastroenteritis she suffered.

The use of the italicized words injects the writer into the story (editorializing) and
deprives it of authenticity. This may be resorted to in persuasive legal writing which we
will come to in the second semester. The purpose of this exercise is an authentic
distillation of the case.
Checklist for well-written facts
Is the narrative clear meaning does it tell a story?
Are the events in the story well sequenced?
Is there information other than facts, such as your conclusion or opinion?
Is there unnecessary editorializing?
Are any irrelevant facts included? Does it pass the test of background
information?
Can you figure out what rule or rules are implicated?
Do the facts suggest the issues?
II. Issues
Despite the fact that you have achieved the ability to construct a well-written factual
narrative that accomplishes the task of intuitively suggesting the issue; the issue must still

be stated. A basic skill that every lawyer and law student must achieve with easy dexterity
is the ability to succinctly and clearly state the issue in a case. For the practising lawyer,
the issue is the point that is brought before the court for adjudication, and for the lawyers
in the majority of cases that do not reach the courts, it is the point which forms the basis
of negotiations and discussions between opposing lawyers. Equally for the academic, all
discussion revolves around an identified legal issue. It is the fulcrum of any legal
discourse. Thus for the law student, learning the law hinges on being able to identify the
issue presented.
An issue must be stated as a legal question. A legal question is one that incorporates the
legal rule or rules that are implicated as well as the facts that make those rules relevant.
This is so because it is the rule that will resolve the issue. Only rules resolve issues in law
once a factual finding is made or agreed. From the point of view of the definition of a
rule as factual predicate plus a consequence; the issue is the element or elements of the
factual predicate of the rule for which there is a dispute regarding whether it is satisfied
by the evidence of the event in question. In any case, the issue is the disputed connection
between the major premise of the rule and the minor premise supplied by the events that
the court must resolve before it can impose the legal consequence of the rule on the
parties.
For example, accept, arguendo, the rule that:
Offer + acceptance + consideration + intention to create legal relations = contract

Consider its application to a situation where a father promises and his son accepts the
promise of the fathers car if he mows the lawn every Sunday for the next six months. On
suit by the son to compel his father to deliver the car to him, after the son diligently
mowed the lawn every Sunday for six months, it can be accepted without serious
argument that there was an offer, an acceptance and valuable consideration. The
satisfaction of those factual elements of the rule relating to a contract is not in dispute.
However, there is a dispute as to whether his father intended his promise to be legally
binding and enforceable in a court of law. In other words, do the facts as presented satisfy
the factual element of the rule relating to the intention to create legal relations? This
would be the dispute between the parties the issue.
How would we state this issue? Three examples suffice to illustrate the correct way to
state a legal question.
1. Is there a contract?
This is broad, vague and unhelpful. It could be applied to many contract cases. It says
nothing regarding why the question is being asked.
2. Does a promise made by a father to a son constitute intention to create legal
relations?
We are referring to this father and this son regarding a specific mutual promise not to
every son and every father in the world where there may be a factual nuance that may
change the entire picture.
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3. Did the defendants promise to his son to buy him a car in return for his doing his
chores on time for six months evidence an intention to create legal relations so as
to constitute an enforceable contract?
This incorporates the law, the element of the law that is in dispute and the specific facts
which has led to this dispute. It is a correct statement of the issue in this case.
Example
In Donoghue v. Stevenson, Lord Atkin phrased the issue in this way:
The question is whether the manufacturer of an article of drink sold by him to a distributor, in
circumstances which prevent the distributor or the ultimate purchaser or consumer from
discovering by inspection any defect, is under any legal duty to the ultimate purchaser or
consumer to take reasonable care that the article is free from defect likely to cause injury to health.

Proper framing of issues have two other important impacts on your legal reasoning and
writing. First, it tells the judge clearly what question you are answering. In
argumentation, it is axiomatic that the parties at first agree regarding the question to be
answered. This is your first duty to your judge after clarifying the facts. You must
convince your judge that you know what the question is. You do this by a clear and
accurate recitation of the facts and by a precise formulation of the issue which
incorporates the rule that is called into question as well as the facts against which the rule
must be tested.
The second important effect of the proper phrasing of the issue on your legal reasoning
and writing is that a well phrased issue is the beginning of your persuasion of the reader
to accept your ultimate conclusion. This is aptly and subtly demonstrated in Lord Atkins
formulation. If you examine the speech of Lord Buckmaster, you will note that he does
not take the opportunity like Lord Atkin to begin his enterprise of convincing the reader
that his conclusion is correct by framing his issue.
Key Hints to Issue Statement
Sometimes, it is possible to make a perfectly good statement of issue which read by itself
is vague but read with the factual narrative is sound. However, it should not be so vague
that it is a question that can be transposed to in most cases.
There are many common mistakes that are made regarding the identification of the issue
in a case. The first is the confusion between an issue and a step in the reasoning to answer
the issue. In the example given above, if the court in its reasoning considered the
closeness of the relationship between the father and the son, that is a mere consideration
or factor in arriving at the decision on the issue. It is not a separate issue: is there a bond
of affection between the father and son in order to support an intention to create legal
relations? This is merely a factor that the court considers within the overarching issue of
whether there existed an intention to create legal relations.

Your statement of the issue should be a question ending with a question mark. Therefore
do not begin your issue with whether - which begins a statement and not a question. Do
not begin with the word can as that is a hypothetical; suggesting of possibility when
legal questions in cases deal with concrete facts.
A Common Mistake to Avoid
A common mistake to avoid is to believe that you should be bound by what the court
states is the issue. Often the court merely outlines broad areas that it will discuss and
although it refers to it as the issues, it requires a reading of the entire case to determine
what the real legal issues are.
III. Decision & Holding
There should be a distinction made between the decision in a case and the holding. The
decision is the effect of the courts ruling on the rights of the parties as a matter of res
judicata. The holding is the enduring effect of the case as a matter of precedent. The
decision only affects the parties while the holding affects the jurisprudence. When the
Judicial Research Assistant (JRA) is assigned research based on new facts, the challenge
the JRA has is to predict how the court will deal with these facts. Except in the unusual
situation where the question is of first impression, the JRA will necessarily have to look
to the holdings in previous decisions which may be only tangentially analogous to the
facts of the case before him or her. This will involve two processes: first - the formulation
of the holding and secondly - what we refer to in Legal Methods Research and Writing as
synthesis.
The holding can be formulated narrowly or broadly. You must be conscious of your
formulation. It is the crux skill of the common lawyer. If you choose a narrow
formulation, you must justify the formulation, just in the same way if you do so broadly.
Synthesis involves taking several cases and other legal authorities and come up with a
rule statement. This was adeptly demonstrated by Lord Atkin in Donoghue v. Stevenson.
The holding must not be confused with the reasoning. The holding is in effect, a rule of
law as we have defined it, consisting of factual elements or predicate and a consequence.
The other point that must be made is that the holding is not synonymous with the ratio
decidendi of the case, although it includes it. A court may expound a legal principle
despite the fact that it is neither necessary nor determinative in the case. Nonetheless such
dicta are invaluable tools for identifying or formulating legal rules to solve problems
presented to the court for resolution.
Good Examples
1. The Constitution of Trinidad and Tobago by implication grants to Members of Parliament a right to be
paid, and as an implied right given by the Constitution, it is to be constitutionally protected. Members of
Parliament should not be denied this constitutional right because a procedural rule is not adhered to,
especially when they are not at fault for the breach of procedure, and in fact would have been quite willing
to adhere, if given the opportunity.

2. The phrase any written law in s 66(1) of the Interpretation and General Provisions Act is not wide
enough to include executive acts.

Poor Examples
1. The Board held that the findings of the learned judge were correct in that both parties had an equal
beneficial interest in the matrimonial home.
2. The Court of Appeal did not have the jurisdiction to entertain the USAs appeal as the statute did not
provide for such a right of appeal.

The last two examples contain no legal rule but is the application of a legal rule and
would be unhelpful without more in a later case.
*Holding Exercise for Tutorials
(1) Read the case decision below. Then choose the best statement of the holding from
the five choices.
Beta v Adam
Terse, J.
Beta has sued Adam, the owner of a restaurant, for false imprisonment. Adam believed that Beta was
leaving without paying her bill. Beta in fact had left the money on her table. Adam told Beta that she could
not leave until someone verified that she had paid. Adam took Betas pocket-book in which Beta had her
keys, money, credit cards, and her checkbook. The restaurant was very busy and understaffed. Beta stayed
with Adam for twenty minutes until Adam found an employee to see if Beta had left the money on the
table.
Although Adam never physically prevented Beta from leaving, and Beta could have walked out of the
restaurant at any time, Adam is liable to Beta for falsely imprisoning her. A person falsely imprisons
another by unlawfully confining her within fixed boundaries, if he acts intending to do so. Adam confined
Beta in the restaurant by telling her she could not leave and by taking her purse. Confinement may be
effected by duress, even duress that is not the product of threatening behaviour. Beta could not leave the
restaurant because she believed that she could have lost her pocketbook with its valuable contents if she did
so. Thus, she was unlawfully confined. She acted reasonably by remaining in the restaurant until she
recovered her possessions.

Which is the broadest formulation of the holding? The most narrow?

a. The defendant falsely imprisoned the plaintiff by duress when he took an item from the
plaintiff in order to have her remain on the premises.
b. The owner of a restaurant unlawfully confined his customer when he told her she could
not leave and took her pocketbook and its valuable contents away for twenty minutes
until he could verify her payment of her bill.
c. The defendant falsely imprisoned the plaintiff by means of duress although he did not
use physical force when he took an item of value belonging to plaintiff in order to have
her remain on the premises.

(2) Read the case decision below. Then choose the best statement of the holding from
the five choices.
In Re Gaunt
Terse, J.
John Gaunt was having coffee with his nephew Felix. John told Felix that he was giving him a gift of his
gold watch, which he kept in a safe deposit box in his bank. He said he would get the watch for Felix the
next time he went to the bank. John died that night, without going to the bank. Felix has demanded the
watch be delivered over to him as his gift. The administrator of Johns estate is keeping the watch as part of
the estate.
Felixs demand must be refused. A completed gift requires first that the donor, intend to give the gift,
second, delivery of the item of gift, and third, acceptance by the donee. Only then does the intended donee
have title to the item. John probably did intend that Felix have the watch. The watch had been Johns
grandfathers and Felix is the next male heir in that family. We can assume that Felix would have accepted
the watch. Sentiment aside, it is a valuable piece of jewellery. John, however, never sent the watch to Felix,
and Felix never had possession of the watch. If he had given him the key to the safe deposit box, that may
have been a constructive delivery, John made only an unenforceable promise. A court will not enforce an
uncompleted gift.

Which is the best statement of the holding in In Re Gaunt?

a. The court held that delivery of a key to a safe deposit box is a delivery of the item kept
in the box because it is a constructive delivery.
b. The court held that there are three requirements for a valid gift: intent to give, delivery,
and acceptance.
c. The court held that a decedents jewellery remains part of his estate at death if he has
not given it away during his life.
d. The court held that a decedent has not made an effective gift of personal property
during his life where he made an oral promise of the gift but had not delivered possession
of the item to the intended done (the person receiving the gift).
e. A court will not enforce an incomplete promise of a gift.
IV. Reasoning
The reasoning is the process by which the court comes to its conclusion (a decision)
regarding an issue using the holding or rule of law. Only a rule can resolve an issue in
law. Even where it is a factual issue the reason that it is being resolved is based on the
existence of a rule that must be applied to the facts and the resolution of that factual issue
is done from the perspective of the rule. Indeed, there is a great deal of controversy
regarding what is an issue of fact and an issue of law and it is never clear from a logical
point of view.

A properly framed reasoning must first contain either explicitly or implicitly the rule that
the court used to resolve the controversy. Often the court must interpret or explain the
rule in a way that it can be used in the particular case. The unique facts of each case mean
that an existing statement or understanding of a rule is not always easy to apply without
comment to the case before the court. We saw that in Wilkinson v. Downton [1897] 2
Q.B. 57. In such a situation the court will restate or explain the rule in terms that enable
the facts of the case to be measured against it. This synthesis, distillation, explanation or
restatement of the rule is part of the reasoning. It is important in your brief to attempt to
paraphrase the courts explanation of the rule. This is a great measure of your
understanding. It is not sufficient merely to regurgitate or quote extensively what the
court said. This does not give any confidence that you and your reader (your judge)
interpret the courts words in the same way. When you use your own words and then cite
the words of the judge, the determination can be made regarding what you understand to
be the reasoning in the case.
Having located the rule and explained it, it then has to be applied to the facts of the case.
In other words, the facts as determined must be marshalled to show that the facts satisfy
or do not satisfy the elements of the rule. There can be no satisfactory statement of
reasoning of a court without an application of the rule identified as applicable to the facts.
The third part of the reasoning is the conclusion. In this way, legal reasoning partakes of a
syllogistic form. Major premise - the rule; minor premise - the facts and the conclusion.
You should always test your reasoning by applying this three step approach.
Examples of a good recitation of reasoning are as follows:
1. It is well established that a tenant for a term of years who holds over after the expiry of the term and
continues to pay to the landlord the monthly rent that had been payable during the term becomes, if the
landlord accepts the payments, a tenant from month to month. The Notice to Quit served in April 1996
referred to the next complete month of [the appellants] tenancy. This suggests acceptance by the
respondent that the appellant had become a monthly tenant. However, it was clear that the appellant was
making payments on the footing that the payments were required by the lease to be paid as rent for the new
five year term. The respondent accepted the monthly rental payments up to and after the service of the
Notice to Quit. The respondent, who must have known that the appellants payments were being made as
rent calculated under the lease for the new five year term, will not be able to retain the payments and
subsequently, nearly five years after the payments had commenced, argue that they had been retained on a
different footing from that on which they had been paid. The retention by the respondent of the payments
made prior to the service of the Notice to Quit constituted a representation that the appellants status as
lessee under the lease for that five year term was accepted. The respondent would thus be estopped from
denying that the lease as still in effect.
2. The implementation of a new road involved the replacement of an inadequate road and a new bridge,
which was for the public interest will not constitute a taking of property. Brandies J in Pennsylvania Coal
Co. v. Mahon (1922) 260 US 393, 417, illustrated that generally speaking, all restrictions on the use of
property which deprives the owner of some right previously enjoyed, can be considered as the taking of
property without compensation. However, restrictions that are in the interest of the public are not regarded
as a taking of property. In this case, the construction of a new road and the changing of a toll in the interest
of the public could not amount to a taking or acquisition of any proprietary right capable of violating
section 18.

10

Poor examples are:

3. The decision in Cartwright was applied to the current case after his re-arrest. The USA appeal had
already been allowed and any order of the court made prior to that, was beyond the point of reform.
4. The non-disclosure complained of referred to the entry in the Police diary showing that PC Straker had
taken Daniel to the Bank in Couva which could have put some doubt on the reliability of the police
evidence. However, the relevance of this was not apparent until PC Straker denied in cross-examination
that he had taken Daniel to the bank. Although the judge was wrong in denying the defence the opportunity
to cross-examine relating to the making of the statement itself, did not have enough weight to cause the
judge to exclude the statement.

V. Policy Analysis
Extracting the policy is problematic principally because it is the only part of the case
brief where you have to exercise an independent judgment and bring a deep
understanding of the case; your own knowledge and perspective of the world as well as
your evaluative judgment to bear on the case. The policy is the opposing subjective
values that underlie the rule and the decision in the case. In teaching undergraduate law,
most students find it difficult to engage in a policy analysis, contenting themselves with
an explanation of the rule and the decision. This is not what is meant by a policy analysis.
Underlying legal decisions are the social policies or goals that the decision-maker wishes
to further. When a court explicitly refers to those policies in a case, include that
information in your case brief, since it will probably help you understand the court's
decision. If the court does not explain the policies on which it based its decision, then try
to identify them for yourself.
Professor Vandervelde in his text Thinking Like a Lawyer: An Introduction to Legal
Reasoning (Westview Press, 1998) gives a description of policy that is worth repeating in
view of the traditional difficulty that the student has in identifying it in case briefs:
Rules are presumed by the American legal system not to be mere arbitrary
pronouncements but to be based on some underlying policy. That is, rules create a right or
duty not for its own sake but in order to further a public policy.
When the rule is a statute, the underlying policy is generally that which the legislature
intended to further when it enacted the statute. When the rule is a case law rule, the
underlying policy is generally that which the court articulated as the justification of the
rule at the time the rule was announced. Case law rules may also be based on the policies
underlying legislative enactments, even in cases that do not involve a statute. For
example, the court may adopt a rule favourable to consumers. In support, the court may
cite recent legislation that may not be applicable to the case under consideration but
nevertheless reflects a public policy of protecting the consumer against the superior
bargaining power of merchants and manufacturers.
Rules, moreover, are usually not based on a single policy but represent compromises
among sets of opposing policies. Typically, one set of policies favours creation of a broad
right or duty, where as an opposing set of policies favours restricting or eliminating the
same right or duty.

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If the policies favouring the right or duty were to prevail all of the time, the right or duty
would become absolute - with no exceptions or limitations. If the policies opposing the
right or duty were to prevail all of the time, the right or duty would disappear.
In fact, however, both sets of policies are important, so neither can be permitted to prevail
in every situation. Rather, the policies supporting the right or duty will prevail in some
situations, whereas the opposing policies will prevail in others.
The elements of the rule define exactly the situations in which the policies favouring the
right or duty prevail. When the elements are satisfied, the right or duty exists; when they
are not satisfied, the right or duty does not exist.
The policies underlying the rule are of great importance to the process of legal reasoning.
If it would not further the underlying policies, then applying the rule to a particular
situation would be undesirable and the court often will not apply it, especially if the rule
is based on case law rather than enacted law. Further, at least where case law rules are
concerned, even though the factual predicate of the rule may seem clearly not to apply, if
the policy behind the rules would not be furthered by finding the rule to be applicable, the
court may nevertheless apply the case law rule by analogy, may synthesize a new case
law rule to govern the situation, or may modify the rule so that it becomes applicable.
Thus, the underlying policies provide much assistance in identifying those situations
in which the rule will be applied.

Shapo, Walter and Fajans in the text Writing and Analysis in the Law 4th ed. (Foundation
Press, 2003) state:
Policy arguments will often decide a case, especially when each party offers plausible
interpretations of the law. In this situation, the judge may then decide the case on the basis of the
social goals that the decision will promote, and the purposes behind the particular rules.
Policy arguments can be categorized in many ways, but one useful system is to divide them into
four basic groups: normative arguments - that is, arguments about shared values and goals that a
law should promote; economic arguments - which look at the economic consequences of a rule;
institutional competence arguments - that is structural arguments about the proper relationship of
courts to other courts and to other branches of government; and judicial administration arguments
- arguments about the practical effects of a ruling on the administration of justice. These categories
are not, of course, mutually exclusive.

Policy analysis involves a three-step process:

Step 1 Investigative
The underlying purpose of the rule used by the court is investigated and declared.
This consists of the subjective values the rule implicates. There are of necessity
two opposing values underlying every rule. Every rule is a line drawn between
two ever-competing social, economic, political or moral values and it is your
assignment to find it. Controversies between courts; assuming the proper rule is
identified is typical in legal analysis. Legal analysis, as we will see, is largely
guided by the values which are brought to bear.

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Step 2 Predictive and Evaluative

The consequences flowing from each value is predicted and evaluated. This
means an assessment of what is good or bad; advantages or disadvantages and the
priority of the interests served.
Step 3 Drawing the line
The court will then draw a line between the two opposing values. Rarely if ever
there is a rule that totally embraces one value to the exclusion of the other. This is
expressed in the nature of the conditions attached to the rule for its application.
The whole process of legal reasoning is the process whereby the line is constantly
being shifted and the conditions constantly reshaped.
While policy underlies each and every decision, since rules are value based, it is not often
expressed and therefore it is one of the challenges for the lawyer or judicial research
assistant is to articulate the policy underlying the legal analysis in the authorities that are
cited in any research or research report undertaken with respect to solving a legal
problem.
*Policy Exercise for Tutorials
Read the following case taken from Shapo in Writing and Analysis in the Law which
illustrates how to extract the underlying policy for inclusion in a brief.
Paugh v. City of Seattle 588 P.2d 1351 (Wash. 1979)
The plaintiff is the father of two boys who died at ages six and eight when they drowned in a pond on cityowned land. Mr. Paugh sued the city for the deaths of his sons. The city successfully moved for summary
judgment and this appeal followed.
The pond is about 100 feet wide at its widest point. It is shallow at the edges, and slopes gently to six feet at
its deepest point. Its bottom is muddy and the water is murky. It is located in unimproved bushy terrain
about 300 yards from the housing development where the plaintiff lives, and is accessible by a dirt road.
The sheriff described it as an ordinary pond, just like the many others in the area. The pond is popular with
nearby residents for fishing and swimming and the plaintiff himself had taken his sons there four or five
times to fish. He had told them to go only with him and to stay out of the water. There are no witnesses to
the drownings. The city had not taken any measures against trespassers.
There are no warning signs around the pond, and the evidence is that a fence all around would be
prohibitive in cost and probably not possible without levelling the trees and the uneven ground. The city is
now contemplating draining the pond and estimates the cost at $25,000.
The general rule is that a landowner owes no duty to trespassers except to not wilfully cause their injury.
Mail v. Smith Lumber Co., 287 P.2d 877 (Wash. 1955). There is an exception, however, for child
trespassers, the attractive nuisance doctrine, which has been adopted in this state. This doctrine reflects
public concern for the welfare and safety of children. The requirements for this doctrine to apply are:
(1) The condition must be dangerous in itself, that is, it must be likely to, or probably will, result in injury
to those attracted by it;
(2) The condition must be attractive and enticing to young children;
(3) The children, because of their youth, must be incapable of understanding the danger involved;

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(4) The condition must have been left unguarded at a place where children go, or where they could
reasonably be expected to go; and
(5) It must have been reasonably feasible either to prevent access or to render the condition innocuous
without destroying its utility.
Policy
The purpose of the attractive nuisance doctrine is to protect the welfare and safety of children, who are
unprotected under the general rule governing a landowner's liability to trespassers. However, the condition
on the landowner's premises must be a dangerous one; that is, likely to cause injury. Ponds and other bodies
of water are so common and widely used without injury that they are not dangerous.
Other considerations here are first that ponds are environmentally important; if the water is drained or
fenced off, the water is neither available to wildlife, nor available for recreation for others. Moreover, this
duty would be unduly burdensome on landowners, and would shift responsibility to protect children to
them from the children's parents. The court will do that only if the condition is dangerous. Finally, the state
by statute encourages landowners to allow the public to use recreational lands, not to fence them off or
make them unusable.

Based on this policy analysis, in whose favour would you rule?

3. Sample of a Case Brief
TITLE:

Wendell Swann v Attorney General of the Turks and Caicos Islands

CITATION:

[2009] UKPC 221

FACTS:

In 2003 and again in 2005, the appellant was appointed Chairman of the

Public Service Commission (PSC) pursuant to the 1998 Constitution of the Turks and Caicos
Islands. The post was part time and he was paid an allowance. When the new Constitution came
into force on August 8, 2006, the post became full time and the appellant claimed that he was
entitled to and was in fact paid $8,640 per month based on a remuneration of $90,000, a year. In
his affidavit, the appellant alleged that he had a conversation with the Governor and Chief
Secretary in which they invited him to continue as Chairman on a full time basis at the salary of
$90,000 a year which he accepted, including leaving home and taking up residence in Grand
Turk.
However, on December 5, 2006, the appellant was told that at a meeting of Cabinet presided over
by the Governor it was decided to reduce his remuneration to $30,000 a year. Accordingly, he was
paid $2,500 monthly from December 2006 to February 2007.
On January 26, 2007, the appellant filed a notice of application in the Supreme Court for leave to
apply for judicial review seeking an order quashing the decision to reduce his remuneration and
1

https://web2.westlaw.com/result/default.wl?rltdb=CLID_DB9820342279126&srch=TRUE&db=UK-RPTSALL&sv=Split&service=Search&eq=search&fmqv=s&sskey=CLID_SSSA9976654279126&action=Search&method=
TNC&origin=Search&query=SWANN+
%26+TURKS&mt=208&fn=_top&vr=2.0&rlt=CLID_QRYRLT50155279126&rp=%2fsearch
%2default.wl&ifm=NotSet&rs=WLW10.06 date accessed November 3, 2013

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for several declarations aimed at the unlawfulness of the decision to reduce his salary. However,
on February 21, 2007, he left the post of Chairman of the PSC as he appointed a member of the
House of Assembly.
The Supreme Court denied his application for leave on the grounds that:
(1) His claim was essentially for damages for breach of an agreement as it related to the
applicants salary that could be enforced by ordinary action;
(2) The judicial review procedure was neither unnecessary nor appropriate; and
(3) Even if there was a collateral public law issue and the appellant had sufficient interest to
pursue it, it would refuse leave as a matter of discretion.
The appellants appeal to the Court of Appeal was dismissed at the hearing of the appeal without
giving reasons.
The appellant appealed to the Privy Council.
DECISION:

Appeal dismissed

ISSUE 1: Is the claim by the appellant essentially a private law claim enforceable by writ
rendering leave to apply for judicial review inappropriate? [YES]
HOLDING: A claim essentially sounding in breach of contract or even estoppel based on
a conversation or a series of conversations, turning on oral evidence is a straightforward
private law claim and does not entitle a litigant to the public law procedure of judicial
review.
REASONING: The appellant's complaint is that he was wrongly deprived of his
remuneration of $90,000 a year for a period of three months which can only be
established on the basis that he had an enforceable right to be remunerated at that rate.
The basis for the appellants claim to entitlement is a conversation or a series of
conversations that he describes with the Governor and Chief Minister and therefore his
claim is a classic private law claim based on breach of contract or conceivably, estoppel.
Therefore he is not entitled to the public law procedure of judicial review.
ISSUE 2: Does the allegation that the reduction of the appellants remuneration did not comply
with the requirements of the Constitution justify a judicial review claim? [NO]
HOLDING: A public law claim such as breach of the Constitution can only exceptionally
be permitted to be raised in what is essentially a private law claim where the public law
issue is of particular importance to the applicant or where they should be aired in the
public interest.
REASONING: The argument that the reduction did not comply with the requirements of
the Constitution does not justify an investigation of that claim as the appellants claim is
for recovery of sums owed to him and he has a right to bring an action to recover that
sum. That he was not paid the sums to which he was entitled cannot possibly justify
investigating public law issues which the appellant seeks to raise in his judicial review
application. Public law issues may be raised in what is essentially a private law claim

15

where they public law issues are of particular importance to the applicant or where they
should be aired in the public interest. There is no suggestion that either of those
exceptional factors apply to this case.
ISSUE 3: Is a finding that the Cabinet was not entitled to overrule the Governors agreement to
pay the appellant at the rate of $90,000 a year affect the appellants claim to judicial review?
[NO]
HOLDING: A finding of illegality which has no effect in private law does not justify
leave to apply for judicial review.
REASONING: If appellant had an enforceable commitment by the Governor to pay him
at the rate he alleges then even if Cabinet has the right to reverse the Governors decision.
This would not undermine his ability to enforce that commitment. Therefore, appellants
contention that the Cabinet was not entitled to overrule the Governors agreement with is
irrelevant to a claim to judicial review.
ISSUE 4: Does a public law argument on the ground of legitimate expectation entitle the
appellant to bring his claim by way of judicial review? [NO]
HOLDING: A public law claim, such as legitimate expectation, that amounts to a
fallback contention, based on the same evidence and much of the same argument as the
private law claim will not give a litigant an entitlement to leave to proceed by way of
judicial review.
REASONING: The appellants ability to mount an argument based on the public law
ground would be a fallback contention or an alternative to the primary claim of breach
of contract and his possible estoppel ground which itself would be an alternative to his
primary claim based on the same evidence and much of the same argument.
Consequently, the possibility of such a contention being advanced can scarcely justify the
appellants claim being brought by way of judicial review.
ISSUE 5: Does the fact that the budget approved by the legislature was arrived at on the basis
that the appellant was to be paid at the rate of $90,000 a year give him an enforceable right to be
paid at that rate so as to bring his case into the realm of public law? [NO]
HOLDING: The fact that the budget approved by the legislature sanctioned the payment
of salary to an official at a certain rate does not give an enforceable right to be so paid.
REASONING: The fact that the budget approved by the legislature was arrived at on the
basis that the appellant was to be paid at that rate does not give him an enforceable right
to be so paid and therefore this argument does not take the appellants claim for judicial
review any further.
ISSUE 6: Does the Supreme Court have discretion to deny leave to apply for judicial review
where it was arguable that there was a collateral public issue and the applicant had sufficient
interest to pursue it? [YES]
HOLDING: Where there is an alternative remedy in private law the court has the
discretion to refuse leave to apply for judicial review to investigate a collateral public law
issue.

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REASONING: In this case the court was entitled to refuse leave and to make no further
order, thereby leaving the appellant to issue a writ if he wished to pursue the matter
further.
ISSUE 7: Did the Supreme Court err in failing to convert the application for leave to seek
judicial review into a writ action? [NO]
HOLDING: The court is justified in refusing to convert an application for leave to seek
judicial review into a writ action where the application for leave sought inappropriate
relief and does not stand on satisfactory pleading and therefore converting would not
assist the applicant significantly and if at all, and would have ensured that the action
began on an unsatisfactory basis from the point of view of the court and of the
respondent.
REASONING: Determining whether to make an order converting the application for
leave to seek judicial review into a writ action is essentially a case management decision
with which an appellate court should be slow to interfere as the application sought
inappropriate relief and did not expressly seek any payment and the supporting evidence
was too vague in the essential passages to stand as a satisfactory pleading. Converting the
claim to a writ action would not therefore have assisted that appellant at all and it would
have ensured that the action began on an unsatisfactory basis from the point of view of
the court and of the respondent.
ISSUE 8: Did the Court of Appeal fail to do its duty by not giving reasons for its decision to
dismiss the applicants appeal? [YES]
HOLDING: A court of appeal has a clear duty to give not only a decision but also the
reason for that decision in the absence of the parties expressly or impliedly agreeing to do
otherwise.
REASONING: Any court giving a decision after submissions have been made has a clear
duty, at least in the absence of the parties expressly or impliedly agreeing otherwise, to
give not only a decision but also reasons for that decision. In this case the Court of
Appeal failed to do its duty and this should not happen again.
POLICY ANALYSIS: Judicial review is an extraordinary remedy that pits the judiciary against
the state and is to be sparingly exercised. So where no injustice is done to the applicant because
he has an alternative and satisfactory remedy in private law; judicial review should be refused,
except where the issue is of great public importance. In this way, both the judicial restraint on
exercising control over governmental agencies and the litigants ability to enforce a claim are
served.

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4. Brief Writing Practice Exercise

Write a case brief of Evon Smith v The Queen (Persons with last name beginning A-L)
or Attorney General v Cavanaugh (persons last name beginning M-Z).
A hard or soft copy of your case brief must be brought to class on Wednesday at 10:00
a.m.
(a) The following headings must be used, paying strict attention to the instructions
for completing a case brief on this worksheet and the sample(s) found on Our
VLE and TWEN:
(i)
Title
(ii)
Citation
(iii)
Facts
(iv)
Issues
(v)
Decision
(vi)
Holding
(vii) Reasoning
(viii) Policy
(b) Format for Writing Assignment:
The assignment must be:
-Typed, double spaced, single side on letter-size (8 x 11) paper, with one-inch
margins; you must use 12-point Times New Roman or a comparable size font
-Include a title page with the course code and title [LAW 1230-Legal Methods
Research and Writing] and your student ID number
-Do not include covers or any lines, boxes or designs (including the University crest)
-Pages numbered at the bottom centre of each page starting with page one
-Pages must be stapled together with one staple only in the upper-left corner
-Non-conforming papers will be penalized with a 2% deduction for each nonconformity
There is no pre-set limit of your paper. Precision and concision are two of the
standards which are rigorously used to judge your work and your judgment as to how
much is enough is an independent skill you must develop and by yourself.
Leighton M. Jackson
September 28, 2015

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