6.1.1 MAKING CASE DESCRIPTIONS ASSUCCINCT AS POSSIBLE

Including the issue, the holding, the facts, and the reasoning in a case description may seem to require a long description. Actually, all four of these elements can often be conveyed in a parenthetical description, and they can certainly be conveyed in a textual description of two sentences.

There are two keys to succinct case descriptions. The first key is focus. You must understand the focus of the argument you are currently making and make sure that the case description has that same focus. The second key is efficient use of language. Too many case descriptions begin with a wasted sentence that does little more than announce that the case exists. Use your subjects and verbs with care to convey the most information in the fewest words.

a. Focus

The case descriptions below are from a discussion about the illegality of gender-based classifications in a brief written in support of the petitioner’s argument in Miller v. Albright, 523 U.S. 420 (1998). Notice how they efficiently include each of the necessary case description elements (signaled by a number after each of the elements appears):

GOOD EXAMPLE As noted previously, the Virginia Court discredited governmental justifications for gender-based classifications as to state-supported military schools because the justifications were based on overbroad generalizations about the different capabilities of men and women.

Issue

Disposition

Facts

Reasoning

One method you can use to test the focus of your case descriptions is to look for the phrase-that-pays for that section of the document. If your case description includes the phrase-that-pays, chances are good that you have at least focused the description on the right legal issue. For example, in the previous example, the phrase-that-pays “gender-based classifications” appears in both case descriptions. In the following example, from the “plain view” argument discussed in Chapter Five, the brief writer discusses cases in which the Court allowed or disallowed certain searches based on whether the officers were looking at things that were in “plain view.” Note how the brief writer took care to connect the phrasethat-pays, “plain view,” to each of the two case descriptions (the phrase-that-pays is in small capital letters):

GOOD EXAMPLE

Illegal activities in plain view from outside the curtilage are not protected even if the police observation is specifically directed at identifying illegal activity.

that an officer’s plain view observation into a barn

was not a Fourth Amendment search & , even though the observation was motivated by a law enforcement purpose ); Ciraolo, 476 U.S. at 212, 213. In Ciraolo, the defendant was growing marijuana in a 15-by-25 foot plot in his backyard. He surrounded the yard with a 6-foot outer fence and a 10-foot inner fence. Id. at 209. Officers flew over the defendant’s house in a private airplane and readily identified the illegal plants using only the naked eye. Id.

Issue

Disposition

Facts

Reasoning

The government in Ciraolo argued that the observation was analogous to looking through a knothole or an opening in a fence: “If there is an opening, the police may look.” Id. at 220. This Court agreed with the government, holding that the officers violated no expectation of privacy and that the observation was not a

Fourth Amendment search.

&

Id.

the same airspace.

Id. at 213-14.

Issue

Disposition

Facts

Reasoning

If the court has not been thoughtful enough to use the phrase-that-pays that you have identified for that section of the argument, you can make the connection yourself, as long as you do it honestly. If you do make the connection yourself, be sure to justify the connection in the way you describe the case, or with language that you quote. The word apparently is often helpful when describing a connection that is implicit rather than explicit, as in this description of a court’s reasoning in a fictional case:

GOOD EXAMPLE

The court apparently believed that the search was justified by the fact that the defendant was smoking marijuana in plain view of the arresting officer, because it noted that “police officers need not turn away when they encounter illegal behavior right under their noses.” Ohio v. McGuffin, 101 U.S. 101, 103 (2013).

When trying to decide how much detail to give the reader, first assess how you are using the case. If you are using the case as rule authority and plan to discuss it in depth in your explanation section, you may give only a “naked cite.” On the other hand, you may be using a case as rule authority only because it is from a court of mandatory jurisdiction or it is well known as the source of a particular rule, rather than because of its relevance to your client’s case.

A last reminder about focus: In your casebook courses, you may have been trained to write case briefs that identify the main point of the case, or the point that the case “stands for” in the development of a legal rule. In advocacy, in contrast, your case descriptions must focus on the relevant issue, disposition, etc., even if it is not the main point that the court addressed.

b. Using Language Effectively

Even when using a textual case description or when you must give the reader more detail, do not make your case description needlessly long. Provide only the information that the reader needs about each of the four elements. The description of the Ciraolo case above is somewhat lengthy, but its length is concentrated in the facts and the reasoning. The plain view issue is fact specific, and thus the details about cases in which plain view was or was not established were particularly important to the argument in that brief.

In many case descriptions, writers run into trouble in the first sentence. One way to avoid this trouble is to concentrate on the subject-verb combination. The first sentence you write about a case should tell the reader something that the court did or something about why the court did what it did. It should not tell the reader what the case involved, regarded, or concerned, or what the court addressed, considered, examined, or dealt with. Notice how the first sentence in the following case description wastes the reader’s (scarce) time and energy:

BAD EXAMPLE In J.E.B. v. T.B., 511 U.S. 127 (1994), this Court examined the issue of sex discrimination in the selection of jurors.

This description tells the reader that the court examined an issue, but leaves the reader in suspense as to what happened as a result of the examination.

GOOD EXAMPLE In 1994, this Court held that sex-based peremptory challenges violate jurors’ rights to equal protection. J.E.B. v. T.B., 511 U.S. 127, 138-40 (1994).

Issue

Disposition

Facts

The bad example told the reader only the issue that the court addressed in J.E.B. The good example, on the other hand, tells the reader the issue, the legally significant facts, and the disposition of the issue. The writer can add any needed reasoning in a second sentence.³

c. Verb Tense in Case Descriptions

Many writers get confused as to the appropriate verb tense when describing cases. This confusion results when courts mix legal rules that are currently in force — properly stated in the present tense — with case facts, findings, and holdings — properly stated in some form of the past tense.⁴

Within a case description, use an appropriate form of past tense to describe events that happened before the case began as well as events that happened in the case. The court’s holdings as to specific parties should also be described using the past tense:

GOOD EXAMPLES

The plaintiff claimed that the defendant had assaulted him. The advertisement had not specified the need for a college education. Defendant had sought outside counsel before deciding to terminate the plaintiff. The plaintiff alleged... The defendant argued... The court found... The court reasoned... The court held that Officer Thielen had violated the Fourth Amendment when he observed the defendants

through a gap in a window blind.

When you are stating a general rule that the court articulated, however, use the past tense only to describe the court’s action, and use the present tense for the rule itself: GOOD EXAMPLE The Court held that police officers do not violate the Fourth Amendment when they are able to observe criminal activity from a lawful vantage point without the aid of special equipment.

The correct verb tense may not make or break your argument, but using the wrong verb tense distracts the reader at best. At worst, it confuses the reader and slows down his or her comprehension.