Writing case briefs (or case notes in Australia) is a common form of assessment in law school, especially with first-year law students. It is a way of exposing them to basic legal research, writing, and thinking skills before moving on to substantive subjects. More importantly, preparing case briefs is usually the first taste first-year law students have of reading case law and identifying the holding (the ratio decidendi in Australian law schools). It is also a common piece of legal research writing both in legal practice and in academia.
But my experience of teaching and marking case note writing, and informal discussions with students, indicate that they have consistently struggled with the case brief assessment – particularly with the identification and explanation of the holding.
A few years ago, I decided to go back to fundamentals in planning how to teach case brief writing. But rather than starting with the activity itself, I started with some basic lesson design and planning principles.
Establishing the playing field
Unlike the United States, an LLB is the most common method of entry to the legal profession in Australia. There are prescribed learning outcomes associated with the degree as a whole, and individual units within the degree, determined nationally by the Council of Australian Law Deans (the Teaching and Learning Outcomes (TLOs) for LLB students) and the Law Admissions Consultative Committee. However, like American law schools, each unit also has learning outcomes approved by the Dean of each faculty. Some universities also have a set of graduate attributes applicable to all units offered on campus.
Good curriculum and instructional design mean that we can align each of these sets of requirements within a unit or course. Assessment should also reflect the requirements to demonstrate that an individual law student has been assessed against accepted expectations.
If we had to picture that hierarchy in an Australian law school for a case brief assessment, it might look something like this:
But just identifying the requirements isn’t enough. We also need to think about the law students that we will be working with. That will include things like the size of the group, their age, their educational experience so far, and their current level of confidence.
Each of these things is going to be critically important to the design of the lessons. For example, most first-year law students in Australia tend to fall within what psychologists identify as a period in social and cognitive growth associated with ‘young adulthood’. Studies of learning at this stage suggest that students at this stage struggle with ambiguity. They assume that there is one right answer according to what lecturers or tutors tell them.
In writing a case brief, that’s important. There is rarely one correct version of the holding and one correct way to set out a case brief. Explaining that there may be different ways of expressing the holding is difficult. At this stage, ambiguity needs to be de-emphasised until the basic skills are established.
Planning the play
Despite case briefs being endemic to legal study, surprisingly, there is no consistent or single method to teach or write one. Frustratingly for students, there is no pro forma or precedent for presenting it.
However, where we are introducing an entirely new skill to learners, we need to initially provide more active support and direction before providing practice opportunities. That means providing very structured explanations initially as a means of building – scaffolding – students to take an increasingly independent role. Rather than just explaining what a case brief looks like, I write one in class. I explain what I am doing as I work through the decision. In a series of planned steps, I begin to hand over responsibility for the task to students. Ultimately students work independently to write a case brief.
So what does it look like? My planning for the series of lessons looks like this:
Does it work?
Law students I have worked with have generally expressed more confidence and performed well in case brief writing. Just as importantly, they have demonstrated much more confidence at the end of the process.
What do you think? Is it worth a try in your law school classroom? Could I improve it?
A version of this post first appeared on the Institute for Law Teaching and Learning: http://lawteaching.org/2021/11/16/writing-case-briefs/