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What is a Brief?
Appellate Briefs versus Student Briefs
Confusion often arises over the term legal brief. There are at least two different senses
in which the term is used.
Student Brief: A student brief is a short summary and analysis of the case prepared for
use in classroom discussion. It is a set of notes, presented in a systematic way, in order
to sort out the parties, identify the issues, ascertain what was decided, and analyze the
reasoning behind decisions made by the courts.
Appellate Brief: An appellate brief is a written legal argument presented to an appellate
court. Its purpose is to persuade the higher court to uphold or reverse the trial courts
decision. Briefs of this kind are therefore geared to presenting the issues involved in the
case from the perspective of one side only.
Appellate briefs from both sides can be very valuable to anyone assessing the legal
issues raised in a case. Unfortunately, they are rarely published.
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Case Citation
parties [style of cause], date published, case-reporting publication, pg. no., court)
Date Published
Style of cause:
Criminal
R. Stands for
Rex (King) or
Regina (Queen)
In other words,
the state versus
an individual.
Volume 1 of the
Supreme Court
Records, page
103.
Supreme Court of
Canada.
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Case Citation
parties [style of cause], date published, case-reporting publication, pg. no., court)
Date Published
Style of cause:
Civil
First name is
plaintiff.
Volume 1 of the
Supreme Court
Records, page 41.
Supreme Court of
Canada.
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Statement of Issues
The issues or questions of law raised by the facts particular to the case are often stated
explicitly by the court.
Constitutional cases frequently involve multiple issues, some of interest only to litigants
and lawyers, others of broader and enduring significance to average citizens. Students
should be se sure to include both types of issues.
With rare exceptions, the outcome of an appellate case will turn on the precise meaning
of a law, a judicial doctrine, or a provision of the Constitution. Students are well advised
to capture that provision or debated point, and to set it off with quotation marks or
underlines. This tactic will help students later when they try to reconcile conflicting cases.
When noting issues, it helps to phrase them in terms of questions that can be
answered with a precise yes or no.
NOTE: Students who misread cases generally do so because they fail to clearly see the issues involved. There is
no substitute for taking the time to carefully frame the issues in terms of questions that are capable of being given
precise answers. It may also help to label the issues, for example, procedural issues, substantive issues,
legal issues, and so on. Remember that the same case may be used for different purposes, so part of the
challenge of briefing is to identify those issues in the case which are of central importance to the current topic
under consideration in class.
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Rules of Law
In any form of case analyses, it is important to be able to distinguish between a law and
a rule of law.
Law: A command enacted by a legislature, formally recognized as binding, and enforced
by a controlling authority.
Rule of Law: An accepted principle, test, or perspective that assists the judiciary in
interpreting and applying a law.
Rules of law can find their source in many places. For the most part, such rules are
developed and recorded within case law. Over time these rules may become popularly
known under certain names or terms, and they can often be expressed as a legal test
that can then be applied to future cases. For example, the Oakes Test, developed in
the landmark case R. v. Oakes (1986), is used to determine if Canadian legislation can
survive an Article 1 (limitations clause) challenge.
Still other rules of law may be contained in ancient and commonly accepted legal
axioms, and are often expressed using a Latin phrase, such as res judicata meaning
that once a legal dispute has been decided, it cannot be litigated (tried) again.
Finally, statute law itself can provide rules of law. Statutes will often define certain terms
that are used within the statute. These definitions are intended to guide judges as they
interpret and apply the statute, and can therefore be thought of as
a peripheral rule of law.