To supplement the materials in the syllabus on preparing for class and reciting cases, here are some suggestions for when you are called on to recite a case. Be prepared to speak for 60-90 seconds uninterrupted, and concisely state the information listed below under “Facts” and “Analysis.” 


Court. That’s the decision-maker writing the opinion, and any decisions below. In what trial court was this case filed? State or federal? What was the disposition of that court? If there were one or more appeals, to which court(s)? What did any appellate courts decide?

Litigants. The plaintiffs and defendants. Also be clear on who is appellant/appellee or petitioner/respondent. An appellant (or a petitioner) can be a plaintiff or a defendant.

Material facts. The material historical facts giving rise to the dispute, i.e., what happened to cause the suit?

Procedural history. The procedural history of the case, i.e., where filed, removed, transferred, any motions, and what any lower courts decided prior to an appeal.

Substantive issues. The claims or defenses (based on contract, tort, etc.) that are material to the dispute, i.e., who sued whom for what, and what were the defenses, if any? Oftentimes the substantive issues will affect the procedural issues, and vice-versa.

Arguments. What does each side argue?


Procedural issues. The procedural issue or issues the court must decide, and which will often be the main focus of our discussion of cases.

Rule. The law the court uses—or creates—in deciding the issue.

Analysis. The analysis is how the court applies the law to the facts, i.e., the court’s rationale. The analysis can also include how the court handles each side’s arguments, any counterarguments that might exist, and any policy issues cited by the court in support of its decision.

Conclusion. The court’s conclusion regarding the legal analysis, and its holding on what to do (what it decides, such as reverse, vacate, remand).

Always read statutes and rules of procedure carefully. Cases do not provide everything you need to know about statutes or the Federal Rules of Civil Procedure. For guidance on carefully reading and marking up rules and statutes, see here. 


These guidelines above regarding Facts and Analysis are geared only towards your initial minute or so of recitation. Prepare for follow-up discussion that will explore the materials more deeply and critically. For example:

Counterarguments. Just because a court articulates a rule of law does not necessarily mean that it is the “best” law. As Justice Jackson famously said about the Supreme Court, “We are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring). So in discussion, consider counterarguments, which might include the argument of a losing side, a concurrence, a dissent, or better, your own ideas. In short, always read carefully and think critically. Always.

The stakes for the litigants. Always try to figure out what is at stake for the litigants. Parties do not enjoy paying attorneys to litigate procedural issues without a reason, so if a procedural issue is being litigated, the parties must have a pretty good reason. Why are the parties fighting about this procedural issue?

The stakes for the legal system. Why did the court hold the way it did? Does the rule of law articulated by the court promote efficiency? Low costs? Speedy resolutions? Truth-finding? Justice? Does it promote some of those values while frustrating others? And how easy will the rule of law be to apply in future cases? Is the rule of law an easier-to-apply “bright-line” or a more flexible and uncertain “standard?”

The stakes for me. Finally, in preparing to answer the questions above, always ask yourself this key question: why have I been assigned this case? Reasons that the case is assigned may include:

  • It illustrates the application of the law, or gives meaning to vague or ambiguous language.
  • It demonstrates the uncertainty of some legal principles.
  • It is a landmark case that sets the stage for later legal developments.
  • It refines, distinguishes, clarifies, or overrules prior law.
  • It shows a split in legal authority.
  • It shows that sometimes courts interpret words contrary to the meaning you might expect.

Posted Aug. 11, 2015