Central to writing a good case note is developing your ability to distil the key facts and ratio decidendi and capture all of this in a few handy, easily memorised bullet points. Simple in description but maddening in practice, especially when some cases span hundreds of pages.
Much of your ability to sift the vital points of law and facts from broad historical outlines of the law or seemingly irrelevant segues will come from mastering your bulk reading skills and constant practice.
Once you have read a case and feel you have a grasp of some of its major issues, you will need to organise them as a case note.
Case Notes for Assessment
If you are being assessed on your ability to make a thorough case note – beyond the brief revise-as-you-go needs of your own study notes – you are really being asked for your critical analysis of the case. That is, whether the case, in your opinion and by reference to your own logical and legal analysis, was correctly decided. What follows is merely one approach to addressing this kind of an assessment; there are many approaches to writing case notes, each suited to different and individual styles. Below is a list of other guides and examples to which you may refer.
Begin by introducing the case
State its name, which court it in which it was decided and its legal significance – what did it change? Perhaps offer some context, such as prior law it affected. Outline whether you think the case was indeed correctly decided or not – and list your reasons. Keep brief. A good introduction is succinct, compelling and provides a ‘bird’s eye view’ of your whole argument.
Outline the key facts
Don’t forget to include any contradictory facts or evidence that arose in the judgment. The purpose of this section is to provide a broad-sweep background to your analysis, so stick to relevant facts and again, stay brief. Case notes are often quite short, and it is in your analysis that you will score well, as this demonstrates your ability to argue in a legal context.
Identify the ratio
This involves identifying the decisions reached by each judge, noting any dissents. This will be important if you disagree with the outcome of the case.
Analyse the decision(s)
If there were several different judgments, as if often the case, it might be convenient to combine identifying each judgment with your analysis of the judgment as you go.
Analysis is often where you encounter the most difficulty. Remember – analyse, don’t describe. Consider the decision in light of existing law (often referred to within the judgment itself) – does it contradict prior decisions? Does it seem logical to you? Does it seem consistent? If the decision departed from prior cases, was this appropriate? Often judgments will depart from prior law, specifically to keep up with the changing values of an evolving society – for ‘policy’ reasons. Or a judgment may simply reflect the prejudice and hysteria of its time. Show you are aware of this.
What would you decide?
Having evaluated and analysed the case, would you agree with the majority or dissent? Would you agree/disagree – but for different reasons to those of the judges? Explain why. Refer to past cases, refer to international law, refer to second reading speeches (which are a good way to grasp the intentions behind the creation of legislation) – to explain why you believe your approach might be more appropriate, or achieve greater justice. Be original. Be outrageous. Demonstrate that your ability for deep thinking and analysis.
Some Tips and Tricks for Finding the Ratio
Firstly, a very lawyerly disclaimer: this ability is perhaps one of the most difficult to master, and is often one that newcomers to studying law find so frustrating and challenging.
Finding the ratio – the key point of law to be taken from a case is a crucial skill given that our common law system allows both legislation and cases to determine the shape of current law. Judgments, however, can range from one page to an epic hundred or so. Even judges that agree on orders to be made or even on certain points of law may differ on others. While this may have the immediate effect of raising the blood pressure of law students and legal practitioners, it also might serve the purpose of ensuring diversity of legal views at the judicial level. That is, if this point of law comes up again in a different case, the arguments of a dissenting judgment might be seized upon by the majority and made law.
Enough of philosophy. Now the frustration. Unfortunately, there is no clear-cut method to distilling the ratio from judgments – it is simply an ability best honed by practice. We do have a few suggestions:
- Read the case and read a summary. Referring to what a third party – usually a lecturer, who may have made a case summary for lecture – regards as the ratio will help you refine your own skills as you read through the case and look for why this point of law was more important than others.
- Clarify. Ask study group friends, students in your class or more approachable tutorial leaders about what they saw as the ratio from cases you are studying. Again, it’s a matter of regular practise and humility – as one Taoist philosopher put it, “True knowledge is to know when you don’t know.”