Case noting: A pragmatic approach to study law

In our jurisdiction, when students begin to study law, they get to grips with some text books and cogitate those will suffice. However, in effect, this is not the case. In court premises, they realise that there is a difference between the theoretical legal study and actual application or practice in the court and felt that learning laws and learning application of laws is not exactly the same thing.
The competent construction of a case note is an essential skill for law students and lawyers. It is used in many first world countries including UK, USA, Australia and India.  The practical approach of noting cases by law students and junior lawyers can perceive the backlog of paper work when they will have to deal with the interventions from the bench. It is an effective way to sift out ratio decidendi from obiter dicta.
Case noting concerns one of the two primary texts of law: cases (the other is, of course, statute). Cases are vital in the common law system, as it is through cases that statutes are given their specific meaning and, where statutes do not cover an area of law, cases give the primary definitions. The core of the good case note lies in the competent reading of the judgments or opinions of the Supreme Court.
A case note may be divided into three parts, for instance, firstly, identification of the case, then, content of the case and, finally, identifying arguments.

Identification of the case
Students must note the official citation of the case, so that they or anyone else can find it again. Students will usually be making a record from a written source - so it has to be noted. Some reports are weekly and tend to emphasize speed rather than correctness. Other reports are monthly or quarterly, etc. Sometimes these reports are checked by the judges concerned, sometimes they are not. Citations are used widely. They are the details at the end of references to cases such as 44 DLR (AD) 287, 17 BLC (AD) (2012).
A case note should include:
1.    The names of
a.    the parties
b.    the judges (so that the decision can be placed in relation to the seniority and authority of the judge)
c.    (Optionally) the advocates acting for the parties.
2.    The date (so that the decision can be placed in the stream of development of an area of law).
3.    The court (so that the decision can be immediately located in the hierarchy of the courts).

Content of the case
Students must then note:
1.    The material facts of the case.
2.    The procedural history of the case – in which courts has the case been heard in before.
3.    The ratio decidendi, the reason for decision, of the case, putting it into own words to ensure they understand it.
4.    Every judgment or opinion in the case (NB: in some instances there may be only one judgment).
5.    The note must include:
a.    the decision reached by each individual judge
b.    the reason for the decision reached by the individual judge
c.    whether the individual judgment/opinion falls into one of the following categories: majority, minority, leading or dissenting judgment/opinion.
6.    An overall summary of the majority decision (there are invariably several judges in appeal cases and these tend to be the cases determining important aspects of the law). This summary should:
a.    draw out similarities between judgments
b.    state how many of the judges reached their decision for the same reasons
c.    indicate where there were differences between the majority judgments.
7.    An overall summary of dissenting judgments and whether you think the argument put forward by any dissenting judge is important.
8.    An overall view of whether the case is a strong case in terms of the doctrine of precedent:
a.    Only when the majority of judges agree on both the outcome and the reason for outcome can it be said that the precedent created is strong.
b.    This does not affect the decision between the parties in the actual case. If the plaintiff won, she still wins. However, agreement on outcome and reason for outcome affects the potential usefulness of the case, according to the doctrine of precedent. A weak precedent is one where there is no general agreement as to the reason for the outcome. This is an important issue and one illustration of why it is not enough to know just the outcome of the case.
Finally, the case note is meant to be usable, and as students may collect many of them during their studies, it must be brief. Some of the cases in the law reports that they will be noting may be two or three pages long, but some could be 50 or 80 pages or longer. A summary case note should ideally be only a page or two in length. Students need to make tactical decisions about what to include and what to exclude. This is one of the techniques that they will develop the more cases they read and the more case notes they write.

Identifying the arguments
Reading cases also introduces students to the different practical methods the judiciary use to create arguments, so students need to know something about how to identify arguments. It is not necessarily appropriate, for example, to just summarize the judgment or opinion in the order that students read it in the text. The judge may speak in a circular way, and make comments useful for the litigants, but not necessarily relevant to a lawyer summarizing the case.
If case noting is covered by the syllabus and students are actively encouraged to hand in case notes for assessment then, it is to be expected, it will yield a long-term favorable corollary.

Mohammad Syeed Abrar
LLB (Hons.), LLM (University of Chittagong)