How to Brief a Torts Case

Torts is an element-driven course. Nearly every case you read exists in the casebook because a court had to decide the content of one element of one tort. Battery has intent, contact, and harmful-or-offensive character. Negligence has duty, breach, actual cause, proximate cause, and damages. Strict products liability has defect, causation, and a defendant in the business of selling. Your brief should name the tort, list its elements, and then mark which single element the court was fighting about.

Do this literally. At the top of your brief write, for example, "Battery — intent element" for Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (1955), or "Negligence — proximate cause / duty" for Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). If you cannot name the element in five words, you have not understood why the case was assigned.

The payoff comes at outlining time. When you convert twenty briefs into an outline, the element tag tells you where each case goes. Garratt goes under intent, next to the substantial-certainty standard. United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947), goes under breach. Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (1948), goes under actual cause. Without the tag, your cases float free and you memorize names instead of rules.

Include only legally operative facts — the ones that, if changed, would change the outcome. In Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891), the operative facts are that the kick happened in a schoolroom after class had been called to order, that the touch was slight, and that it aggravated a prior injury. The boys' names, the exact date, and the amount of the verdict are not operative unless your professor is teaching damages that day.

Torts facts are dense, so write them in a form you can use. Three to five sentences, in chronological order, using the parties' litigation roles rather than their names. "Plaintiff, a bar patron, was struck by a bottle that exploded while defendant's employee handled it" is more useful than a paragraph reciting the events at the restaurant.

Keep the facts that map onto elements. If the court is deciding foreseeability, keep every fact bearing on what defendant knew or could have anticipated. In Palsgraf, the guard's push, the package's unremarkable appearance, and the distance between the package and Mrs. Palsgraf are all essential, because Cardozo builds the entire duty analysis on the appearance of risk to that plaintiff.

In torts, posture usually decides the case. A court reviewing a directed verdict or a judgment notwithstanding the verdict must take the evidence in the light most favorable to the nonmovant, so a holding for the defendant means no reasonable jury could find breach — a much stronger statement than a plain affirmance of a verdict. A court reviewing a demurrer or a motion to dismiss is deciding only whether the complaint states a claim, which is why Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334 (1976), holds that a duty may exist, not that the therapists were liable.

Write one line: who sued whom for what, what the trial court did, what the appellate court is reviewing, and under what standard. Then note the disposition — affirmed, reversed, reversed and remanded, new trial ordered. In Garratt, the trial court dismissed but assessed damages in case of reversal, and the Washington Supreme Court remanded for clarification of the findings on intent. If you miss that, you will say Garratt held that the child was liable, which is not what the opinion says.

Posture also tells you whether the case allocates a question to judge or jury. That judge-jury allocation is a recurring torts theme: duty is for the court, breach is normally for the jury, and proximate cause sits uncomfortably between them.

Write the issue as a yes-or-no question that embeds the operative facts and the contested element. "Does a five-year-old commit battery when he moves a chair knowing with substantial certainty that the plaintiff will sit where it was?" is an issue. "Was there a battery?" is not. The holding is the answer plus the reason, in one sentence.

Separate the rule from the holding. The rule is the transportable proposition you will use on an exam; the holding is what happened to these parties. Carroll Towing's rule is that a defendant is negligent if the burden of precaution is less than the probability of harm multiplied by the gravity of the loss (B < PL); its holding is that the bargee's unexplained twenty-one-hour absence during wartime working hours was negligent. You will never write about a barge on an exam, but you will write B < PL constantly.

When the court states a multi-part test, copy it verbatim and number the parts. Res ipsa loquitur, the substantial-certainty standard, the private-necessity privilege from Vincent v. Lake Erie Transportation Co., 109 Minn. 456, 124 N.W. 221 (1910) — these are the reason the case is in the book. Paraphrasing a test costs you the precision that earns exam points.

Brief the reasoning in two or three sentences that answer why, not what. Why did Cardozo locate the problem in duty rather than proximate cause? Because he defined negligence as relational — a wrong to the plaintiff, not a wrong in the air — so an unforeseeable plaintiff has no claim at all. That sentence is worth more than a page of quotation.

Brief separate opinions only when they carry doctrine your course will use, and your casebook signals this by including them. Andrews's dissent in Palsgraf is essential because most jurisdictions now analyze foreseeability of the plaintiff under proximate cause using something like his multi-factor approach. Traynor's concurrence in Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P.2d 436 (1944), is essential because it became the majority rule in Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897 (1963). A dissent that merely disagrees on the facts can be skipped.

Add a two-line "notes" field for policy and doctrinal trajectory: loss spreading, deterrence, administrability, the shift from privity in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), or the shift from contributory to comparative fault in Li v. Yellow Cab Co., 13 Cal. 3d 804, 532 P.2d 1226 (1975). Torts exams reward policy arguments more than most 1L subjects.

For your own briefs, none beyond the case name, court, and year — you are the only reader. But copying the full citation from the casebook header takes ten seconds and builds the habit for your legal writing course. Bluebook Rule 10 governs cases: full name, volume, reporter, first page, and a parenthetical with the court and year, with the court omitted when the reporter makes it obvious, as with N.Y. or Cal. 3d.

Note that casebook opinions are heavily edited. Footnotes are cut, procedural history is compressed, and page numbers usually are not the reporter's. Never quote a casebook excerpt as if you had read the full opinion in a paper without pulling the original from Westlaw or Lexis.

If your professor assigns Restatement sections alongside cases — commonly Restatement (Second) of Torts § 13 for battery or § 46 for intentional infliction of emotional distress, or the Restatement (Third) of Torts for negligence and products — put the section text in the rule field of the brief. Many courts now quote the Restatement rather than announcing their own test, and exam graders often expect Restatement language.

Write full briefs for the first four to six weeks, then move to book briefing. Full briefing early teaches you where to look in an opinion; after that, the marginal value drops and the time cost is real. Book briefing means annotating the casebook itself — bracket the facts, star the issue, underline the rule, write "HELD" in the margin, and note the element tag at the top of the case.

Keep the full-brief discipline for any case that announces a test you will apply on the exam, and for any case your professor spends more than one class on. Those are the cases you will build outline entries from.

Whatever format you choose, the brief is an intermediate product, not the goal. Every week, convert your briefs into outline entries organized by element, not by case. A finished torts outline reads: "Intent: purpose or substantial certainty (Garratt). Transferred intent applies across the five trespassory torts. Minors and the mentally ill can form intent." No facts, no procedural history — just the rules your briefs mined.