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LOCATING THE CASE LAWS AND BRIEFING THEM

WHAT IS A BRIEF?

In your first year of law school, your professors will expect you to brief the cases that they assign. The
word “brief” has two meanings in law. A brief is written argument that an attorney submits to a court
deciding a case. A brief also is a summary of a court opinion. In your initial law school classes and in
this chapter, your concern is with this second type of brief.

Because briefing is new to you and because law school is also new, you may think that briefing is very
different from anything you have done before. If you examine the task closely, however, you will
discover that it is a very familiar one.

1) Briefing is taking notes

Briefing a case is taking notes on the case. By this time, you are a veteran at taking notes on what you
read. You probably started taking notes in high school or college. Briefing a case seems different
because it is a highly structured method of taking notes. It requires you to identify various parts of a
case and summarize them.

2) The Purpose of Briefing

Briefing has two purposes. First, it helps you to focus on the important aspects of the case. A court
opinion may ramble on page. Your brief, however, will be no longer than one or two pages. Briefing
forces you to get to the heart of the case to grapple with the essentials.

Second, briefing helps you prepare for class and serves as a source of reference during class. You
cannot brief a case properly unless you understand it. Briefing ensures that you can understand it.
Briefing ensures that you understand the case before you discuss it in class. During class, you will find
yourself referring to your brief. The discussion in a law school class goes far beyond what the brief
contains. Your professor uses a court opinion only as a springboard to a sophisticated treatment of
legal doctrine and legal process. Without the sort of understanding of basic aspects of a case that
briefing demands, you will not get off the springboard and will fail to gain what the class has to offer.

Your case briefs are your personal notes. Your professors are not going to grade them. They
probably never will read them unless you ask for assistance. Few students refer to their briefs when
preparing for exams. View your briefs as your private study tools for class preparation.

Because you will not be handling in your briefs to your professors and will not use them at semester’s
end. Briefing can be time consuming, and your time is limited. We strongly encourage to you stay
with briefing at least for the first few months of law school.

At the initial stage of your legal education, you should brief all assigned cases. As your grasp of the
law grows, you will switch to short summaries or even writing notes in the margins of your casebooks.
For now, however, brief your cases diligently. Briefing will help you understand what is going on in
class, not always on easy task.

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HOW TO BRIEF?

Format

The typical brief includes the name of the case, its citation the important facts in the case, the case’s
procedural status, the issue in the case, the court’s holding, and the court’s reasoning.

Different professors may ask you to brief cases in different ways. We offer you a typical format for a
case brief. If a professor asks for a slightly different format, be sure to oblige him or her. You will find
that despite deviations on format, all professors want you to abstract essentially the same information.

Part of the brief

a) Name of the Case

Copy the name of the case. When you determine which party is the plaintiff and which is the
defendant and, on appeal, which is the appellant or petitioner and which is the appellee or
respondent, write down this information as well. Some opinions are written in a way that makes these
vital facts difficult to discover. In Conti, the plaintiff’s name comes first, but in some cases it comes
second. If you fail to write down which litigant is which, you may forget this information at a crucial
moment in class.

b) Citation

The citation contains the information that you need to find the case in the library. If you do not know
how to use a citation to find a case, you will learn very shortly. Most casebooks offer abridged
versions of cases. Your curiosity sometimes will lead you to search for the complete case in the
library. If you have the citation in your brief, you will not have to return to your casebook to find it
when you head for the library.

c) Facts of the Case

Write down the facts that you think were important to the court in deciding the case as well as any
additional facts that are important to you. Court opinions often contain pages of facts. You would be
wasting time and paper if you were to copy them. You want only much better sense of which facts are
the essential ones. If you fail to read the case first, you run the risk of getting mired in a complex set of
facts and writing pages of useless information.

d) Procedure

Who is suing whom for what?

What is the legal claim?

How did the lower court rule in the case?

e) Issue (issues)

The issue is the legal question that the court must decide in order to reach the conclusion. How
narrowly or broadly you phrase the issue is, in part, a matter of taste. In our experience, beginning

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law students frame issues too narrowly or too broadly. When they frame an issue too narrowly, they
focus too much on the facts of the case and fail to understand that it applies to broad range of cases.
When they frame and issue too broadly, they fail to appreciate how important the specific facts of a
case are to the court deciding it.

Learning to frame an issue is an art that takes time to learn. Your professors will give you guidance in
mastering the art. They also will let you know how narrowly or broadly they want you to frame issues
in their respective course.

For example:

“The question before us is whether......?

f) Holding

The holding is the court's decision and thus its resolution of the issue on the case. It usually requires
rephrasing the issue from a question to a declarative sentence. This is usually divided in to two parts:

Majority

Minority

Both the type is followed by their respective reasoning.

g) Analysis

Explain the court's reasoning in reaching its decision. Again, reading the case before you brief it will
save you an enormous amount of time. Understanding the court's reasoning is not always easy.
Sometimes the reasoning will be unclear or contained gaps in its logic or require the reader to
discern what the court is saying only implicitly. These defects and similar ones often will be the
subject of class discussion.

A court frequently explains that its decision further important social policy. In your brief, identify
these policy considerations. In Conti, the court quotes an earlier decision to the effect that a contrary
holding would contradict "all our views and justice".

Court decisions often include dicta. Dicta are discussions of law that are not necessary to the court's
decision in the case before it. The singular of "dicta" is "dictum". The discussion of the Conti court
about the rule to follow when an undomesticated animal escapes is dictum. The court's decision of that
situation is not essential to deciding the case of a domesticated parrot that escapes. It is a wise
practice to note dicta in your brief.

Be sure to read any footnotes. Most cases appearing in law school casebooks are edited versions. The
editor has omitted most footnotes. If the editor has retained a footnote, he or she believes that it is
important to the student's understanding of the case. The footnote sometimes contains the key to the
case.

Do not ignore dissenting and concurring problems. Again, if an editor retains a dissent or
concurrence, he or she done so for a reason. Do not be surprised if your professors ask you if you
agree with the majority or the dissent. If you fail to brief the dissent, you probably will be unable to
answer the question.

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SAMPLE CASE BRIEF

Donoghue v Stevenson case brief

[1932] AC 562

Facts: On August 26, 1928 Donoghue and a friend were at a cafe in Glasgow. Donoghue's companion
ordered a bottle of ginger beer for Donoghue. The ginger beer was in an opaque bottle. Donoghue
drank some and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler.
The remains of a snail in a state of decomposition dropped out of the bottle into the tumbler.
Donoghue later complained of stomach pain and her doctor diagnosed her as having gastroenteritis
and being in a state of severe shock. Donoghue sued the manufacturer of the drink for negligence.

Procedure: Donoghue sued Stevenson, the manufacturer of the drink, for negligence. She was
unsuccessful at trial and appealed the decision to the House of Lords.

Issue: Is there liability in negligence for injury caused by another in the absence of a contract?

Held: Yes. The court allowed the appeal.

Majority: The majority states that in these kinds of cases, the manufacturer does owe a duty of care to
future consumers. A manufacturer knows upon production that the overall goal of their product is to
be consumed, and not simply to be purchased by a distributor. The judges held that this does not
mean that there cannot be a relationship between the two parties in which duty is owed. They also
state that absence of a contract between the two parties this does not mean that a duty is not owed.
Overall, the court found that in cases like this where the manufacturers are manufacturing goods for
the eventual consumption of consumers, they do have a duty to take reasonable care to ensure that
their products are safe for consumption.

Minority: Judges in minority state that the common law principles cannot be changed and that to allow
this appeal would change too much. The dissent states that there can be no special duty attaching to
the manufacture of food apart from that implied by contract or imposed by statute.

Analysis: I will agree to what is held by majority, In light of the above discussion, following the
principles developed, consumers are now protected from defective products of negligent
manufacturers through the enactment of various laws.

The parties injured by defective products can now sue in the line of duty of care, action need not be
based on contractual relationship.

Ratio of the case: You must take reasonable care when proceeding with actions or omissions that you
can reasonably foresee harming your neighbour. Neighbours are persons who are reasonably
foreseeable as being affected by your actions or omissions. A duty of care is not owed to the world at
large; it is owed to your neighbours.

ASSIGNMENT

Find the Case, Maneka Gandhi v. Union of India, 1978 SCR (2) 621. Prepare the case brief containing
both majority and Minority stand. Whether you agree to the majority and why?

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WRITING CASE COMMENTARY

Essentially, a casenote is a summary of a case. This is the information that should be included in any
case summary. You may wish to use these points as a guide to writing your own casenote:

 Formal particulars, including:

o The name and citation of the case (ie STATE OF U.P. v. Ram Sagar Yadav),
o Name of the court and judge(s),
o Name and status of each party, and
o Date of the judgment;

 The facts of the case;

 The prior history of the case in lower courts (if mentioned in the judgment);

 The cause of action or claim involved in the case (for example, the issue on appeal);

 A summary of the judgments, including any dissenting judgments, which should include:
o The facts that were considered material or relevant,
o The ratio decidendi,
o The arguments considered by the court in support of, or against, the principle, and
o Any obiter dicta or significant observations by the court;

 Commentary on the impact of the decision on the law.

Casenote example (please note that this is only a suggested format):

STATE OF U.P. V. RAM SAGAR YADAV 1985 AIR 416

BACKGROUND OF THE CASE

SESSIONS COURT

Respondents 1 and 2, Ram Sagar Yadav and Shobha Nath alias Pujari, were convicted by the learned
Sessions Judge under Section 304, Part 2, of the Indian Penal Code and were sentenced to rigorous
imprisonment for seven years. Respondent 1 was also convicted under Section 220 of the Penal Code
for keeping a person in confinement corruptly and was sentenced to rigorous imprisonment for five
years. Respondents 3 and 4 were convicted under Section 304, Part 2 of the Penal Code and were
sentenced to rigorous imprisonment for three years.

HIGH COURT

i. The High Court reversed the decision of the Sessions Court.

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ii. The Court acquitted Respondents 1 and 2, Ram Sugar Yadav and Shobha Nath alias Pujari,
who were earlier convicted by the learned Sessions Judge under Section 304, Part 2, of
the Penal Code and were sentenced to rigorous imprisonment for seven years.
iii. The Court further acquitted Respondent 1 was also convicted under Section 220 of the
Penal Code for keeping a person in confinement corruptly and was sentenced to rigorous
imprisonment for five years.
iv. Lastly, the High Court also acquitted Respondents 3 and 4 who were earlier convicted
under Section 304, Part 2 of the Penal Code and were sentenced to rigorous imprisonment
for three years.

TOPIC AND THE SECTIONS INVOLVED

Topic-“ DYING DECLARATION”

SECTION INVOLVED-

INDIAN PENAL CODE- Section300, Sec. 302, Sec. 304-Murder and culpable homicide not
amounting to murder, Section 220

EVIDENCE ACT- Section 32

BRIEF FACTS OF THE CASE

-Herein; Respondent 1 is the Police Inspector and Respondents 2 to 4 are the constables
stationed at the Police Station.

The respondents wanted to extort illegal gratification from Brijlal, the aggrieved and the
deceased, in connection with a complaint which was filed against him by one Faheeman Faqirin for
cattle trespass. Respondents 2, Shobha Nath, had succeeded in obtaining a sum of Rs. 100/-from
Brijlal with an assurance that no steps will be taken against him in that complaint. Respondent 2
demanded a further sum of Rs. 200/-from Brijlal for hushing up the case, which the latter refused to
pay.

Afterwards he sent a complaint to the Superintendent of Police, Fatehpur, complaining that a

bribe was being demanded from him by respondent 2, a policeman of the Hussainganj Police Station.
That complaint was forwarded by the Superintendent of Police to respondent 1 for inquiry and report.
Being incensed by the audacity of Brijlal in complaining against a policeman under his charge,
respondent 1 sent respondents 3 and 4 to bring Brijlal to the police station in order that he could be
taught a proper lesson.

After bringing the deceased, Brijlal, to the Police Station, respondent no. 1 brutally thrashed
the deceased in the police station. Respondents 2 to 4 in connivance with respondent 1 ensured that
the brutal thrashing is not noticed by anyone. Afterwards, Respondent 2 was directed by respondent
1 to take the deceased to the Judicial Magistrate in order to get a remand.

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ISSUES INVOLVED IN THE CASE

ISSUE I - Whether there is a rule of law that a dying declaration unless corroborated by
other independent activities, is not fit to be acted upon, and made basis for a conviction?

ISSUE II- If the circumstances surrounding the dying declaration are not clear or
convincing then can the court, for its assurance, look for corroboration to the dying
declaration?

CRUX OF THE ARGUMENTS FROM BOTH THE SIDES

APPELLANT’S ARGUMENTS-

i. Firstly, Appellant contends that Shri Nigam (P.W. 5), the judicial magistrate, himself went
to the verandah where the accused was lying as the accused/deceased was brutally
beaten u. The accused was unable to respond at first since his condition was very serious
but on repeated inquiries, the accused told Shri Nigam that his name was Brijlal and on
being questioned as to how he came to receive the injuries, Brijlal replied that the
inspector and the constables had beaten him very badly.
ii. Secondly, it was contended by the Appellant that Brijlal had no injuries on his person
when he was arrested at Haibatpur in the morning or when he was brought to the Police
station at about 10.00 A.M. but when he was sent for remand he had a large number of
injuries on his person which had induced a state of shock.
iii. Appellant also contends that the injuries suffered by Brijlal would fall under the clause
'2ndly' of Section 300, since the act by which his death was caused was done with the
intention of causing such bodily injury as the respondents knew to be likely to cause the
death of the accused.
iv. The Appellant’s contention then relies on Sheo Shanker Sharma, P.W. 8, who was the
Assistant Jailor of the Fatehpur Jail where the accused was transferred after taking the
remand order. P.W. 8, the jailor then examined the Brijlal/accused and found that there
was swelling on his hands, legs and knees. Further, the accused was unable to get up and
on being questioned told that the policemen belonging to the Police Station arrested him
from his field, took him to the Police Station and brutally assaulted him and as a result of
which he was unable to stand.

.RESPONDENT’S CONTENTIONS-

i. Firstly, the respondents contended that the accused, Brijlal, died on account of some kind
of a fever or on account of the pneumonic condition of his lungs. He eventually died of the
congestion in his lungs and that the accused was summoned to the Police Station only to
enquire about the charges which were leveled against him for the offence of cattle
trespass.
ii. Secondly the respondents contend that Respondent no. 1, the inspector, was not present
in the Police Station as he had gone for the purpose of an identification parade which is
even corroborated with the record.

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iii. Thirdly, the respondents have also pleaded the defence of alibi. Further, the accused was
also involved in a dacoity case and was thus summoned to the Police Station for the reason
aforementioned above.

JUDGMENT OF THE COURT (BRIEF REASONING)-

The Court set aside the order of the High Court and reaffirmed the judgment of the Sessions Court.
Further, the respondents were convicted under section 302 of the Indian Penal Code.

REASONING FORWARDED BY THE COURT-

i. The Court Said that Brijlal, the accused, had no reason for involving the policemen falsely
for having assaulted him. There was no possibility of anyone tutoring him, for the simple
reason that he was in the exclusive custody of the policemen of Police Station. It is the
respondents who were in a position to exert influence over him. No one else had access to
him, which not only excludes the possibility of his being tutored, but which also excludes
the possibility that he was assaulted by any one else. Further the circumstances of the
case leave no doubt that the dying declaration made by Brijlal to Shri Nigam, the judicial
magistrate, is true in every respect.
ii. Secondly, the Court reasoned that any doubt lurking about the involvement of respondent
1 in the incident is removed by his own conduct. Though he was unquestionably present
at the police Station at the material time, he prepared false record in order to show that he
had gone for the purpose of an identification parade to another place. The Court even
agreed with the learned Sessions Judge that the record was thus prepared by respondent
1 falsely in order to support the defence of alibi.
iii. As regards to respondents 3 and 4, it is they who arrested Brijlal on a false charge of
dacoity and brought him to the police station. Shortly thereafter, constable Laxmi
Narain found that Brijlal was lying in the lock-up in a badly injured condition and was
shrieking in agony which further corroborates that the respondents brutally thrashed
the accused.

iv. Thus for the reasons aforementioned, the Supreme Court allowed this appeal, set aside
the judgment of the High Court and affirm that of the Sessions Court. The Supreme Court
also pointed out that the learned Sessions Judge convicted the respondents under Section
304 instead of convicting them under Section 302 of the Penal Code. The distinction
between murder and culpable homicide not amounting to murder is often lost sight of,
resulting in undue liberality in favour of undeserving culprits like the respondent-police
officers. Except in cases covered by the five exceptions mentioned in Section 300 of the
Penal Code, culpable homicide is murder if the act by which the death is caused is done
with the intention of causing death, or if the act falls within any of the three clauses of
Section 300, namely, 2ndly, 3ndly, and 4thly. The Court said that in this case, the injuries
suffered by Brijlal, the accused, would appear to fall under the clause '2ndly' of
Section 300, since the act by which his death was caused was done with the intention of
causing such bodily injury as the respondents knew to be likely to cause his death.
v. However, the Supreme Court did not pursue that matter any further since the State did
not file an appeal against the judgment of the learned Sessions Judge asking that the
respondents should be convicted under Section 302 of the Penal Code and since the
prosecution did not lead sufficient evidence through the Medical Officer in order to
bring out the true nature of the injuries suffered by Brijlal.

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SIGNIFICANCE OF THE CASE-

This case holds a very classic position on the point of evidence and dying declaration. This case been
discussed, mentioned and has been relied upon in a large number of cases at various forums. This
case has been upheld in the case of Surinder kumar v State of Haryana1, Amit Kumar & Anr v State of
Punjab2, S. Panneerselvam v State of Tamilnadu 3, Krishan v State of Haryana4.

Thus, the Supreme Court has affirmed that there is a rule of law that a dying declaration corroborated
by other independent activities, is fit to be acted upon, and can be made basis for a conviction.
Further, if the circumstances surrounding the dying declaration are not clear or convincing then the
court can, for its assurance, look for corroboration to the dying declaration.

READING AND SUMMARISING CASES

Law students can usually skip over the first step in finding the common law, that is, unearthing the
relevant cases. Your first task, then, is to prepare a précis of a case, that is, a short summary of the
facts and holding, setting out the rule of law established by the precedent. The précis will be the
building block from which you will construct or neutralise arguments that can be based on that
precedent. As such, it should contain whatever information is needed to apply or distinguish the
holding in future analogous situations.

DETERMINING THE CONTEXT OF THE DECISION

The initial step to understanding the relevance of a law report is to ascertain who is suing whom for
what. Although this introductory step sounds like an easy mechanical exercise, often as not it requires
a little detective work.

The cases you read are appellate decisions on questions of law. (In some jurisdictions first instance
decisions are reported — these, however, are the exception, not the rule.) The judges giving the
decision have heard counsel for the parties explain in great detail the facts giving rise to the dispute,
the procession of hearings and legal events prior to trial and, often, details of the original trial itself.
The appellate judges then deliver an opinion on their interpretation of a point of law without
necessarily setting out all this background context clearly. It is important that you carefully read a
decision to draw out this information. You cannot understand the-relevance of a judgment — where it
should be applied and where it can be distinguished — unless you understand the factual basis for
the case.

1
Surinder kumar v State of Haryana AIR 1997 SC 2129
2
Amit Kumar & Anr v State of Punjab AIR 2010 SC 609
. Panneerselvam v State of Tamilnadu 1961 SCR (2) 773
3

4
Krishan v State of Haryana AIR 1977 SC 1233

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The next step after determining which party is suing which and why they brought the action is to
decide who won. Once again, what sounds like an easy task is sometimes anything but that. After a
long discussion of the precedents and doctrines applicable to the dispute at hand, an appellate
decision may finish with a cursory 'order upheld' or 'order nisi granted'. Who won and why? To
answer that we have to go back to the judgment and underlying dispute and the exact relief sought in
the judgment being appealed.

In many important cases there will be no winner or loser — the appellate court will have been asked
to determine a point of law and not decide the outcome of the case. This was the situation, for
example, in Donoghue v Stevenson, the famous precedent that established the basis for the modern
law of liability for negligent manufacturing. To this day, no one knows whether there was a snail in the
bottle of ginger beer that led to the case. We only know that if there was and it could be shown the
snail got there as a result of the manufacturer's negligence, the manufacturer could be liable to the
consumer.

In Donoghue v Stevenson the facts of the case had not been established by the time the appeal
reached the House of Lords. In most cases there will be a judgment delivered on the basis of found
facts before a question of law reaches the appellate court. Even then, appellate courts will not deliver
a final decision in cases where the final determination may turn on the facts of the dispute. In these
circumstances they may suggest the matter be retried in light of the statement of law they have
handed down or they may send the case back to the trial court to give a ruling based on the decision
they have just delivered. In the end, you will know an apparent rule of law but have little firm
guidance as to where it will or will not apply. Its ambit must be determined by future courts.

DISTINGUISHING BETWEEN THE RATIO DECIDENDI AND OBITER DICTA IN

A CASE

The theoretical key to the common law system of precedent is the all important distinction between
the ratio decidendi and obiter dicta in a case. The ratio decidendi is the actual rule of law stated in the
holding of a decision, a rule that will be binding on future courts. An obiter dictum, on the other hand,
is a judicial pronouncement on the law that is not integral to the holding itself. While it may be
considered by a later court, an obiter dictum will not establish a rule of law that must be followed by
any court. Although this distinction is for the most part merely a legal myth, it is carefully retained by
the lawyers who utilise it to formulate legal arguments. Recognising this fact, you should read and
summarise cases in a manner that will enable you to argue a rule is the ratio decidendi or obiter
dictum, as the need arises, when an analogous hypothetical situation appears in an exam question.

On some rare occasions, judges will assist you to identify the ratio decidendi or an obiter dictum by
couching part of their decision in hypothetical terms. For example, you may come upon a discussion
that reads something like this:

An alternative ground relied on by the appellant was ... and if I were to decide on that basis I
would probably conclude that... However, since I am basing my decision on the first
argument presented by the appellant, I do not have to decide on the basis of this alternative

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argument.

Presumably, the entire discussion of the alternative argument and the conclusion to which it would
lead are obiter. While they could, and most likely would, be cited by a counsel hoping to rely on a
similar argument in a future case, opposing counsel should be able to present it as non-binding dicta.
This does not mean the argument would fail, of course. An obiter dictum in one case may become ratio
decidendi in the next. The fact that the conclusion was obiter dictum would be a principal plank in the
opposing lawyer's campaign to avoid the application of the alternative rule in a later case, however.

Another form of hypothetical situation that sometimes appears in reported decisions is the factual
hypothetical. In this situation, a judge explains how she would have decided in the presence or
absence of certain facts unlike those in the actual case. For example, a judge may explain something
along these lines:

The issue is whether the defendant is liable for the injury suffered by the plaintiff as a result of
slipping on the leaves on the defendant's pathway. Had the defendant posted a sign stating
'Caution, path slippery because of leaves', a strong case could be made for relieving the
defendant of liability on the basis of notice to the plaintiff. In this case, however, there was no
sign posted so I cannot use that logic to reach my decision.

The obvious question is what happens in the next case when there is a sign posted. The discussion in
this case is prima facie obiter dicta and would be so presented by counsel for the plaintiff in the next
case. But if the defendant were found liable in the first case, the defendant's lawyer in the next might
be able to use these apparently obiter dicta to help redefine the ratio to suit his client's case. For
example, if the ratio decidendi seemed to be that a defendant is liable for injuries resulting from his
failure to clear pathways on his property, the defendant's lawyer could recast it in these terms: the
defendant is liable for injuries resulting from his failure to clear pathways on his property unless he
notifies visitors of the danger…

BE AWARE OF WHAT THE CASE DOESN'T TELL YOU AS WELL AS WHAT IT

DOES

As you prepare your précis of a case you should note not only the details of the case, but also their
immediate relevance to the holding in the case…The facts that were absent in the original case are as
important as those which were present.

Let's illustrate the later point with another example. This one is based on an actual fact situation taken
from the famous English contract case of Parker v The South Eastern Railway Co. In Parker, a customer
had deposited a bag in a cloak-room at the defendant's railway station, paid the clerk 2d, and
received a paper ticket, on one side of which was printed a number and a date and the words 'See
back'. The reverse side contained a number of clauses relating to articles left by passengers, the last
of which was, 'The company will not be responsible for any package exceeding the value of £10'. A
notice to the same effect was printed and hung up in the cloak-room. The customer, plaintiff in the
subsequent case, had left a bag worth £24 in the cloak-room and sued for compensation when the
railway lost the bag. At the trial he claimed he had not seen the notice in the cloak-room and had not
read the front or back of the ticket. He further claimed he had thought the ticket was simply a receipt
for money paid by him.

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It seems intuitive, even to those who have never studied contract law, that the customer should bear
the risk of loss if the railway's disclaimer of liability had been made explicitly clear to the customer
prior to payment and he had explicitly agreed to the conditions before handing over his 2d and the
bag. Most observers would probably agree he should also be expected to bear the loss even if he did
not explicitly agree to the conditions so long as they were clearly explained to him before he paid
and passed over the bag — in those circumstances it could be presumed that the payment and bag
deposit amounted to implicit agreement with the terms of the contract.

Some might say, of course, that it would be unfair to pass the entire burden of risk to the customer if
he or she had no option but to agree to the railway's terms, as would be the case, for example, if the
railway held a monopoly on the transport of goods between two points. This may be so, but such
policy decisions are usually considered to be within the realm of the legislature, not the courts. As a
matter of pure contract law, we assume parties enjoy equal bargaining power, however fictitious that
assumption may be in the real world, although the presumption has certainly been tempered by the
doctrine of unconscionability in more recent times.

To return to the case at hand, the issue to be decided in future cases where the facts resemble those
of Parker is at what point the customer will be taken to have agreed to the conditions set down by the
railway as its terms for the unwritten contract to store the customer's goods. If the railway explicitly
read out its conditions of storage prior to acceptance of the customer's money, those conditions would
clearly be considered to have been incorporated into the contract. The court in Parker suggests a
similar result would follow if the customer knew the railway's conditions were on the ticket but chose
not to read them. In fact, the court in Parker concluded the customer would be bound even if he did
not know the railway's conditions were on the back of the ticket, so long as the ticket was delivered to
him with 'reasonable' notice that the conditions were spelled out on the ticket. Will the railway have
given reasonable notice if it simply erects a notice in the cloak-room setting out its conditions and
prints them on the back of the ticket with a note on the front of the ticket saying 'See back'?

The answer to that question is not to be found in Parker. Although Parker is considered one of the
leading precedents in the area, at the end of the day we don't know if the customer in that case won or
lost. The appellate court that established the rule of law sent the case back for retrial to see whether
there was reasonable notice in that particular case. The results of the retrial were never reported.

At the retrial, the judge (or jury as was the case in Parker) might conclude one large sign placed so as
to be noticed by anyone in the cloak-room would be sufficient to make the customer aware of the
conditions. But if the room had two dozen posters in it, of which the notice of conditions was only one,
the judge might conclude the company had not done enough to make the customer aware of the
existence of its conditions. Similarly, if the attendant explicitly commented on the conditions, a judge
might be entitled to conclude the railway had satisfied its obligation in that case. On the other hand, if
the attendant said, 'Here's your claim ticket' when handing the ticket to the customer, he or she might
be entitled to presume the conditions on the back did not form part of the contract, notwithstanding
the notice and 'See back' note which otherwise might be sufficient to make the customer aware of the
existence of the conditions. Or, if the attendant's comments implied conditions different from those on

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the back of the ticket, the judge might conclude there was no notice of the existence of the actual
conditions. Alternatively, the judge might conclude the customer was made aware of the actual
conditions, but was entitled to conclude they had been superseded by the oral conditions.

What would happen if the customer was illiterate? Does the railway have to take each customer as it
finds him or her or can it presume a large notice is sufficient to make the customer aware of the
existence of conditions so that the onus is on the customer to ask what the conditions are if he or she
cannot read the notice or writing on the ticket? What would happen if the customer knew there were
conditions on the back of the ticket but discovered the writing too small to read? What if the writing
was small but could be read by most customers not suffering from the bad sight which afflicted the
particular customer who lost the bag? Parker doesn't tell us the answers to any of these questions. But
the very absence of definitive answers should show you what can be extracted as the holding of the
case and what issues it raises, issues that should be considered in the context of an exam problem.

In any case following Parker, the customer's lawyer will seize upon all the facts peculiar to the
subsequent case to show why the basic condition stipulated in Parker, making the customer aware of
the existence of the conditions, was not satisfied in his or her client's case. The process is two-fold.
First, she will try to show that the railway's actions were insufficient in the subsequent case to make
customers aware of the existence of its conditions. Second, and in the alternative, she will argue that
even if the railway's actions in the subsequent case were sufficient to make customers aware of the
conditions in ordinary circumstances, the actions were not sufficient with regard to her particular
client. In this case, she will have to convince the court that the rule in Parker was meant to apply to
each individual customer, not the railway's average customer…

RECORDING THE RELEVANT TECHNICAL ASPECTS OF THE PRECEDENT

It is important that you include whatever information may be relevant to any 'technical' arguments you
may wish to raise in favour of or against the application of a precedent. Thus, your précis should note
the jurisdiction of the court, the level of the court and, where appropriate, the judges responsible for
the opinion that counsel would likely cite. Some of the so-called technical arguments are purely
factual, for example: 'This is an English Court of Appeal decision and of persuasive value only', while
others are less tangible and rest more on conventions and unwritten legal codes. For example, an
important factor in many situations is the respect accorded to the judge delivering a decision.
Developing a sense for these codes takes time but after a few years at law school you will begin to
realise which judges command greater respect in later courts and which do not. Often these
intangible factors have quite an impact on the legal process, though they are not found anywhere in
the theoretical framework for the common law system of precedent. Thus, for example, without
knowing how well respected and often cited Dixon CJ is, you would not think to suggest to a court that
a dissent by Dixon CJ should be followed in preference to the clear majority decision of less
respected judges.

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USING TEXTS AND TREATISES

At this point a brief interjection on texts and treatises is appropriate. It should be clear that the facts of
the case are essential to its precedential value. It is on the basis of those facts that lawyers will seek to
characterise aspects of a judgment as ratio decidendi or obiter dicta. Not all lawyers pursue this
objective however. While considering, applying and distinguishing cases on the basis of their facts is
the immediate challenge facing the practising lawyer and examinee law student, others such as the
authors of legal texts and treatises rely on precedents to develop the 'rules of law' — the propositions
and doctrines which reconcile all the cases and fit the pieces into a neat and complete jigsaw puzzle
that never exists in the real world of litigation and appeals. Be sure you remember the role of a text
and use it accordingly. Texts will help you understand an area of law and learn the basic principles
and legal doctrines forming the infrastructure of a legal subject. They will not, however, spell out the
many ways in which precedents and fact situations can be applied or distinguished in an attempt to
achieve the result sought by a client.

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WRITING OF LEGAL ARTICLE

STEP 1- CHOOSE A TOPIC

Choose a topic which interests and challenges you. Your attitude towards the topic may well
determine the amount of effort and enthusiasm you put into your research.

Focus on a limited aspect, e.g. narrow it down from "New Concepts under Companies Act 2013" to
"Mergers & Acquisitions under New Act" to "Issue of Treasury stocks under M&A".

Select a subject you can manage. Avoid subjects that are too technical, learned, or specialized. Avoid
topics that have only a very narrow range of source materials.

STEP 2- FIND INFORMATION

For general or background information, check out useful URLs, general information online, almanacs
or encyclopedias online. Use search engines and other search tools as a starting point.

Pay attention to domain name extensions, e.g., .edu (educational institution), .gov (government), or
.org (non-profit organization). These sites represent institutions and tend to be more reliable, but be
watchful of possible political bias in some government sites. Be selective of .com (commercial) sites.
Many .com sites are excellent; however, a large number of them contain advertisements for products
and nothing else. Network Solutions provides a link where you can find out what some of the other
extensions stand for. Be wary of the millions of personal home pages on the Net. The quality of these
personal homepages vary greatly. Learning how to evaluate websites critically and to search
effectively on the Internet can help you eliminate irrelevant sites and waste less of your time.

Check out online resources, Web based information services such as-

HEIN Online, JSTOR, SAGE Journals, Manupatra (Subject to your availability)

STEP 3- STATE YOUR RESEARCH PAPER

Do some critical thinking and write your research point down in one sentence. Your research point is
like a declaration of your belief. The main portion of your paper will consist of arguments to support
and defend this belief.

STEP 4- MAKE TENTATIVE SCHEDULE

Example of an Outline

1. Concept of M&A under new Companies Act, 2013

2. New concept under the New Act

3. Issue of regulation of Treasury stocks under New Act

4. Remedies available from other countries Act

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5. Conclusion

The purpose of an outline is to help you think through your topic carefully and organize it logically
before you start writing. A good outline is the most important step in writing a good paper. Check
your outline to make sure that the points covered flow logically from one to the other. Include in your
outline an INTRODUCTION, a BODY, and a CONCLUSION. Make the first outline tentative.

INTRODUCTION - State the purpose of your research paper clearly. What is the chief reason you are
writing the paper? State also how you plan to approach your topic. Is this a factual report, a book
review, a comparison, or an analysis of a problem? Explain briefly the major points you plan to cover
in your paper and why readers should be interested in your topic.

BODY - This is where you present your arguments to support your research point. Remember the Rule
of 3, i.e. find 3 supporting arguments for each position you take. Begin with a strong argument, then
use a stronger one, and end with the strongest argument for your final point.

CONCLUSION - Restate or reword your thesis. Summarize your arguments. Explain why you have
come to this particular conclusion.

STEP 5- ORGANIZE YOUR NOTES

Organize all the information you have gathered according to your outline. Critically analyze your
research data. Using the best available sources, check for accuracy and verify that the information is
factual, up-to-date, and correct. Opposing views should also be noted if they help to support your
research paper. This is the most important stage in writing a research paper. Here you will analyze,
synthesize, sort, and digest the information you have gathered and hopefully learn something about
your topic which is the real purpose of doing a research paper in the first place. You must also be
able to effectively communicate your thoughts, ideas, insights, and research findings to others.

Do not include any information that is not relevant to your topic, and do not include information that
you do not understand. Make sure the information that you have noted is carefully recorded and in
your own words, if possible. Document all ideas borrowed or quotes used very accurately. As you
organize your notes, jot down detailed bibliographical information for each cited paragraph and have
it ready to transfer to your Works Cited page.

STEPS 6- WRITE YOUR FIRST DRAFT

Start with the first topic in your outline. Read all the relevant notes you have gathered that have been
marked.

Summarize, paraphrase or quote directly for each idea you plan to use in your research paper. Use a
technique that suits you, e.g. write summaries, paraphrases or quotations on note cards, or separate
sheets of lined paper. Mark each card or sheet of paper clearly with your outline code or reference,
e.g., IB2a or IIC, etc.

Put all your note cards or paper in the order of your outline, e.g. IA, IB, IC. If using a word processor,
create meaningful filenames that match your outline codes for easy cut and paste as you type up your
final paper, e.g. cut first Introduction paragraph and paste it to IA. Before you know it, you have a well
organized term paper completed exactly as outlined.

If it is helpful to you, use a symbol such as "#" to mark the spot where you would like to check back

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later to edit a paragraph. The unusual symbol will make it easy for you to find the exact location
again. Delete the symbol once editing is complete.

STEP 7- REVISE YOUR OUTLINE AND DRAFT

Read your paper for any content errors. Double check the facts and figures. Arrange and rearrange
ideas to follow your outline. Reorganize your outline if necessary, but always keep the purpose of
your paper and your readers in mind. Use a free grammar and proof reading checker such as
Grammarly (Software tool).

CHECKLIST ONE:

1. Is my thesis statement concise and clear?

2. Did I follow my outline? Did I miss anything?

3. Are my arguments presented in a logical sequence?

4. Are all sources properly cited to ensure that I am not plagiarizing?

5. Have I proved my thesis with strong supporting arguments?

6. Have I made my intentions and points clear in the essay?

Re-read your paper for grammatical errors. Use a dictionary or a thesaurus as needed. Do a spell
check. Correct all errors that you can spot and improve the overall quality of the paper to the best of
your ability. Get someone else to read it over. Sometimes a second pair of eyes can see mistakes that
you missed.

CHECKLIST TWO:

1. Did I begin each paragraph with a proper topic sentence?

2. Have I supported my arguments with documented proof or examples?

3. Any run-on or unfinished sentences?

4. Any unnecessary or repetitious words?

5. Varying lengths of sentences?

6. Does one paragraph or idea flow smoothly into the next?

7. Any spelling or grammatical errors?

8. Quotes accurate in source, spelling, and punctuation?

9. Are all my citations accurate and in correct format?

10. Did I avoid using contractions? Use "cannot" instead of "can't", "do not" instead of "don't"?

11. Did I use third person as much as possible? Avoid using phrases such as "I think", "I guess", "I
suppose"

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12. Have I made my points clear and interesting but remained objective?

13. Did I leave a sense of completion for my reader(s) at the end of the paper?

STEP 8- TYPE FINAL PAPER

All formal reports or essays should be typewritten and printed, preferably on a good quality printer.

Read the assignment sheet again to be sure that you understand fully what is expected of you, and
that your essay meets the requirements as specified. Know how your essay will be evaluated.

Proofread final paper carefully for spelling, punctuation, missing or duplicated words. Make the effort
to ensure that your final paper is clean, tidy, neat, and attractive.

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