How to brief the opinion of a ca
A judicial decision or opinion is a statement by a judge explaining why he decided the ca the way he did. Since there is not a unified format of how to draft an opinion, different judges write the opinion differently, bad on their personal writing styles. No matter how different the opinions may be, each opinion is expected to contain a summary of the procedural history of the ca, a statement of facts, an explanation of the reasons that lead to the conclusion, and the conclusion of the decision.
Components of A Judicial Decision
Under the rule of stare decisis a court is bound to follow the prior decisions made by the higher courts within the same jurisdiction or by the court itlf when the caus of action of the precedents are the same as the caus of action of the new ca, and when the material facts of the precedents are similar as the facts before the court. However, even if a court is bound to follow a precedent, not everything said by a court in its judgment in a ca has authority as precedent. The prior decision may be very long and contains various parts.
A judicial opinion is compod of two main parts. One part is the proposition of law which is necessary for its decision on the facts of that particular ca. Since this part carries authority as precedent and is binding under the rule of stare decisis, it is called ratio decidendi or holding of the decision. The cond part is the remaining language in the opinion which is referred to as obiter dictum or dicta , which carries less weight in legal argument.为你唱首歌
Holding-ratio decidendi
Holding is the part of a decision which establishes the legal principles and rules which carry binding authority under the doctrine of stare decisis.亚特兰蒂斯文明 It is also called "ratio decidendi. " It explains the reason or ground for the decision. Thus it is very important to locate the holding of a ca in order to apply the precedent rule. Sometimes the court itlf will announce its holding in the opinion, but other times the court will not explicitly announce it and you have to locate the holding through your own examining of the opinion. Sometimes the court may u the term "holding" saying that the holding is somet
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hing, however, this may not be the true holding and after careful examination, you may find the actual holding is something el. Also the holding articulated by the courts may be too broad or narrow. Since the holding of a ca is the rule of law that comes from that decision, it must include the court's decision as to the question that was actually before the court. Therefore, an accurate holding should include both the important facts of that litigated ca and the reasons that the court gave for deciding the issue as it did bad on tho facts. Thus, the holding is different from general principles of law. A principle of law tells you the legal rule while a holding tells you both the facts and the rule applicable specifically to the facts. If a court in a contract ca says " a contract requires an offer and an acceptance," that is a pure legal principle that has come from many years of contract litigation, but it is not necessarily a statement of the holding of the ca becau it does not specifically mention the facts of the ca. The holding would be a statement like, " When B produced a fraudulent punchboard as required by the advertiment, he accepted the offer and a contract has been formed." This statement contains both the key facts and the elements of law supporting the reason.
Obiter Dictum
" Obiter dictum"小林龟介 or " dicta"踏春日记 means " a saying by the way," referring to all the languages contained in the decision that are not part of the holding. This part of the opinion does not have the binding authority on later courts. It includes statements or obrvations made by a court in its judgment which were not necessary for its decision. Statements that are dicta 怎样煮牛肉are not always unimportant, however. Sometimes the dicta in a ca become more important in later years than the holding of the ca becau dicta reflect other judges' concerns and often indicate how a court would rule in the future, given a particular t of facts.
The Esntial Elements of an Opinion
When analyzing a ca, you may need to summarize the opinion since each opinion could be lengthy and may contain many issues and you may not afford to re-read it to find the uful information. Such a summary is called "a ca summary" by English lawyers and "a ca brief" by American attorneys. Basically, a ca summary is an organi
zed, written summary of the important elements of a ca. Although judicial opinions can contain many things, veral components are critical. The are the procedural history of the ca, a description of the legally relevant facts, a statement of the legal issue or issues prented for decision, the holding of the ca, the policies and reasons that support the holding, and the judgment.
The following example describes the basic elements of a judicial opinion:
State v. Jones
欧洲性旅游(1) Jones appeals his conviction for posssion of marijuana. (2) When the police stopped and arched Jones' van, they found an ounce of marijuana in a backpack in the far rear of the vehicle. (3) Although Jones admitted he knew the marijuana was there, he defended against the charge by claiming that the backpack and drugs belonged to a hitchhiker who had been riding with him and who had accidentally left them in the van. (4) In this state, it is presumed that drugs are in the posssion of the person who controls them. (5) The issue in this ca is whether the marijuana was within Jones' control even t
hough it was in a backpack in the rear of his van. (6) That the backpack and drugs may have been owned by someone el is irrelevant. (7) Public policy dictates that posssion should not be synonymous with ownership becau the difficulty of proving ownership would permit too many drug offenders to evade procution. (8) It is nsible to assume that anything inside a vehicle is within the control of the driver. (9) We hold that Jones possd marijuana becau the backpack was within Jones' van and thus under his control. (10) Affirmed.
All of the esntial elements of a ca are in the above example. Sentence (1) ts out the procedural history. Sentences (2) and (3) give the legally relevant facts. Sentence (5) is the issue prented for decision by the appellate court. Sentence (9) is the court's holding. Sentence (4) gives the rule of law applicable to this factual situation. Sentences (6), (7), and (8) are reasons and policies that support the holding. Sentence (10) is the judgment of the ca.
我是女巫This is a good example of a ca opinion which contains all of the basic elements, but not
every ca has been written in such a clear and organized way. However, each ca should contain the elements.
Before further discussing each part individually, e an example of a ca brief. When reading it, think how much information you get out of it.
