Writing case notes
I Introduction
This material provides a framework and guidance for writing case notes and case
comments. The case note is the simplest, shortest, most descriptive account of a
case, the comment sets it in context, explains its significance and critiques it. It
uses discursive argument to synthesise a wider body of material to establish a
position on some law-related point. Case notes are short pieces of writing of
between 300-800 words. Case comments are pieces of around 2000 – 3000
words. The writing of case notes tends to follow a specific pattern. In contrasts,
there is no one “correct” way to write a case comment. There are certain
guidelines that can be followed. In so far as it relates to case comments this
material is not therefore intended to be formulaic but it is provided as an initial
framework for those interested in this form of legal writing.2
2This contrasts to case note and case comment writing in the USA where some law
schools have established a format for authoring case notes and case comments for
submission to their journals. Whilst in the US the structure is not strictly required it
is strongly encouraged. Case notes, which in the US are longer commentaries of up
to 10,000 - 17,000 words on a judicial decision, exist along side shorter case
comments which can be between 5000-7,000. US style case notes consist of Part I
which sets out the legal back ground to the case; Part II explains the problem or
issues, it can examine previous case law and the impact of the case on that existing
law or look for gaps in existing legislation; Part III considers a solution to the issues
identified in the earlier part. This is followed by a conclusion. The aim is to provide a
resource for legal professionals and others working amidst the pressures of legal life
in practice: see for example 2014-2015 Publishable Notes Manual, Columbia Law
Review, page 5:
http://columbialawreview.org/wp-content/uploads/2014/09/2014-2015-
Publishable-Notes-Manual.pdf . Date accessed 29 September 2015.
Similarly for competitive student case comment writing a formula is set, but
authors are not required to stick to it: 1. Facts of the case 2. Holding 3. Road map
explaining structure of the comment 4. Analysis 5. Conclusion: see Georgetown Law
2015 Write On Competition Instructions:
https://www.law.georgetown.edu/academics/law-journals/writeon/upload/2015-
Write-On-Competition-Instructions.pdf. Date accessed 29 September 2015.
See also Note Submissions for the Stanford Law Review:
http://www.stanfordlawreview.org/submissions/print/note date accessed
29 September 2015.
And Harvard Law Review: see http://harvardlawreview.org/about/ date accessed
29 September 2015.
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Learning outcomes
After studying this material you should be able to:
Create a case note of a judicial decision
Identify the purpose and format of a case comment
Decide upon a topic or case upon which to comment
Engage in discursive argument about a judicial decision
Plan and write a case comment
2 Writing case notes
The ability to write a clear and succinct case note is useful in and of itself as a
legal skill, particularly in common law legal systems which operate a doctrine of
precedent whereby judicial decisions form part of the law of the land. It is also
important in case comment writing since a clear understanding of the essential
elements of a judicial decision forms the basis of accurate analysis and enables an
author to set out a brief summary of the judicial decision at the outset.
In order to write a case note it is necessary to learn how to deconstruct a legal
argument set out in a judicial decision and identify various parts of the
judgment. The various parts serve different purposes.
This task is carried out in the UK by law reporters, trained barristers or solicitors,
who write case summaries and headnotes, the later are published, together with
the judgment, in various law reports series. These can be found in law libraries or
in online databases such as Westlaw or LexisNexis. JustCite is a useful tool for
searching for cases and discovering which law report series a case is reported in.
There are also freely available open access case summaries of all the
important UK cases together with those of the Court of Justice of the European
Union provided by the Incorporated Council of Law Reporting at:
http://cases.iclr.co.uk/Subscr/Search.aspx. For other useful sites please see
Appendix 1.
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2.1 How to start
To understand a judicial decision it is necessary to identify the facts, issues, legal
procedure and arguments of the parties and to understand the point(s) of law
that have been included by the judge.
Creating a case note involves working through the judge’s reasoning and
understanding how the law has been applied to the facts in order to reach
the final decision.
It is necessary to understand a judgment in detail even where a case report of
the case already exists. Existing reports of UK cases such as those which can
be found, for example, on legal databases such as Westlaw or LexisNexis,
provide clear succinct summaries of essential elements of the case and can
prove really useful to support your summary of the case and can help you
orientate yourself around a case. It is, however, always important to deconstruct
the case yourself when writing a case note or a case comment because the
additional information in the judgment may well be relevant to your writing.
Reading the legal argument of the parties (in those systems where trials are
adversarial and where legal argument is reported) can be useful since this is the
starting point for discovering more than one point of view on an issue. In the UK
the judgement will often include a summary of the arguments of the parties, but
only the most important cases carry an official report of argument and this is only
written up in the official law reports of the Incorporated Council of Law Reporting.
If you are going to consider legal argument you will need to read the summary of
this set out by the judge in the judicial decision.
Where there is no headnote or case summary available you will need to write the
summary yourself from scratch, that is from the original judgment, so it is well
worth gaining this skill.
In order to consider the arguments of the parties and find all the relevant
information it is therefore necessary to read the judgment and pull out the
information you require.
Before deconstructing a judicial decision it is necessary to consider which type of
legal system the decision was given in. This is because different legal systems
produce different types of judgments and understanding this will help you know
what to expect from the judicial decision. Judgments from civil law systems do
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not include a summary of the legal argument. It is important to understand this if
you intend to carry out a comparative analysis of cases across different legal
systems. In the next section you will learn about the different types of judgments
arising in various legal systems.
In addition to understanding the type of legal system in which judgment was
given it is also important to bear in mind the level and jurisdiction (authority to
hear certain cases) of court. In those countries with common law systems only
courts higher in the hierarchy create precedent (binding decisions) and whilst
those from lower courts might be of interest to academics they are of limited
value to practitioners.
