1

How to Brief Cases To fully understand the law with respect to business, you need to be able to read and understand court decisions. To make this task easier, you can use a method of case analysis that is called briefing. There is a fairly standard procedure that you can follow when you brief any court case. You must first read the case opinion carefully. When you feel you understand the case, you can prepare a brief of it. Although the format of the brief may vary, typically it will present the essentials of the case under headings such as those listed below. 1 Citation. Give the full citation for the case, including the name of the case, the date it was decided, and the court that decided it. 2 Facts. Briefly indicate (a) the reasons for the lawsuit; (b) the identity and arguments of the plaintiff(s) and defendant(s), respectively; and (c) the lower courts decisionif appropriate. 3 Issue. Concisely phrase, in the form of a question, the essential issue before the court. (If more than one issue is involved, you may have twoor even morequestions here.) 4 Decision. Indicate herewith a yes or no, if possiblethe courts answer to the question (or questions) in the Issue section above. 5 Reason. Summarize as briefly as possible the reasons given by the court for its decision (or decisions) and the case or statutory law relied on by the court in arriving at its decision. An Example of a Brief Sample Court Case As an example of the format used in briefing cases, we present here a briefed version of the sample court case that was presented in Exhibit 1A3 on page 32. BERGER v. CITY OF SEATTLE United States Court of Appeals, Ninth Circuit, 2008. 512 F.3d 582. FACTS The Seattle Center is an entertainment zone in downtown Seattle, Washington, that attracts nearly ten million tourists each year. The center encompasses theaters, arenas, museums, exhibition halls, conference rooms, outdoor stadiums, and restaurants, and features street performers. Under the authority of the city, the centers director issued rules in 2002 to address safety concerns and other matters. Among other things, street performers were required to obtain permits and wear badges. After members of the public filed numerous complaints of threatening behavior by street performer and balloon artist Michael Berger, Seattle Center staff cited Berger for several rules violations. He filed a suit in a federal district court against the city and others, alleging, in part, thatthe rules violated his free speech rights under the First Amendment to the U.S. Constitution. Thecourt issued a judgment in the plaintiffs favor. The city appealed to the U.S. Court of Appeals for the Ninth Circuit.

ISSUE Did the rules issued by the Seattle Center under the citys authority meet the requirements for valid restrictions on speech under the First Amendment? DECISION Yes. The U.S. Court of Appeals for the Ninth Circuit reversed the decision of the lower court and remanded the case for further proceedings. Such content neutral and narrowly tailored rules * * * must be upheld. REASON The court concluded first that the rules requiring permits and badges were content neutral. Time, place, and manner restrictions do not violate the First Amendment if they burden all expression equally and do not allow officials to treat different messages differently. In this case, the rules met this test and thus did not discriminate based on content. The court also concluded that the rules were narrowly tailored to promote a substantial government interest that would be achieved less effectively otherwise. With the rules, the city was trying to reduce territorial disputes among performers, deter patron harassment, and facilitate the identification and apprehension of offending performers. This was pursuant to the valid governmental objective of protecting the safety and convenience of the other performers and the public generally. The publics complaints about Berger and others showed that unregulated street performances posed a threat to these interests. The court was satisfied that the citys permit scheme was designed to further valid governmental objectives. Review of Sample Court Case Here, we provide a review of the briefed version to indicate the kind of information that is contained in each section. CITATION The name of the case is Berger v. City of Seattle. Berger is the plaintiff; the City of Seattle is the defendant. The U.S. Court of Appeals for the Ninth Circuit decided this case in 2008. The citation states that this case can be found in volume 512 of the Federal Reporter, Third Series, on page 582. FACTS The Facts section identifies the plaintiff and the defendant, describes the events leading up to this suit, the allegations made by the plaintiff in the initial suit, and (because this case is an appellate court decision) the lower courts ruling and the party appealing. The party appealings argument on appeal is also sometimes included here. ISSUE The Issue section presents the central issue (or issues) decided by the court. In this case, the U.S. Court of Appeals for the Ninth Circuit considered whether certain rules imposed on street performers by local government authorities satisfied the requirements for valid restrictions on speech under the First Amendment to the U.S. Constitution. DECISION The Decision section includes the courts decision on the issues before it. The decision reflects the opinion of the judge or justice hearing the case. Decisions by appellate courts are frequently phrased in reference to the lower courts decision. In other words, the appellate court may affirm the lower courts ruling or reverse it. Here, the court determined that Seattles rules were content neutral and narrowly tailored to promote a substantial government interest that

would otherwise be achieved less effectively. The court found in favor of the city and reversed the lower courts ruling in the plaintiffs (Bergers) favor. REASON The Reason section includes references to the relevant laws and legal principles that the court applied in coming to its conclusion in the case. The relevant law in the Berger case included the requirements under the First Amendment for evaluating the purpose and effect of government regulation with respect to expression. This section also explains the courts application of the law to the facts in this case. Analyzing Case Problems In addition to learning how to brief cases, students of business law and the legal environment also find it helpful to know how to analyze case problems. Part of the study of business law and the legal environment usually involves analyzing case problems, such as those included in this text at the end of each chapter. For each case problem in this book, we provide the relevant background and facts of the lawsuit and the issue before the court. When you are assigned one of these problems, your job will be to determine how the court should decide the issue, and why. In other words, you will need to engage in legal analysis and reasoning. Here, we offer some suggestions on how to make this task less daunting. We begin by presenting a sample problem: While Janet Lawson, a famous pianist, was shopping in Quality Market, she slipped and fell on a wet floor in one of the aisles. The floor had recently been mopped by one of the stores employees, but there were no signs warning customers that the floor in that area was wet. As a result of the fall, Lawson injured her right arm and was unable to perform piano concerts for the next six months. Had she been able to perform the scheduled concerts, she would have earned approximately $60,000 over that period of time. Lawson sued Quality Market for this amount, plus another $10,000 in medical expenses. She claimed that the stores failure to warn customers of the wet floor constituted negligence and therefore the market was liable for her injuries. Will the court agree with Lawson? Discuss. Understand the Facts This may sound obvious, but before you can analyze or apply the relevant law to a specific set of facts, you must clearly understand those facts. In other words, you should read through the case problem carefullymore than once, if necessaryto make sure you understand the identity of the plaintiff(s) and defendant(s) in the case and the progression of events that led to the lawsuit. In the sample case problem just given, the identity of the parties is fairly obvious. Janet Lawson is the one bringing the suit; therefore, she is the plaintiff. Quality Market, against whom she is bringing the suit, is the defendant. Some of the case problems you may work on have multiple plaintiffs or defendants. Often, it is helpful to use abbreviations for the parties. To indicate a reference to a plaintiff, for example, the pi symbolpis often used, and a defendant is denoted by a deltaDa triangle. The events leading to the lawsuit are also fairly straightforward. Lawson slipped and fell on a wet

floor, and she contends that Quality Market should be liable for her injuries because it was negligent in not posting a sign warning customers of the wet floor. When you are working on case problems, realize that the facts should be accepted as they are given. For example, in our sample problem, it should be accepted that the floor was wet and that there was no sign. In other words, avoid making conjectures, such as Maybe the floor wasnt too wet, or Maybe an employee was getting a sign to put up, or Maybe someone stole the sign. Questioning the facts as they are presented only adds confusion to your analysis. Legal Analysis and Reasoning Once you understand the facts given in the case problem, you can begin to analyze the case. Recall from Chapter 1 that the IRAC method is a helpful tool to use in the legal analysis and reasoning process. IRAC is an acronym for Issue, Rule, Application, Conclusion. Applying this method to our sample problem would involve the following steps: 1 First, you need to decide what legal issue is involved in the case. In our sample case, the basic issue is whether Quality Markets failure to warn customers of the wet floor constituted negligence. As discussed in Chapter 12, negligence is a torta civil wrong. In a tort lawsuit, the plaintiff seeks to be compensated for anothers wrongful act. A defendant will be deemed negligent if he or she breached a duty of care owed to the plaintiff and the breach of that duty caused the plaintiff to suffer harm. 2 Once you have identified the issue, the next step is to determine what rule of law applies to the issue. To make this determination, you will want to review carefully the text of the chapter in which the relevant rule of law for the problem appears. Our sample case problem involves the tort of negligence, which is covered in Chapter 4. The applicable rule of law is the tort law principle that business owners owe a duty to exercise reasonable care to protect their customers (business invitees). Reasonable care, in this context, includes either removingor warning customers offoreseeable risks about which the owner knew or should have known. Business owners need not warn customers of open and obvious risks, however. If a business owner breaches this duty of care (fails to exercise the appropriate degree of care toward customers), and the breach of duty causes a customer to be injured, the business owner will be liable to the customer for the customers injuries. 3 The nextand usually the most difficultstep in analyzing case problems is the application of the relevant rule of law to the specific facts of the case you are studying. In our sample problem, applying the tort law principle just discussed presents few difficulties. An employee of the store had mopped the floor in the aisle where Lawson slipped and fell, but no sign was present indicating that the floor was wet. That a customer might fall on a wet floor is clearly a foreseeable risk. Therefore, the failure to warn customers about the wet floor was a breach of the duty of care owed by the business owner to the stores customers. 4 Once you have completed Step 3 in the IRAC method, you should be ready to draw your conclusion. In our sample problem, Quality Market is liable to Lawson for her injuries, because the markets breach of its duty of care caused Lawsons injuries.

The fact patterns in the case problems presented in this text are not always as simple as those presented in our sample problem. Often, for example, a case has more than one plaintiff or defendant. A case may also involve more than one issue and have more than one applicable rule of law. Furthermore, in some case problems the facts may indicate that the general rule of law should not apply. For example, suppose that a store employee advised Lawson not to walk on the floor in the aisle because it was wet, but Lawson decided to walk on it anyway. This fact could alter the outcome of the case because the store could then raise the defense of assumption of risk (see Chapter 4). Nonetheless, a careful review of the chapter should always provide you with the knowledge you need to analyze the problem thoroughly and arrive at accurate conclusions. -Case Analysis of Laurence Godfrey v. Demon Internet Limited By CyberLaw Research Unit, Faculty E-mail: Copyright 1999 Yaman Akdeniz Yaman of Law, Akdeniz, Leeds LS2 9JT. lawya@leeds.ac.uk

University

of

Leeds,

Published in (1999) Journal of Civil Liberties, 4(2), 260-267 (July). Please cite as: Akdeniz, Y., Case Analysis: Laurence Godfrey v. Demon Internet Limited, (1999) Journal of Civil Liberties, 4(2), 260-267 (July). The case citation is: Godfrey v Demon Internet Ltd, QBD, [1999] 4 All ER 342, [2000] 3 WLR 1020; [2001] QB 201 (full decision provided) The Facts The case of Laurence Godfrey v. Demon Internet Limited (1) involves the first judicial decision within England and Wales which concerns a defamatory statement made via e-mail through an Internet Usenet discussion group. (2) The case is also the first one to take into account the liability of an Internet Service Provider under section 1 of the recently enacted Defamation Act 1996. Dr Laurence Godfrey is a lecturer in physics, mathematics and computer science based in London. The Defendant, Demon Internet, is one of the major Internet Service Providers ("ISPs") within the United Kingdom. On 13 January, 1997, a posting in the USA was made to an Internet newsgroup "soc.culture.thai" (3) which Demon Internet carries and stores through an unknown source. The message was traced back to a forged message which made it appear that it came from the Plaintiff in the case. On 17 January, 1997, the Plaintiff sent a letter by "fax" to Demon Internet informing the Defendants that the posting was a forgery, and that he was not responsible for its posting via e-mail and requested the Defendants to remove the posting from Demon Internets Usenet news server as it was defamatory of him. (4) The defamatory posting was not removed as requested but remained available on the Demon Internet news server until its expiry on about 27 January, 1997. Technically, Demon was in a capacity to remove the posting in question but chose not to do so.

The Plaintiff claimed damages for libel in respect of the posting after notice has been given on 17 January, 1997 that the posting was defamatory. The Decision According to Mr Justice Morland, whenever the Defendants transmit postings (including those defamatory postings) from the storage of their news server, they "publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every time one of the Defendants customers accesses "soc culture thai and sees that posting defamatory of the Plaintiff there is a publication to that customer." (5) The Defendants had a choice but they did "chose to store "soc.culture.thai" postings within their computers." Furthermore, the Defendants had the chance and option to "obliterate [the defamatory posting] and indeed did so about a fortnight after receipt" according to Mr Justice Morlands decision. However, Demon Internet did not intentionally remove the message in question but it was removed automatically from Demon Internets news server approximately 15 days after its initial publication. According to Mr Justice Morland, "this posting was squalid, obscene and defamatory of the plaintiff." Furthermore, in the judgment of Mr Justice Morland, "the defamatory posting was published by the Defendants and, as from the 17th January 1997 they knew of the defamatory content of the posting, they cannot avail themselves of the protection provided by Section 1 of the Defamation Act 1996 and their defence under Section 1 is in law hopeless." However, Mr Justice Morland allowed Demon Internet to amend its defence on 23 April, 1999. (6) He stated that various postings allegedly made by the plaintiff himself in various newsgroups "could well be submitted to be puerile, unseemly and provocative. In effect they invite vulgar and abusive response." This issue is relevant to the assessment of the damages by the trial judge (7) and Mr Justice Morland thought that "there is a real danger that the Trial Judge might award damages which were not rightly proportionate to the true injury suffered by the Plaintiff." Analysis The main legal issue discussed within this case is section 1 of the Defamation Act 1996 which deals with the defence of innocent dissemination. (8) For the defence to succeed under section 1, the defendant needs to establish that (a) he was not the author, editor or publisher of the statement complained of; (b) he took reasonable care in relation to its publication; and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement. There is no doubt that an Internet Service Provider would qualify as a "publisher" under Section 1(2) of the Defamation Act which defines a commercial publisher as a "person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business." However, for the purposes of section 1(3) of the 1996 Act, "a person shall not be considered the author, editor or publisher of a statement if he is only involved"(a) in printing, producing, distributing or selling printed material containing the statement; (c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;

(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control." According to Mr Justice Morland, Demon Internet "were clearly not the publisher of the posting defamatory of the Plaintiff within the meaning of Section 1(2) and 1(3) and incontrovertibly can avail themselves of Section 1(1)(a)" within this case. However, the defendants were subject to Section 1(1)(b) and 1(1)(c) of the Defamation Act 1996 following the notice given by the plaintiff on 17 January, 1997. Therefore, according to Mr Justice Morland, "this places the Defendants in an insuperable difficulty so that they cannot avail themselves of the defence provided by Section 1." (9) The Defendants, Demon Internet, argued that "they were not at common law the publishers of the Internet posting defamatory of the Plaintiff and that even if they were there is material upon which they can avail themselves of the defence provided by Section 1 of the Defamation Act 1996." However, Mr Justice Morland did not accept this argument by relying on both the common law case of Byrne .v Deane (10) and on section 17 of the 1996 Act which states that "publisher" is specially defined for the purposes of section 1 of the 1996 Act while "publication" and "publish" have common law definitions for the purposes of the law of defamation. Mr Justice Morland also referred to the US cases but found them "of only marginal assistance because of the different approach to defamation across the Atlantic." (11) Mr. Justice Morland thought that the US cases were "educative and instructive". However, he stated in his judgment that: "The impact of the First Amendment has resulted in a substantial divergence of approach between American and English defamation law. For example in innocent dissemination cases in English law the Defendant publisher has to establish his innocence whereas in American law the Plaintiff who has been libelled has to prove that the publisher was not innocent." The US Congress decided not to impose tort liability on Internet Service Providers which carry other third parties potentially defamatory content through their servers as a policy decision and the effect of the section 230 of the Communications Decency Act 1996 was to overturn the decision made in the Prodigy case. (12) Wilkinson C.J. in Zeran v. America Online (13) stated that "section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, Section 230 precludes courts from entertaining claims that would place a computer service provider in a publishers role. Thus, lawsuits seeking to hold a service providers liable for its exercise of a publishers traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content -- are barred." However, Mr. Justice Morland stated that, the UK parliament "did not adopt this approach," and the 1996 Act did not have this purpose and therefore differed from the US laws and cases. A Consultation paper issued by the Lord Chancellors Department in July 1995 stated that: "The defence of innocent dissemination has never provided an absolute immunity for distributors, however mechanical their contribution. It does not protect those who knew that the material they were handling was defamatory, or who ought to have known of its nature. Those safeguards are preserved, so that the defence is not available to a defendant who knew that his act involved or contributed to publication defamatory of the plaintiff. It is available only if, having taken all reasonable care, the defendant had no reason to suspect that his act had that effect." (14) Furthermore Lord Mackay L.C. described the new Section 1 defence as "a modern equivalent of the common law defence of innocent dissemination" (15) during the passage of the Bill through the House of Lords and rejected an idea by Lord Lester that an entirely new defence should have been created with section 1 of the 1996

Act with a view to provide a defence "to a person who was indeed aware, or on notice that he was contributing to a defamatory publication, but nevertheless chose to do so". (16) Lord Lesters suggestion would have provided an adequate protection for the likes of Internet Service Providers. However, Lord Mackay L.C. stated that "it would not be right to deprive a plaintiff of his cause of action against a defendant who was aware that he might be wronging the plaintiff and misjudged the plaintiffs chances of succeeding in a defamation action." (17) Dr Godfrey stated that he was delighted with the decision which meant in his view that "ISPs do publish material on their news servers and, once they are on notice, they can not avail themselves of that defamation defence."(18) After the Courts decision, Dr Godfreys solicitor, Nick Braithwaite stated that "ISPs cannot now put their heads in the sand and kid themselves they are not publishing libellous messages." However, Demon Internet decided to file an appeal (19) following the decision of Mr Justice Morland and believes that "the decision could have a profound impact on the entire Internet community if Internet Service Providers are charged with responsibility for monitoring personal opinions carried over the Internet." (20) Demon Internet further argued in a post judgment press release that the possibility of an Internet Service Provider being held liable for any content posted on the Internet, "opens up the debate on free speech and censorship of such content." Likewise Cyber-Rights & Cyber-Liberties (UK) criticised the decision and stated that "this decision will have a profound effect on cyber-speech," and the ruling, if not reversed on appeal "would make Britain, a very hostile place for network development in the Information Age." (21) According to the organisation, "the Defamation Act does not give adequate protection to the ISPs" and "the decision will have a chilling effect over the Internet communications." But Dr. Godfrey claims that the ruling has "caused immense misunderstanding" and stated that: "Most people see it as an attack on the freedom of speech, . but they have to distinguish between the right to state their views and opinions, and the quite different matter of imaginary rights to make defamatory comments or statements and get away with it." (22) However, according to Cyber-Rights & Cyber-Liberties (UK) notice should not be enough to make the ISPs liable for such postings: "It is also totally unacceptable that an offended party should simply notify an Internet Service Provider claiming the information to be legally defamatory. The current state of the UK laws forces the ISPs to be the defendant, judge, and the jury at the same time. Notice should not be enough in such cases." (23) The author predicts a considerable amount of "notice and takedown" situations being faced by the Internet Service Providers following the Demon decision. In almost all cases "notice and takedown" will become a routine practice for the ISPs and newsgroup postings and web pages will be taken down by the ISPs who (legitimately) do not want to become involved in costly court action. Such a procedure will have a chilling effect on cyber-speech and furthermore, the "notice and takedown" provisions of the Defamation Act are open to misuse especially by multi-national companies keen to silence any public criticism of their activities or products. The onus is now on the UK Parliament to resolve the ISP liability issue by amending section 1 of the 1996 Defamation Act to provide further protection to the UK ISPs. There is clearly need for strong lobbying by the ISP industry which was notably missing at the time the Defamation Act was enacted.

Currently, there are two ISPs trade organisations, namely the Internet Service Providers Association ("ISPAuk") (24) and the London Internet Exchange ("LINX") (25) and they will be lobbying for the change of law following the Demon judgment. However, it should be noted that both of these trade organisations are more interested in protecting their own member ISPs interests than the rights and freedoms of Internet users. Certainly such rights as freedom of expression and privacy have not been a primary consideration of Internet Service Providers and their trade organisations so far. Despite this criticism more legal protection is needed for the ISPs, to protect cyber-speech from censorship and to fully embrace the Information Age. Tanada v. TuveraFacts: Petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publicationin the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations,executive orders, letter of implementation and administrative orders, invoking the people's right to be informed onmatters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution, as well asthe principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectivelypromulgated.Sec 6, Article IV 1973 Consti provides:Section 6. The right of the people to information on matters of public concernshall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions,or decisions, shall be afforded the citizen subject to such limitations as may be provided by law. Issue: WON the petitioners instant petition is admissible to court albeit they are not aggrieved parties. Held: Yes. Rationale: Even though the said petitioners are without the requisite legal personality to institute this mandamus proceedingwithin the meaning of Section 3, Rule 65 of the Rules of Court:SEC. 3. Petition for Mandamus .When any tribunal, corporation, board or person unlawfullyneglects the performance of an act which the law specifically enjoins as a duty resulting from anoffice, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right oroffice to which such other is entitled, and there is no other plain, speedy and adequate remedy inthe ordinary course of law, the person aggrieved thereby may file a verified petition in the propercourt alleging the facts with certainty and praying that judgment be rendered commanding thedefendant, immediately or at some other specified time, to do the act required to be done toProtect the rights of the petitioner, and to pay the damages sustained by the petitioner by reasonof the wrongful acts of the defendant. the 1910 case of Severino vs. Governor General held that "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interestand the relator at whose instigation the proceedings are instituted need not show that he has any legal or specialinterest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of thelaws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431]. The right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamentallaw of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generallyempowered to represent the people, has entered his appearance for respondents in this case.