The Case-Note Guide: The Fundamental Skills for Writing a Case-Note

Introduction

Academic writing for publication may seem daunting to many law students, especially if it lacks the direction and prescribed scope of a college assignment. Consequently, while students frequently complete case-notes or other forms of legal writing for their modules, many refuse to reach beyond that for fear of having their work rejected, or spending countless hours correcting commas in the footnotes in an attempt to comply with the Publisher’s House Style (OSCOLA in our case).

However, for those with intellectual curiosity, passion and the relevant skills, writing a case-note or engaging in academic writing more generally can be a truly fruitful experience, granting an author not merely the potential prize of publication, but also a deeper understanding of the subject they take on. This piece will seek to deal with two questions:

1. The first being simply – why submit a case-note?
2. The second – what skills can aid one in doing so?

Writing a Case-Note

There is a certain appeal to writing a case-note. It grants prospective authors a semblance of structure for their research and enables them to explore current or compelling legal issues through the form of a summary and analysis of the developments brought about by a single case.

Potential authors may wish to express a novel piece of analysis they found in a case, expand an argument which they picked up from their time in law school or simply pursue a Case-Note as a means of getting published. Whatever one’s reason, there are plenty of resources a person may use to aid them in their research. Whatever one’s reason, what matters is that there is a point or view which can be expressed which the author thinks pertinent to convey. If you find it to be important, others might agree. Various resources exist to support author’s in articulating their points, from module reading lists to legal databases to the varied collection of reposted articles found on X (i.e. Twitter), hence there is no need to dismiss good ideas for the fear that they might not be good enough. It is, however, important to double check your sources. Not everything published online merits attention and thus, peer reviewed academic articles, cited by other academics in the field will often prove more valuable and indeed, more reliable.

 As our own Sam Walsh expressed at the most recent Author’s Night event “you may not get published, but you will learn a lot from the process”.^[1] What has been written will not simply disappear and hence, a rejection does not always have to be determinative. Articles are frequently reworked and resubmitted; thus  an initial rejection rarely equates to an absolute dismissal or defeat.

Mr. Adam Elbert also spoke at the event.^[2]  He noted that Case-Notes can fall under a range of categories, including but not limited to:

1. Practitioners’ Guides – a descriptive summary and succinct analysis of a case, often intended to enable solicitors and barristers to understand or argue a point of law in a courtroom setting.
2. A Dissenting Note – a piece centering on a disagreement with the judgment of a case. This piece will examine how the judge ruled on a particular issue by taking on the facts and legal precedence for a particular case to examine the judge’s reasoning, before making an argument that they erred in some way or misapplied the law in some way.
3. A Constructive Reassessment – a piece that involves the author taking a new perspective on a case, re-evaluating it or using a case as a means of indicating a potentially novel direction within a legal field. Authors may seek to re-examine a case through a different lens, whether it be republican, unitarian, utilitarian, deontological etc.

The Skills of Case-Note Writing

Though  case-notes can vary drastically in their structure and content, the legal reasoning of the argument and the accessibility of the piece are paramount in all. Thus, prospective author’s should take note of the following essential skills:

1. Be Clear - It is essential to be clear when writing a case note. Clarity of language and thought are incredibly important in conveying legal reasoning. There is always a temptation in case-notes and legal writing to lean into Latin maxims and highfalutin phrases, though there is rarely a need to do so if the legal reasoning is sound. Accessible language and a capacity to explain complex ideas in succinct terms will always prevail over sesquipedalian screeds. Furthermore, where possible, avoid the passive voice. If there is a tendency in the piece towards phrases such as “it is submitted” or “it is asserted”, this will need to be dealt with during the editing process. Though this style was once commonplace in barristerial practice, it is increasingly antiquated and rarely transmits well into legal writing. Similarly, an excessive use of personal phrases and pronouns can be equally problematic. The reasoning of the piece should be based in law, not one’s opinion or belief. Hence, the overuse of “in my opinion” or “I believe” only serve to erode the confidence of the piece’s argument. If a point is significant, state it confidently. It is the legal argument that readers care for, hence rely on your argument instead of forcing it to rely on you.
2. Content and Critical analysis – In respect of case notes, it is essential to lay out the facts of the case. The reader must be able to grasp what the case is about, how it came to court and what the judgment of the court was in that particular case. If the case-note delimits its exploration to a particular issue, judgment or section thereof, the summary should reflect that and limit its discussion to facts relevant to the case-note at issue. Once this has been adequately conveyed, the remainder of the piece should centre upon the author’s analysis of the fundamental issues at the heart of the case. A strong degree of independent critical analysis is key to any great Case-Note. Author’s must cut to the core of an issue, placing emphasis on what they consider to be the central developments or themes of a judgment. If the case-note centres upon a disagreement with a judgment of the court, this should certainly be expressed, albeit while being somewhat reverent to the judgment’s author. It does not serve an author to refuse engagement with judicial reasoning or to condemn its arbiter for ignorance and incompetence. A good case-note will afford opposing viewpoints the greatest benefit of reason and strive to contextualise their findings in a way which does not artificially bolster the author’s arguments through crafty phraseology and emotive or normative language. This is especially true of historical case-notes which may require additional context so as to place the judgment, especially a controversial one, in its contemporary setting. From there an alternative perspective or rebuttal can be offered in a transparent and balanced fashion.
3. Read the Case – Though one can afford to rely on secondary materials and university databases for the vast majority of assignments, the skill of actually reading a case is essential to undertake a case- Ideally, the author should read it more than once and take note of their own opinions before secondary literature is consulted. In some cases, reading the main judgment will suffice, but there will be loftier, more substantial cases which may benefit from an analysis of a lower court’s judgments, or even arguments made by counsel. These resources can prove pivotal for ascertaining the issues which a judge was considering in their determination of the relevant case. Reading other case notes may also prove helpful for a prospective author. Beyond this it is also worth noting that wide reading can improve a prospective author’s familiarity with a field and as such where possible, footnotes and links within articles should be utilised as a means of deepening one’s knowledge of the law. This is not a suggestion that every article must be consulted. Indeed many great authors recognise the value of sufficiency over perfection. Though striking that balance is important for the deliverance of a well-articulated piece of legal writing. Various sources, including the Law Quarterly Review, the Irish Judicial Studies Journal and our very own Trinity College Law Review can prove beneficial in that regard.
4.  Structure – There is no absolute requirement on structure. To the contrary, authors have a broad prerogative over how they design their piece. However, there must be a structure which is discernible and accessible to the reader. Streams of consciousness, superfluous or lengthy citations and confused maelstroms of legal scholarship, far from endearing an author to a publisher, can prove fatal for its prospects at publication. There must be adequate signposting as well as a succinct and effective introductory paragraph which indicates the form which the structure will take. It is essential to draft a piece and scrutinise it such that it can be refined for an audience beyond that of the author. Engaging others and asking them to read, critique or give feedback on a piece can result in useful guidance for the author and also may result in various spelling mistakes, grammatical errors or jarring structural issues being resolved before the piece is presented to a potential publisher.

There are numerous cases and statutes which could serve as an ample foundation for a note. Authors may choose from a plethora of judgments or legislative developments which occur in Ireland and beyond. That being so, I have created a short, non-exhaustive list of cases which are current, compelling, or underexplored in their respective fields.

Heneghan v Minister for Housing [2023] IESC 18 – The Supreme Court found that sections of the Seanad (University Members) Act 1937 which governed the election of senators was unconstitutional and hence, the Oireachtas must enable graduates from universities and third level institutions outside of the National University of Ireland and the University of Dublin (i.e. Trinity College) to vote in elections for the University panel seats in the Seanad. The case deals with numerous issues including the rights of students at third-level, the distribution of Seanad seats and more practically the doctrine of suspended declarations and prospective effect for declarations of unconstitutionality. This case would be ideal for first time authors given the relatively short length of the judgment as well as the direct implication of the contents for students.

Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4 – A recent landmark ruling by the UK Supreme Court in the tort of nuisance, the court held that the viewing platform in the Tate Modern Gallery had allowed visitors to cause nuisance by overlooking into the adjacent apartment blocks. There was an expansion of the scope for nuisance in this case as well as a refutation of the ‘public utility’ defence. This case has been ongoing for years and the Supreme Court only issued judgment a year after hearing oral arguments. The case provides an overview to the area of the Tort while also grappling with questions including whether ‘mere overlooking’ can constitute a nuisance and ultimately the implication of the decision for planning authorities will prove substantial. Finally, given the trenchant minority in this case, it could also prove intriguing for author’s pursuing a dissent-based case-note.

DPP v Quirke (No. 1) [2023] IESC 5 – The first of two supreme court judgments relating to Patrick Quirke who had been convicted of the murder of Bobby Ryan in a case grounded on circumstantial evidence. The issue in this case was whether the warrant obtained to search his home applied to the seizure of computers which were used by An Garda Síochana to find that Mr. Quirke had conducted searches relating to body decomposition and DNA. The court here ruled such seizures were unlawful and laid out a distinction between physical and digital spaces in respect of warrants obtained and noted that both which separate special authorization. The case represents fertile ground for a discussion on the increasing prominence of electronic and digital evidence, particularly in light of other electronic initiatives such as the Garda Síochána (Recording Devices) Bill 2022 or it could be used with the later case of DPP v Quirke (No. 2) IESC 20 as a means of exploring the development of the test from DPP v JC [2015] IESC 31 in practice.

Godden v Hales (1686) 11 St Tr 1165 – The issue of this case was whether King James II and VII of England and Scotland respectively, could grant dispensation to Catholics from Penal Laws which barred them from office. The court here ruled that he indeed could and that dispensing from religious laws was one of various ancient rights inherent to monarchical executive power. This judgment itself has long been overtaken in UK Constitutional law and is less so recommended here for its fact than for the wider issues dealt with as well as the legal philosophy which it prompted. The role of the courts in policing and expanding the boundaries of powers, parliamentary supremacy, the role of the Monarch following the Bill of Rights 1689 compared with that which existed prior and the question of how freedom of expression subsequently developed.

Case T- 172/21 Valve v Commission – This 2023 case concerns copyright protected video game content and restriction to its cross-border provision within the EU. Therein the General court suggested that restricting passive selling would prove restrictive by object unless a domestic court were to declare such sales to amount to an infringement of copyright. The case presents some critical questions surrounding the exhaustion doctrine as well as the rights of copyright holders and as such could serve as a launchpad for more confident law students to engage with the novel developments in digital IP law.

Costello v Government of Ireland [2022] IESC 44 – Concerned the potential seizure of judicial jurisdiction by the CETA Tribunal and issues surrounding constitutional identity.

Burke v Minister for Education [2022] IESC 1 – Concerned the potential infringement of homeschooling rights by the government’s calculated grade scheme as well as the issue of delegations of executive power and the ability of the court to review such delegations.

C.W v Minister for Justice [2023] IESC 22 – Concerned the potential unconstitutionality of s. 3(5) of the Criminal Law (Sexual Offences) Act 2006, which stated that in cases of unlawful carnal knowledge, a reasonable mistake as to age was to be proved to the standard of ‘proof on balance of probabilities’. The court considered whether such a standard was incompatible with the presumption of innocence and Constitutional protection of rights of accused in Article 38.1. Issues ranging from the burden of proof to the policy consideration of protecting vulnerable victims are also discussed therein.

The Exciting World of Legal Writing

In summation, the world of legal writing is ripe and ready for new contributions. Diversity of thought and interest is crucial for the field and hence, where some authors will have strong views on deeply rooted issues of International law or developments abounding from the European Union, others may have equally valuable insights into areas as diverse and niche as Defamation reform, M&A procedures, injunctions or indeed, the legal developments surrounding the Glorious Revolution and the Bill of Rights. I myself, as well as many others, fall into the latter camp and as such, authors who feel strongly about a point should not feel prohibited by the scope of their subject. Impactful points do not always come with impactful reading times. Regardless of what subject you choose to explore, we very much hope writing a case-note will be an endeavour that you pursue, and one that you, above all, enjoy.

[1] Sam Walsh is a Final Year Law and French Undergraduate at Trinity College Dublin. He is the author of the piece ‘G.E v Commissioner of An Garda Síochana & Others: Sea Changes Rejected and an Age Old Tort Reassessed’ (2022) HLJ 140.

[2] Adam Elbert is a current PhD Candidate and Scholar of Trinity College Dublin specialising in Constitutional Law. He is also a former editor at Trinity College Law Review.