Legal method — writing case notes and essays

Week 8 turns legal method from reception into production. Weeks 1 to 7 have supplied the materials: sources of law, hierarchy of courts, precedent, statutory interpretation, analogy, case briefing, law and morality, and the relationship between equity and the common law. The present task is to write from those materials in a form recognisable as legal analysis. A case note is not a book report. An essay is not a survey of everything read. Both are exercises in selection, justification and disciplined judgment.

For Durham first-year students this matters immediately because Introduction to English Law and Legal Method sits alongside compulsory Tort, Contract, UK and EU Constitutional Law, and The Individual and the State. Those modules test different bodies of doctrine, but they reward the same method: identify the legal issue, locate the governing authority, distinguish holding from comment, explain why an authority applies or does not apply, and reach a reasoned conclusion. A weak answer in Tort or Contract often fails not because the student has read too little, but because the answer lacks legal method: authorities are listed rather than used; facts are narrated rather than analysed; statutory provisions are mentioned but not interpreted; criticism floats free from doctrine.

The central distinction is between description and argument. Description tells the reader what happened in a case or what an author says. Argument tells the reader what legally follows from that material. A good case note therefore asks: what was the legally material dispute, what question did the court decide, what rule or principle is the case authority for, how did the court reason, and why does the decision matter within the wider line of authority? A good essay asks a parallel set of questions: what proposition is being tested, what legal materials bear on it, what structure best answers it, where is there doctrinal uncertainty or normative controversy, and what conclusion is justified?

The writing style required is austere rather than decorative. Legal writing at this stage should be accurate, economical and explicit. It should avoid rhetorical overstatement, personal impression, unsupported moralising and unnecessary history. The best first-year answers do not pretend to settle every controversy. They show control over the legal question, hierarchy of authority and the purpose of each paragraph. The reader should never have to infer why a case has been cited. Every authority should do work.

English legal writing developed around reported cases and forensic argument. The common law did not begin as a code of abstract propositions. It grew through decided disputes, recorded in law reports, argued by counsel, and later organised by judges and writers into doctrines. That historical fact explains why English legal education places such weight on reading cases and extracting ratios. The student is expected to work from particular decisions towards more general propositions, and then back again from propositions to facts.

Early law reporting was uneven. Reports were private, selective and sometimes unreliable. The emergence of more systematic law reporting in the nineteenth century, especially with the Incorporated Council of Law Reporting from 1865, gave lawyers a more stable basis for argument. The modern case note is the educational descendant of that professional discipline. It asks the reader to reconstruct the legally significant part of a decision: not every fact, not every judicial flourish, but the material facts, issue, holding, reasoning and significance. A case note is therefore a method of controlling precedent.

The essay has a different but related history. University legal education required students to move beyond practical pleading towards analytical exposition. The essay became the form in which students demonstrated understanding of legal principle, institutional structure and criticism. In English law this cannot be done by general theory alone. An essay on negligence, parliamentary sovereignty, equitable conscience or statutory interpretation must engage with the sources through which English law speaks: cases, statutes, constitutional conventions, EU and human rights materials where relevant, and academic commentary. Legal method is the bridge between those sources and the written answer.

The nineteenth and twentieth centuries also brought an important change in style. Older judgments sometimes proceeded by broad moral language or extended doctrinal history. Modern legal writing, particularly after the growth of appellate judgments with numbered paragraphs and neutral citations, expects sharper citation, clearer issue-framing and more transparent reasoning. The judgment itself has become easier to navigate, but not necessarily easier to understand. Numbered paragraphs may conceal complex reasoning; a headnote may simplify too much; and a syllabus or commentary may identify the result without explaining the route. The student writer must not outsource analysis to the headnote.

Durham’s first-year structure makes this historical point practically important. Because all students take the same compulsory foundations before choosing later options, legal method must be portable. The skill learned in writing a case note on Donoghue v Stevenson or Pepper v Hart is not confined to tort or interpretation. The same discipline will later apply to trusts, criminal law, public law, EU law, company law or jurisprudence. English legal writing remains historically case-centred, but modern legal method requires the integration of cases with statutes, institutional context and academic debate. Week 8 is where that integration becomes a written habit.

There are six controlling principles for writing case notes and legal essays.

First, begin with the legal question, not the story. In a case note the question is normally narrower than the litigation as a whole. The claimant may have had several complaints, the defendant several answers, and the appellate court several issues. The case note must identify the point for which the case is legally important. In Donoghue v Stevenson the relevant question is not simply whether Mrs Donoghue became ill after drinking ginger beer. It is whether a manufacturer owed a duty of care to a consumer with whom it had no contract. The facts matter because they define and test that question.

Secondly, distinguish material facts from background facts. Material facts are those which explain why the legal issue arose and why the rule applies. Background facts may make the case memorable, but they do not necessarily affect the legal principle. A first-year case note often fails by retelling all facts in chronological order. That is narrative, not legal method. The better technique is to ask: if this fact were changed, might the legal answer change? If yes, it is probably material. If no, it may be omitted or compressed.

Thirdly, identify the ratio decidendi with caution. The ratio is the proposition of law necessary to the decision on the material facts. It is not every sentence in the judgment. It is not the headnote. It is not the broadest principle a lecturer has attached to the case. The ratio may be narrow, especially where the court decides cautiously. It may also be contested where there are multiple judgments, concurring reasons, or later judicial reinterpretation. A competent student can state the ratio at an appropriate level of generality and can acknowledge where the ratio is open to more than one formulation.

The cases most useful for Week 8 are not confined to cases about education or writing. They are cases that teach the discipline of legal method. Quinn v Leathem remains a classic warning against treating judicial language as if it were statutory text. Lord Halsbury’s point is methodologically central: a judgment must be read against the facts and issues decided. This is the antidote to the common student error of extracting a broad sentence from a judgment and treating it as a free-standing rule.

London Tramways and the Practice Statement illustrate hierarchy and precedent. English legal writing depends on knowing whether an authority binds, persuades or merely illustrates. A case note should therefore identify the court and procedural posture. An essay should not present a first-instance decision, a Court of Appeal decision and a Supreme Court decision as if they have the same force. The Practice Statement is also a reminder that legal certainty and legal development are in tension. A writer who understands method can explain both the value of stability and the need for principled correction.

Young v Bristol Aeroplane supplies the orthodox rule that the Court of Appeal is generally bound by its own previous decisions, subject to recognised exceptions. For first-year purposes its importance is practical. If an essay uses a Court of Appeal case, the student should ask whether later Court of Appeal authority was bound, whether Supreme Court authority has altered the position, and whether the relevant statement was ratio or dicta.

Donoghue v Stevenson is a model of how a case becomes doctrinally generative. It can be read narrowly as a manufacturer-consumer duty case, or more broadly as a statement of a neighbour principle that influenced later negligence law. The skill is to know which level of generality the question requires. Pepper v Hart shows statutory interpretation in action and illustrates how a case note must record conditions, not slogans. The case did not create an unrestricted licence to use Hansard; it relaxed an exclusionary rule under conditions.

R v R demonstrates the common law’s capacity to develop, but also the need to analyse legitimacy. The abolition of the marital rape exemption is often praised as morally necessary, but a legal essay must ask how the House of Lords justified development within the common law and how it addressed concerns about retrospectivity. Robinson is a modern reminder that legal tests must not be cited mechanically. Caparo should not be reduced to a universal three-stage formula. A student who writes well will explain how a later case has reoriented the use of an earlier one.

Taken together, these cases teach the craft of legal writing: identify the court, extract the ratio, control the level of generality, treat dicta carefully, attend to later treatment, and connect authority to the precise question asked.

See practice questions section below.

See further reading section below.