Below are 2 examples of briefs. The first is a short case and so the brief is quite short. The second is much more complicated, requiring a longer brief. Briefs should be concise. Typically they will be one page, two at the most. A brief should contain the essential information but without distracting details--get to the point. Make sure it's clear who won and what the vote was (if it was an appellate court decision with more than 1 judge). You should explain the reasoning behind all the opinions. If there were concurring opinions, explain why the concurring Justices wrote separately. If there are dissents, explain why the dissenters disagreed with the majority. You can include especially poignant quotes with page numbers.
It may be helpful to insert your own concise reactions to particular points, which you can distinguish by using brackets []--See the Shulman brief, below.
The cases below concern privacy and are similar to cases we will read, but are not cases assigned for the course.

I. Dempsey (Plaintiff) v. National Enquirer (Defendant), 702 F.Supp 927 (1988) (D.Maine)

Facts: National Enquirer reporter tries to interview and photograph Dempsey at his house and nearby restaurant

Issue: Can P [for ‘Plaintiff’, or the party that is suing and claiming they suffered] win suit for tort of  intrusion of seclusion, or for tort of commercial appropriation?

Held: D [for ‘Defendant’] wins. No intrusion or commercial appropriation

Reasons:
The intrusion must be highly offensive to a reasonable person and the intrusion must be upon premises occupied privately for purposes of seclusion (930).
Here, D. followed plaintiff to restaurant and “taking a photograph of the plaintiff in a public place cannot constitute an invasion of privacy” (931).

Rejects commercial appropriation tort claim: just because D is in business of publishing newspapers doesn’t mean publication of a photo is a commercial use (934).

II. Shulman (P) v. Group W Productions, Inc.(D), 18 Cal.4th 200, 955 P.2d 469 (1998), Supreme Ct of California

Facts: Ruth Shulman and son Wayne, plaintiffs, were injured in car accident. A camera filmed Ruth's extrication from car and transport to hospital via helicopter. Flight nurse Carnahan audio taped the conversation, and there was a videotape shown on tv in 1990. Ruth is heard to reveal she’s 47, thinks she’s old, asks if she’s dreaming, and twice says “I just want to die” (211). Her last name is not mentioned. Ruth saw the broadcast and was ‘shocked’. She sues. [You might also include a sentence summary of the decisions of the lower courts]

Issues: P files suit for 1) public disclosure of private facts; and 2) unlawful intrusion upon seclusion. Should this case go to a jury, or be dismissed summarily?

Held: Upholds summary judgment in favor of D on issue 1 (public disclosure) (5-2); but rejects summary judgment for D on unlawful intrusion, and sends back to trial court on that issue (5-2). [Note: case was settled before going to trial]

Reasons: J. Werdegar (with George, Kennard)
1. Publication of private facts issue:
a. Key issue: is there a legitimate public interest in publication, i.e. newsworthiness (214). Uses interest-balancing to decide this (227)
b. Concludes: the balance favors a determination of newsworthiness. Auto accidents are a subject of legitimate public concern (228) as is rescue and medical treatment of accident victims (228) [Why? Does the public need to know how victims feel?] “We conclude the disputed material was newsworthy as a matter of law” (228); the broadcast segment shows the concentration and courage needed with emergency care; showing Ruth’s disorientation and despair were relevant to the segment’s newsworthy subject matter (229). Moreover, the material shown was not morbid and sensational prying for its own sake, or lurid and sensational, or "so intensely personal in content, as to make its intrusiveness disproportionate to its relevance” (229), so it passes a balancing test.
[Question: what if Ruth explicitly said to the cameraman, go away? Would that matter? And if so, does it matter that she was unable to consent?]
c. Distinguishes Cox Broadcasting Corp v Cohn, 420 US 469 (1975): tv station broadcast victim’s name in a rape-murder case after a clerk showed a court proceeding document to a reporter. The court found no public disclosure tort because the information was on official court records (217); and Florida Star v. B.J.F., 491 US 524 (1989), allowing publication of a sexual assault victim’s name. But both cases are narrow, involving reporting using material from public records.

2. Intrusion upon seclusion:
2 elements: is there intrusion into a private place, conversation, or matter? (reasonable expectation of privacy, or reop); and in a manner highly offensive to a reasonable person (citing Miller)? (231)
a. reop?
-There must be an objectively reasonable expectation (232). Here, plaintiffs had “no right of ownership or possession of the property where the rescue took place, nor any actual control of the premises” (232) so there is no reop against filming
-However, is a triable issue as to whether there is a reop in the interior of the rescue helicopter (there is no law or custom permitting the press to ride in ambulances or enter hospital rooms, 232-3)
-Ruth had a reop in her conversations with Carnahan and other medical rescuers at the accident scene, and in conveyance to hospital. “By placing a microphone on Carnahan’s person, amplifying and recording what she said and heard, defendants may have listened in on conversations the parties could reasonably have expected to be private” (233)
-So a reop is conceivable, and is a question that should be left for the jury (233-4).

b. highly offensive? In deciding this,
- use essentially a balancing test: “courts must consider the extent to which the intrusion was, under the circumstances, justified by the legitimate motive of gathering the news”(236-7). An intrusion may be offensive when done for the purpose of blackmail, but not for a socially important purpose (237).
-A jury could find the recording of Ruth highly offensive (237); here, they suggest the recording could be merely for the edification and entertainment of casual tv viewers (238) [But in dealing with the publication of private facts, didn’t they argue, in claiming the publication was newsworthy, that it had valid purposes?]

Kennard concurs (with Mosk), raising concerns with the plurality's "newsworthiness" standard.

Chin concurs and dissents (with Mosk): agrees that the newsworthy nature of the disclosure precludes recovery for publication of private fact; but dissents from the intrusion analysis/decision. “I do not believe that a reasonable trier of fact could find that defendants’ conduct in this case was ‘highly offensive to a reasonable person’"(248). The broadcast was “dramatic and educational, rather than tawdry or embarrassing” (248).

Brown concurs and dissents (with Baxter): Agrees with the analysis re. privacy intrusion, but dissents from the conclusion re. publication of private facts. The public has no legitimate interest in witnessing Ruth’s disorientation and despair, or her innermost thoughts about wanting to die (250).