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Legal Analysis and Communication Program Basic Tools and Concepts

  • Read slowly and re-read when necessary
  • Use a dictionary
  • Use a pen, not a highlighter, and make marginal notes
  • Reconstruct the rhetorical text by asking yourself questions as you read
  • Mentally continue the conversation with the author after you have finished reading
  • Translate difficult passages into your own words
  • When reading arguments (including court opinions) read first as a believer, understand the author’s claim and support; then read as a skeptic, asking questions about the author’s argument and reasoning

For further explanation of these points see Ramage & Bean, Writing Arguments (4th Ed 1998).

Background Information

Identify the opinion you are briefing. Include: name of case; identity of parties (plaintiff, defendant, appellee, appellant, respondent, etc); court; date; where you can find the case (cite or page in casebook).

Procedural History

The legal events that led to the decision you are reading. Include what the lower court(s) decided.

Facts

All the facts the court used to make its decision. Include other facts only as necessary for your description to make sense.

Issue

Defines the dispute before the court. Frame the issue in the form of a question. Refer to the governing rule and specify the element that is in controversy. Allude to enough determinative facts to make the issue concrete.

Holding

What the court decided in this particular case; the narrow answer to the issue. Can often be stated as "yes" or "no" response to issue.

Rule of the case

The holding stated as a more general declarative statement that can be used to govern future cases involving similar legal issues and facts.

Reasoning

The steps the court took in arriving at its decision. How did the court apply legal rules to the particular facts of the case to arrive at the holding? If the opinion summarizes them, include the essential points made by each side in their arguments. Include policy reasons: why the court thought the decision it reached was socially desirable.

Judgment or order

What the court did as a result of its holding (e.g. affirm, reverse, remand, etc.)

Concurring/Dissenting Opinions

Summarize essential points.

Evaluation

Critique opinion: did the court convince you? Why or why not? How does this opinion fit in with other cases in your assignment? Did the court write any instructive dicta?

The basic problem solving process can be broken down into four major steps as outlined below. The many skills that students learn in the Legal Analysis and Communication courses supplement various parts of this problem solving process.

  1. Identify the question: Determine what is the subject and why it is important
  2. Gather Information
    1. Cases, statutes and other legal authority (legal research)
    2. Facts of the case
  3. Connect the information
    1. Define and articulate the specific legal issue
    2. Determine and articulate the legal rule
    3. Study how that rule has been applied to similar situations in the past
    4. Apply the law to the specific facts and arrive at a conclusion
      1. Use Analogy and Distinction
      2. Determine what the alternative arguments are and why they are not as strong.
  4. Articulate conclusion including logical proof of and support for that conclusion
    1. Move from general to specific
    2. Articulate supporting reasons
    3. For each reason list some further supporting grounds, evidence or data

Generally, legal proofs are a form of complex definitional proof. There are two parts to the proof: the first defines or proves the rule, the second proves that the object or case under consideration does or does not fit the rule.

Seen as a standard deductive syllogism, a typical legal proof can be illustrated as follows:

Major Premise (general rule)

  • May be statute
  • May be from common law using induction
  • May be combination of statute and its interpretation by courts (using induction)
  • May or may not require detailed proof

Major Premise is Applied to:
Minor Premise

  • The specific facts of the case under consideration.
  • Use analogical reasoning to test facts against rule by comparing to other situations that have applied the same rule to similar facts.

Use Reasoning by Analogy to Reach:
Conclusion

The following five questions, developed by logician Stephen Toulmin, are useful when critically examining your or your opponent’s arguments:

  1. Are grounds really advanced in support of the claim?
  2. Are the grounds advanced in support of the claim directly relevant to the substance of the claim?
  3. Do the grounds advanced present enough evidence to justify the assertion in question or do you need more?
  4. Are the presumptions upon which the argument rests justifiable?
  5. Are there any ambiguous elements in the argument?

A legal argument should be organized around issues and major points. Within each the discussion should move from general to specific. The audience must first understand the issue or point being discussed and its importance to the overall argument. Next the audience needs to understand the general rules that govern the point and understand how those rules are actually applied in similar situations. With that understanding, the audience will then be more likely to follow and accept your explanation of why your situation does or does not meet the test of those rules and understand how and why your reasoning leads to your conclusion on the point. Using IGPAC as your default organizational tool is a way to incorporate this movement from general to specific within your legal proofs of each key point of your legal discussion.

I = Identify

Identify for the reader the issue or specific legal point you are about to discuss. State it not as a question but in a way that lets your reader know what your conclusion on that issue/point will be. If not clear from context, explain why the point is important to resolving your overall question.

G = General Rule

Set forth and prove the general rules that apply to this issue. This general rule is usually derived from a statute and/or from case law. Prove that your general rule is accurate: sometimes this simply requires a citation; sometimes it requires a lengthy discussion

P = Precedent

Give examples of how the courts have applied the general rules to specific fact situations in the past. (Most useful are examples most similar to your case). Set forth the fact specific holdings or other relevant information (e.g. reasoning or policy) of relevant precedent that will be useful in examining and interpreting the facts of your case. (Note that sometimes there will be no relevant precedent).

A = Application

Apply the prior law (general rule + precedent) to the facts of your case. Discuss whether or not your facts fulfill the requirements of the rule. Analogies to and distinctions from the precedent should support your discussion. The precedent allows you to predict and assert the outcome when the general rule is applied to the facts of your case.

C = Conclusion

State the conclusion to which the above reasoning leads.

When you revise you should do both macro and micro reviews of your document. Revising should consist of Rearranging, Reducing, and Rephrasing.

Rearrange

Macro
  • Overall Organization of issues
  • Organization within issues - IGPAC
  • Order of paragraphs
Micro
  • Ambiguous sentences
  • Ambiguous modifiers
  • Noun strings
  • Sentences in logical order
  • Only one point per sentence
  • Appropriate placement for emphasis

Reduce

Macro
  • Only essential issues
  • Appropriate depth of analysis
  • Appropriate amount of authority
  • Quotations
Micro
  • Throat clearing phrases
  • Unnecessarily long sentences
  • Redundancy

Rephrase

Macro
  • Clear presentation of authority
  • Analysis thorough for naive reader
  • Law integrated with your facts
  • Tone and objectivity
  • Paragraph structure
  • Transitions
  • Quotations
Micro
  • Use concrete nouns/verbs
  • Avoid nominalizations
  • Be precise
  • Prefer active voice
  • Use appropriate tense
  • Prefer positive over negative
  • Avoid Ambiguous words
  • Appropriate word connotations
  • Avoid legalese
  • Avoid sexist language

Scholarly writing is distinct from practice related legal writing primarily in its purpose. In scholarly writing one has time to ponder a legal question; it is a way for the writer to enter the dialog about a particular legal topic. Practice related writing is result oriented. Its focus is usually a specific case/fact scenario and its purpose is to accomplish something about that case. Typically, the practice related writing will begin with the law as it exists currently or at the point in time relevant to the problem being considered, and then apply that law to the problem. In contrast, scholarly writing might explain the history of that law, how it developed and got to be where it is today, then discuss and analyze that law. The time lines for completing a scholarly piece and a practice related piece are also very different. Practice related writing requires the author to be able to quickly focus the issues on what is directly relevant to solving the problem at hand and discuss those issues fully without adding interesting but unnecessary commentary.

Generally a scholarly piece of writing will have one or more highly footnoted sections at the beginning that indicate what the writer’s thorough research has revealed about the topic; that information will then form the basis for a more lightly footnoted analysis and evaluation that is appropriate to the specific document. The research sections will include whatever background that the reader will need to understand the analysis section and might include a factual or statistical component, a methodology section, a history or survey of the law. The analysis section is the writer’s opportunity to add to the ongoing debate on the topic and to make a significant contribution to legal literature.

As with any legal writing, writing a scholarly piece is easier if the process is broken into pieces and a timeline established for creating each piece as well as the final product. One of the most important pieces is to clearly define the topic of the piece before beginning research or writing. Two books that are useful when choosing a topic as well as with the other steps of the writing process are: Fajans, Scholarly Writing for Law Students and Volokh, Academic Legal Writing. Both books are available in our library.

Several general systems of legal citation exist as well as specific systems for each state and other jurisdictions. Despite the many systems, there is a strong consistency among them for general citation rules for practice related documents. The two most well-known general systems of citation are the Bluebook and the ALWD citation manual. The Bluebook is the most well established, having been in existence for several decades, while ALWD is only about 5 years old. UNM uses ALWD for its basic citation teaching tool.

Bluebook vs. ALWD

The Bluebook really contains two citation systems: one for practice related documents (e.g. briefs and memos) and one for scholarly writing. ALWD contains one system, used for all legal writing. ALWD and Bluebook agree on citation format for practice related documents. The differences between Bluebook and ALWD appear in the context of scholarly writing. Of the 17 differences, the only one of real significance is the requirement of Bluebook for different type styles in footnotes. All scholarly publications do not use the Bluebook format. Many use ALWD, as do many moot court competitions, including Jessup. Some courts, including some federal courts, now require use of ALWD.

Legal Analysis and Communication courses teach practice related writing and thus require practice related citation form. While this is consistent between Bluebook and ALWD, most students learn this proper citation better from ALWD than Bluebook; that is, ALWD is a better teaching tool. Once students understand how to use a citation manual, the skill is transferable to any other manual they might be required to use in the future (not unlike the ability to read different statutory and code compilations). ALWD teaches students the most common format for practice related writing, a format that is consistent with the Bluebook. Both books also refer to and note that when writing practice related documents, authors must additionally conform to local practice/citation rules. Thus, for example, New Mexico requires vendor neutral format. In addition to basic citation rules, authors must always conform to local variations.

In the real world, the word “bluebook” is often used as a synonym for “proper citation.” Thus, when students are asked if they know how to bluebook, they should not assume that the answer is no. Indeed, since switching to ALWD in LRRW, students understanding of and ability to create proper citations is far better than when the Bluebook was used as the teaching tool. Students should not think that just because we do not require that they purchase a Bluebook that they do not understand citation or cannot properly cite. Indeed, because the Bluebook is revised every couple of years, any specialized Bluebook training received in the first year of law school will very likely be outdated before they begin practice. Training with ALWD well prepares students to handle citation in practice related documents.