The single most important skill for a lawyer is the ability to analyze an issue. Professors award high grades based on good analysis. For the exam, the professor develops a hypothetical dispute where the judicial decision could go either way. There is no right answer as to the dispute, but the excellent answer analyzes all of the facts and issues.
Analysis is the simple act of proving each element of a rule to be true or false. To analyze, you must first break up the rule into elements to be proven. This makes the analysis easier since we're working with smaller elements. You then list all of the facts and circumstances of a case. Next, you simply match up the facts to the elements to see if the element exists.
EXAMPLE
At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.
Using the rule for burglary, we match up the facts to the elements to analyze the outcome.
Conclusion: Common law burglary is not satisfied since the crime did not occur at night.
The goal in a good analysis is to step through every element and match up every fact rather than just coming to a snap conclusion because one of the elements is not satisfied. While the conclusion can be short, the analysis should be full, lengthy and methodical.
The analysis is often not as straightforward as matching facts to elements. When the element of a rule is merely whether it's day or night, the analysis is simple. However, if the element definition is fuzzier, then the analysis becomes more difficult. For instance, in Tort law one of the most fuzzy elements for negligence concerns the word "reasonable." If a person acted reasonably then they may not be liable for negligence. However, what's "reasonable?" Was it unreasonable for a landowner to leave an open hole on his property if a trespasser falls in it? Was if instead of trespasser, the injured party was a neighbor that landowner invited over?
Court solve these definition problems by creating different types of tests to handle the tricky problem of fitting facts into elements that have fuzzy definitions. There are four primary methods: Reasoning by Analogy, Balancing of Factors Test, Judicial Tests and
Public Policy Argument.
The method used depends on the rule. A court may use one or all of these methods in deciding whether to apply a rule. Think of these techniques as the set of tools that you'll use to apply the rule.
Reasoning by Analogy
To reason by analogy you draw parallels between your hypothetical cases and cases that have already been decided. Since the facts and circumstances often determine the legal issue, you can often simply look to see whether the facts of this case match the facts of previous cases. If the key facts are similar enough, then you can draw an analogy that the decision rendered in the previous case should be used in the current case as well. Likewise, if the material facts are different on key elements of a rule, then you try to distinguish the present case by arguing that it is too different from precedent in order to apply the rule.
In reasoning by analogy, it is not necessary that facts match up exactly. If you do find a case that matches up exactly, then the argument is "on point" (legalese for a slam-dunk). More likely, you will find that key facts are somewhat different. Thus, while you can reason by analogy to bolster an argument, you will often have to use an additional means of persuasion in order to apply a rule.
As you read cases, note what facts prove an element of a rule. Key cases will frequently cite other precedents to show examples of where to draw the line. By building up a list of these examples, you have a database to show you where the line should be drawn.
EXAMPLE:
In Torts, an issue arises over the standard of care that a defendant owed a plaintiff in a negligence case. The rule on the standard of care can be stated as follows:
The standard of care must be that
of a reasonable
and prudent person
under the same or similar circumstances.
Although we have a clear statement of the rule, it's impossible to know what behavior is reasonable and prudent without knowing some examples. Thus we build a database of examples from the case law to show where the courts have found behavior to be or not to be reasonable and prudent. Here are two cases that illustrate the standard.
Breach of Standard of Care: Operator of heavy machinery has sister ride on side of tractor. Sister is killed. Brother's experience and knowledge of machinery should have led him to conclude that it wasn't safe. - Hill v. Sparks 546 S.W.2d 473.
No Standard of Care: In a drive-through bank, a car suddenly starts to back up and defendant throws car into reverse and backs up without looking. He runs into another vehicle and causes damage. Even though defendant didn't look, held to be reasonable behavior because it was an emergency. The other car would have hit him. - Wilson v. Silbert 535 P.2d 1034.
By building the list of examples, we begin to see what is taken into account to determine the standard of care. Prudent behavior may depend on experience and knowledge. The circumstances of an emergency may change the standard temporarily. You can see that these simple examples serve as easy guides. When choosing examples, try to include cases that illustrate holdings on either side of an issue. You want to see the full spectrum of situations when the rule applies and when it doesn't apply.
With these examples in place, you can draw an analogy to the facts and circumstances of your hypothetical. If there was an emergency situation in your example, you would argue that the hypothetical was analogous (or not if that's your position) to Wilson v. Silbert.
Balancing of Factors Test
In the balancing test, the court literally balances the different interests to achieve a just result. To do a balancing test, the court identifies factors to weigh in making its decision. The factors differ according to the issue. Factors might include age, education, experience, wealth, health and intent to do harm.
The factors are not meant to be a laundry list of necessary elements; otherwise, the factors would be incorporated into the rule. Rather, each factor is just another weight tipping the scale toward applying the rule until enough of the factors are present that you've satisfied the condition. This technique gives the court some leeway to adjust the result given a set of circumstances.
Often the courts will say "no single factor is dispositive," meaning that one fact or set of facts won't decide the case. Also, you can be light in one factor and heavy in another and still apply the rule. Be sure to note whether the cases allow this sort of flexibility in applying factors. Use it only when cases specifically state that alternative weights are allowed.
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