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.
Elements of Rule of common law burglary
Facts of case
Proven True?
Breaking
Forces open door with crowbar.
Yes.
Entering
Enters cabin.
Yes
Of a dwelling
Houseboat
Maybe. If structure is used as a residence - i.e. someone sleeps there regularly - then it probably qualifies as a dwelling.
At night
12 noon
No.
With intent to commit a felony.
Plan is to steal expensive equipment and pawn it.
Yes.
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.
General principles of the Balancing Test
Consider all of the facts and circumstances.
No one factor determines the case.
Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
EXAMPLE
In contract law, one party can make a contract void if the terms are found to be unconscionable. First, we state the rule on unconscionability by listing the elements that must be proven in order for unconscionability to be present.
Rule
Unconscionability in a contract exists IF there is:
absence of meaningful choice
AND terms unreasonably favorable to other party.
Next, we have to prove each of the elements of unconscionability. You will discover in your reading that the first element, "absence of meaningful choice," is proven by a balancing test. The factors to be considered are listed below.
Balancing Test
Weighing the following factors proves absence of meaningful choice:
gross inequality of bargaining power
unfair surprise by the one of the parties
lack of education of one of the parties.
hidden terms in the fine print of the contract.
The next step is to take each of these factors and see if it exists in the professor's hypothetical. You will want to weigh all of the factors to see whether the bulk of the factors suggest unconscionability.
Hypothetical Facts
A retailer in an inner city neighborhood has a contract where residents can purchase furniture on the installment plan. Residents tend to buy all of their furniture at this store - sometimes buying a piece every three to six months. However, if the buyer misses a payment on a single piece of furniture, the contract allows the retailer to repossess every piece of furniture the buyer has ever bought regardless of whether they have paid off all of the previous purchases. For instance, over the course of five years, a customer buys a TV, sofa, bed and table. She pays off all of the purchases. She then buys a desk but misses three payments. Under the contract, the store can repossess the TV, sofa, bed, table and the desk to cover the depreciation of the desk.
Issue: Was there an absence of meaningful choice?
Balancing Test Analysis
Gross inequality of bargaining power: Because of the lack of transportation, there is only one merchant who sells furniture in the inner city neighborhood. The residents have no other person to bargain with. They either have to buy furniture from the merchant at his high prices or go without the furniture. The retailer is essentially holding these buyers hostage.
Unfair surprise: These are terms that are unusual for most contracts. A reasonable person would think that the once they have paid off a particular item of furniture, it is there's to keep. An installment plan typically only requires repossession of the item bought and does not create a security interest in additional items.
Lack of education: The level of education will help determine whether the buyer had a reasonable opportunity to understand the terms of the contract. If the buyers were uneducated, then that suggests that they never expressly agreed to these terms.
Hidden terms: If the retailer hid the terms in the fine print of the contract or engaged in deceptive sales practices to mislead the buyer, then that also suggests that the buyer did not have full knowledge of the unreasonable terms.
No single factor by itself will prove the element. In fact, you might even have a highly educated person and still have an unconscionable contract if the rest of the factors are strong. Here, on balance, we can probably conclude that there was an absence of meaningful choice. (See Williams v. Walker-Thomas Furniture Co. 350 F.2d 445 for a real world example of this hypothetical.)
Judicial Tests
Courts also articulate a judicial "IF-THEN" test that proves a particular element. The test is sometimes couched in terms of probability. It may ask a series of questions that would prove an element. Usually, a test will allow the court some flexibility for interpretation in order to achieve a just result.
EXAMPLE
In tort law, a person can claim self-defense if they use force against someone who attacked them first. The rule on self defense requires three elements
Rule
A defendant can claim self defense against a charge of battery IF:
The defendant used proportional force against offensive bodily contact
AND there was a reasonable belief of necessity to use force under the circumstances
AND there was an immediate need to use the force.
We're focusing on the first element of the rule. What constitutes proportional force can be vague. For instance, is a gun proportional force against a penknife? A four-inch blade? A nine-inch hunting knife in the hands of a 200 pound male who's an an ex-Marine? In the hands of the a little old lady with arthritis? As you can see, the distinctions can easily become blurred and it's hard to know where to draw the line. Consequently, the courts have developed a test that allows the judge to formulate an answer.
Judicial Test
Self-defense is proportional IF the force used is no more than is adequate to stop the onslaught of the assault.
If the force is non-deadly then it should be met with non-deadly force.
Deadly force (e.g. a gun or other weapon that causes seriously bodily injury) should only be used when deadly force is threatened.
As you can see, this test lends some certainty as to what is proportional while still giving the court some room for interpretation.
Public Policy Argument
A good fallback method for proving a rule is to ask whether the underlying public policy of the rule is furthered by the application of the rule. Sometimes, you will be presented with a set of facts that on the surface are identical or similar to case law. However, if you applied the rule in these circumstances, the result would somehow be unjust. If that is the case, then look to the policy of the rule. Why is the rule in existence? Have judges used this rule for equity's sake, economic efficiency or because it lends certainty to the process.
Policy arguments are particularly useful in balancing tests. The policy, in fact, might be considered yet another factor to weigh in the analysis. If the policy is or is not furthered by application of the rule, then that element should be given significant weight.
EXAMPLE
In criminal law, the charge of burglary carries with it a greater penalty than mere theft. The policy behind it is that society wants to distinguish between petty theft and more serious takings of property. However, the common law rule for burglary required several elements.
Common Law Rule on Burglary
The charge of burglary is proven IF there is:
breaking
entering
of a dwelling
at night
with the intent to commit a felony therein.
The problem with this rule is that it doesn't further the underlying policy. A thief could break into a barn, which is not considered a dwelling since no one lives there, and steal valuable farm equipment. Likewise, a thief could enter a house and clear it out at daytime under this rule and not be guilty of burglary. Since the policy did not match up with the rule, courts started to liberalize the rule so that interpretations of dwelling were expanded or the nighttime requirement dropped. Today's rule is much more flexible.
Modern Rule on Burglary
The charge of burglary is proven IF there is an:
entering
of a structure
with the intent to commit a crime therein.
Some of the common public policy arguments that are used in the law include the following.
Common Public Policies
Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
Economic Efficiency: This policy suggests that all rules be based on a cost-benefit analysis. Society has to have some losses in order to make gains. For instance, this view holds that you can breach a contract and only have to pay damages if it would be economically wasteful to carry out the contract.
Predictability: Is the rule fashioned in such a way that it lends certainty to the judicial process. Everyone knows that there is a bright line rule. Cross over it and you've violated the rule. This sort of rule also lends administrative efficiency to the court such that balancing tests are not used.
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