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How to Draft an Effective Analogy. Purpose To predict or argue that similar facts = similar results. To predict or argue that similar facts = similar.

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Presentation on theme: "How to Draft an Effective Analogy. Purpose To predict or argue that similar facts = similar results. To predict or argue that similar facts = similar."— Presentation transcript:

1 How to Draft an Effective Analogy

2 Purpose To predict or argue that similar facts = similar results. To predict or argue that similar facts = similar results. No two cases are exactly alike. No two cases are exactly alike. But if the determinative facts in each case are “analogous,” then the resulting court decision should be the same. But if the determinative facts in each case are “analogous,” then the resulting court decision should be the same.

3 The Best Analogy Is based on binding legal authority. Is based on binding legal authority. Why? Because if it’s not binding law, the court doesn’t have to follow it. Uses a determinative fact in the reported case. Uses a determinative fact in the reported case. Why? Because if it’s just incidental and not “outcome determinative,” then the presence or absence of that fact made no difference to the outcome of the case. Gives enough information to show that the case fact is similar to your client’s fact. Gives enough information to show that the case fact is similar to your client’s fact. Why? Because a skeptical reader will independently weigh the analogy.

4 What You Need: Rule of law from the reported case (preferably binding authority) Rule of law from the reported case (preferably binding authority) The determinative facts of the reported case (“FHR”) The determinative facts of the reported case (“FHR”) The determinative facts from your client’s case The determinative facts from your client’s case

5 For example: State v. Picaroni Rule: The theft of property from a structure that is not attached to a residence does not qualify as “burglary of an inhabited dwelling house.” Rule: The theft of property from a structure that is not attached to a residence does not qualify as “burglary of an inhabited dwelling house.” Facts/Holding/Rationale: The defendant’s theft of items from an unattached garage was not “burglary of an inhabited dwelling” because the garage and the house were two unconnected buildings separated by a cement walkway. Facts/Holding/Rationale: The defendant’s theft of items from an unattached garage was not “burglary of an inhabited dwelling” because the garage and the house were two unconnected buildings separated by a cement walkway.

6 Which one would provide a good rule? 1.In People v. Picaroni, 719 P.2d 193, (Wyo. 1986), the Wyoming Supreme Court affirmed Anthony Picaroni’s conviction for burglarizing the contents of a poorly lit garage, including two crates of dishes later found in his truck, and rejected Mr. Picaroni’s argument that his conviction of burglarizing the garage was inconsistent with his acquittal for burglarizing the main house, because the two crimes were not identical.

7 Is this one better? 2.The Picaroni court held that burglary of a garage was not burglary of an inhabited dwelling house. People v. Picaroni, 719 P.2d 193, (Wyo. 1986).

8 What about this one? 3.Burglary of a structure which is not attached to a residence does not qualify as burglary of an inhabited dwelling house. People v. Picaroni, 719 P.2d 193, (Wyo. 1986) (holding burglary of an unattached garage constituted a distinct crime from burglary of an adjacent inhabited dwelling because the garage and the house were two unconnected, adjacent buildings, separated by a cement walkway).

9 Or this one? 4.Burglary of a structure which is not attached to a residence does not qualify as burglary of an inhabited dwelling house. People v. Picaroni, 719 P.2d 193, (Wyo. 1986). For example, the Wyoming Supreme Court has held that burglary of an unattached garage constituted a distinct crime from burglary of an adjacent inhabited dwelling because the garage and the house were two unconnected, adjacent buildings, separated by a cement walkway. Id.

10 Your client’s facts: Your client stole items from a trailer parked in the driveway of a residence. The trailer was not locked. The stolen items were worth over $500. The trailer was a 1998 “fifth wheel” model that attaches to a truck and does not move independently. No truck was attached at the time of the theft. Your client stole items from a trailer parked in the driveway of a residence. The trailer was not locked. The stolen items were worth over $500. The trailer was a 1998 “fifth wheel” model that attaches to a truck and does not move independently. No truck was attached at the time of the theft.

11 Figuring out the determinative facts Reported case’s facts Unattached garage, separated by cement walkway from house. Your client’s facts Trailer was unlocked. Trailer was 1998 “fifth-wheel” design, not attached to truck. Items stolen from trailer were worth over $500. Trailer was parked in driveway next to house.

12 Which of the following is a good analogy? 1.Like Picaroni, here the trailer was separate from the main house. Trailer = similar to something in the Picaroni case. Trailer = similar to something in the Picaroni case. Or, this trailer is like a reported case, which doesn’t make sense. Or, this trailer is like a reported case, which doesn’t make sense.

13 Here, the trailer was separate from the main house. Here, the trailer was separate from the main house. Trailer is not analogized to anything, although “here” indicates a comparison. Trailer is not analogized to anything, although “here” indicates a comparison.

14 How about this? Like the unattached garage in Picaroni, the trailer was immovable and contained items of significant value. Like the unattached garage in Picaroni, the trailer was immovable and contained items of significant value. True, but so what? A fact comparison must use determinative facts. True, but so what? A fact comparison must use determinative facts.

15 Or this? Like the unattached garage in Picaroni, the Johnsons’ trailer was separate from the main house. Like the unattached garage in Picaroni, the Johnsons’ trailer was separate from the main house. Trailer = unattached garage. Trailer = unattached garage. This analogy works if the Picaroni facts were explained recently enough (above, in “rules” section) to still be clear in reader’s mind. If not... This analogy works if the Picaroni facts were explained recently enough (above, in “rules” section) to still be clear in reader’s mind. If not...

16 Like the unattached garage in Picaroni, which was separated from the main house by a cement walkway, the Johnsons’ trailer was separate from the main house. Like the unattached garage in Picaroni, which was separated from the main house by a cement walkway, the Johnsons’ trailer was separate from the main house. Trailer = unattached garage because both are separate from main house with space in between. Trailer = unattached garage because both are separate from main house with space in between. Remember that generally you don’t wait until the “application” section to introduce these Picaroni facts. They explain the rule, so should be introduced in the “rules” section before you attempt a fact comparison in the “application” section. Remember that generally you don’t wait until the “application” section to introduce these Picaroni facts. They explain the rule, so should be introduced in the “rules” section before you attempt a fact comparison in the “application” section.

17 The same method works for distinctions Purpose: to predict or argue that distinct (or different) facts = different results. Purpose: to predict or argue that distinct (or different) facts = different results. If the determinative (legally significant) facts in the reported case are different from your client’s facts, then the resulting court decision may also be different. If the determinative (legally significant) facts in the reported case are different from your client’s facts, then the resulting court decision may also be different.

18 The Best Distinction Is based on binding legal authority. Is based on binding legal authority. Why? Because if it’s not binding law, the court doesn’t have to follow it. Why? Because if it’s not binding law, the court doesn’t have to follow it. Uses a determinative fact in the reported case. Uses a determinative fact in the reported case. Why? Because if it’s just incidental and not “outcome determinative,” then the presence or absence of that fact made no difference to the outcome of the case. Why? Because if it’s just incidental and not “outcome determinative,” then the presence or absence of that fact made no difference to the outcome of the case. Gives enough information to show that the case fact is different from your client’s fact. Gives enough information to show that the case fact is different from your client’s fact. Why? Because a skeptical reader will independently weigh the distinction. Why? Because a skeptical reader will independently weigh the distinction.

19 What You Need: Rule of law from the reported case (preferably binding authority) Rule of law from the reported case (preferably binding authority) The determinative facts of the reported case (and its holding) The determinative facts of the reported case (and its holding) The determinative facts from your client’s case. The determinative facts from your client’s case.

20 For example: State v. Cook Rule: The crime of “burglary of an inhabited dwelling house” requires theft from a structure that is an attached and integral part of a house. (same rule) Rule: The crime of “burglary of an inhabited dwelling house” requires theft from a structure that is an attached and integral part of a house. (same rule) Facts/Holding/Rationale: The defendant’s theft of items from an enclosed patio and attached garage constitutes “burglary of an inhabited dwelling,” because the garage and patio were not separate but were an integral part of the residence, could be reached through an inside door, and were akin to additional rooms. Facts/Holding/Rationale: The defendant’s theft of items from an enclosed patio and attached garage constitutes “burglary of an inhabited dwelling,” because the garage and patio were not separate but were an integral part of the residence, could be reached through an inside door, and were akin to additional rooms.

21 Which one provides an appropriate set-up in the rule? 1.Wyoming law limits burglary to theft from “an inhabited dwelling house,” which includes a structure which is an attached and integral part of a house. People v. Cook, 719 P.2d 193, 195 (Wyo. 1986). The Wyoming Supreme Court affirmed a burglary conviction for burglary of an inhabited dwelling house where the criminal defendant burglarized an enclosed patio and a garage attached to a house. Id. at 196. The court held that neither the garage nor the patio were structures separate from the main house but rather “they [were] an integral part of the [victim’s] residence.” Id. The attached garage in particular was “simply one room of several which together compose the dwelling... especially... where... the garage can be reached through an inside door connecting it to the rest of the residence.” Id. at 198.

22 How about this one? 2.The Cook court held that a building which is an attached and integral part of a house can qualify as “an inhabited dwelling house.” People v. Cook, 719 P.2d 193, 195 (Wyo. 1986).

23 Maybe this one? 3.In People v. Cook, 719 P.2d 193, 195 (Wyo. 1986), the Wyoming Supreme Court affirmed Robert Cook’s conviction for an early morning burglary of two chairs, a clock-radio, and a tool box from the garage and patio of Michael Van Horn because the garage and patio Mr. Cook burglarized qualified as part of the inhabited dwelling house under the common law burglary rule.

24 Your client’s facts: Same as before: theft of items worth over $500 from a 1998 “fifth- wheel” trailer parked in the victim’s driveway and immovable because not hitched to a truck.

25 Which of the following is a good distinction? Which of the following is a good distinction? 1.Here, the trailer does not share any door with the main residence, even when parked in the driveway. No distinction is drawn between the case facts and your client’s facts, though a comparison is implied. No distinction is drawn between the case facts and your client’s facts, though a comparison is implied.

26 2.Unlike Cook, the trailer does not share any door with the main residence, even when parked in the driveway. Something in the Cook case is unlike the trailer because the trailer does not share a door with the house. Something in the Cook case is unlike the trailer because the trailer does not share a door with the house. Or, this trailer is not like a reported case, which goes without saying. Or, this trailer is not like a reported case, which goes without saying.

27 How about this? Unlike the attached garage in Cook, the trailer was manufactured in Unlike the attached garage in Cook, the trailer was manufactured in True, but so what? The structure’s age was not a determinative fact in Cook. True, but so what? The structure’s age was not a determinative fact in Cook.

28 Or this? 3.Unlike the attached garage and enclosed patio in Cook, the Johnsons’ trailer does not share any door with the main residence. Trailer is not like attached garage and enclosed patio. Trailer is not like attached garage and enclosed patio. This distinction works if the Cook facts were explained recently enough (above, in “rules” section) to still be clear in reader’s mind. This distinction works if the Cook facts were explained recently enough (above, in “rules” section) to still be clear in reader’s mind. If not...

29 4.Unlike the attached garage and enclosed patio in Cook, which were connected by doorways to the main house, the Johnsons’ trailer does not share any door with the main residence. Trailer is not like attached garage and enclosed patio because it doesn’t share a door with the rest of the house. Trailer is not like attached garage and enclosed patio because it doesn’t share a door with the rest of the house.

30 Remember... Fact comparisons are the “icing on the cake.” The basic law-to-fact application is the cake. Fact comparisons are the “icing on the cake.” The basic law-to-fact application is the cake. So... fact comparisons should be helpful. If they’re not, fix them or omit. So... fact comparisons should be helpful. If they’re not, fix them or omit. E.g., the unhelpful analogies above, or an analysis that just doesn’t need them (such as a “given” element). E.g., the unhelpful analogies above, or an analysis that just doesn’t need them (such as a “given” element).

31 And finally… Don’t overdo or ping pong your fact comparisons in the lasagna blender. For example: Don’t overdo or ping pong your fact comparisons in the lasagna blender. For example: Unlike the Cook garage, which was attached, but unlike the Cook garage, because no one slept in it, and also like the Picaroni garage, because it was separated from the house by a cement walkway, the trailer was separate from the house and on the cement driveway. Unlike the Cook garage, which was attached, but unlike the Cook garage, because no one slept in it, and also like the Picaroni garage, because it was separated from the house by a cement walkway, the trailer was separate from the house and on the cement driveway.


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