Important Job All Lawyers Have in Common Making predictions Answering questions
Prediction vs. Persuasion Before you can make a persuasive argument, you must first: Know the law Look at the legal rules and issues raised objectively Consider arguments & counter arguments
Legal Analysis, in its most basic sense involves answering questions from judges from clients from professors from other lawyers from examiners
Typically, Questions Are Broad Can I sue? Do I have a case? What will be the result? Will I be found guilty? Were my rights violated?
To answer the broad question, determine the legal issue
Three Types of Facts Essential or Determinative Explanatory Coincidental
Determinative Facts Also known as Essential Facts The facts that are essential to the controversy Test: If a change in a fact would cause the court to reach a different decision it is determinative
Explanatory Facts Useful facts These facts help the story make sense
Coincidental Facts Facts that just happened They have no relevance or usefulness Should be omitted from memos, briefs, and examinations
Which Facts Matter? Look for the determinative or essential facts Facts that will determine the outcome in a case The essential facts and the elements in a case are dependent on each other So, knowing the essential facts depends on knowing the elements of the claim and vice versa
In Addition to the Facts You Need the Law
The Elements All claims have distinct requirements Some based on enacted law Some based on common law Break down the requirements, and analyze each separately
Statutes Defined – written law enacted by a legislature Both federal and state statutes Local statutes from city or county government - ordinances
Organization of a Statute Title – Statutes name or section number Definitions – statutory terms of art General Rule – most have multiple general rules. Describes the conduct to be encouraged or prohibited Exceptions Consequences & Enforcement – penalty for violating: payment of damages, criminal sanction, civil fine, etc.
The Basic 5W’s Whose actions are covered? What kinds of actions are required, prohibited or permitted? When was the statute effective? Where must the actions (not) have taken place to be covered? What consequences follow?
Relationship Between Elements in a Mandatory Rule AND: Each element must be satisfied OR: Either one of two or more elements may satisfy the statute
Mandatory vs. Discretionary Rules Mandatory language: if elements are met, compels a certain result SHALL: Usually Mandatory SHALL NOT: Usually Prohibitory
Discretionary Rules Court MAY consider the following factors
Finding the Elements/Outlining Statutes Break each component of the statute into smaller separate parts Outlining a statute and identifying the elements will assist in your legal writing and analysis.
Or. Rev. Stat. § (1) A person commits the crime of unlawful use of an electrical stun gun, tear gas or mace in the second degree if the person recklessly discharges an electrical stun gun, tear gas weapon, mace, tear gas, pepper mace or any similar deleterious agent against another person.
Outline of Oregon Statute 1. Recklessly 2. Discharges 3. One of the following: A) electrical stun gun, OR B) tear gas weapon, OR C) mace, OR D) tear gas E) pepper mace, OR F) any deleterious agent 4. Against another person
Benefits of an Elements List defines the issue outlines the law for written analysis for statutory or common law claims
Terroristic Threat Tex. Pen. Code Ann. § (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to: (2) place any person in fear of imminent serious bodily injury; or (3) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service.
Common Law Fraud: Deluca v. Fletcher: a person may be liable for common-law fraud if he knowingly makes a false statement of material fact to another person who justifiably relies on the statement and suffers damages by relying on the statement.
Analyzing A Statute Recap Does the statute apply Look at the dates of the statute & your problem Look at the definition section for key terms Are there any exceptions that apply to your case Break down the statutory requirements into elements Look at annotated versions for citations to cases which have interpreted the statutory language at issue
The statutory issue When a case involves a statute, the issue can come from the statutory language
State v. Haley ORS (2)(a): In a prosecution... It is an affirmative defense that: (a) An injury or immediate threat of injury to human or animal life and the urgency of the circumstances made it necessary for the defendant to drive a motor vehicle at the time and place in question.
One of the issues: Does an injury or threat of injury to human or animal life mean that the injury or threat be of life-threatening severity?
Dealing with Ambiguity First, start with case law If there is no precedent...
Six Tools in Statutory Interpretation 1.Plain meaning of the text 2.Commentators 3.Administrative Agencies 4.Public Policy 5.Canons of Construction 6.Legislative purpose/intent
Plain Meaning Look at the text. Courts will apply the plain meaning unless the result would be absurd.
Commentary Judges in other jurisdictions Legal academics The identity of the commentator matters.
Agency Interpretations Look at the agency’s regulations or relevant administrative orders Can be located in the Code of Federal Regulations (C.F.R.)
The agency’s interpretation must be reasonable, it does not have to be the best interpretation. Chevron Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984)
Public Policy Certain statutes have general policies that call for strict or liberal construction Some statutes identify their purpose (look at the preamble)
Policy Examples Statutes that effectively overrule case law should be strictly construed Statutes making certain conduct a crime should be narrowly construed
More Policy Examples Statutes should be read to preserve constitutionality Statutes should be construed in light of the harm it was intended to remedy
Canons of Construction Unofficial court rules used for statutory interpretation Numerous
Some Canons of Construction Statutes must be read as a whole Interpretation should give effect to rules of grammar and punctuation Terms of art should be construed as such, ordinary terms should be given their ordinary meaning Modifying words or phrases modify the prior word closest to the modifier All dogs and cats that are black would mean all dogs and all black cats
More Canons of Construction In Pari materia – statutes on the same subject matter should be read together Same person, thing, common purpose Ejusdem generis – of the same class. Used in statutes with catchall phrases. Ex. No one may transport vegetables, dairy, fruit or other products without a certificate of conveyance. A court may interpret other products to be limited to food products.
Expressio unius, exclusio alterius – expression of one thing excludes another. If a statute expressly lists what is included, it is thought to exclude that which is not mentioned. Ex. Text mentions black cats and white cats it probably does not apply to gray cats.
Legislative Intent Look at legislative history Legislative history – paper trail of the legislative process Committee reports, debate transcripts, speeches, witness testimony, studies
Legislative History Considered more relevant on the federal level (and easier to locate) Challenging, many statements may be based on political compromise Judges and scholars criticize reliance upon Difficult to research