1. Analogizing and Distinguishing Cases
Week 4 Seminar Power Point

2. Stepping Around Stare Decisis
In a common-law legal system, such as the system used
in most of the United States, court decisions compose
part of the law. The overarching principle in a common
law system is “stare decisis et non quieta movere,” which is
Latin for “to adhere to precedent and not to unsettle things
which are settled.” In accordance with the principle of stare
decisis, courts should follow the decisions of previous cases
that address the same topic of law. In other words, courts
should treat cases involving similar facts similarly, and court
decisions should be based on legal principles and not the
biases of judges and juries. While courts should generally
adhere to case precedents, courts may distinguish earlier
cases by finding factual differences between the previously
decided case and the case at hand and choose to apply some
other authority. In addition, some courts may alter the
common law by changing existing precedents or overruling
previously decided cases altogether.

3. STARE DECISIS
Stare decisis: Latin for “let the decision stand,” a doctrine requiring that judges apply the same reasoning to lawsuits as has been used in prior similar cases.

4. What Courts Might Do with Authority Presented to it.
Although courts may distinguish cases based on the facts or overrule previously decided cases, stare decisis is often useful for predicting how a court will rule on a given case either for the purposes of negotiating a settlement or designing a trial strategy. However, whether a past decision is applicable to a current case depends on several factors, such as the jurisdiction where the case was decided, the facts of the case, and whether the case remains good law.

5. Synthesizing is Hard
Synthesize: Grouping precedent cases to show that, as a whole, they present a principle of law that should be applied to subsequent cases.
Precedent: An opinion of a federal or state court of appeals establishing a legal principle or rule that must be followed by lower courts when faced with similar legal issues.

6. What to Do? Favorable = Analogize Unfavorable = Distinquish
Throughout the research process, you may encounter case precedent that favors or goes against the position that supports the client. To properly use case precedent to advance your position, you must know how to analogize, distinguish, and synthesize each relevant case that you find in your research to determine which to use in building legal arguments.

7. Proper Citation/Shepardize
In addition, once you have determined which cases should be used, it is necessary to ensure that, when referring to the case in legal memos and other documents, the case is properly cited so that judges and other interested parties can locate them if needed

8. Synthesizing Cases
Before beginning the process of analogizing and distinguishing cases, you need to synthesize groups of precedent cases to familiarize yourself with the current law in the relevant jurisdiction (see Table 7.1 in your etext for a summary of synthesizing). The purpose of synthesizing cases is to show that, in aggregate, the relevant cases that are binding in a particular jurisdiction express a principle of law that is applicable to other similar cases. If several relevant cases are available, factual variations can be used to show that the rule of law applied in each case was not meant to govern only in instances where the fact patterns are similar.

9. Synthesizing Continued
Through the process of case synthesis, you can observe factual variations and deduce a more accurate statement of a jurisdiction’s rule of law. Then you can begin to predict how the law will be applied to the current case and identify previous cases that support or contradict your desired outcome.

10. Told you it was Difficult
Case synthesis requires looking for ideas that are expressly stated by the court or that can be inferred through a careful reading of a group of relevant cases. The process begins with consideration of the explicit statements across this group of cases to determine how the law is applied in a given area of law and in a given jurisdiction. Proper Synthesizing takes a lot of time and reflection; if you are impatient you may not be good at it.

11. Terms of Art in Synthesizing Cases
When you summarize explicit statements the court has made, you will encounter a number of situations that require you to synthesize the information in different ways. If the court expressly states a central idea using certain words in multiple cases, for example, these words are likely terms of art, or important legal concepts, and it is essential that they are understood. You will want to compare the use of these terms of art across different cases to get a better understanding of how they are used and what they mean

12. More about Synthesizing
Table 7.1
Synthesizing Cases
Purpose: To show that, taken as a whole, the relevant cases in a jurisdiction express a principle of law that is binding to other similar cases
How to synthesize:
• Look for ideas expressly stated by the court across the relevant group of cases
• Look for ideas implied by the court across the relevant group of cases

13. What is Dicta?
Did You Know ? Dicta and Stare Decisis Stare decisis both apply to the holdings of cases, not to dicta—that is, remarks of a judge that are not part of the legal reasoning for reaching a decision, but are made as comments, illustrations, or thoughts are dicta and non-binding. However, courts may adhere to dicta if it is sufficiently persuasive, even though they are not binding.

14. Example of Synthesizing
For example, in a breach of contract case, offer, acceptance,
and consideration are all important elements—and they are
all terms of art that have special definitions. As you read a
particular case, you should determine how the court defined
the terms “offer,” “acceptance,” and “consideration.” If a court
has found that a statement such as “I will consider hiring you
to paint my house for a small fee” is not an offer, then this
information is useful in helping you define what an offer is.
Thus, this precedent might be useful in analyzing whether
there was an offer in the current case. But you will also have to .
look at other cases where “offer” is defined. During your
research, you should identify each significant concept or idea
that the court is defining and look at numerous cases to get an
overall picture of the definition of the general legal definition
of that term.

15. The Process of Analogizing Cases
Consistent with the principle of stare decisis, the cornerstone of most court briefs and legal memos are arguments based on case law. You might assist a lawyer in analogizing case precedent with key facts of a client’s case with the goal of persuading the court to favor the client’s position. Analogizing is the process of showing that the key facts of the case at hand are similar to the key facts of a previously decided (favorable to your client) case in order to argue that the legal rule should be applied in a similar way, and thus the case should result in the same decision as the precedent.

16. Steps to Analogizing
The process of analogizing involves (1) identifying the cases to analogize, (2) recognizing the factual similarities and explaining why these similarities should be legally sufficient to support a similar court decision, and (3) explaining why the differences in key facts should not be legally sufficient to prevent the desired application of the law. During this process, it is imperative to discuss the significance of similarities between key facts with respect to the case being cited.

17. How To Succeed in Analogizing
Effective arguments in case briefs and legal memos are usually structured in a format that argues that a particular ruling is justified because of precedent. To succeed in this argument, the court must be convinced of the following:
• The current case resembles the precedent in all important respects.
• In the precedent case, the court reached the correct result.
• In the current case, the court should reach the same conclusion as in the precedent case.

18. Distinguishing Cases
The opposite of analogizing cases is making counter-analogies, commonly referred to as distinguishing cases. Distinguishing is the process of pointing out the factual differences between a precedent case and the current case. Table 7.2 notes how analogizing and distinguishing cases can be used by a legal researcher.

19. Purpose of Distinguishing Cases
The purpose of distinguishing cases is to explain why the rule applied in the precedent case is inapplicable to the current case or, if the rule in the precedent case does apply, to explain why the current case should not necessarily result in the same outcome. In other words, if a case does not support the outcome you want, you need to distinguish precedent, so look carefully at the key facts and policy underlying each detrimental case to identify how the precedent can be distinguished.

20. How do you distinguish Cases
To properly distinguish cases, a researcher must (1) identify the factual differences between the cases, (2) explain why the factual differences should be legally significant so as to require a different outcome, (3) identify policy arguments that require a different outcome in the current case, and (4) attempt to make analogies to other legal rules in which a similar distinction was drawn.