I.

Legal Reasoning - Generally

All legal reasoning follows one path. No legal argument can be accepted or rejected without all of the following pieces 1) Issue - What specifically is being debated? 2) Rule - What legal rule governs this issue? 3) Facts - What are the facts relevant to this Rule? 4) Analysis - Apply the rule to the facts. 5) Conclusion - Having applied the rule to the facts, what's the outcome? II. Legal Reasoning - Explained with an Example So, what does this mean? 1) Issue The "issue" is the legal issue. It doesn't ask just any interesting question. It only asks whether THE LAW has anything to say about a particular topic. A classic example of this is a potential legal client who comes in and says that her boss is mean and rude -- he yells and screams and makes work wholly unpleasant. The client wants to know if she has a claim. I already know that there is no law (no rule) that generally prohibits a boss from being a jerk. However, experience tells me that the question should be: Is this boss engaging in conduct which is unlawful discrimination?

(For those of you with quick logical minds, yes, this means there are forms of lawful discrimination.) 2) Rule The "Rule" has two important parts. A lawyer, a judge, or whomever has to say what a rule is and where it comes from. a) State the Rule That rule says (paraphrasing): "It is unlawful to treat someone in a manner that negatively affects the terms and conditions of employment, if the affected person is in a 'protected class' and is treated differently from a 'similarly situated person' not in her protected class." Each of the logical pieces you can break it into are called the "elements" of the rule. So, you could say the "elements" of discrimination are having the terms and conditions of employment affected being in a protected class being treated differently from a similarly situated person

Each of these pieces contain legal terms of art, terms that have their own legal rules. So, you'd actually end up with some nesting here.

b) Cite the Rule The law is based on existing rules. Even when a decision is based upon what is "fair" (which isn't that often), it's because there's a rule that says that the decision of this type of issue will be based on fairness. And, there are so many rules that no one can know them all. So, an argument has no weight unless it says exactly which rule is being relied upon. As you've seen already this presents a variety of challenges: If the lawyer provides the wrong law, she can lose the case (or the legal analysis), even if in the cosmos she should have won (ie., there's a law out there that gives her the result she wants). The law has mistakes in it, so the lawyer has to cite the law that exists and then provide some sort of annotation that explains why it's a mistake and/or where the mistake is. Like the Web, there are lots of versions of the same or similar things. You'll see this in case law. There can be lots of decisions that say the same thing on a particular issue. There are often decisions that cite other decisions for support. And, there's more than one publisher, so there's more than one citation to the exact same court decision. Within certain boundaries, any of these citations might be used. In this example, the rules are: 42 U.S.C. Section 2000e(a)(1) - the section of Title VII of the Civil Rights Act of 1964 that makes employment discrimination based upon sex illegal a number of other sections that define a "person", an "employee", an "employer", "commerce" (in which one must be engaged to be an employer), "state" (because commerce must be between states to be included), etc. McDONNELL DOUGLAS CORP. v. GREEN, 411 US 792 (1973). This is the citation for the seminal US Supreme Court decision that describes the elements.

3) Fact There are lots and lots of facts that make up the client's story. For the purpose of legal analysis, we look for "material" facts. These are the facts that fit the elements of the rule. So, in the example, we need to know: if the boss' behavior "affected" a "term or condition of employment"; if the potential client is in a "protected class"; if there are "similarly situated" employees; and if they've been treated in the same manner or differently. The facts that turn out to be relevant are: she is a woman; she has not received a raise or promotion in the 10 years she's worked for this supervisor; there are men who report to the same supervisor; and no man who has worked for the supervisor has gone 10 years without a raise or promotion.

4) Analysis At this stage, we see if our material facts fit the law. So, in the example, we'll say being a woman means she is part of the protected class:female o FYI - all people belong to a protected class based upon "sex" (that is, they are either male or female, and both are protected classes); not receiving a raise or promotion is "affecting the terms and conditions of employment" there are men working for the same supervisor, so there are "similarly situtated" persons who are not in her protected class these men did not go without raises and promotions, so they were treated differently

5) Conclusion

We see that all "elements" of the rule are met and conclude that her boss engaged in unlawful discrimination.

Structure in Legal Writing

The guiding principle for structuring any paper is to lead from the top. Why is leading from the top so important? Because leading from the top primes your readers by telling them what to look for in the rest of the paper. If you open your paper by telling your readers what is important, they will look for that information as they read. When you present that information later, your readers will seize on it and it will click quickly, like a puzzle piece snapping into the space that you have already prepared for it. Leading from the top is like the literary technique of foreshadowing. It prepares your readers for what happens later. The best legal memos use FICA (or FICAR) as their basic structure. The acronym may be horrid, but FICA works because it leads from the top: o o o o o Facts Issue Conclusion Analysis (Recommendations)

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (the opening ends here) _ _ _ _ _ _ _ _ _ _ _ _ _ _

The dotted line marks the end of the openingthe key real estate in which you have the sacred gift of your readers attention, whether you deserve it or not. Your opening should highlight what you want your readers to focus on as they read the paper. Every opening must do three things: 1. The opening must tell the back story so that your readers know the context in which the legal question arises. Who are the parties? How did they meet? What is the problem? Dont go overboard. Three or four sentences is usually enough. Save the detailed facts for later. 2. The opening must make the issue clear. (If the issue is clear from the facts, you may not need to state the issue separately. Just go right into the Conclusion or Answer.) Dont begin your issues with whether. Just ask a plain, simple question and put a pretty question mark at the end. 3. The opening must state your answer. This is all your readers care about. Label the answer clearly as Conclusion or Brief Answer and keep it short, plain and clean. Informal papersthe kind that we all prefer to readcondense the entire opening into a single introductory section that explains the back story, the issue and the conclusion: o o Introduction and Conclusion Analysis

____________________________

(Recommendations)

If you use this format, be sure that your first heading screams the word Conclusion. Otherwise, you wont get credit for reaching a conclusion. How much time do you have to open? A page and a half. Your readers will tune out after that if you havent given them good reasons to keep reading. (Trust me on this. I read a lot of papers.) If you have done your job in the opening, your readers will trust you and will cross that invisible dotted line and read your Analysis. And they will read intelligently because you have told them what they should be looking for. Finally, if you can (and I think you can), finish by telling your readers what to do next. MakeRecommendations. You dont need to answer the ultimate issue in a case, but you should tell your readers what their next steps should be. Ask the court to dismiss Counts I and IV. Tell your colleague to depose Mr. Bigshot, to move to dismiss for lack of personal jurisdiction, or to interview Witness X, Y and Z. Tell your client what documents you need her to produce. Keep the ball rolling in the real world by being proactive and practical.