Lawyering Fundamentals

Helpful tidbits for 1L law school success

How To Structure Arguments

They must support the conclusion

How must conclusions be supported?

They must be supported by their rule(s). When the rule is applied, they must help explain the conclusion.

True or False: Though someone may disagree with your position, there must be no argument that your stance has logic to support your argument

True

How to have logic to support your argument:

1) Identify the issue you’re addressing
2) Specify the criteria on which you plan to analyze that question (the rules guiding the analysis)

3) Provide the rules to an example and explain why/why not X is what you’re trying to prove
4) In the conclusion, say what you’re trying to prove

Why should you question the question?

Considering if there is more than one correct answer to the question may make your argument stronger, or weaken the other’s argument. Figure out what you and the other person are attempting to accomplish.

Legal Ambiguity & Disagreements

1) Legal problems rarely have definite “right” or “wrong” answers

2) Often depends on the rule applied and analysis provided

The BAE Test

You should be able to explain everything you read/hear/learn in a clear/concise manner. You should be able to explain the following:

Rule

Case

Facts

Question

Do so in plain terms. Provide your understanding. Knowledge is not understanding.

Be Able to Explain it!

What is legal analysis?

Examine a problem methodically and in detail for purposes of interpreting that problem through the lens of the law.

What is legal ambiguity?

The gray areas of the law. They create opportunities for an argument.

IRAC Meaning

Issue
Rule/Criteria
Application
Conclusion

Potential IRAC Template

Issue: What makes X be Y?
Rule/Criteria: Define Y, and why is that?
Application: Example of proving/disproving point based on definition of Y
Conclusion: Simpleton terms of answering the issue based on critera

How could a lawyer analyze the viability of their client’s claim?

Questions!

Always show how ___ and ___ connect on a granular level

rules & facts

True or False: Just because there is no right conclusion to a question does not mean there isn’t a way to logically analye the question.

True

How to Analyze

1) Identify the issue
2) Specify the criteria/rules that guide the analysis
3) Apply the criteria to the topic of the issue and explain why or why not it is X - whatever you’re trying to determine and prove
4) Make a conclusion that logically follows, and if it fails/meets above criteria

Unsupported opinions are ____.

irrelevant

Explain how you reached your conlusion:

IRAC
Issue
Rule/Criteria
Application
Conclusion

True or False: Don’t skip dissenting opinions or notes following the case

True
Note: Notes on a legal opinion = case brief = summary of essential information found in a court opinion

Information That Goes In A Case Brief

Case Name
Court & Date
Procedural History
Question Presented (i.e., the issue)
Trigger Facts (legally relevant)
Rule (i.e., the law)
Reasoning
Holding
Main Takeaway

Case Brief - What is the case name and court date?

Last names of the parties, generally formatted as so: Plaintiff v. Defendant, etc…

Court writing the opinion and the date of the opinion. Ex: Supreme Court of Texas, 1967

Case Brief - What is Procedural History?

Background of the case describing:
i) how the defendant wronged the plaintiff
ii) what the parties argued in lower court
iii) how the court ruled
iv) how and why the case moved from the lower court to the higher court; basis f the appeal and what the person wants from the higher court (generally a blend of facts and legal language)

Case Brief - What is Question Presented?

A legal or procedural question that the appellant wants the higher court to answer. It’s the reason why the case moved from the lower court to the higher court. Sometimes the appellant asks more than one question.
Note: Often a chapter/heading will give you clues as to the legal issue that will be emphasized in the case.
Example: Torts case appears in a chapter on intent, then issue should relate to intent

Case Brief - What is Trigger Facts?

Provide a brief summary of the relevant legal facts of the case.
Note: Don’t copy court’s summary of facts verbatim because not all facts are relevant. Do your own summary based on the BAE-check.
Note: The facts of the case are distinct from the court’s opinion. The facts = the story of what happened from the Plaintiff v. Defendant perspective

Case Brief - What is Rule?

Legal principle/black letter law upon which the court based its decision in the case. Rule may look like three things:

i) A succinct statement of the governing legal principle that the higher court uses to decide the case (approx. a sentence in length)

ii) Sentences or paragraph where the higher court answers the question presented
iii) A paragraph describing the circumstances under which a person is liable
Note: May be presented in one or all three formats
Note: A single legal opinion may contain numerous rules of law or legal principles. Determine the rules of law pertinent to the issues raised in the case and then formulate those rules into an easy to digest statement

Case Brief - What is Reasoning?

Generally several paragraphs long and follow the rule. The court’s reasoning is where the court explains how and why it answered the question presented the way it did. It’s a blend of facts and legal language.

Case Brief - What is Holding?

Court’s answer to the question(s) presented.
Examples of holdings:

1) Narrow procedural - ex: a case reversed and remanded
2) Broader substantive - ex: may deal with constitution, statute, or judicial doctrine interpretation
3) Precisely stated issues - ex: holdings can be “yes”, “no”, or short court language statements, such as “we hold that ___.”

Case Brief - What is Main Takeaway?

What’s the main takeaway? Why’s the case included and in that particular section?

Factual & Procedural Questions

Fact based questions designed to flesh out the story of the case.
1) What are the facts of the case?
2) Who are the parties?
3) How did the trial/appellate court rule?

Rule Related Questions

Ask about the rule or legal concept
1) What is general intent?

Policy Based Questions

Questions that explore and highlight the purpose of the rule and reveal the kinds of problems it is intended to address.
1) Should we hold small children liable for their intentional torts?

2) Why do we have the tort of battery?
3) Why do we allow more damages for intentional torts than for negligence?

Case Comparison Questions

Ask you to compare and contrast cases or other sources of law
1) How does the rule applied in this case compare to the rule in the Restatement?
2) How does the holding in this case square with the holding in another case?

Hypothetical Application Questions

Questions that present you with new facts and ask you to act as judge and decide the case
Note: Always review the case’s notes

Lawyer Development Questions

Your own questions when reading to fire up your imagination and curiosity

1) Why do you think the plaintiff sued for X instead of Y?

Subject Inquiry

What this specific defendant was thinking when he acted

Objective Inquiry

What a reasonable person would have been thinking under similar circumstances

True of False: The title of the case is the case name, and is called “the caption”

True

True of False: In the Appeals court, the first name is who lost in the trial court.

True
Note: Lower appellate court and is now appealing to the higher court.

What’re the names in the Appellant Court?

Either “Appellant” or “petitioner”, depending on whether the court’s decided to take the case.
Otherwise, it’s “Appellee” or “responded.
The second name is the party defending against the legal proceedings. The trial is the defendant.

Procedural History

Explains how the dispute worked its way through the legal system from the first court tot he court issuing the opinion now.
i) Story and how it progressed along the way
ii) Main actors: Plaintiff lawyer, defendant lawyer, trial court, jury, appellate court, and supreme court.
Note: Not every case provides a procedural history
Note: Sometimes it’s woven into the facts

Question Presented

The legal question the court is required to answer. There may be multiple questions presented
1) What question(s) is the court answering
2) Is the question explicitly identified?
3) Does the chapter title or topic heading provide any clues?
4) Is the question presented implied in the rule provided from the holding

Trigger Facts

A concise but sufficient description of the pertinent facts forces you to identify the key facts driving the court’s decision

1) Facts are relevant when they raise and answer legal questions, when they had an impact on the court’s reasoning “pertinent facts”. They come from words/phrases in the rule. Relevant if impactful on court’s reasoning
2) Often appear first in the case, but fill in the trigger facts in your brief last. Don’t fill in until question, rule, court’s reasoning and holding are stated

Rule

Pull out the legal proposition for which the case stands and consider how it fits into the bigger picture of the rule that’s developed over time

Reasoning

The reasoning is generally several paragraphs following the rule where the court explains how and why it answered the question presented as it did. It’s a blend of facts and legal language.

To understand the court’s reasoning ask the following:

1) Did the court explain the outcome it reached? That is, did the court say how and why it arrived at its decision based on the facts of the case?
2) Did the court explain why and how this rule is important to the decision?
3) Did the court explain why this rule is better than another rule to the decision?
4) Did the court discuss policy by explaining how its rule is best for furthering societal interests?
5) Did the court attempt to explain the strengths and weaknesses of the rule?
Note: Not all questions will apply, even none may, but find the right questions and answers

Look for the court’s “because” statements:

Examples
1) We arrived at this outcome because..
2) Here is our justification for the ruling…
Notes: Don’t try to pinpoint the exact paragraph where the court provides its reasoning
Notes: Overall explain why the court ruled the way it did

Holding

Court’s answer to Question Presented/Issue
Note: If you have more than one question presented, then you’ll have a Holding that corresponds to each question
Look for phrases such as:
- We hold
- We have held

True or False: The holding does not equal the Reasoning

True

Main Takeaway

Why has my professor assigned this case and why did the author put it in this section?

Petitioner

Petitions the court for appealing. Asks higher court to review the lower court’s decision

Respondent

Responds to the Petitioner. Whom the petition is filed against

True or False: Negligence indicates an unintentional act

True
A defendant can’t act intentionally and unintentionally at the same time

Reasonably Foreseeable Risk

Actor knew/should have known that there was a reasonable foreseeable risk of liability
Note: In intentional torts, the phrase is: Substantial certainty - the actor was substantially certain their act would lead to liability

What is the difference between reasonably foreseeable risk and substantial certainty?

The knowledge and appreciation of a risk short of substantial certainty is not the equivalent of intent
Note: There is a sliding scale for negligence
Example: The defendant who knows that his conduct creates a foreseeable risk of harm, may be negligent, but he is not liable for an intentional tort

Single Intent Rule

Requires a plaintiff to show only that the defendant intended to cause the contact with the person of another

Dual Intent Rule

Plaintiff must show that the defendant intended to make contact and that the contact could be harmful/offensive

What standard is intent measured?

It is measured on a subjective standard

Battery

Intentional harmful or offensive contact. The defendant need not intend the result, but intend to create harmful or offensive contact.

True or False: The court can get things wrong

True

Prepare yourself for the next class by doing the following:

1) Correctly analyze the case and communicate it clearly
2) Evaluate what you read
3) Do you agree or disagree with the judgement and conclusions made, and why
4) Create arguments that challenge the reasoning
5) Determine how the reasoning would apply to other scenarios
6) Understand the context of the case
i) what section is it in
ii) Read preliminary information
iii) Review historical context
iv) Learn the court system of each state

Summary:

Evaluate the court’s merits
Question the reasoning
Determine whether you agree or disagree and why
Hypothesize different scenarios
Consider the implications of the ruling

Remember: Just because the court writes it doesn’t mean it’s correct

True or False: The knowledge and appreciation of a risk - something short of substantial certainty - is not intent

True

If someone knows their actions could hurt another person, but they’re only taking a risk rather intending the harmful contact, that’s not battery, but potentially _____ or _____.

Negligence or recklessness

True or False: Knowing your conduct creates a chance of harm, even a very large chance, is not enough to make it battery.

true
Battery requires intent, not just risk taking. Battery requires the intentional contact in a harmful or offensive manner, but it does not require the intent to do harm. The contact, however, can create harm. But physical injuries are not required to prove battery

What The Law Asks & What Law Doesn’t Ask

1) What did you know would happen
2) Did you hope no one got hurt

Measuring Reckless, Negligence, or Intent Simply

1) A very high chance someone gets hurt
2) Someone may get hurt
3) I know someone is practically certain to getting hurt

Substantial Certainty

Means you know something is going to happen or can occur, even if you don’t want it to occur

When does known danger cease to be only a foreseeable risk?

When a reasonable person would avoid and becomes in the mind of the actor a substantial certainty - degree between negligence and intent - sometimes it’s hard to tell whether someone was merely careless (negligent) or actually intended the result

What is tort liability?

Is about the intent to bring about a result that goes against the interest of (an)other(s), not necessarily a hostile intent or desire to harm.

What could a defendant be liable for?

Good natured joke
Honestly believing act doesn’t equal harm
Seeking plaintiff’s own good

Battery Checklist

Intentional touch
Based on rude, insolent, or angry manner

True or False: In a crowded area, a certain amount of contact is inevitable and to be accepted

True

True or False: Consent’s assumed to ordinary, customary, and reasonably necessary contacts

True

Can circumstances affect the permissibility of the contact?

Yes, examples include time, place, relationship
Ex: A stranger isn’t expected to tolerate how you’d treat a friend
Touch that is considered offensive is determined by touch that occurs to a reasonable person
Ex: Stairway conditions were crowded is a world example of reasonable people accepting contact that isn’t battery

True or False: Ordinary, customary, and reasonably necessary physical contact in every day life is generally impliedly consented to and is not battery.

True
Whether a touching is offensive depends on the surrounding circumstances and whether an ordinary person would find it offensive

Elements of Intent

Specific or general intent
Transferred intent
Note: Mental illness and age does not negate intent
Note: Mistake does not negate intent
You act with intent if it is your desire or purpose to bring about a specific consequence OR you act knowing that a given consequence is substantially certain to result

Nisi Prius

Latin for “Unless First”
The original trial court which heard the case is distinguished from the court of appeals

Restatement

Collection of rules about the law
Written by legal minds
No legal authority - is not a controlling law
Can help influence courts on their ruling
If Restatement is used in influencing, it then becomes controlling law

True or False: Consent doesn’t necessarily negate intent, but still exists

True

True or False: Damages are not required for most intentional torts.

True
Different for negligence because damages are needed

True or False: Motive “doesn’t matter” in battery, but the intention of doing the act in general

True

How to know if someone committed a battery

1) Intending to establish contact
2) Harmful or offensive contact results

What is the difference between harmful and offensive contact?

Harmful - anything that’s painful
Offensive - Something that is rude, insolent, or an afront to personal dignity

How is offensiveness measured?

Objective standard

True or False: Good faith is not a defense

True

Battery, Intent, Damages, Contact

Battery → Defendant intended to cause harmful or offensive contact resulted. Specific or general intent
Note: Contact for battery must be harmful or offensive and need not be both
Note: A battery is an unauthorized touching which an ordinary person would find offensive. Makes no difference whether the touching was beneficial or not
Note: Court protects personal dignity, not just physical safety
Damages are not required for most intentional torts
A) Action is complete because they intended to create contact and did
B) No damage, may not get much
C) If suffer does get damage, you’ll be held liable
D) With intentional torts, courts are much more willing to hold the defendant liable for united and unforeseen consequences
Intent: Measured by a subjective standard. We look at that particular defendant’s purpose or what they knew
Note: Intent is different from motive and a good faith motive is not a defense
Contact: To determine if a contact was offensive, use an objective standard. We look at what a reasonable and ordinary person would find offensive
Note: Exception - if the defendant knows of the plaintiff’s vulnerabilities