Fundamentals of Legal Analysis You have been told you need to "think like a lawyer." You have been told that well-written legal analysis is the key to succeeding on exams. You've grappled with court opinions in which the analytical steps may or may not be clear, and you have grappled with how to apply your own analytical skills to legal writing problems, classroom hypotheticals and perhaps exam answers. Developing analytical skills is, for most students, the greatest challenge law school presents. But most students enter law school already possessing considerable analytical ability. The following problem is designed to help you identify the steps involved in analytical reasoning. The "solution" will walk you through the steps--steps that you undoubtedly already use to solve everyday problems (such as the incident detailed in the hypothetical below). You are perhaps already "thinking like a lawyer" without even realizing you are doing so. The Story of Joe's Birthday Party Joe was dissatisfied with his birthday party this year. His mother had invited guests, but instead of inviting his whole kindergarten class she just invited five children, three from the neighborhood and his two-year-old twin cousins. There was no cake; instead she served pizza and apple pie. She put a candle in the pie but nobody sang happy birthday. The guests did not really play games; instead they watched an educational video on ocean life. Some of the guests brought gifts, but they were practical items like underwear, pencils for school, and yogurt. Joe's mother did decorate the house with pictures of aquatic mammals and hung a banner that said "Happy Birthday, Joe." Does Joe have a cause of action against his mother for failing to provide a birthday party (ignore intra-family immunity issues)? Preliminaries Before we break down the steps you might have intuitively used to resolve this issue, let's ask a few questions. 1. Did Joe have a birthday party? In answering a legal question it is fine to start from your intuitive sense of what the outcome should be. You may have responded intuitively that yes, Joe had a party, or no, he was robbed. Similarly, when you read an exam problem or hypothetical, you may have an instant sense of what you believe the result should be. Don't ignore your instinct. However, analytical reasoning requires that you use your instinct as a starting point and then build an argument that leads to that result. And, as a lawyer, you also need to be able to make or at least anticipate the arguments from the opposing side. A non-lawyer, then, might stop with the yes or no answer to question one. A lawyer moves on. 2. Why/why not? Legal analysis--being a lawyer--requires more than just taking a stand. It requires us to articulate our reasons. You will therefore need to justify your answer. A natural starting point is to look at the facts. If you think Joe had a birthday party, is it because he got gifts, because there were decorations, because there was a candle? Or, if your answer was no, was it because there were so few guests, no cake, or because no one sang "Happy Birthday?" The facts that intuitively spring to mind will likely end up being the legally relevant facts, i.e. those facts that support your legal arguments. Looking at the facts is a good starting point for justifying your gut feeling about a problem, and therefore a good starting point for legal analysis. But it is just a starting point. 3. On what principles did you base your answer? An argument based solely on facts may be persuasive and, in some cases, may be all you have to sway a jury to your side. But true legal analysis is based on the law. There must be rules, principles, statutes--something on which to base your claim. For a law student, learning the law is the first step. Applying the law to the legally relevant facts in order to make an argument is the foundation of legal analysis. In the next sections, we'll continue to use the example of Joe's birthday party to discuss ways in which the law is organized and ways to approach legal analysis. Basic Steps in Analytical Reasoning In many ways, analytical reasoning, or legal analysis, is the process of learning to think "inside the box." This is not to say that legal analysis lacks creativity or intellectual rigor; rather it is a recognition of the fact that our legal system is based on rules and precedent. Finding the right rules, or the cases that justify your argument, provides the "box" or the foundation from which to make your arguments and provides the judge with a basis for making a ruling. Once you have gotten past the preliminaries, finding the right "box," or body of law, is thus the crucial first step. 1. The threshold question Many fields of law have a threshold question that you must always address before beginning to formulate your answer. Often this question has to do with the basic facts of the case. For example, in contracts, before you begin any problem you need to ask, is this a sale of goods (use the U.C.C.) or not (use the common law)? Sometimes the threshold questions involves a pure legal matter, e.g., in criminal law you may need to know whether the Model Penal Code applies. Asking that threshold question will help you identify the correct body of law from which to begin formulating your analysis. For our hypothetical, we will assume there is only one body of law governing the adequacy of birthday parties. 2. The broad context--identifying the big question Legal analysis is the process of moving from the broad to the more specific. You may have identified an intuitive answer to a problem. For example, if you have a client who believes he's entitled to purchase a used car at a certain price, you may have concluded that, yes, your client has a valid claim. But in order to establish that claim, the client (or you, the attorney) will need to show there was a breach of a valid contract. Your legal argument regarding the contract may end up focusing on a particular element or portion of that larger issue, but it is essential to keep in mind the overall question you need to answer. Once you have resolved any threshold issues, start your legal analysis by identifying that over-arching issue. Is there a valid contract? Is this statute a valid assertion of Federal legislative power? Was the doctor negligent? So, in your contracts case you may ultimately focus on whether an offer had been effectively revoked, but you are answering that question in order to establish the existence of a contract and therefore to establish that your client is entitled to purchase the car. As far as Joe, our over-arching issue is whether or not he had a birthday party. We can now move on to the components of that issue. 3. The specific rules of law--the basis of your analysis We are now going to leave Joe behind for a moment to examine how rules of law are organized. Undoubtedly you spend hours in class, at home and in the library learning rules of law. Legal analysis requires you to put the rules of law to use. Once you have identified the broad context or the over-arching question you need to answer, you then need to identify the specific rules that comprise the legal definition of that issue. Understanding how those rules are organized is crucial to effective analysis. Rules of law are organized in different ways: a. Elements Law that is organized by elements is set forth as a number of requirements. For example, a negligence claim requires that a plaintiff establish 1) duty; 2) breach; 3) cause (in fact and proximate); and 4) damages. Law that is organized by elements is generally the most straightforward analytically. To prevail on a claim, a plaintiff must establish proof of each element. To analyze the claim, all a student needs to do is proceed through the list of elements and determine which facts support the existence of each element. In most cases, even if you determine that your client fails to establish a case on one element, your professor will expect you to complete the analysis and address all the elements of the claim. b. Process/steps Here the law gets more complicated. Some problems require the attorney to go through a series of analytical steps in order to reach a legal conclusion. Imagine our over-arching question, "is there a contract?" Now, imagine we have a sale of goods (threshold question, the U.C.C. applies) and a number of documents flying back and forth. Suddenly our analytical "box" is Sec. 2-207, Battle of the Forms. Here, in order to resolve a legal problem, you will need to proceed through a series of steps. These steps may have detours or forks in the road. On an exam you may have to explore both prongs of the fork, e.g., what happens if the parties are merchants, or if they are not? You will need to recognize that there may be alternatives and address all the relevant possibilities. c. Balancing tests/factors Every type of legal analysis calls for you to make judgments, but this skill is perhaps most important when applying law that is organized as a balancing test. A classic example of a balancing test is the strict scrutiny test in Constitutional Law (compelling state interest and the least restrictive means possible to address that interest). To apply a balancing test you must understand each prong, and be able to evaluate one against the other, often bringing in specific examples from prior case law. d. Hybrids Some bodies of law are hybrids, containing a variety of organizational types. Consider, for example, personal jurisdiction. Analyzing a personal jurisdiction problem basically requires that you walk through a process. However, some steps in the process, e.g. minimum contacts, require you to analyze a set of factors (purposeful availment, foreseeability of litigation, etc.). Adverse possession in property basically sets out a list of elements, but you might have to go through the analytical process of tacking if your facts present a sequence of two or more adverse possessors. e. Defenses Don't forget that there are rules, and then there are defenses and exceptions to those rules. In torts, for example, the touching that occurs during a typical medical exam could generally be considered a battery, except that in the context of the exam, the patient has consented to the contact. Defenses may not be relevant to every problem, but always look for possible defenses and exceptions when you are studying your facts. We will apply these categories to the "law" governing Joe's birthday party after we have considered the final steps in legal analysis. 4. Take a step outside the box--policy and the broader issues These instructions have emphasized thinking "inside" the box; however, it is important to remember that all of our laws exist as part of a larger legal system and that that legal system is just one aspect of our broader society. Not every legal problem will involve larger concerns, but keep the big picture and policy concerns in mind. What are the values at play in the body of law with which you are dealing? In contracts, for example, the law is designed to effectuate the intent of the contracting parties, but also, particularly under the U.C.C., to keep the wheels of commerce turning. Jurisdictional issues in civil procedure call in to play the competing values of providing access to the Federal courts, but keeping those courts from being swamped with litigation. After working through an analysis of the specific requirements of the law, it is perfectly appropriate to address whether the ultimate goal of the law was realized in your case. As far as Joe's birthday party, the broader issue might be to ensure that Joe had a good time on his special day. 5. Conclude After going through all those steps, you can return to that intuitive feeling you had about how your legal issue should be resolved--only now you have an analytical basis for your answer. 6. Back to Joe's birthday party So where does this leave us with Joe's birthday? Let's go through our analytical steps. Any threshold questions? In the field of birthday party law, probably not. As a basic fact we may want to note that Joe is a child (we're told he's in kindergarten) so that we will be using the standard for birthday parties applicable to children. What is our over-arching question? Here, it's easy--did Joe's mother provide him with a birthday party? What are the specific rules of law? There is no Restatement of Birthday Parties, but let's assume birthday parties require a certain minimum of components. When you first answered the question, what were some of the factors you considered? You probably ran through a list that included some of the following: guests cake gifts games decorations By applying your own internal standard to determine whether Joe had a birthday party, you were in essence creating and applying your own body of law. [In the real practice of law, of course we do not create our own rules; we rely on statutes and precedent.] This law looks like a straightforward list of elements, which would require us simply to work our way down the list and determine if we have sufficient facts to satisfy each item. However, assuming we have done our studying, we might be aware that what looks like a simple list of elements may in fact be a hybrid body of law. For example, perhaps in order to determine if there were guests we need to establish a "minimum" number based on the "quantity and nature" of guests at the party (civil procedure students, these ideas should sound familiar). Suddenly, we might be dealing with a set of factors (proximity in age to Joe, gender, how much Joe likes each individual, etc.) or a balancing test in order to determine whether Joe's mother has satisfied this element of the definition. Five guests might be adequate if those guests were Joe's five best friends, but if the cousins are considered "low-quality" guests, perhaps five fails to satisfy the minimum standard. Remember, too, that looking carefully at the facts will affect your analysis. For example, we are told that Joe's mother did not make a cake but instead served pie. Does that mean she just failed to satisfy that element? Would it make a difference if we'd been told that Joe really hates cake and loves pie (in effect, establishing an affirmative defense)? What is the larger goal? Whatever you are conclude as far as the elements of Joe's party, keep in mind that the reason we are asking whether Joe's mother provided him with a "birthday party" under the law is to ensure that Joe felt celebrated on his special day. Your analysis and conclusion should reflect this goal. Conclude? Did Joe have a birthday party? On most law school exams, the professor will be less concerned with whether you answer "yes" or "no" to the questions and far more concerned with your ability to use the process of analytical reasoning to arrive at your answer. Our legal system is an adversarial one; there are two sides to every issue. In the end, whatever you conclude about Joe and his party will be correct as long as you have based your answer on a thorough knowledge of the law and sound analytical reasoning. Final Thoughts Determining whether Joe had a birthday party does not involve complex legal issues, but the problem illustrates how most people use analytical reasoning every day to evaluate situations and make decisions; often they are not even aware they are doing so. For the law student, consciously going through this analytical process and articulating every step is the key to succeeding in school and eventually in practice. Legal analysis is based on a comprehensive knowledge of the law. Once that knowledge is in place, most people can improve their analytical skills by slowing down their thought processes, making sure they address each analytical step in order, and using the correct rules as a basis for answering the question.