Tuesday, January 7, 2014

Commandment #6--Perform a Legal Analysis

#6—Thou Shalt Perform a Legal Analysis

As an advocate, your job is to convince the court that your position is the better one, and you do that through your legal analysis.  You can’t just cite statutes and cases and expect the judge to make the connection between the authority cited and the facts of your case.  Too many analyses look something like this:
This case is exactly like Church of the Lukumi Babalu Any, Inc. v. City of Hialeah, 508 U.S. 520 (1993), and the other cases cited above. Because those cases control, the City's ordinance is an impermissible restriction of religious practice and is void.

That’s not an adequate analysis—in fact, it's not an analysis at all.  Your analysis should consist of more than a conclusory summary of the facts or a blanket statement that the cases offered apply and support your position.  The analysis should answer the question: Why should your client prevail in light of the facts and law?  Some questions you should ask yourself to guide your analysis:

-Why is a statute/regulation/ordinance applicable or inapplicable?
-How are favorable cases factually similar?
-Does a comparison between recent cases and older cases suggest a trend that supports your position?
-How are unfavorable cases factually distinguishable?
-Was an unfavorable case decided under a different statute with different language? 
-Was an unfavorable case decided under common law principles but a statute now applies?
-Are there policy arguments that support my position/disfavor my opponent’s position?

In the example above, this would mean answering how Lukumi and the other cases cited are factually similar, explaining why Lukumi, as opposed to any “bad” case, applies, and outlining the reasons public policy, equitable principles, or—even—common sense supports your argument that the ordinance is an improper restriction of religion.   

While you probably will have to devote the majority of your brief to outlining the factual background and controlling authority, a good rule of thumb is to save at least 15-20% of your brief space for your analysis.  For example, in a 20 page brief, at least 3-5 pages should be set aside to analyze the facts of the case in light of the cited authority.  Any less, and your analysis is likely inadequate. 

I’ve seen a number of motions for summary judgment denied because the litigant failed to perform an adequate analysis.  In many of those cases, the judge wasn’t convinced the litigant couldn’t prove entitlement to summary judgment—the litigant just hadn’t.  It’s not the court’s job to do your analysis for you.  You will strengthen your writing substantially and increase the chance of a positive outcome by providing a thorough, convincing analysis. 

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