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Legal Writing

Chapter Seven Common Law Analysis

Legal-eeze
Talking Like a Lawyer
Contrary to popular belief, knowledge of the law is just
one part of what it means to be a lawyer. The
transition from normal person to lawyer also involves
learning to talk the talk. Unfortunately, this has serious
ramifications for our friends and loved ones as we,
students of law, start incorporating legal terms into
everyday conversation.
To help those struggling to get their head around this
new vocab, Ive prepared this quick cheat sheet to
lawyer-speak

Legal Writing
Chapter Seven Common Law Analysis

Legal-eeze
REASONABLE PERSON
Example: A reasonable person would say
Translation: What I think, not what you think. They are
telling you youre wrong.
BUT FOR
Example: But for the unfortunate coffee incident last
week
Translation: Its your fault, even if your wrongdoing has
only had an indirect impact.

Legal Writing
Chapter Seven Common Law Analysis

Legal-eeze
THE CHAIN OF CAUSATION
Example: If you trace the chain of causation youll
find
Translation: Really, you set off the domino effect that
caused this problem.
NOT INSIGNIFICANT
Example: The impact this event has had is not
insignificant
Translation: Its not a big deal.but its kind of not not
a big deal, too.

Legal Writing
Chapter Seven Common Law Analysis

Legal-eeze
FAR-FETCHED OR FANCIFUL
Example: Of all your far-fetched or fanciful
suggestions
Translation: Completely and utterly unrealistic.
PUFFERY
Example: That offer was pure puffery
Translation: Its hyperbole for law students, sometimes
with advertising-related connotations.

Legal Writing
Chapter Seven Common Law Analysis

Legal-eeze
MISLEADING AND DECEPTIVE CONDUCT
Example: Your conduct was misleading and
deceptive
Translation: You tricked me, you bastard.
UNCONSCIONABLE
Example: Of all the unconscionable things
Translation: Very, very naughty. This will probably be
used where the law student in your life is trying to
claim the moral high ground.

Legal Writing
Chapter Seven Common Law Analysis

Legal-eeze-Translate the following


I went in Ex parte.
I dont disagree.
It is possible under equity law.
That depends on what the definition of
___ is.
In what capacity are you employed?
What was his condition of sobriety
How do you plead?
I completed my voir dire
We use the standard six-pack method
for jury selection?

Legal Writing
Chapter Seven Common Law Analysis

Legal-eeze
MISLEADING AND DECEPTIVE CONDUCT
Example: Your conduct was misleading and
deceptive
Translation: You tricked me, you bastard.
UNCONSCIONABLE
Example: Of all the unconscionable things
Translation: Very, very naughty. This will probably be
used where the law student in your life is trying to
claim the moral high ground.

Legal Writing
Chapter Seven Common Law Analysis

Common Law
The Common Law is Judge-Made- Law.
Developed many centuries ago in England.
Judges look to earlier cases for guidance in
resolving disputes.
Few decisions are air tight Almost all decisions
have dissenting opinions, concurring opinions in
all or in part.

Legal Writing
Chapter Seven Common Law Analysis

Common Law Problem: Page 101


Your client, Arthur Dooley, a tenant in a large apartment
building had
several grievances with the buildings manager, Otis Fremont.
Dooley
designed a one-page flier in which he asserted, Fremont has
a long
record of criminal convictions as a landlord. Fremont had
received three
notices of violation from the local housing commission in the
past two
years for inadequate lighting and locks The commission had
threatened
to seek a court order requiring correction of the violation, but
dropped
the matter with Fremont made the necessary repairs.
Fremont has no

Legal Writing
Chapter Seven Common Law Analysis

Common Law Problem: Page 103


Libel: Elements Chart
Element

Facts of Case

Element
Met?

Intent to Publish

D wrote and printed 200 fliers, intending to distribute


them to Fs tenants. They were published accidentally
after Dooley no longer intended to publish them.

Maybe

Publication

Fliers were read by third persons.

Yes

Of false
Statements about
a person

Fliers said F had a long record of criminal convictions as a Maybe


landlord. F was cited three times in two years by
Housing Commission and corrected violation to avoid
court order. Fremont had no criminal record.

That humiliate the Fliers said F had a long record of criminal violations
person, or

Maybe

Subject him to the Fliers said F had a long record of criminal violations
loss of social
prestige

Yes

Legal Writing
Chapter Seven Common Law Analysis

Common Law Problem: Page 104


Intent to Publish: Case Briefing Chart
Our Case

White

Simmons

D designed and printed


copies of a flier that he
intended to distribute to
tenants in his apartment
building. After he
decided not to publish
them, they were
released by accident.

The defendant wrote a


letter to a company
president containing
allegations about his
employees. The
company resident
received and read the
letter.

The defendant wrote a letter that


was addressed personally to the
plaintiff and sent by certified mail.
The plaintiffs wife read the letter.
The defendant thought it possible
that someone else would read the
letter, but did not know the plaintiff
was married.

Holding

There was intent to


publish.

There was no intent to publish.

Reason
s and
Policies

Receipt by third person


makes statements
damaging.

Intent requires reasonable


knowledge or appreciation that a
letter will likely be read by another.
Mere conceivable possibility or

Facts

Legal Writing
Chapter Seven Common Law Analysis

Method for analyzing common law issues


1. Determine how the facts of the decided cases
support your clients position.
2. Determine how the facts of the decided cases
support your opponents position.
3. Determine how the reasons and policies of the
decided cases support your clients positon.
4. Determine how there reasons and policies of the
decided casers support your opponents position.

Legal Writing
Chapter Seven Common Law Analysis

Common Law Problem: Page 108


Intent to Publish: Analysis Chart
Why Element is Met (opponents Argument)

Why Element is Not Met (Clients


Argument)

Facts

White is analogous. The defendant prepared a


letter with intent to send it to a third person.
Similarly, Dooley prepared the flier with intent to
distribute it.
Simmons is distinguishable. In that case, the
defendant intended only that the plaintiff see the
letter when he wrote it. In our case, Dooley
intended the flier to be read by third persons
when he prepared them.

Simmons is analogous. The defendant in that case did


not intend the letter to be read by third persons. The
letter was addressed to the plaintiff personally and sent
by certified mail. Similarly, Dooley did not intend
anyone to read the fliers. They were disseminated by
accident.
White is distinguishable. The defendant wrote a letter
to a company president, who then read the letter. In
our case, by contrast, Dooley did not intend anyone to
read the fliers at the time of their release.

Reasons
and
Policies

The White court stated that receipt by a third


person is what makes false statements
damaging. Intent to publish fliers makes Dooley
blameworthy. Dooley intended to hurt Fremonts
reputation, and wrote and printed fliers to do so.
Even though he changed his mind, the fliers

Intent occurs when there is reasonable appreciation or


knowledge that material would be read by third
persons. The mere possibility or chance that a third
person would read the material does not demonstrate
intent. When Dooley decided not to distribute the fliers,
the possibility of an accident that would release the
fliers was as remote as the possibility that a third

Legal Writing
Chapter Six Identifying and Selecting Issues for
Analysis

Focus only on questions within


the
scope of the problem.
Two considerations:
1. Focus of your assignment. Disregard all
questions which you have not expressly been
instructed to address.
2. Exclude questions that are not important at a
given point in the procedural development of
the case.

Legal Writing
Chapter Six Identifying and Selecting Issues for
Analysis

Identify all relevant questions.


Finding Relevant Questions is an acquired skill.
Many rules may, at first, appear to apply, but:
A rule applies to a situation when it closely
corresponds to the situation where it affects the
rights and responsibilities of the persons involved.
A statutory rule applies when it covers the facts
of the case.
A common law rule applies when the cases are
analgous to the clients case.

Legal Writing
Chapter Six Identifying and Selecting Issues
for Analysis

Identify all relevant questions.


Creating a Elements Chart
Pages 80 and 81
Not always necessary, with simple rules, but
may help determine whether individual
Elements Chart
elements of a rule are, may be, or are not
Element
Factsapplicable.
of Our Case
Eleme
nts
Met?

Identify
element

State pertinent facts

Yes, no
or
maybe

Identify

State pertinent facts

Yes, no

Legal Writing
Chapter Six Identifying and Selecting Issues for
Analysis

Exclude givens from detailed


discussion.
A given is a legal question with a clear answer.
Tell your reader what the rule and relevant facts
are, in the beginning, in one or two sentences.
In your elements chart, any item with a yes the
element is a given.
If the answer is maybe, the applicability of the
element is plausible enough to be an issue.

Legal Writing
Chapter Six Identifying and Selecting Issues
for Analysis

Separate issues and subissues.


This process is a useful tool for understanding
and stating the relationship between your
legal question and your memorandum.
The applicability of the rule is the issue
And
The applicability of each element that may be
disputed is a sub-issue.

Legal Writing
Chapter Six Identifying and Selecting Issues for
Analysis

Separate issues and sub-issues.


The questions applicable for analysis in the Fred
Brookson case (page 73 -76) involves three tentative
issues, one of which has two sub-issues, as follows:
1. Whether there is diversity of citizenship between the parties for
purposes of federal diversity jurisdiction.
2. Whether Carter is liable to Fred Brookson for intentional
infliction of emotional distress.
a. Whether Carter intended to cause Brooksons emotional
distress.
b. Whether Carter caused Brooksons emotional distress.
3. Whether Carter caused Brooksons battery.

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