Most of us, no matter how modest we may be about our accomplishments, pride ourselves on our "good sense." And the legal system is founded on that belief. The test of liability for tortuous actions is whether a reasonable person (i.e. one of good sense) would act similarly in similar circumstances.
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Therefore legal reasoning would appear to be just a matter of common-sense, of logical thinking, like that of any man-on-the-street, and no first semester law student would find it difficult. But legal reasoning is neither so simple as it would seem, nor so difficult as some law students believe. For legal reasoning does not rely merely on commonsense. It is based on precedent, what the law now is, with respect to a particular issue. Once you know what the law is, you can compare the facts of the case you are analyzing with the facts of cases on which the law has already spoken, and then, in deciding whether the law applies to the issue at hand, you can use the good sense Descartes attributed to all persons.
For the basic process of legal reasoning involves comparing cases to decide whether the law governing those cases is also applicable to your facts.
That is, legal reasoning is reasoning by example, reasoning from case to case.
This is what judges do; this is what you as law students will do in your memo-and brief-writing, and in final examinations. I. Placing Facts into Fact Categories
To compare cases, you will have to compare fact categories, not individual facts. What follows is an exercise to show how that is done, using simple fact statements. To place individual facts into one fact category, make a statement broad enough to include all of the facts, but no broader than necessary.
II. Using Fact Categories in Legal Analysis
In your early semesters at law school, your professors emphasize that you are learning to "think like a lawyer." Learning to reason from precedent is part of that process. Learning to think in terms of fact categories instead of individual facts is another part. Once you have placed individual facts into fact categories, you can analyze and compare them more skillfully. III. Chart of SIMS, DISSIMS, and GAPS
SIMS: Both Doe and Smith are former employees who have been fired.
· Both Doe and Smith claim illegal firing (Doe for union activities. Smith for reporting sexual harassment and assault). Both Doe's and Smith's employers state they were fired for incompetence.
· Both work records, written by supervisors, indicate unsatisfactory performance on the job. Both work records indicate employees' problems with supervisors.·Both have a "writing." Doe has written proof that his company president refused to allow employees to meet to discuss unionizing. Smith has a copy of the letter she sent the district manager reporting the new manager's conduct.
DISSIMS: Doe had worked for XYZ Company for a considerably longer time: four years as against Smith's one year.
· Doe engaged in outside activity, but Smith "blew the whistle" on her supervisor. Doe's and Smith's complaints about their superiors differ considerably. Doe complained that his superior refused to act; Smith complains that her superior acted offensively.
GAPS: Doe's union activities were presumably well-known among the employees of XYZ Company. Did employees of the theater know of the harassment that Smith has complained about? (We should interview the other employees of the theater; perhaps they have been sexually harassed, or can corroborate Smith's claims.)
· Was the manager who wrote that Smith was incompetent the new manager or the former manager who was transferred? (Interview the former manager as to Smith's performance under his supervision.) What time period did the allegations about Doe's incompetence cover? These SIMS, DISSIMS, and GAPS may not exhaust the possibilities, but you can see their helpfulness. They provide a way of looking at two or more cases as comparable entities rather than as collections of unrelated facts.
IV. Writing a Case Analysis Now that you have constructed a chart integrating the two hypothetical cases, you can draft an analysis of them. The analysis, by comparing and contrasting the cases, will enable you to predict the outcome of Jane's case.
Your analysis should be brief, clear, and tightly reasoned. V. AnalogizingThe kind of reasoning just described is sometimes called analogizing.
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Analogizing involves comparing and contrasting the essential features of two or more cases. You will be analogizing cases throughout law school and in your legal practice because of the importance of the legal doctrine of precedent (stare decisis), which rests on the presumption that justice requires that persons in similar circumstances be treated similarly under the law.
In coming to decisions on the matter before them, judges apply the doctrine of precedent. Their reliance on precedent helps to avoid judicial opinions that otherwise might be based on whim or sentimentalism. The use of precedent also assures society that all persons will be treated equally under the law and allows members of society to plan their behavior knowing that they will be held to previously announce legal rules. A case is considered analogous to a precedent case if its key facts, issue, and the rule of law to be applied are similar. However, even if a case is analogous to a precedent case, a court is required to follow the earlier court's decision only if that decision is binding upon it. Analogous decisions of superior courts in each judicial system are binding upon inferior courts in the same system. Analogous decisions of the highest state court are binding on trial courts of the same state. Analogous decisions of the United States Supreme Court are binding on all courts.
A court may follow any court decisions that are persuasive. Higher courts in a jurisdiction may consider persuasive the opinions of lower court decisions in the same jurisdiction and rely on those decisions, although the decisions are not binding upon the higher courts. Analogous decisions of a court in one judicial system may be adopted as persuasive by a court in another system although those decisions are not usually binding. Dictum may be persuasive when it appears in the opinion of a higher court of the same jurisdiction, although it is never binding. Dicta in decisions of the United States Supreme Court are often accorded great weight by lower courts. Once a court determines that conditions are correct for analogizing the case at hand to an earlier case, it will probably follow the four-step analysis below, which you will also use as you apply case law to hypothetical fact situations in law school and to actual law cases in practice:
(1) Compare and contrast the key facts and the issues raised in the earlier cases with the facts and the issues raised in your case. (2) If the key facts and issues are similar, extract from the earlier cases the legal principle(s) upon which those cases were decided.
(3) Apply those principles to your case. (4) Arrive at a conclusion based upon (3).
These four steps may seem mechanical, but the results of analogizing are far from cut-and-dried because the decision of whether facts are similar or different is a subjective one. Only if the facts of your case are "on all fours,” you can assume that a court will find your case exactly like the previous one. Hardly ever are facts of one case exactly like those of another; that situation is about as rare as a final examination question containing exactly the facts of a case studied in your casebook! Similarity is a matter of degree: other relationships between cases may be expressed as "applicable," "analogous," "dissimilar," or "inapposite." Because opinion-forming is a subjective process, courts may variously interpret prior decisions. What an earlier case really means can thus be determined only in subsequent court opinions. VI.SynthesizingThe analogizing process that the Laird Court carried out is one stage in the process of synthesizing cases, which you as law students find as practicing attorneys, will be doing. To predict the outcome of the controversy you are dealing with, you will need to synthesize precedential opinions before you can decide whether the precedent(s) they establish are applicable to your case. Are the decisions of the precedent cases consistent with each other? If so, do those decisions establish a rule that will control your case? The answers to these questions will decide your use of the precedent cases.
Your synthesis will include a comparison of the key facts, legal theories, issues, holdings, reasoning, and legal rules of the precedent cases. A. To Write a Case Synthesis:
(1) Write an opening statement discussing the common features of the cases. (2) Discuss the cases, individually and with reference to each other.
Begin with the key (operative) facts of each case; then, by referring to your case briefs, note how the cases resemble each other and how they differ (that is, analogize and distinguish the cases).In your analysis, discuss the causes of action, the issues raised, the reasoning of the courts, the court holdings, and the resulting rules (formulated, applied, expanded, narrowed, or overturned). (3) Arrive at some conclusion(s) as a result of your analysis. For example, what legal rule(s) have been modified, abandoned, formulated, or rejected in these opinions? What legal trend(s) do the opinions indicate? What can be predicted regarding the adjudication of future disputes, in view of these opinions?
B. The Synthesizing Process
To aid you in synthesizing the above three cases, you should consider preparing a chart (based on your case briefs).
VII. Applying Syntheses to Hypothetical Problems
In your law school legal writing classes you will probably be assigned two or more court opinions to synthesize. Then you will be given a hypothetical problem about which you must make a prediction, based upon your synthesis. Later, in your legal writing course, you will be required to find precedent cases by your own research, and then apply them to a hypothetical problem.
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