Reading: Thinking Like a Lawyer

Thinking like a Lawyer — Applying the Law to Facts

Much of what you are asked to do in class is present an analysis of the law — its application to new factual hypotheticals. Practice this skill, particularly in writing, as often as possible. It is critical to your success.


STEP ONE: Read the facts. This is the DESCRIPTIVE phase of your analysis. Be sure you know your client’s case (the facts of the problem). Read closely and carefully. Draw inferences from the facts (most matters of motivation, causation, or alternative choices are inferential). Think about alternative inferences that can be drawn. Be aware that vague, conflicting and incomplete facts are normal in the real world. Identify your client’s goals. Be sure you have asked the six basic questions about the facts presented: What? Where? When? How? Why? Who?

STEP TWO: Next comes the critical questions for identifying issues: So what? Survey your checklist of rules that might possibly apply to resolving your client’s problem consistent with his or her goals. Brainstorm as to all possibly applicable rules… Don’t eliminate potential rules too quickly.

STEP THREE: Analyze how the applicable rules apply to your client’s facts. Identify those rules or aspects of rules that provide a clear outcome or solution and note these briefly but do not spend time engaging in extensive analysis of “givens.” Identify those rule or aspects that are, after analysis, irrelevant because they will not affect the outcome significantly.

STEP FOUR: Identify those rules or aspects of rules that create issues when applied to your client’s facts. AN ISSUE IS SOMETHING TO ARGUE ABOUT. Recall from case briefing that there are three kinds of issues: “what are the facts”, “what is the law?” and “how does the law apply to these facts?” To find these issues, look for gaps or conflicts in the law.

  1. Sometimes more than one rule might apply. For example, in determining the specificity with which to require pleading a statutory action for securities fraud, does one apply rule 9 of the Federal Rules of Civil Procedure (“fraud must be pled with particularity”) or only the general standards of rule 8 (“pleadings shall contain a short and plain statement of the case”)?
  2. Sometimes there may not be a rule. For example, there is no guidance in the Federal Rules of Civil Procedure regarding whether a complaint must be typewritten. (There may be local rules on this, however.)
  3. Sometimes the rule provides only general guidance. Many rules in the law are stated in general terms such as “reasonable” or “timely” — interpretation of these terms is left to individual cases.
  4. Sometimes there are conflicting judicial interpretations of the same rule.

STEP FIVE: Separate issues and sub-issues and organize them in a logical progression. For example, you may determine that there are two main issues. The first question is which rule applies. Having resolved that issue, however, you still may have an issue about how one or the other of those rules applies to the facts.

STEP SIX: Create arguments about what the rule means and how it should be applied to these facts.

  1. Purposive Interpretation vs. Formalist Interpretation
    • Formalist: Define the term at issue without reference to context or purpose. Some sources for definition of a word include: grammatical arguments about the meaning in context; dictionaries (“plain meaning”); legal dictionaries; the statutes or rules; the legislative history of drafter’s advisory notes; the use of the word in other rules or other areas of law. When the source of law is common law, a formalist interpretation of a case looks at the legally significant facts of the precedent cases and compares the client’s facts to identify differences or similarities.
    • Purposive: Conceive the purposes behind a rule and define your term in light of those purpose(s) (There are ordinarily several, often conflicting, purposes that one can conceive for any given rule). Some sources for deriving purposes include: the rule or statute; the legislative history (advisory committee notes); judicial statements of the purpose; or your own imagination.
  2. Broad Rule vs. Narrow Rule
    • Narrow rule: If a rule, read the language of the rule to apply to as narrow a fact situation as possible (using one of the interpretation techniques in A), then argue that your facts fall outside that narrow interpretation. If a judicial precedent interprets the rule, read the interpretation of the rule as necessarily and narrowly connected to the facts of that precedent.
    • Broad rule: If a rule, read the language of the rule to apply to as broad a fact situation as possible (using one of the interpretation techniques in A), then argue that your facts fall squarely within that broad interpretation. If a judicial precedent interprets the rule, generalize each of the facts in the case as broadly or generally as possible.

STEP SEVEN: Create arguments about how the rule should be applied in this case.

There are Five Types of “Policy” Argument:

  1. Arguments about judicial administration: Categorize the interpretation that you are advancing as one that is firm and predictable or flexible and open-ended. Then create arguments as to why the firm or the flexible rule is needed for the purposes of future application of the rule (often stated in terms of predictability or fairness)
  2. Arguments about institutional competence: Argue that the application or interpretation of the rule at issue is or is not best decided by a particular institution (e.g., courts, the legislature, the executive, etc.). A good example of this argument is Chief Justice Rehnquist’s opinion in the Leatherman case. Courts are not competent institutions to create new categories of specificity requirements. That task is best left to the Congress because they have the greater (ability, legal or political authority, resources, etc.) to address this task. An equally powerful argument could have been made that courts are especially well suited to the task of interpreting the applicability of Rule 9. For example, courts see the cases that are most often brought for improper purposes, in vague general language, that have especially detrimental impacts merely by the filing of the complaint. Congress has allocated rule making authority to the courts (the Rules Enabling Act) thus recognizing this superior competence and authority.
  3. Moral arguments: These are the arguments we often make in everyday argument or in political discussions. Morality can encompass a broad variety of value-based judgments, whose sources can vary from religion, culture, history, etc. One example: Form v. Substance Making moral decisions 51 on the “formal” classification of the dispute (two “disputing parties”) vs. Making moral decisions on the “substantive” relative social power of the “people” involved (a pro se, civil rights plaintiff and the government). For example, in Conley v. Gibson, the United States Supreme Court said that the pro se prisoner bringing the civil rights claim should not have his complaint dismissed unless it could not state a legally enforceable claim, regardless of the clarity or simplicity of the complaint.
    • Morality as Form: Why should a pro se litigant be given a special rule regarding the interpretation of his or her complaint under rule 12(b)(6)? Pro se litigants can choose to have attorneys assist them (pro bono or contingent fee attorneys are available for those who cannot afford representation). If they choose to clog up the legal system by forgoing this representation, they should not be given any greater advantages than others.
    • Morality as Substance: Why should a pro se litigant suing the government (who may view attorneys as part of the “system” and thus not trust them, even if they could afford them) be held to the same standards of pleading as those who have the benefit of expensive, well trained lawyers. Especially in actions against the government, individuals should have the right to address their grievances individually and not be foreclosed by strict procedural rules.
  4. Deterrence or social utility arguments: These arguments are based on the effect of the rule on behavior.
  5. Economic arguments: Phrase the argument for application of the rule in terms of a cost – benefit analysis (factoring in whatever you wish to characterize as a “cost” or a “benefit”) and argue that the rule to be applied should be one that in its application over the course of time should mirror the same decisions that individuals or institutions would make were they to engage in this analysis. If you find this listing of forms of argumentation useful to your understanding of law, you may want to read Richard Michael Fischl & Jeremy Paul, GETTING TO MAYBE: HOW TO EXCEL ON LAW SCHOOL EXAMS (Carolina Academic Press, 1999).