• Conclusion
  • Rule
  • Explanation of the rule
  • Application of the rule
  • Conclusion

Donít Be Conclusory.

Instead of merely stating the conclusion, explain how you reached that conclusion. Sometimes, after immersing themselves in legal problem, students lose perspective and assume that the reader is already acquainted with the law and analysis. To avoid this, explain each step of the analysis. Donít assume the reader will understand your argument without a clear, logical analysis of the issue. Like giving someone directions to your house, explain each small step so your reader wonít get lost.

Ineffective: I live at 55 Mt. Auburn Street. Drive to exit four, then turn left. At the light, turn left onto Mt. .Auburn Street.

Effective: I live at 55 Mt. Auburn Street. After entering Interstate Highway 88 West, drive for six miles. Turn off at exit four, and bear left onto Storrow Road. At the first light, make a left turn onto Mt. Auburn Street. The third house on the left, a three-story brick colonial, is my house.

Compare Fact to Fact.

Whenever possible, refer to a critical fact in the precedent when comparing that fact to a fact in your clientís case. Donít merely mention the precedent without showing which facts in the precedent are comparable to the facts in your clientís case. Donít make the reader refer back to an explanation of a case to see how the facts in that case apply to your clientís case. Lay it our for the reader. The reader should never have to "work" to follow your analysis.

Ineffective: Like the defendant in Jones, our client also has an alibi because he was home during the allege crime.

Effective: Like the defendant in Jones, who had an alibi because he was in a movie theater during that alleged crime, our client also has an alibi because he was at home during the alleged crime.

 

Weave the Analysis.

Donít layer the analysis by repeating the explanation of a precedent, followed by a list of facts from your clientís case, without showing how one relates to the other. Instead, weave the law and facts together. Refer to the fact in the precedent and then compare that fact to your clientís case. Show the reader the connection or relationship between the cases.

Ineffective: In Jones, the defendant proved his alibi by showing evidence that he was in a movie theater during the alleged crime. The Jones court held that the defendant was not guilty. The court reasoned that a defendant who established an alibi cannot be found guilty of a crime. In this case, our client was home at the time of the crime. Therefore, he has an alibi.

Effective: Both the Jones defendant and our client have alibis. Like the defendant in Jones, who had an alibi because he was in a movie theater during that alleged crime, our client also has an alibi because he was home during the alleged crime.

Start With the Analogy

At the outset of the analysis, compare the precedent to your clientís case. Do not start the analysis by listing facts in your clientís case. State the comparison between the precedent and your clientís case and then support it or prove it by referring to facts in your clientís case.

Ineffective: Our client was home at the time of the alleged crime.

Effective: Both the Jones defendant and our client have alibis. Like the defendant in Jones, who proved that he had an alibi because he was in a movie theater during that alleged crime, our client also has an alibi because he was at home during the alleged crime.

Prove the Analogy

After stating an analogy or distinction, prove the legal assertion using the reasoning of the precedent. Tell the reader why your comparison is significant.

Ineffective: Both the Jones defendant and our client have alibis. Like the defendant in Jones, who proved that he had an alibi because he was in a movie theater during that alleged crime, our client also has an alibi because he was home during the alleged crime. Therefore, our client is not guilty.

Effective: Both the Jones defendant and our client have alibis. Like the defendant in Jones, who proved that he had an alibi because he was in a movie theater during that alleged crime, our client also has an alibi because he was home during the alleged crime. This Court should follow the reasoning of Jones, that defendants who establish sufficient evidence of an alibi cannot be found guilty of the crime. This Court should hold that the Defendant is not guilty because he establishes sufficient evidence of an alibi.

Explain the Law Before Applying the Law

Before applying a case to the facts of your case, make sure you previously explained it. Then, you can refer to that case when applying it to your clientís case. Discussing a case for the first time within the analysis is confusing to the reader. The reader then has to comprehend the facts, holding, and reasoning of that case, as well as understand how it compares to your clientís case.

Ineffective: In Jones, the court concluded that the defendant was not guilty of robbery. The defendant in Jones was at a movie theater during the alleged crime. The court held that defendant had an alibi during the crime. The Jones court reasoned that defendants who establish sufficient evidence of an alibi cannot be found guilty of the crime.

The Smith case is distinguishable to the present case. Unlike the defendant in Smith who alleged that he had an alibi, but failed to prove it, the Defendant in the present case presented witnesses who established his alibi. Moreover, bot the Jones defendant and our client have alibis. Like the defendant in Jones, who proved that he had an alibi because he was in a movie theater during that alleged crime, our client also has an alibi because he was at home during the alleged crime. This Court should follow the reasoning of Jones that defendants who establish sufficient evidence of an alibi cannot be found guilty of the crime. This Court should hold that the Defendant is not guilty because he establishes sufficient evidence of an alibi.

Effective: Several courts have determined the sufficiency of an alibi. For example, the court in Smith held that the defendant was guilty because he did not have an alibi during the alleged crime. The defendant claimed that he was at a restaurant, but could not substantiate this claim. The Smith court reasoned that without sufficient evidence to support his alibi, it must fail.

In Jones the court concluded that the defendant was not guilty of robbery. The defendant in Jones was at a movie theater during the alleged crime. The court held that the defendant proved that he had an alibi during the crime. The Jones court reasoned that defendants who establish sufficient evidence of an alibi cannot be found guilty of the crime.

While the Smith case is distinguishable to the present case, the Jones case is analogous. Unlike the defendant in Smith who alleged that he had an alibi, but failed to prove it, the Defendant in the present case presented witnesses who established his alibi. Moreover, both the Jones defendant and our client have alibis. Like the defendant in Jones, who proved that he had an alibi because he was in a movie theater during that alleged crime, our client also has an alibi because he was at home during the alleged crime. This Court should follow the reasoning of Jones that defendants who establish sufficient evidence of an alibi cannot be found guilty of the crime. This Court should hold that the Defendant is not guilty because he establishes sufficient evidence of an alibi.

Understand the Law Before Applying the Law

Make sure you thoroughly understand the law before you attempt to apply it to your clientís case. You canít analyze the law until you understand it. Your analysis will reflect any confusion regarding the law. A confusing analysis will frustrate the reader and defeat its purpose.

Analyze One Issue at a Time

Analyze a single legal issue at a time. Do not analyze several issues at once. Smaller bites are easier to swallow.

Analyze the Opponentís Argument

Donít ignore the opposing argument. Ignoring it wonít make it go away. Predict the other sideís likely argument and incorporate those arguments in your analysis.

Ineffective: While the Smith case is distinguishable to the present case, the Jones case is analogous. Unlike the defendant in Smith who alleged that he had an alibi, but failed to prove it, the Defendant in the present case presented witnesses who established his alibi. Moreover, both the Jones defendant and our client have alibis. Like the defendant in Jones, who proved that he had an alibi because he was in a movie theater during that alleged crime, our client also has an alibi because he was at home during the alleged crime. This Court should follow the reasoning of Jones that defendants who establish sufficient evidence of an alibi cannot be found guilty of the crime. This Court should hold that the Defendant is not guilty because he establishes sufficient evidence of an alibi.

Effective: While the Smith case is distinguishable to the present case, the Jones case is analogous. Unlike the defendant in Smith who alleged that he had an alibi, but failed to prove it, the Defendant in the present case presented witnesses who established his alibi. Moreover, both the Jones defendant and our client have alibis. Like the defendant in Jones, who proved that he had an alibi because he was in a movie theater during that alleged crime, our client also has an alibi because he was at home during the alleged crime. This Court should follow the reasoning of Jones that defendants who establish sufficient evidence of an alibi cannot be found guilty of the crime.

The prosecution will argue that Jones is not applicable. The alibi witnesses in Jones were reliable. In contrast, in this case they are biased. The prosecutionís argument is unpersuasive because the reliability of a witness is a question of fact for a jury to decide. This Court should hold that the Defendant is not guilty because he establishes sufficient evidence of an alibi.

Donít Fight the Law

It is unethical to omit unfavorable authority or bend the law so it fits within your intended conclusion. Instead, deal with the law head-on. Try to distinguish authority that is negative to your legal position.

Avoid the Stretch Argument

Legally tenuous or far-fetched arguments will likely fail and undermine your credibility with the court. Careful, logical analysis is usually more persuasive than an "all or nothing" long shot.

Be Concise

Make your point and move on. Avoid repetition and confusing legal jargon. Courts and lawyers are busy and value brevity.

Remember the Alternative Argument

Cover all your bases. An alternative argument should be thoroughly addressed and analyzed. Try to provide the court with several options to rule in your favor.

Organize the Analysis Around a Common Thread

When a large body of case law is applicable to your issue, organize your analysis around the common thread derived from the precedents, instead of analyzing each case separately.

 

Source:  David Romantz & Kathleen Elliot Vinson, Legal Analysis: The Fundamental Skill (1998).