ANALYSIS:

IDENTIFYING ISSUES CRITICAL READING: CASES

8/25/11 Dean Beatrice Tice

The Process of Legal Research, Analysis and Writing

Ultimate Question(s) Factual Scrutiny Research Research Strategy Secondary Sources Primary Sources Analysis Written Product

Update

Ultimate Question(s)

What is the overarching ultimate question you are being asked to address? If youre not sure
ASK Your

assigning attorney, Jeremy C. Hufton, Esq. of Hufton & Associates, P.C. ask

If it seems clear to you

Dont

Factual Scrutiny

Place the fact situation into a structure that lends itself to research
Cant

recognize relevant law if you havent engaged with facts! Become familiar with what you know Learn what you dont know Imposes systematic framework

Deconstruct facts into series of replies to basic factual and legal statements

Factual Scrutiny

Who?
Who are the players involved? Persons or corporate entities Focus on role as well as identities PARTIES

What?
What key events occurred? What did the players do? Activities, physical items, intangibles, etc. LEGAL THEORY

Factual Scrutiny

When?
When

did (or will) key events occur? Date and time Sequence of events STATUTE OF LIMITATIONS CURRENT LAW AT TIME OF SITUATION

Factual Scrutiny

Where?
Where did (or will) key events occur? JURISDICTION

Why?
Why did (or will) the participants act in this way? What motivated them to act? LEGAL THEORY

Relief?
What do the parties want from the legal system? DAMAGES OR OTHER RELIEF

Factual Scrutiny

Potential legal theory(ies)?

What

substantive legal areas might apply? Criminal vs. civil Synthesis of everything youve learned! Think through first-year class topics

Factual Scrutiny

Do I always have to go through all this every time?

YES,

but

Practice!

Factual Scrutiny

Riddle

Critical Reading

Reading law requires both big picture reading AND attention to detail
It

is rocket science!

Three parts to critical reading in law

Get

the context Skim the text for the big picture Read carefully for the details

Do I always have to go through all this every time?

YES,

but

Critical Reading: Cases

Basic parts of a judicial opinion

Procedural
Caption,

information

citation

Contextual
Facts,

information

procedural history, issues

Courts Value

analysis
holding(s), judgment or disposition

Reasoning,

added information from publisher

Synopsis,

headnotes NOT primary authority!

Critical Reading: Cases

Concurring and dissenting opinions

Concurring:

same outcome, different analysis Dissent: different outcome Persuasive, NOT mandatory authorityunless needed concurring judges vote

Dicta
Statements
E.g.,

in opinion not necessary to address issue presented by party

hypothetical

Persuasive

authority only, but can be pooh-poohed

Critical Reading: Cases

Get context
E.g.,

parties, civil or criminal, jurisdiction, etc.

Skim for basic content

Key

issues, key facts, organization of opinion, disposition of the case by issue analysis

Read closely for substance

Issue

Guide to Critical Reading of Cases on course webpage

Case Example

Catholic League for Religious and Civil Rights v. City and County of San Francisco, 624 F.3d 1043 (9th Cir. 2010).