Wednesday, March 8, 2006

Spectral Analysis

I have been meeting with students about their legal writing papers this week. Lots and lots of students. The papers are due tomorrow, so I am seeing about 8-10 students a day until then. Often these students have done all the requisite research and really given the problem a lot of thought, but cannot seem to organize their issues even using the templates we bombard them with: IRAC, CREAC, PREAC etc.

The biggest problem seems to be in discussing and synthesizing the vast array of case law they have found in the E sections for CREAC and PREAC, or in the A for IRAC. Students often seem to flounder on what information on the case to include and which to exclude in these sections and more importantly how to arrange the cases in their thematic paragraphs. I’ve actually invented a new word to help students in determining what not to do, “write thematically, not casematically.” Nifty, huh?

But really, I tell students that they can usually sum up the case in two sentences using the formula of facts, holding, rationale (oh my!). It should look like this: “In the Smith case, the court found that monkeys were in fact members of the legislature because they were easily as capable as elected officials in making law for the state. The court reasoned that if a ham sandwich could be indicted, then a monkey could rule the land.” This is not a real case (I felt the need to mention that because you never know).

I have also been advising students to use these “explanation of the law” areas to lay out a spectrum upon which they can place their fact pattern to show that they are correct. In persuasive writing you can control the spectrum so long as you do not misstate the law or attempt to mislead the court.

Basically, the spectrum idea looks like this: in [our first case] in this jurisdiction we have slam-dunk summary judgment, in [another case] the court granted summary judgment where the facts were slightly less compelling than ours and finally, in [a third case], where the facts are highly distinguishable from ours, the court laughed at the motion for summary judgment and then set the motion papers on fire using their wands. The key is to lay out a spectrum where the relief you are seeking has been granted to parties who are less worthy than you for reasons you will explain later on (in the next paragraph in IRAC or really soon in CREAC) in the paper.

This makes perfect sense to me, but I have been forced to draw pictures in some cases to make this point to students. I fully expect to see my post-it diagrams of case law spectra flutter by me on the Boston Common some day. Probably tomorrow, after the papers are turned in. (ezs)

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