27
Drafting the Drafting the Discussion pt. 2 – Discussion pt. 2 – Rule Application Rule Application Professor Mathis Rutledge Professor Mathis Rutledge

Rule Application & Drafting the Discussion pt 2.ppt

Embed Size (px)

Citation preview

Page 1: Rule Application & Drafting the Discussion pt 2.ppt

Drafting the Discussion Drafting the Discussion pt. 2 – Rule Applicationpt. 2 – Rule Application

Professor Mathis RutledgeProfessor Mathis Rutledge

Page 2: Rule Application & Drafting the Discussion pt 2.ppt

CREAC – an improved IRACCREAC – an improved IRAC

ConclusionConclusion – state your conclusion – state your conclusion about the issueabout the issue

RuleRule – state the applicable rule of law – state the applicable rule of law Explanation Explanation – Explain the rule– Explain the rule ApplicationApplication – Apply the rule to client’s – Apply the rule to client’s

factsfacts ConclusionConclusion – Restate your conclusion – Restate your conclusion

Page 3: Rule Application & Drafting the Discussion pt 2.ppt

Memo Discussion TemplateMemo Discussion Template

CRCR - Overview Paragraph (- Overview Paragraph (elementselements)) CRCR - Thesis Paragraph - Thesis Paragraph

Conclusion about an elementConclusion about an element Rule determining when element satisfiedRule determining when element satisfied

EE - Explanation ( - Explanation (rule supportrule support) ) paragraphsparagraphs

AA - Application/Analysis paragraphs - Application/Analysis paragraphs ((case comparisonscase comparisons))

CC - Restate Conclusion - Restate Conclusion

Page 4: Rule Application & Drafting the Discussion pt 2.ppt

Rule ExplanationRule Explanation Most basic sense – formulate & Most basic sense – formulate &

explain the ruleexplain the rule Where it comes from – jurisdiction, courtWhere it comes from – jurisdiction, court What it meansWhat it means Support rule with citations to authoritySupport rule with citations to authority

Show how courts have applied the Show how courts have applied the rule in the pastrule in the past

Page 5: Rule Application & Drafting the Discussion pt 2.ppt

Goals in Rule ExplanationGoals in Rule Explanation

Educate reader about prior casesEducate reader about prior cases Give detailed case descriptionGive detailed case description Provide foundation for your analysisProvide foundation for your analysis

Page 6: Rule Application & Drafting the Discussion pt 2.ppt

Components of Rule Components of Rule ExplanationExplanation

Thesis/Topic sentence.Thesis/Topic sentence.

Legally relevantLegally relevant facts of the case facts of the case – – only the facts relating to the particular only the facts relating to the particular factorfactor..

Court’s rationale and holding – Court’s rationale and holding – only only part that relates to the factor.part that relates to the factor.

Page 7: Rule Application & Drafting the Discussion pt 2.ppt

Understanding the Why Understanding the Why Behind the RuleBehind the Rule

Try to understand the purpose Try to understand the purpose behind the words of the rule and behind the words of the rule and consider the principles or policies the consider the principles or policies the rule servesrule serves Underlying policy rationale or principle Underlying policy rationale or principle

intended to encourage positive results intended to encourage positive results for societyfor society

How will those policies and principles How will those policies and principles bear on your client’s casebear on your client’s case

Page 8: Rule Application & Drafting the Discussion pt 2.ppt

Examples of Policy ConcernsExamples of Policy Concerns

The law should place the risk of liability on the The law should place the risk of liability on the party most able to prevent the lossparty most able to prevent the loss

If bargaining positions are grossly unequal, the If bargaining positions are grossly unequal, the governing rule should protect the weaker governing rule should protect the weaker partyparty

The rule should place the burden of proof on The rule should place the burden of proof on the party with the easiest access to the the party with the easiest access to the evidenceevidence

The rule should not create additional costs for The rule should not create additional costs for a person unless the harm to be prevented a person unless the harm to be prevented justifies the imposition of those costsjustifies the imposition of those costs

Page 9: Rule Application & Drafting the Discussion pt 2.ppt

Rule ApplicationRule Application

Purpose: links precedent to client’s Purpose: links precedent to client’s case by comparing/contrasting facts, case by comparing/contrasting facts, reasoning, policy.reasoning, policy.

Expressly points out significant Expressly points out significant similarities and distinctions between similarities and distinctions between the case law facts and your client’s the case law facts and your client’s facts. facts.

Page 10: Rule Application & Drafting the Discussion pt 2.ppt

Rule applicationRule application

Based on analogical reasoning – Based on analogical reasoning – compare two things (precedent with compare two things (precedent with client’s case)client’s case) Point out similarities that can help Point out similarities that can help

predict/advocate for a similar resultpredict/advocate for a similar result Point out differences that may call for a Point out differences that may call for a

different resultdifferent result

Page 11: Rule Application & Drafting the Discussion pt 2.ppt

Two Parts to Rule ApplicationTwo Parts to Rule Application

Why a court may rule in client’s favorWhy a court may rule in client’s favor Why a court may rule in opponent’s Why a court may rule in opponent’s

favorfavor

Page 12: Rule Application & Drafting the Discussion pt 2.ppt

Rule ApplicationRule Application Goal – apply rule just explained in Goal – apply rule just explained in

rule explanationrule explanation Apply law to client factsApply law to client facts Case comparisonsCase comparisons

Page 13: Rule Application & Drafting the Discussion pt 2.ppt

Components of Rule Components of Rule ApplicationApplication

Thesis sentence.Thesis sentence. Legally relevantLegally relevant facts facts of the of the

client’s case woven with legally client’s case woven with legally relevant facts from case law.relevant facts from case law.

Statements spelling out Statements spelling out the the significance of the comparisons significance of the comparisons and distinctionsand distinctions between the facts between the facts of your case and the facts from of your case and the facts from case law.case law.

Page 14: Rule Application & Drafting the Discussion pt 2.ppt

Component 1-Component 1-Thesis SentenceThesis Sentence

What is your factual conclusion? What is your factual conclusion?

– – How the rule applies to the client’s How the rule applies to the client’s factsfacts

Reasons supporting your Reasons supporting your conclusionconclusion

Page 15: Rule Application & Drafting the Discussion pt 2.ppt

Rule ApplicationRule Application Start with a sentence or 2 that gives Start with a sentence or 2 that gives

factual conclusion – thesis sentencefactual conclusion – thesis sentence Use client’s facts to explain why Use client’s facts to explain why

thesis sentence is accuratethesis sentence is accurate

Ex: Under Starling and Mueller, the Ex: Under Starling and Mueller, the Hurt’s dock, ducks, and water all Hurt’s dock, ducks, and water all combined to lure Mikey onto the Hurt’s combined to lure Mikey onto the Hurt’s property and to injure him.property and to injure him.

Buckley’s statement is much closer to Buckley’s statement is much closer to the situation in Woodall, in which the the situation in Woodall, in which the minor made the representation minor made the representation “unknowingly.”“unknowingly.”

Page 16: Rule Application & Drafting the Discussion pt 2.ppt

Component 2-Component 2-Legally Relevant FactsLegally Relevant Facts

Apply the rule you explainedApply the rule you explained Compare the essential facts from Compare the essential facts from

the case authorities to the key the case authorities to the key facts of client’s situationfacts of client’s situation Note significant similarities & Note significant similarities &

differencesdifferences Explain inferences & factual Explain inferences & factual

conclusions a judge or jury could conclusions a judge or jury could draw from the factsdraw from the facts

Page 17: Rule Application & Drafting the Discussion pt 2.ppt

Legally Significant Similarities & Legally Significant Similarities & DifferencesDifferences

Legally Significant if it relates toLegally Significant if it relates to An element or a term in rule of lawAn element or a term in rule of law A policy or principleA policy or principle

Explain how the factual similarities Explain how the factual similarities between the cases demonstrate your between the cases demonstrate your pointspoints What point are you makingWhat point are you making

Show your analysis. Why are these Show your analysis. Why are these things comparable.things comparable.

Page 18: Rule Application & Drafting the Discussion pt 2.ppt

Example: Seller’s duty to disclose Example: Seller’s duty to disclose to potential buyersto potential buyers

Rule: A seller of real property must Rule: A seller of real property must disclose if the seller knows or should disclose if the seller knows or should know of the defect and the defect is know of the defect and the defect is material.material.

Legally significant similarities & Legally significant similarities & differences would relate to differences would relate to 1. the type of knowledge to raise the duty 1. the type of knowledge to raise the duty

and and 2. how to determine whether a defect is 2. how to determine whether a defect is

material.material.

Page 19: Rule Application & Drafting the Discussion pt 2.ppt

Example: BurglaryExample: Burglary

Illinois – knowingly and without Illinois – knowingly and without authority enter the dwelling place of authority enter the dwelling place of another.another.

Issue is whether garage is a living Issue is whether garage is a living quarters.quarters.

Precedent – evaluate the type of Precedent – evaluate the type of activities which owners use the activities which owners use the structurestructure

Page 20: Rule Application & Drafting the Discussion pt 2.ppt

Like the owners in Like the owners in McIntyreMcIntyre, Michael Stripe , Michael Stripe used the Stripe’s used the Stripe’s garage for activities garage for activities commonly associated commonly associated with a living quarters. with a living quarters. Like the activities of Like the activities of “sitting, eating and “sitting, eating and cooking” in cooking” in McIntyreMcIntyre, , Michael Stripe’s use of Michael Stripe’s use of the garage for playing the garage for playing and listening to music, and listening to music, watching television, and watching television, and eating snacks are uses eating snacks are uses commonly associated commonly associated with a living quarterswith a living quarters..

Notice thesis Notice thesis sentence spells out sentence spells out the basis for the basis for comparison with comparison with conclusionconclusion

Notice explicit Notice explicit comparisons of comparisons of legally relevant legally relevant factsfacts

Page 21: Rule Application & Drafting the Discussion pt 2.ppt

In addition, Michael In addition, Michael Stripe’s use of the garage Stripe’s use of the garage as a sleeping quarters as a sleeping quarters during the summer and during the summer and fall only strengthens the fall only strengthens the argument that the garage argument that the garage is a dwelling under the is a dwelling under the Statute. Statute. Unlike the Unlike the McIntyreMcIntyre activities of activities of barbecuing, eating and barbecuing, eating and sitting, which can occur sitting, which can occur outside of a dwelling, outside of a dwelling, sleeping is an activity sleeping is an activity uniquely associated with a uniquely associated with a living quartersliving quarters. Moreover, . Moreover, Michael Stripe’s use of the Michael Stripe’s use of the garage is clearly garage is clearly distinguishable from distinguishable from ThomasThomas, where the owner , where the owner used the garage only for used the garage only for storage purposes.storage purposes.

Notice thesis sentenceNotice thesis sentence

Notice writer explains Notice writer explains basis for distinctionbasis for distinction

Notice comparison of Notice comparison of legally relevant facts – legally relevant facts – those dealing with those dealing with activities associated activities associated with living quarteswith living quartes

Page 22: Rule Application & Drafting the Discussion pt 2.ppt

Facts related to knowingFacts related to knowing

Buckley’s statement is much closer to the Buckley’s statement is much closer to the situation in Woodall, in which the minor made situation in Woodall, in which the minor made the representation “unknowingly.” the representation “unknowingly.” In In Woodall, the minor did not realize that he was Woodall, the minor did not realize that he was making a representation of majority because making a representation of majority because he did not read the form contract he was he did not read the form contract he was signing. Similarly, Buckley did not realize that signing. Similarly, Buckley did not realize that she might be making a representation of she might be making a representation of majority because she misunderstood the majority because she misunderstood the agent’s question.agent’s question. In both cases, the requisite In both cases, the requisite intent to deceive is absent. Since Buckley did intent to deceive is absent. Since Buckley did not intend to deceive Willis Chevrolet, a court not intend to deceive Willis Chevrolet, a court would probably allow her to disaffirm the would probably allow her to disaffirm the contract.contract.

Page 23: Rule Application & Drafting the Discussion pt 2.ppt

Assurances to the Reader in Assurances to the Reader in Rule ApplicationsRule Applications

the case is binding legal authoritythe case is binding legal authority the fact you want to analogize to the fact you want to analogize to

was a key factwas a key fact There’s enough information to There’s enough information to

independently evaluate the caseindependently evaluate the case

Page 24: Rule Application & Drafting the Discussion pt 2.ppt

Common Problems in Rule Common Problems in Rule ApplicationApplication

Don’t assume application is obvious Don’t assume application is obvious and skip the processand skip the process

Case comparisons, focus Case comparisons, focus legally legally significantsignificant similarities or differences similarities or differences

Page 25: Rule Application & Drafting the Discussion pt 2.ppt

Counter-ArgumentsCounter-Arguments

Part of your rule applicationPart of your rule application

Other interpretations of precedentOther interpretations of precedent

Cases the other side will useCases the other side will use

Weakness in client’s positionWeakness in client’s position

Page 26: Rule Application & Drafting the Discussion pt 2.ppt

The State will probably use the The State will probably use the AzbillAzbill decision to argue that decision to argue that Boozier was in actual control of the vehicle. The court Boozier was in actual control of the vehicle. The court stated that an officer does not need to see someone driving stated that an officer does not need to see someone driving a car to reasonably believe they were doing so. a car to reasonably believe they were doing so. AzbillAzbill, 685 , 685 S.W.2d at 164. The defendant in S.W.2d at 164. The defendant in AzbillAzbill was the only person was the only person around the vehicle. As a result the court found it around the vehicle. As a result the court found it reasonable to believe he was the one in control of the reasonable to believe he was the one in control of the vehicle. vehicle. Id.Id. Similarly, Boozier was found alone in the park. Similarly, Boozier was found alone in the park. Officer Safety saw no one else in the park or near the car at Officer Safety saw no one else in the park or near the car at the time of arrest. As a result the State may argue that it the time of arrest. As a result the State may argue that it would be reasonable to believe Boozier was in control of would be reasonable to believe Boozier was in control of the vehicle.the vehicle.

This argument should fail. Even though Boozier was the This argument should fail. Even though Boozier was the only person in the park at the time of arrest, it would not only person in the park at the time of arrest, it would not be reasonable to believe he was in actual physical control be reasonable to believe he was in actual physical control while intoxicated. In while intoxicated. In DowellDowell, the defendant was ruled not in , the defendant was ruled not in actual control because he might not have driven the actual control because he might not have driven the vehicle to its current location, and even if he did, he may vehicle to its current location, and even if he did, he may have become intoxicated after he drove there. have become intoxicated after he drove there. DowellDowell, 671 , 671 S.W.2d at 741 . Just because Boozier was alone does not S.W.2d at 741 . Just because Boozier was alone does not mean someone didn’t drive him to the park and walk off mean someone didn’t drive him to the park and walk off leaving him there by himself. Also, even if he did drive leaving him there by himself. Also, even if he did drive himself to the park, he may have become intoxicated after himself to the park, he may have become intoxicated after he stopped. The beer cans that were found next to the car he stopped. The beer cans that were found next to the car make it reasonable to believe Boozier parked on the side of make it reasonable to believe Boozier parked on the side of the road and then became intoxicated. the road and then became intoxicated.

Page 27: Rule Application & Drafting the Discussion pt 2.ppt

Let’s Try ItLet’s Try It

Rule Application ExerciseRule Application Exercise