Wednesday, November 18, 2009

The Question is: What is the "Legal Question?"

I realize that for some of us, this is getting down to the basics, but that's precisely why I'm writing about it.  What, exactly, is the legal question?  And how do we get to it?

Many 1Ls will notice that professors often pause during lectures, look to the the frightened students in the peanut gallery, and ask, "So, what's the legal question here?"

Some brave students--the Gunner likely beginning the trend--attempt to answer this question.  The Broad: "How should the court decide?"  Uhh... no.  The Slightly Confused: "Whether the buyer relied on the seller?"  No... that's the issue.  But that's a good try.

The fact is that almost nobody explains how you're supposed to figure out what the hell the legal question is!

Another fact: I didn't know what in the world anybody meant by the mysterious legal question until my second year of law school, while I was taking a course on advanced legal writing.  Even then, the professor didn't come out and explain it in the way that I'm about to, but that's when things finally hit me.

Furthermore, I know 3Ls who have not understood the concept of the legal question until we've spoken about it.  It's sad.  These students in particular remain closeted; they are afraid to ask for help... to admit to anyone that they have no idea what's going on.

And who knows whether there are junior attorneys out there who are likewise closeted.  Whether there are not-so-junior attorneys . . .

Fear no more!  Here's how you know what the legal question is, and it's really quite simple.  You'll thank me later.

So, let's say we have a legal theory--something that you can bring someone into court for committing or violating.  For instance, trespass, battery, negligence, breach of contract... these are all legal theories.

Typically, the definitions of legal theories are found in a statute.  For instance, in order to recover for negligence (a legal theory) in tort (your class... the body of law), you must demonstrate the following elements (part of the definition of the legal theory): duty, breach, causation, and damages.

However, usually the ways in which those elements are defined/applied is determined by the court through various cases, not statute.


It has everything to do with the elements of a theory.

If the element is a noun, the legal question is, "What is [the noun]?"  Implied after that question is "according to the courts."

If the element is a verb, the question is, "When does one [the verb]?"

If the element is an adjective, the question is, "When is something [the adjective]?"

It's that simple.

For example, in negligence, our first element is duty.  Duty is a noun.  The legal question is: "What is a duty?"  This means:  According to case law, what have courts interpreted duty to mean?

Let's take a verb example.  If memory serves me correctly, under the theory of battery, there has to be a touching.  Now, this can be a noun or verb, but let's make it a verb for fun.  The legal question is: "When does one touch?"  Or, if you like the noun version better: "What is a touching?"

Finally, let's look at an adjective.  One theory in employment discrimination (body of law) cases is hostile work environment, which contains an element that the harassment an employee experiences must be pervasive and severe.  The legal question is: "When is something pervasive and severe?"

If understanding and determining the legal question was a fuzzy area for you, I hope that I've helped simplify and clarify the problem of the Legal Question for you.  It seems mysterious when we're left without any direction.  But it's really quite simple.  Spread the word and the love, especially if you think this blog will help others.

Until next time . . .

Thursday, September 24, 2009

Why Ask "Why" Twice?: What Every 1L (and practicing attorney) Should Know

What I am about to share with you is the one piece of advice that I wish somebody--anybody--would have told me as a fresh, green 1L: the key to legal argument lies in asking "why" twice.  Allow me to explain.  But before I do, come with me on a journey of realization.

Keep in mind, although I direct this blog post to 1Ls, many attorneys have not yet grasped the ask-why-twice concept.

(To provide a bit of background, the legal positions that I have held in the short two and one-half years that I've been in law school have provided me with opportunities to read, analyze, write, distinguish, edit, and otherwise flesh out scores, if not hundreds, of briefs, memoranda, motions, and orders.  Specifically, when I worked in the chambers of two federal judges, I read many poorly reasoned briefs and noted how this affected the judges' decisions and opinions of the attorneys.  I only provide this information so that you understand that I have seen time and time again the consequences of poor legal analyses, which flow in and out of courtrooms every business day.  Sadly, the bell curve of legal reasoning and writing appears to stick with us past law school; it seems to apply to practicing attorneys in that a significant percentage of lawyers follow the formulaic, average IRAC to the detriment of remaining just that: average.)

When I entered law school, I, like many other paranoid, wide-eyed, and deer-in-the-headlights 1Ls, felt hopelessly lost in the world of legal analysis.  Also, like many 1Ls will discover, I did not complete my first or second semester in the safe, cozy armchair of the top 10% of the class.  I went to the cheesy and ever-embarrassing seminars, where some schmuck tells you how to ace law exams.  The problem, I find, is that these guys cannot perform the only task that matters: they cannot teach.  They fail to adequately relay the information--the "how" to do the "what" they preach.

Analysis, analysis, analysis.  That's all I heard as a 1L.  But nowhere, despite my inquisitive and pro-active nature, could I find anyone who could explain with practical clarity how to analyze in a way that counts the most (and, frankly, earns the most points on most exams).  Outline, outline, outline.  But how do you know what to include in an outline?  Chart, chart, chart.  But how do you decipher what information to place in a chart?  The mantras of seemingly older and wiser upperclassmen--chart, outline, and analyze--often fail to assist in meaningful ways.

"But I am analyzing!"  That's what most law students say.  And, as we know, this "most" population winds up in the bulk of the curve with a B average.  So, of course, law students analyze.  In fact, they analyze the be-jee-zus out of facts, especially after their first semester.  However, only a particular type of analysis will kick what 1Ls already do into what professors and, eventually, judges want to see.

So, without further ado, here is the simple idea behind my concept.  Think about a law school exam like you would a task that your new employer has handed you.  The boss is your professor.  The task is your exam.  Your boss asks you to "discuss" the issues; each issue basically amounts to a potential claim, and your job is to figure out whether a party will likely recover/lose/win/successfully bring a suit on each claim.

This is where the asking begins.  Ex: Issue #1: Can X recover on a breach-of-contract claim?  Whether the answer is yes or no, you need to ask "why?"  Why will she probably recover?  To answer this question, you do what you and every other law student does; you look to the rule and apply each element of the rule to the facts or vice versa.  However, before you move on from Element 1 to Element 2, ask "why" again.  In other words, why is this an element in the rule?  What did the court(s) care about so much that it chose to identify this element as part of the rule?

In the simplest terms, this is the rationale, and the rationale alone drives the rule.

To illustrate this point, which did not hit me until I worked for a federal judge during my 1L summer, allow me to humble myself with an embarrassing story:

The clerk hands me an assignment.  I research efficiently and become ever-proud of myself, having found an applicable case where the facts sufficiently mimic those in the case at bar.  I think and write in my memo something along the lines of, "Hey, look at all these great facts!  They're the same!  Thus, the rule applies, and we know how to decide this issue!  Ta-da!"

Upon turning in my memo, the clerk asked me, "So, does this case apply to ours?"  I responded affirmatively.  Then she asked, "Why?"  I paused in order to recall precisely how the court articulated the rule and described it to her.  She looked at me, cocked her head slightly and once again asked, "Yah, but why?"

I was dumb-founded.  I had no idea what she was talking about.  I thought, "What do you mean, 'why?'  Because our facts match the facts in this case--that's why!"  The clerked explained, "No, Jessie.  Why is that the rule?  In essence, why did the court decide to apply that rule to those facts?  If that [the reason behind the rule] matches what we have going on in our case, then we know the rule applies."

Lightning struck.

The rationale, the answer to the second "why," drives the rule and whether it applies.  This explains how law students can analyze the facts all day long and still end up with a B.

For instance, let's take an example (cursory as it will be) from a class I'm in right now--Criminal Procedure.  On exam day, my proverbial boss--the professor--might give me a hypothetical that involves the police entering a mother-in-law quarters (a sort of mini-house separate from the main house) without a warrant after they observed a man walking into the quarters while carrying large amounts of allergy medicine, which is often used for manufacturing methamphetamine.  Only a five-foot pathway between the home and the quarters separates the two structures.  The call of the question might ask me/you to discuss whether the agents' entry was lawful.

YOU #1: You, having memorized every line in a hornbook, know the rule: things around the house are considered "curtilage," which means that the police cannot search it without a warrant.  Your "analysis" goes something like, "Curtilage is protected under the Fourth Amendment.  Here, the quarters were only separated by five feet, so a court will likely find this to be curtilage.  Therefore, the agents could not lawfully enter without a warrant."  NO!  Don't let this be you!  This is far too simple of an analysis, and almost everyone will provide a similar answer at a bare minimum.

YOU #2: You, being armed with an arsenal of case law from your book, recognize that these facts mimic those in United States v. Dunn, 480 U.S. 294 (1987).  In Dunn, agents watched the defendant place chemicals that can be used for producing drugs into a barn that was located about sixty yards away from the house.  In that case, the court held that the barn was not curtilage because of its proximity to the house (and fence).  Your "analysis" goes something like, "This case is similar to Dunn because it involves a separate structure.  However, unlike the barn in Dunn, here, the quarters are very close to the main house.  Therefore, it is curtilage, and the agents could not lawfully enter without a warrant."  Close.  Definitely better than YOU #1 above.  Still, you can do better.

YOU #3: You, having asked "why" twice to each case when you studied, not only recognize that the fact pattern closely matches Dunn but also recall the court's rationale--the "why" to the why... the reason behind the rule.  Your analysis goes something like, "This case is similar to Dunn because it involves a separate structure.  However, unlike the barn in Dunn, here, the quarters and house are very close to one another.  Thus, the agents did not lawfully enter the quarters because it likely constitutes curtilage.  Moreover, they are also prohibited from searching without a warrant because, unlike the barn in Dunn, here, a mother-in-law quarters may very well have been used for intimate purposes because someone probably lives there.  The quarters are more analogous to a house, where individuals have a reasonable expectation of privacy.  Therefore, the unwarranted search of the quarters was unlawful."  Yes.

In the above example, and in preparing my own study aids, I asked "why" twice when I read the Dunn case.  In my casebook, the court (like a professor) provided me with the issue (like the call of the question on an exam): was the search of Dunn's barn without a warrant lawful?

I notice that the court answered the question in the affirmative.  I asked myself "why?" once.  "Why was the search lawful?"

I find my answer to the first why, which is the rule.  It provided that the barn was located so far away from the house (60 yards) that it did not constitute curtilage.

Now comes the crucial point.  I can't just stop there.  If I want to increase either my points on an exam or my chances at convincing a judge, I must take an extra step.  Otherwise, I'll never get to the rationale.

So, I asked myself "why" again.  "Why isn't the barn curtilage?"  Or, if you prefer, why does distance from the house matter?  After all, it's still on an owner's property.

I notice that the court answered my second "why" when it expressed that a barn is not used for "intimate activities" and, therefore, Dunn did not have a "reasonable expectation of privacy."

The above sentence happens to include both the rationale and a broader rule.  The broader rule, which makes up a rather lengthy section in the casebook, is that individuals are constitutionally protected from warrantless searches wherever they maintain a "reasonable expectation of privacy."  The court, in deciding whether people maintained a reasonable expectation of privacy in a barn, thought about it and determined that it just doesn't make sense that a barn would carry with it a reasonable expectation of privacy.  Why?  Because people would not conduct themselves in intimate (hence, private) ways in a barn.  This is the rationale.

Whether you agree with the court is immaterial.  Your boss/professor has given you a task: namely, figure out how a court would likely rule on the facts in front of you.  The rationale of the cases in your casebook--the thing that is so important and, yet, so neglected by law students and many lawyers alike--will guide you.  And you'll get there.  Just ask "why" twice.