Paragraph 3 – Analysis
This paragraph is the start of legal analysis, a skill you will be using throughout your career. All students are capable of learning this skill. Some are seemingly born with the understanding necessary for this part, while others find it a bit more challenging. All in all, no one has ever left my class not understanding the concepts behind legal analysis.
It is important to think about analogies and distinctions. Analogies are used to show how one fact is similar to another fact.
Ex –
Person 1 – A person who slips on a banana peel at a supermarket and suffers an injury.
Person 2 – A person who slips on an orange peel at a small fruit shop and suffers an injury.
Similarities?
These two people (person 1 and person 2) share some similarities. They both slipped on fruit at stores, and they were both injured.
Differences?
These two people share some differences. One slipped on a banana peel and another on an orange peel. Also, one slipped at a supermarket and another slipped at a small fruit shop.
Often, when reading cases and thinking about the relevant facts, we will notice some similarities and some differences. No two cases are ever exactly alike, so this is typical. As lawyers, we need to think about whether the similarities outweigh the differences or whether the differences outweigh the similarities. In our example, it seems like the similarities outweigh the differences because both slipped on fruit at stores and both were injured.
Once we understand the use of analogies and distinctions, it is important to realize that we are using them to help us decide whether the facts of our client’s case is similar to or different from the facts from the cases we read (and summarized in paragraph 2). In other words, we are NEVER looking to decide whether the facts among those cases we read are similar to or different from each other. This would not help us in our analysis. Rather, thinking about and scrutinizing whether the facts in our case are similar to or different from each of the cases we read (and summarized in paragraph 2), can help us tremendously. Let’s see why.
Let’s say we have read three cases that are applicable to our legal issue:
- 1) Red v. Blue
- 2) Yellow v. Orange
- 3) Green v. Purple
And let’s also say that these three cases all analyzed the same legal principle – whether there was sufficient consideration to form a contract. We can look and see what each case held when deciding whether consideration existed:
Red v. Blue – Holding: No consideration in this case.
Yellow v. Orange – Holding: No consideration in this case.
Green v. Purple – Holding: Yes, there was consideration in this case.
What happens in a lawyer’s brain when we tell the lawyer that our client’s case is similar to a case that we read? A lawyer is trained to think about the holding of the case. So, if we state that our case is similar to Red v. Blue, something subtle happens. The lawyer associates the holding of Red v. Blue with your statement that it is similar to your client’s case. And that creates an inference. It is then inferred that the same holding (because they are similar) will apply to your client’s case. This is true even though it was never explicitly stated this way. A lawyer is trained to think in a way that automatically connects the holding with the analogy or distinction, thus creating a legal prediction about the chances of your client’s case. A lawyer begins forming predictions about the client’s outcome automatically when analogies or distinctions are drawn.
For more information about paragraph 3, see video below.
