Spring 2013

LEGAL THINKING

Miriam A. Smith

Broadcast and Electronic Communication Arts Department

San Francisco State University

Spring 2013

The Nature of Legal Thinking

What is legal thinking?

How is legal thinking different from other types of thinking?

How is legal thinking learned?

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What is Legal Thinking?

The way lawyers think– Lawyers carefully analyze the facts

How are the facts at hand the same or different from the facts of a particular case?

An analytical model

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How do Lawyers Think?

Lawyers ask many questions.– Is this a good case?– Can it be proven in court?– Is it likely to achieve the result the

client desires?– Can the client pay?

Is a judgment collectible?

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How are the facts at hand the same or different from the facts of a particular case?

Think it through.

Consider all the angles.

Anticipate all arguments.

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How is Legal Thinking different?

You tell me.

How is Legal Thinking Learned?

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How is Legal Thinking Learned?

Law school or by studying legal decisions.

Three most important things I learned in law school . . . – Reasonable minds can differ.– There are at least two sides to every

story.– Pigs get fat and hogs get slaughtered.

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What about all that legal mumbo jumbo?

a.k.a. the fine print

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legalese

All professions have their jargon– Terms of art– distinguish those in the profession

We will learn many legal terms this semester

We’ll try some legalese . . .

I, being of sound and disposing mind and memory, not acting under duress, menace, fraud, or the undue influence of any person or persons whatsoever, do hereby make, publish, and declare this to be my last will and testament, hereby revoking all wills and heretofore made by me, and give devise and bequeath the residue of my estate and all my earthly possessions consisting in whole of my three bags full of wool in the following manner:– a. One for the The Master– b. One for the Dame– c. One for the little boy who lives down the lane

Signed on the 11th day of June, 2002.

Last Will and Testament

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One more

Sentence Peter (alias Peter), known for his peculiar propensity

for the consumption of a variety of squash known colloquially as pumpkin, was in possession of a spouse who was a compulsive fugitive.

He imprisoned her within the confines of a shell from a fruit of Curcurbita pepo,

where she is now serving time under maximum security.

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Our Legal Thinking Model

Facts Issue Rule of Law Analysis Conclusion

Fall 2010

Just the Facts Ma’am . . .

A different set of facts will yield a different result.

One fact alone can make all the difference.

Some facts are more important than others.

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Issue

What must the court decide? What question or questions must

be answered?

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The Rule of Law

Is there a rule (i.e., law) that applies?

What is that rule (law)?

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Analysis

A clear, logical explanation of the reasoning of the court.– Explains the rule of law.– Considers the arguments of the

parties. Why did the court decide the

way it did?

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How judges think . . .

How has the rule of law been applied before?– Precedent

How should it be applied in this instance?– What is the same as and what is

different from earlier cases?

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– What is the rationale for the rule?

What are the primary defenses to the rule?– Do they apply?

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No precedent

A case of first impression . . . – Situation sense– Fairness between these parties– Public Policy

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Conclusion

Summary of what happened.

Decisions we read are almost always appellate decisions.

Lower court’s decision is upheld, reversed or remanded.

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Preliminary Facts

Supreme 1893 Nix -- merchant Hedden -- tax collector

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Facts

Tax collector charged tax on tomatoes

Charged “vegetable” tax

Plaintiff claims tomatoes are a fruit, not a vegetable

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Issue

Are tomatoes a fruit

or a vegetable?

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Rule of Law

Tariff Act

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Analysis

Considered the meaning of “fruit” and “vegetable” in the trade (and in the dictionaries)

Consumer use of tomatoes– Used as a vegetable– Not really a dessert

Tomatoes are a “fruit of the vine”

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Conclusion

Tomatoes are a vegetable Judgment of lower court affirmed (plaintiff loses)