Bench & Bar

JAN 2016

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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| JANUARY/FEBRUARY 2016 44 EFFECTIVE LEGAL WRITING USING ANALOGOUS CASES AS EFFECTIVE EXAMPLES immediate presence because victim decided not to get his money back from the defendant only because the defendant was waving a gun around, which frightened the victim. Doug las, 36 Cal. App. 4th at 1691. Tis rule paragraph is an example of good legal writing for a variety of reasons. First, it is short and to the point. Second, it breaks up the "immediate presence" element of robbery into two distinct parts and explains them both using examples. Te examples provided give clarity to the defnition of immediate presence because it might oth erwise have been unclear what "observation or control" or "overcome by violence or pre vented by fear" meant. Te examples are particularly useful because they give real world context to the more general defni tion sentences and make the rule apply to other cases. Te case examples above therefore provide helpful guidance in how analogous cases can be used to good efect. Here are my tips for practitioners when using analogous cases to support legal arguments: KEEP IT SHORT. Case briefng is a necessary skill for law stu dents but has no place in legal documents. Remember, your reader is busy and does not need to know everything about the case you are using. My rule of thumb is to keep case examples to one sentence. As shown in the rule paragraph above, if the case examples are focused enough, one sentence is all that is needed. PUT IT IN THE RIGHT PLACE. Case examples should be put right after the rule they are explaining and not simply put at the end of the paragraph, leaving the reader to fgure out which part of the rule they reference. For example, as shown in the rule paragraph above, the defnition of immediate presence for the crime of robb ery in California is broken up into two parts —observation and control, and preventing the victim's retention of the property—and each part gets its own example immediately after the rule. FOCUS ON WHAT IS ACTUALLY RELEVANT. Not every fact or holding of an analogous case is useful so focus on the part of the rule you are using it for. Te defnition of the rule (which, remember, comes right before the example) should help you focus. Note that, in the rule paragraph above, the same case is used for both parts of the imme diate presence rule but diferent facts are used each time. If the example from Doug las had only included facts—even all the facts related to immediate presence—the example would have been much less clear. Instead, the two Douglas examples pull out the facts that are relevant for each part of the rule that they are discussing. MAKE SURE YOU HAVE ALL THE NECESSARY PIECES. Note that the examples used above do more than just describe what happened in that case. Instead, they link the facts of that case to the holding and rationale in a way that actually explains the rule. A good case example should have three pieces: facts, holding, and rationale. If any one of those pieces is missing, the example becomes harder to understand and makes the reader do more work. For example, the frst Douglas example does not simply say "the victim saw the defen dant take his money from 30 feet away" and leave it to the reader to fgure out whether and why those facts satisfed the immediate presence requirement. Instead, it explains that those facts led to a fnding that immediate presence was satisfed (the holding) because the victim observed the theft (rationale). By following these tips, you can use anal ogous cases to their best efect—to better explain a rule using facts that ft your case and help your client. ENDNOTES 1. Dr. Sweeny is an associate professor of law at the University of Louisville where she teaches lawyer ing skills. Before joining the faculty, she graduated Order of the Coif from the University of Southern California, clerked for the Honorable Ferdinand F. Fernandez at the Ninth Circuit Court of Appeals, and obtained her PhD in Law from Queen Mary College, University of London. 2. Dan Hunter, Teaching and Using Analogy in Law, 2 J. Assn. Leg. Writing Directors 151 (2004). 3. Wilson Huhn, Te Stages of Legal Reasoning: For malism, Analogy, and Realism, 48 Vill. L. Rev. 305, 312 (2003). 4. David L. Lee, Analogizing Your Case to a Precedent, 8 CBA Rec. 42 ( June 1994). A s noted by scholars, the use of analogous cases are often at the center of legal arguments. 2 A for midable rhetorical device, reasoning by analogy "is the application of a rule of law to a case because the facts of the case are similar to the terms of the rule." 3 More spe cifcally, legal analogies are primarily used to show the reader three things: Tat your case resembles the prece dent in all important respects; Tat the precedent reached the cor rect result; and Tat in your case, the court should reach the same result as in the precedent. 4 Moreover, as lawyers, we are trained to break legal concepts down into elements and then defne and explain what those elements are. Often, to fully explain a rule, a simple def nition is not enough, usually because the terms in the defnition are themselves vague or ambiguous. In such situations, one of the lawyer's most useful techniques is using an analogous case as an example. Unsurpris ingly, I will provide an example of how to best use analogous cases. Take the following rule paragraph: Under California law, the "immed iate presence" element of robbery requires that the property be within the victim's "reach, inspection, ob servation or control." Miller v. Super. Ct., 115 Cal. App. 4th 216, 217 (Cal. Ct. App. 2004). For example, when the victim saw the defendant pick up his money from the bar 30 feet away, that item was still in his immediate presence because he observed it being taken. People v. Douglas, 36 Cal. App. 4th 1681, 1691 (Cal. Ct. App. 1995). Alternatively, courts have also found property to be in the victim's immed iate presence if the victim could have, if "not overcome by violence or pre vented by fear, retain[ed] his pos session of it." Miller, 115 Cal. App. 4th at 217. For example, in Douglas, the property was also in the victim's BY DR. JOANNE SWEENY 1

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