Demystifying Legal Analysis
At its core, legal analysis is the process of identifying the key issues in a legal dispute and then noting the facts and arguments that support each side of the dispute. Ideally, legal analysis helps you see through the facts of a case to its legal heart. It is the lawyerly skill that allows you to take information from a client or witness and translate it into concise legal concepts, which you then fit into applicable laws and legal rules. Good legal analysis requires continuing legal education. You have to be open to new concepts and ideas and they need to be presented in a clear and concise manner. Legal analysis is important because it is the key component of almost every part of the litigation process, including discovery; drafting motions, pleadings and other court documents; and making legal arguments in trial and appellate briefs, at hearings and at trial . It is crucial to understand the legal issues in your case before getting deeply involved in discovery or drafting motions, for example. Your legal analysis will determine the breadth and depth of your discovery, and how you argue for or against a point in a motion or at trial. Legal analysis is different from other kinds of analysis in at least one significant way: An analytical approach may help you identify the issues in a case, but legal analysis goes further and requires you to frame those issues in light of the facts presented, which are then applied to the law, to help formulate a workable rule which will guide you in your case. Only through extensive study of the law and experience can you consistently predict what a judge will do with your rule and your facts.
Elements of Effective Legal Analysis
Identifying the most pertinent paragraphs of a statute, and the application of those paragraphs to a specific case of facts is one of the most challenging parts of practicing law. This comes from two general realities: The ease with which one can form a conclusion that a statute or paragraph within a statute seems to apply, and The relative complexity of law as a whole.
Standards of proof are one such component of legal analysis that frequently stump lawyers. Most jurisdictions have four, primary standards of proof that change according to the context in which they are being applied. These standards are: Preponderance of evidence. Clear and convincing evidence. Reasonable doubt. Probable cause. A court or jury must apply these standards – or proofs – to the facts before them, in order to reach a decision. The relativity of each of these standards, and the results that may come from their application, may seem like something an A/B student should be able to grasp. The truth is a more complicate than that, at least when you’re first beginning your legal career. Ultimately, what you learn about law, how to analyze law, and even about the statute you believe you’re reading, will serve as the guiding framework for your practice throughout your career.
The first step in determining how to analyze a legal question is to identify what legal tools, or statutes, will help you answer it. For example, if your attorney has asked you to research labor violations (and by labor, I mean that, workers caught up in chooses between receiving a pay day, and taking care of their newborn baby.) Your first step is to understand precisely what the speaker is talking about, so that you can figure out if the statute he has provided is applicable to the case at hand. If the answer is yes, great. If it’s not yes, you need to work with that answer a little longer, and find out whether there is another statute, or regulation, that might be applicable.
Conducting Legal Analysis: The Steps Involved
Upon receipt of a case, the lawyer will read the facts with an eye towards issue identification and finding some legal "hook" upon which to hang his case and make his argument. A good lawyer generally does not bear the burden of identifying the issues. On the contrary if the lawyer misses an issue, it is the client’s job to remind him of it. When lawyers see an issue, they frequently write or dictate a memo to themselves.
While there is a certain amount of individual preference as to how to approach the task, most experienced practitioners tend to list the facts in a chronological order. A table of contents providing a roadmap of the analysis is also helpful. At the end of this step, each of your issues should be catalogued in one or two sentences. It is important that you create a trail for yourself so you can get back to any relevant fact that you have identified.
The next step is to identify the applicable law. The law applicable to your case will depend upon your facts, allegations, deadlines and other circumstances particular to your case. You may want to consider statutes, rules and regulations, short forms or even previous decisions in cases that are similar to yours. This next step should be an outline then turned into a more finished product. You need to go online, check the library, or consider even asking an experienced attorney who deals with the same issues regularly. Once your research is completed you can apply the law that you have uncovered to the facts. You are almost ready to draft your pleadings.
Be sure at this point that your work is easy to follow, logical and has no gaps. You are well advised to wait until tomorrow you look at your work again. After you sleep on it you will have a greater chance to think more clearly about the law and how it could be applied. If possible wait a couple of days before you draft your answer you have completed the steps above. Sometimes it is important to take other action during this time, as well. You may want to discuss the case with an expert or maybe it is necessary to think if you are prepared for discovery.
Looking objectively at all the information you have gathered you can now determine whether any other action is needed before drafting. As a practical matter this may mean additional research or simply getting more information. Accordingly, you can turn your attention to drafting your answer.
You have a standard to measure yourself by since you have seen work done by experienced attorneys. You should not be satisfied to submit anything less than your best effort. You should also assume that the judge is going to see every pleading or memo written in your case. You may also want to divide the work into smaller projects, such as tackling specific discovery first. Once your work is completed you should return to your outline, and your table of contents.
Effective Legal Analysis: Tools and Techniques
The following tools and techniques serve as aids to legal analysis. A robust legal toolbox will serve to augment the analysis, even when the tools seem to point in different directions.
Legal Research Databases
Westlaw, Lexis⁴, Bloomberg Law, and Fastcase are the leading online legal research platforms. These databases permit the researcher to conduct searches of cases, statutes, treatises, and "secondary sources," which are similar to scholarly journals written by grad students who know something, published law reviews written by professors who know a lot, and other materials that provide an indexed, searchable insight into the law. These databases make it easy to identify authorities in a particular area of law, and more importantly, make it very easy to discern how authority fits together, and to find the proverbial needle in the haystack.
Analytical Frameworks
All lawyers use models, or analytical frameworks. Plainly put, they are ways to fit doctrine together to make sense out of it. The Restatements serve us by leading the inquirer to discerning multiple variables in the legal rule, opening up pathways through which reasoned arguments can be generated. For example, in the context of negligence law, a Restatement provision: In complex legal questions, you’ll find lawyers building a series of such rules on top of one another, creating a structure whose result is a veritable mathematical proof.
Technological Aids
LegalSearch is the leading question-and-answer tool for practicing lawyers. Where a rare decision bears directly upon your matter, you can research judicial decisions and writing on jurisdictions not otherwise accessible. Even a non-lawyer could use this resource to ask a question and select among the answers. Having this approach in mind, you can break down difficult questions into manageable components, and can thus enhance your understanding.
Conclusions
Sometimes clients don’t want the forensic analysis; they want a legal conclusion. It’s the distinction between asking a lawyer for an opinion and asking a psychiatrist for a diagnosis. On the other hand, sometimes, as in the case of an addition to a board of directors, the chairperson of that board wants to know whether a particular candidate is the best fit for a difficult job. Sometimes, the right answer requires analysis. Sometimes, the right answer requires qualitative analysis and a board member’s skills, experience, and advice.
Common Roadblocks in Legal Analysis
Common challenges in legal analysis and strategies to overcome them
One of the biggest challenges we face in legal analysis is encountering a complicated fact scenario. This is not because simple facts, which we generally categorize as clear-cut or relatively straightforward, are somehow easier to analyze. Rather, it is because difficult or complicated facts create a temptation to rely on pure intuition rather than actually going through the steps of a legal analysis.
While this is very common, it is also really, really dangerous. The "intuition trap," as I like to call it, is the most common trap that lawyers fall into when confronted with the need to do a legal analysis, and the product of that trap is a very high rate of failure when dealing with issues that require a legal analysis. Why? Because, when confronted with a complex legal analysis, many of us are tempted to start deciding issues based upon what we think would be the outcome if the case went to trial. But that is not your job when doing a legal analysis – your job is to determine what the law says about a particular issue or set of issues, how the law would apply to the facts of your case, and where the law is unclear, what the best interpretation of the law is in light of the facts of your case.
Typically, your analysis should be divided into three parts: Breaking your legal analysis into those three parts will reduce the risk of failure due to an intuition trap, because you will be forced to think of the law as what you would tell your client if your client was asking you to give them a recommendation . That is a much more neutral way to look at a set of situations, than deciding what the outcome should be.
Another common challenge faced by lawyers doing a legal analysis, is dealing with a lack of clarity about what the actual issue is. When this happens, you will get confused, and your legal analysis will suffer greatly as a result. To properly identify what the issue is, I recommend using the "IRAC method." Using a legal issue statement, you can layout the different aspects of an issue so that it is clear what your issue is.
If you can lay out the issue properly, then you will know exactly where the law is unclear, and where you have to do some legwork in order to support the conclusions you have reached. So, if at the end of the day, doing a legal analysis feels confusing, there is often a good chance that you did not identify the issue properly.
One last thing to think about is the concept of overlap. A lot of times in legal analysis, issues can overlap. For example, an issue of damages may be intimately tied to a breach issue, or a tort may hinge upon a contract provision. When examining your problem, often it will require you to think through multiple legal theories. It is important in a situation like this, that you have a game plan about which legal theory you are going to address first.
Practical Tips to Enhance Legal Analysis Skills
The following are just a few practical tips for lawyers who would like to improve their legal analysis skills:
Practice Tip No. 1: Be a Active Listener
Just as you need to be an active listener with your clients, active listening is the starting point for honing your legal analysis. It is critical that you have an accurate understanding of the facts and the applicable law before attempting any analysis. Just as you have to get the facts right, you also need to get the law right. Getting the law right will help you provide better legal advice as well as more effective legal advocacy.
Practice Tip No. 2: Be Patient and Persistent
Good legal analysis is not a one-time proposition. The process is just that—a process. It takes time to master this skill. There are often no easy answers or shortcuts. Make your best effort and trust your instincts. If you are having a difficult time analyzing a particular issue, do not force the issue. Put it aside for a while and come back to it later. You may need new or additional facts to solve the puzzle or you might need to look at another angle. The answer may still be the same, but you will probably have a firmer grasp of why the answer is what it is and feel much better about it.
Practice Tip No. 3: Take Advantage of CLEs
There are many opportunities to attend CLE programs that cover legal analysis. Many of these programs address the do’s and don’ts of good legal writing which is closely related to legal analysis. The more you can learn from others who have expertise in this area, the more your skills will develop and improve over time. In particular, look for programs that present "lessons" or "tricks" from judicial opinions. These insightful programs will really help you to improve your practical skills over time.
The Future of Legal Analysis
The trend in technology is towards increasing the use of artificial intelligence and big data to transform the way lawyers work and deliver legal services to clients. This will include a further decrease in complex precedent and legal analysis becoming easier to do, potentially displacing some of the roles of junior lawyers. Gowlings WLG has already launched its AI lawyer Luminance which reviews client documents to help lawyers find the relevant information much faster than conventional systems and In-House lawyers are already using AI to carry out their needs.
It is specifically in the area of legal analysis that we will see significant moves. With the development of AI, and particularly ‘deep learning’ which enables machines to learn not from a linear approach but to think more like humans, the shift in the legal profession will be the move from ‘working with’ law to ‘working with people’ .
In the future we will see a distinctive ‘crossover’ between the skills required of lawyers and clients. Clients will increasingly want to work with close-knit teams of lawyers with analytical skills while lawyers will need to exhibit client-facing skills as well.
The next generation of lawyers will need to learn to be agile and flexible as a result and a need to combine academic study with real work experience. At the same time, clients will need to invest in their internal teams by providing coaching on analytical and communication skills.
Legal analysis will no longer be an isolated skill but one infused in all aspects of a lawyer’s work and this will put an even greater emphasis on collaborative working.