Legal research and writing quiz
MOLLYMOONNY
Putman4ePPT_ch13.pptxCOUNTERANALYSIS
Chapter 13
1
Counteranalysis—Definition
Counteranalysis
Is the process of discovering and considering the counterargument to a legal position or argument
Involves identification and objective evaluation of the strengths and weaknesses of each legal argument
Counteranalysis—Why?
Why Counteranalysis Is Important
Ethical duty to disclose legal authority adverse to the client’s position
Ethical duty to do a complete and competent job
Assists in deciding the proper course of action
Credibility
Discredit adverse authority
Counteranalysis—When?
Always Use Counteranalysis
When considering a legal issue
When conducting research
When preparing an interoffice legal memorandum
When preparing a response to a brief
Counteranalysis— Research Sources
Examples
Shepard’s
Digests and headnotes
Dissenting opinions
ALR
Treatises
Law review articles
Counteranalysis—Techniques: In General
In General, Ask Yourself:
“How do I respond to this argument?”
“What is the argument in response to this position?”
Counteranalysis—Techniques: Enacted Law
Enacted Law Arguments
Elements of the statute are not met
Statute is broad enough for another application
Statute is misconstrued or does not apply
Statute relied on as a guide does not apply
Statute has not been adopted in your jurisdiction
Interpretation of statute is unconstitutional or violates another legislative act
Statute relied on is unconstitutional
Counteranalysis—Techniques: Case Law
Case Law Arguments
Reliance on court opinion is misplaced—key facts are different
Reliance on court opinion is misplaced—rule of law or legal principle does not apply
Opinion is subject to a different interpretation
Rule or principle from opinion relied is not universally followed
Counteranalysis—Techniques: Case Law, Continued
Case Law Arguments, Continued
Opinion presents several possible solutions; the one urged by opposition is not mandatory and not the best choice
Position relied on no longer represents sound public policy and should not be followed
Other equally relevant cases do not support the position adopted in case relied on
Counteranalysis—Where?
Court Brief
Present counteranalysis in the middle of the analysis—immediately after the analysis but before the conclusion
Interoffice Research Memorandum
Place counteranalysis after the analysis of each issue
