Chapter 7 Legal Analysis Flashcards
the application of one or more rules of law to the facts of a clients case in order to answer a legal question that will help
1. keep a legal dispute from arising
2. resolve a legal dispute that has arisen
3. prevent a legal issue from becoming worse.
Also called legal reasoning.
Legal Analysis
connecting facts to a rule in order to determine whether the rule applies to the facts
application
a nonlaw that a court could rely on in reaching a decision. Authority that describes or explains but does not constitute the law.
Secondary Authority.
An acronym that stands for the components of legal analysis.
IRAC
A written explanation of how the law might apply to the fact situation of a client.
memorandum of law
a portion of a rule that is a precondition of the applicability of the entire rule.
element
the portion of a rule about which the parties cannot agree. The disagreement may be over the definition of the element, whether the facts fit within the element or both.
element in contention
a question of law. A question of what the law is, or what the law means, or how the law applies to the facts. Also called legal question or question of law. If the dispute is over the truth or falsity of the alleged facts, it is referred to as a question of fact or a factual issue.
Legal issue
one of the circumstances or considerations that will be weighed in making a decision, no one of which is conclusive.
factor
A summary of the main or essential parts of a court opinion. Sometimes referred to as a trial brief or an appellate brief).
Brief
the party against whom an appeal is brought. Also called the appellee
respondent
- An attorneys personal notes on how to conduct a trial. Also called trial manual and trial book.
- An attorneys presentation to a trial court of legal issues and positions of his or her client.
Trial brief
a document submitted (filed) by a party to an appellate court (or served on opposing party) in which arguments are presented on why the appellate court should affirm (approve) reverse, or otherwise modify what a lower court has done.
appellate brief
a book, cd rom or online service containing lists of citations that can (1) help you access the current validity of an opinion, statute or other item; and (2) gives you leads to other relevant materials.
citator
pertaining to a lower court in the judicial system (also directs a reader to text printed later in the document).
Below
printed in a reporter
reported
a courts list of its pending cases.
docket
a reporter published by a commercial publishing company without special authority from the government.
unofficial reporter
a reference to any legal authority printed on paper or stored on a computer database that will allow you to locate the authority. As a verb, to give its location where you can read it. It is the paper or online address where you can read something.
citation
the party bringing an appeal because of alleged errors made by a lower tribunal, sometimes called petitioner.
appellant
a brief summary or outline. Also called case synopsis. Printed before the opinion begins. It is usually a summary of the entire opinion
syllabus
a short paragraph summary of a portion of a court opinion (usually covering a single legal ussie) printed before the opinion begins.
headnote
a general topic (e.g. Searches and seizures) and a number for one of its subtopics. Used by West group to organize millions of cases by topics in its digests.
key number
An organized summary or abridgement. A set of volumes that contain brief summaries (sometimes called abstracts or squibs) of court opinions, arranged by topic and by court or jurisdiction.
digest
(an opinion “by the court” as a whole”) A court opinion, usually a short one, that does not name the judge who wrote it.
per curriam opinion
the decision of a court with few, or no supporting reasons, often because it follows established principles.
memorandum opinion
a critical fact; a fact that is essential or very important to the conclusion or holding of a court.
key fact
a prior decision or opinion, covering a similar issue that can be used as a standard or guide in a later case.
precedent
an explanation of why the court resolved a legal issue the way it did-why it reached the particuylar holding for that issue.
reasoning
a courts answer to one of the legal issues in the case.
holding
the final order of a court reached as a result of its holdings.
disposition
to cancel or set aside
vacate
to send back a case to a lower tribunal with instructions from a higher tribunal on how to proceed
remand
A statement made by a court that was not necessary to resolve the legal issues growing out of the specific facts before the court. A courts comments in the law that applies (or that might apply) to facts that are not before the court.
Dictum
the opinion whose result and reasoning are supported by at least half plus one of the judges on the court.
majority opinion
the opinion written by less than a majority of the judges on the court that agrees with result reached by the majority but not with all of its reasonings.
concurring opinion
the controlling opinion that is joined by the largest number of judges on the bench short of a majority.
plurality opinion
an opinion of one or more judges that disagrees with the result and the reasoning of the majority or plurality opinion.
dissenting opinion
(“a thing adjudicated”) a final judgement on the merits will preclude the same parties from later relitigating the same claim and any other claim based on the same facts, or transaction that could have been raised in the first suit but was not. Also called claim preclusion.
res judicata
pertaining to a court decision that is based on the facts and on the substance of the claims, rather than on a procedural ground.
on the merits
“stand by things decided” courts should decide similar cases in the same way unless there is good reason for the court to do otherwise. In resolving an issue before it, a court should be reluctant to reject precedent-a prior opinion covering a similar issue.
stare decisis
sufficiently similar to justify a similar outcome or result
analogous
any law that is not created within litigation. Law written by a deliberate body such as legislature or constitutional convention after it is proposed and often debated and amended.
enacted law
a document submitted to a trial court that makes arguments with supporting authorities for something a party wishes to do, e.g. have a motion granted.
memorandum of points and authorities
a volume or set of volumes of court opinions.
reporter
judge made law in the absence of controlling statutory law or other higher law
common law
exactly the same, or almost so; being a very close precedent.
on all fours
an overview or thesis, paragraph at the beginning of a memorandum of law, that tells the reader what issues will be covered and briefly states the conclusions that will be reached.
roadmap paragraph
governing future events; effective(having an effective date) in the future.
prospective
