Write on
| Publication year | 2019 |
| Pages | 20 |
Strengthening our Legal Analysis
by Jared K. Carter, Esq.
Every Spring the Vermont Supreme Court visits Vermont Law School to hear oral arguments in pending cases. This semester, I decided to organize my Legal Writing II syllabus so that my students would be working on drafting judicial opinions at the same time the Vermont Supreme Court visits Vermont Law School. In doing so, we’ve been spending a lot of time working on improving our analysis and reasoning in our legal writing. This got me reflecting on my own writing as a practitioner and considering the ways we all can improve our client centered practices by strengthening our analysis and reasoning in our own legal writing. To do this, we should focus on the most common types of legal analysis in our legal writing. From my experience, those types of analysis are Common Law Analysis, Statutory Analysis, and Policy Analysis.
Common Law Analysis
As practitioners we are all familiar with the concept of common law analysis. And yet, I know from my own teaching and law-yering, that I do not always follow best practices when employing this form of persuasive analysis in my legal writing. Accordingly, it is worth taking a moment to reflect on this analytical approach to legal writing to make sure we are using common law analysis most effectively.
The most basic way to strengthen our common law analysis is to understand that the best methods of employing it are through analogy and distinction.1 In short, our common law analysis in writing should focus on comparing and contrasting relevant case law to support our legal position. To do this, we should look at two areas of a precedential case – the facts and the reasoning. Obviously, the more closely aligned the facts or reasoning are to the case we are writing about the more valuable that precedent is in our writing. The key is to recognize that good common law analysis does not simply summarize the facts of a given precedent and conclusively tell the reader they are similar. Rather, good common law analysis shows the reader that the facts are similar or that the reasoning is applicable. To do this, the writer must specifcally reference the salient facts or reasoning and directly explain the comparison. If the writer fails to clearly show the comparison, they risk losing the reader and therefore missing an important opportunity to persuade. As writers, we cannot assume that the...
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