Slides to accompany our discussion about legal thinking.

1. LEGAL THINKING
Miriam A. Smith
Broadcast and Electronic
Communication Arts Department
San Francisco State University
Spring 2013

2. The Nature of Legal Thinking
 What is legal thinking?
 How is legal thinking different from
other types of thinking?
 How is legal thinking learned?
Spring 2013

3. What is Legal Thinking?
 The way lawyers think
– Lawyers carefully analyze the facts
 How are the facts at hand the
same or different from the facts
of a particular case?
 An analytical model
Spring 2013

4. How do Lawyers Think?
 Lawyers ask many questions.
– Is this a good case?
– Can it be proven in court?
– Is it likely to achieve the result the
client desires?
– Can the client pay?
 Is a judgment collectible?
Spring 2013

5. How are the facts at hand the
same or different from the facts of
a particular case?
Think it through.
Consider all the angles.
Anticipate all arguments.
Spring 2013

6. How is Legal Thinking different?
You tell me.
Spring 2013

7. How is Legal Thinking Learned?

8. How is Legal Thinking Learned?
 Law school or by studying legal
decisions.
 Three most important things I
learned in law school . . .
– Reasonable minds can differ.
– There are at least two sides to every
story.
– Pigs get fat and hogs get slaughtered.
Spring 2013

9. What about all that legal mumbo jumbo?
a.k.a. the fine print
Spring 2013

10. legalese
 All professions have their jargon
– Terms of art
– distinguish those in the profession
 We will learn many legal terms
this semester
Spring 2013

11. We’ll try some legalese . . .
 I, being of sound and disposing mind and memory,
not acting under duress, menace, fraud, or the
undue influence of any person or persons
whatsoever, do hereby make, publish, and declare
this to be my last will and testament, hereby revoking
all wills and heretofore made by me, and give devise
and bequeath the residue of my estate and all my
earthly possessions consisting in whole of my three
bags full of wool in the following manner:
– a. One for the The Master
– b. One for the Dame
– c. One for the little boy who lives down the lane
 Signed on the 11th day of June, 2002.

12. Last Will and Testament

14. One more
 Sentence
 Peter (alias Peter), known for his peculiar propensity
for the consumption of a variety of squash known
colloquially as pumpkin, was in possession of a
spouse who was a compulsive fugitive.
 He imprisoned her within the confines of a shell from
a fruit of Curcurbita pepo,
 where she is now serving time under maximum
security.
Spring 2013

17. Our Legal Thinking Model
 Facts
 Issue
 Rule of Law
 Analysis
 Conclusion
Spring 2013

18. Just the Facts Ma’am . . .
A different set of facts will yield a
different result.
 One fact alone can make all the
difference.
 Some facts are more important
than others.
Fall 2010

19. Issue
 What must the court decide?
 What question or questions must
be answered?
Spring 2013

20. The Rule of Law
 Isthere a rule (i.e., law) that
applies?
 What is that rule (law)?
Spring 2013

21. Analysis
A clear, logical explanation of
the reasoning of the court.
– Explains the rule of law.
– Considers the arguments of the
parties.
 Why did the court decide the
way it did?
Spring 2013

22. How judges think . . .
 How has the rule of law been
applied before?
– Precedent
 How should it be applied in this
instance?
– What is the same as and what is
different from earlier cases?
Spring 2013

23. – What is the rationale for the rule?
 What are the primary defenses
to the rule?
– Do they apply?
Spring 2013

24. No precedent
A case of first impression . . .
– Situation sense
– Fairness between these parties
– Public Policy
Spring 2013

25. Conclusion
 Summary of what happened.
 Decisions we read are almost
always appellate decisions.
 Lower court’s decision is upheld,
reversed or remanded.
Spring 2013

26. Preliminary Facts
 Supreme
 1893
 Nix-- merchant
 Hedden -- tax collector
Spring 2013

27. Facts
 Tax collector
charged tax on
tomatoes
 Charged
“vegetable” tax
 Plaintiff claims
tomatoes are a
fruit, not a
vegetable
Spring 2013

28. Issue
 Are tomatoes a
fruit
 or a vegetable?
Spring 2013

29. Rule of Law
 Tariff Act
Spring 2013

30. Analysis
 Considered the meaning of “fruit”
and “vegetable” in the trade (and
in the dictionaries)
 Consumer use of tomatoes
– Used as a vegetable
– Not really a dessert
 Tomatoes are a “fruit of the vine”
Spring 2013

31. Conclusion
 Tomatoes are a vegetable
 Judgment of lower court affirmed
 (plaintiff loses)
Spring 2013