2. Drafting the Discussion pt. 2 – Rule Application Professor Mathis Rutledge

3. CREAC – an improved IRAC Conclusion – state your conclusion about the issue Conclusion – state your conclusion about the issue Rule – state the applicable rule of law Rule – state the applicable rule of law Explanation – Explain the rule Explanation – Explain the rule Application – Apply the rule to client’s facts Application – Apply the rule to client’s facts Conclusion – Restate your conclusion Conclusion – Restate your conclusion

4. Memo Discussion Template CR - Overview Paragraph (elements) CR - Overview Paragraph (elements) CR - Thesis Paragraph CR - Thesis Paragraph Conclusion about an element Conclusion about an element Rule determining when element satisfied Rule determining when element satisfied E - Explanation (rule support) paragraphs E - Explanation (rule support) paragraphs A - Application/Analysis paragraphs (case comparisons) A - Application/Analysis paragraphs (case comparisons) C - Restate Conclusion C - Restate Conclusion

5. Rule Explanation Most basic sense – formulate & explain the rule Most basic sense – formulate & explain the rule Where it comes from – jurisdiction, court Where it comes from – jurisdiction, court What it means What it means Support rule with citations to authority Support rule with citations to authority Show how courts have applied the rule in the past Show how courts have applied the rule in the past

6. Goals in Rule Explanation Educate reader about prior cases Educate reader about prior cases Give detailed case description Give detailed case description Provide foundation for your analysis Provide foundation for your analysis

7. Components of Rule Explanation Thesis/Topic sentence. Thesis/Topic sentence. Legally relevant facts of the case – only the facts relating to the particular factor. Legally relevant facts of the case – only the facts relating to the particular factor. Court’s rationale and holding – only part that relates to the factor. Court’s rationale and holding – only part that relates to the factor.

8. Understanding the Why Behind the Rule Try to understand the purpose behind the words of the rule and consider the principles or policies the rule serves Try to understand the purpose behind the words of the rule and consider the principles or policies the rule serves Underlying policy rationale or principle intended to encourage positive results for society Underlying policy rationale or principle intended to encourage positive results for society How will those policies and principles bear on your client’s case How will those policies and principles bear on your client’s case

9. Examples of Policy Concerns The law should place the risk of liability on the party most able to prevent the loss The law should place the risk of liability on the party most able to prevent the loss If bargaining positions are grossly unequal, the governing rule should protect the weaker party If bargaining positions are grossly unequal, the governing rule should protect the weaker party The rule should place the burden of proof on the party with the easiest access to the evidence The rule should place the burden of proof on the party with the easiest access to the evidence The rule should not create additional costs for a person unless the harm to be prevented justifies the imposition of those costs The rule should not create additional costs for a person unless the harm to be prevented justifies the imposition of those costs

10. Rule Application Purpose: links precedent to client’s case by comparing/contrasting facts, reasoning, policy. Purpose: links precedent to client’s case by comparing/contrasting facts, reasoning, policy. Expressly points out significant similarities and distinctions between the case law facts and your client’s facts. Expressly points out significant similarities and distinctions between the case law facts and your client’s facts.

11. Rule application Based on analogical reasoning – compare two things (precedent with client’s case) Based on analogical reasoning – compare two things (precedent with client’s case) Point out similarities that can help predict/advocate for a similar result Point out similarities that can help predict/advocate for a similar result Point out differences that may call for a different result Point out differences that may call for a different result

12. Two Parts to Rule Application Why a court may rule in client’s favor Why a court may rule in client’s favor Why a court may rule in opponent’s favor Why a court may rule in opponent’s favor

13. Rule Application Goal – apply rule just explained in rule explanation Goal – apply rule just explained in rule explanation Apply law to client facts Apply law to client facts Case comparisons Case comparisons

14. Components of Rule Application Thesis sentence. Thesis sentence. Legally relevant facts of the client’s case woven with legally relevant facts from case law. Legally relevant facts of the client’s case woven with legally relevant facts from case law. Statements spelling out the significance of the comparisons and distinctions between the facts of your case and the facts from case law. Statements spelling out the significance of the comparisons and distinctions between the facts of your case and the facts from case law.

15. Component 1- Thesis Sentence What is your factual conclusion? What is your factual conclusion? – How the rule applies to the client’s facts Reasons supporting your conclusion Reasons supporting your conclusion

16. Rule Application Start with a sentence or 2 that gives factual conclusion – thesis sentence Start with a sentence or 2 that gives factual conclusion – thesis sentence Use client’s facts to explain why thesis sentence is accurate Use client’s facts to explain why thesis sentence is accurate Ex: Under Starling and Mueller, the Hurt’s dock, ducks, and water all combined to lure Mikey onto the Hurt’s property and to injure him. Ex: Under Starling and Mueller, the Hurt’s dock, ducks, and water all combined to lure Mikey onto the Hurt’s property and to injure him. Buckley’s statement is much closer to the situation in Woodall, in which the minor made the representation “unknowingly.” Buckley’s statement is much closer to the situation in Woodall, in which the minor made the representation “unknowingly.”

17. Component 2- Legally Relevant Facts Apply the rule you explained Apply the rule you explained Compare the essential facts from the case authorities to the key facts of client’s situation Compare the essential facts from the case authorities to the key facts of client’s situation Note significant similarities & differences Note significant similarities & differences Explain inferences & factual conclusions a judge or jury could draw from the facts Explain inferences & factual conclusions a judge or jury could draw from the facts

18. Legally Significant Similarities & Differences Legally Significant if it relates to Legally Significant if it relates to An element or a term in rule of law An element or a term in rule of law A policy or principle A policy or principle Explain how the factual similarities between the cases demonstrate your points Explain how the factual similarities between the cases demonstrate your points What point are you making What point are you making Show your analysis. Why are these things comparable. Show your analysis. Why are these things comparable.

19. Example: Seller’s duty to disclose to potential buyers Rule: A seller of real property must disclose if the seller knows or should know of the defect and the defect is material. Rule: A seller of real property must disclose if the seller knows or should know of the defect and the defect is material. Legally significant similarities & differences would relate to Legally significant similarities & differences would relate to 1. the type of knowledge to raise the duty and 1. the type of knowledge to raise the duty and 2. how to determine whether a defect is material. 2. how to determine whether a defect is material.

20. Example: Burglary Illinois – knowingly and without authority enter the dwelling place of another. Illinois – knowingly and without authority enter the dwelling place of another. Issue is whether garage is a living quarters. Issue is whether garage is a living quarters. Precedent – evaluate the type of activities which owners use the structure Precedent – evaluate the type of activities which owners use the structure

21. Like the owners in McIntyre, Michael Stripe used the Stripe’s garage for activities commonly associated with a living quarters. Like the activities of “sitting, eating and cooking” in McIntyre, Michael Stripe’s use of the garage for playing and listening to music, watching television, and eating snacks are uses commonly associated with a living quarters. Like the owners in McIntyre, Michael Stripe used the Stripe’s garage for activities commonly associated with a living quarters. Like the activities of “sitting, eating and cooking” in McIntyre, Michael Stripe’s use of the garage for playing and listening to music, watching television, and eating snacks are uses commonly associated with a living quarters. Notice thesis sentence spells out the basis for comparison with conclusion Notice explicit comparisons of legally relevant facts

22. In addition, Michael Stripe’s use of the garage as a sleeping quarters during the summer and fall only strengthens the argument that the garage is a dwelling under the Statute. Unlike the McIntyre activities of barbecuing, eating and sitting, which can occur outside of a dwelling, sleeping is an activity uniquely associated with a living quarters. Moreover, Michael Stripe’s use of the garage is clearly distinguishable from Thomas, where the owner used the garage only for storage purposes. In addition, Michael Stripe’s use of the garage as a sleeping quarters during the summer and fall only strengthens the argument that the garage is a dwelling under the Statute. Unlike the McIntyre activities of barbecuing, eating and sitting, which can occur outside of a dwelling, sleeping is an activity uniquely associated with a living quarters. Moreover, Michael Stripe’s use of the garage is clearly distinguishable from Thomas, where the owner used the garage only for storage purposes. Notice thesis sentence Notice writer explains basis for distinction Notice comparison of legally relevant facts – those dealing with activities associated with living quartes

23. Facts related to knowing Buckley’s statement is much closer to the situation in Woodall, in which the minor made the representation “unknowingly.” In Woodall, the minor did not realize that he was making a representation of majority because he did not read the form contract he was signing. Similarly, Buckley did not realize that she might be making a representation of majority because she misunderstood the agent’s question. In both cases, the requisite intent to deceive is absent. Since Buckley did not intend to deceive Willis Chevrolet, a court would probably allow her to disaffirm the contract.

24. Assurances to the Reader in Rule Applications the case is binding legal authority the case is binding legal authority the fact you want to analogize to was a key fact the fact you want to analogize to was a key fact There’s enough information to independently evaluate the case There’s enough information to independently evaluate the case

25. Common Problems in Rule Application Don’t assume application is obvious and skip the process Don’t assume application is obvious and skip the process Case comparisons, focus legally significant similarities or differences Case comparisons, focus legally significant similarities or differences

26. Counter-Arguments Part of your rule application Other interpretations of precedent Cases the other side will use Weakness in client’s position

27. The State will probably use the Azbill decision to argue that Boozier was in actual control of the vehicle. The court stated that an officer does not need to see someone driving a car to reasonably believe they were doing so. Azbill, 685 S.W.2d at 164. The defendant in Azbill was the only person around the vehicle. As a result the court found it reasonable to believe he was the one in control of the vehicle. Id. Similarly, Boozier was found alone in the park. Officer Safety saw no one else in the park or near the car at the time of arrest. As a result the State may argue that it would be reasonable to believe Boozier was in control of the vehicle. The State will probably use the Azbill decision to argue that Boozier was in actual control of the vehicle. The court stated that an officer does not need to see someone driving a car to reasonably believe they were doing so. Azbill, 685 S.W.2d at 164. The defendant in Azbill was the only person around the vehicle. As a result the court found it reasonable to believe he was the one in control of the vehicle. Id. Similarly, Boozier was found alone in the park. Officer Safety saw no one else in the park or near the car at the time of arrest. As a result the State may argue that it would be reasonable to believe Boozier was in control of the vehicle. This argument should fail. Even though Boozier was the only person in the park at the time of arrest, it would not be reasonable to believe he was in actual physical control while intoxicated. In Dowell, the defendant was ruled not in actual control because he might not have driven the vehicle to its current location, and even if he did, he may have become intoxicated after he drove there. Dowell, 671 S.W.2d at 741. Just because Boozier was alone does not mean someone didn’t drive him to the park and walk off leaving him there by himself. Also, even if he did drive himself to the park, he may have become intoxicated after he stopped. The beer cans that were found next to the car make it reasonable to believe Boozier parked on the side of the road and then became intoxicated. This argument should fail. Even though Boozier was the only person in the park at the time of arrest, it would not be reasonable to believe he was in actual physical control while intoxicated. In Dowell, the defendant was ruled not in actual control because he might not have driven the vehicle to its current location, and even if he did, he may have become intoxicated after he drove there. Dowell, 671 S.W.2d at 741. Just because Boozier was alone does not mean someone didn’t drive him to the park and walk off leaving him there by himself. Also, even if he did drive himself to the park, he may have become intoxicated after he stopped. The beer cans that were found next to the car make it reasonable to believe Boozier parked on the side of the road and then became intoxicated.

28. Let’s Try It Rule Application Exercise Rule Application Exercise