Working with Cases

MAKING SOUND CASE ANALOGIES

How to get a busy partner to buy your analogy or your distinction of a case 1

. No two cases are exactly alike. But two situations may be analogous.

. To accurately predict how a court will decide your client’s case, you need to persuade the supervising attorney that a court is likely to view your facts as more similar to certain decided cases and less similar to other decided cases.

. You are in the business of selling analogies and distinctions.

. Here's how to make the sale.

I. Selling analogies

The best way to get the supervising attorney to buy your analogy to a decided case is to:

. assure the supervising attorney that the decided case is binding legal authority;

. assure the supervising attorney that the fact you want to analogize to was a key fact in the decided case; and

. give the supervising attorney enough information to independently evaluate whether the fact from the decided case really is similar to the fact in your client’s case.

Do 1 and 2 in the Rule Proof, usually. Do 3 in the Application. Make sure you have done all three steps for every analogy you want to draw in the Application.

1 Sarah Ricks, Rutgers, The State University of New Jersey School of Law.

1 A. What analogies are the most helpful for the busy partner?

Draw analogies between your client’s facts and the key facts in a binding legal authority.

In each example below, assuming the attorney is applying the Wyoming burglary rule, can you easily tell whether Picaroni is:

. binding legal authority, and

. whether the facts mentioned were the key facts that determined the court’s ruling?

(1)In People v. Picaroni, 719 P.2d 193, 198-99 (Wyo. 1986), the Wyoming Supreme Court affirmed Anthony Picaroni’s conviction for burglarizing the contents of a poorly lit garage, including two crates of dishes later found in his truck, and rejected Mr. Picaroni’s argument that his conviction of burglarizing the garage was inconsistent with his acquittal for burglarizing the main house, because the two crimes were not identical.

(2)The Picaroni court held that burglary of a garage was not burglary of an inhabited dwelling house. People v. Picaroni, 719 P.2d 193, 198-99 (Wyo. 1986).

(3) Burglary of a structure which is not attached to a residence does not qualify as burglary of an inhabited dwelling house. People v. Picaroni, 719 P.2d 193, 198-99 (Wyo. 1986)(holding burglary of an unattached garage constituted a distinct crime from burglary of an adjacent inhabited dwelling because the garage and the house were two unconnected, adjacent buildings, separated by a cement walkway).

2 (4) Burglary of a structure which is not attached to a residence does not qualify as burglary of an inhabited dwelling house. People v. Picaroni, 719 P.2d 193, 198-99 (Wyo. 1986). For example, the Wyoming Supreme Court has held that burglary of an unattached garage constituted a distinct crime from burglary of an adjacent inhabited dwelling because the garage and the house were two unconnected, adjacent buildings, separated by a cement walkway. Id.

B. What analogy are you selling?

Analogies must be explicit and obvious.

In each example below, can you easily tell what analogy the attorney is trying to sell to the busy partner? Why or why not?

(1) Here, the trailer was separate from Ms. Peluso's main house.

(2) Like Picaroni, here the trailer was separate from Ms. Peluso's main house.

(3) Like the unattached garage in Picaroni, which was separated from the house by a cement walkway, here the trailer was separate from Ms. Peluso's main house.

3 II. Selling Distinctions

The best way to get the supervising attorney to buy your distinction of a binding legal authority is to:

1 assure the supervising attorney that the fact from the decided case was a key fact in the decided case; and

2 give the supervising attorney enough information to independently evaluate whether the fact from the decided case really is different from the fact in your client’s case.

Do 1 in the Rule Proof, usually. Do 2 in the Application. Make sure you have done both for every distinction you want to make in the Application.

A. What distinctions are you selling?

Make distinctions between your client’s facts and the key facts in the binding legal authority. Remember, if the fact from the binding legal authority that you want to distinguish from your client’s case was not key to the outcome of the decided case, noting the difference will not effectively distinguish your client’s case from the decided case. Assuming you are applying the Wyoming burglary rule in each example below, can you easily tell:

. whether Cook is binding legal authority and . whether the facts mentioned are key facts?

(1) Wyoming law limits burglary to theft from “an inhabited dwelling house,” which includes a structure which is an attached and integral part of a house. People v. Cook, 719 P.2d 193, 195 (Wyo. 1986). The Wyoming Supreme Court affirmed a burglary conviction for burglary of an inhabited dwelling house where the criminal defendant burglarized an enclosed patio and a garage attached to a house. Id. at 196. The court held that neither the garage nor the patio were structures separate from the main house but rather “they [were] an integral part of the [victim’s] residence.” Id. The attached garage in particular was “simply one room of several which together

4 compose the dwelling . . . especially . . . where . . . the garage can be reached through an inside door connecting it to the rest of the residence.” Id. at 198.

(2) The Cook court held that a building which is an attached and integral part of a house can qualify as “an inhabited dwelling house.” People v. Cook, 719 P.2d 193, 195 (Wyo. 1986).

(3) In People v. Cook, 719 P.2d 193, 195 (Wyo. 1986), the Wyoming Supreme Court affirmed Robert Cook’s conviction for an early morning burglary of two chairs, a clock-radio, and a tool box from the garage and patio of Michael Van Horn because the garage and patio Mr. Cook burglarized qualified as part of the inhabited dwelling house under the common law burglary rule.

B. What distinctions are you selling?

Distinctions must be explicit and obvious. In each example below, can you easily tell what distinction of Cook the attorney is trying to sell to the busy partner?

(1) Unlike the attached garage and enclosed patio in Cook, which qualified as integral parts of the main house because they were akin to additional rooms, Ms. Murray's trailer does not share any door with the main residence, even when parked in the driveway.

5 (2) Unlike Cook, Ms. Murray's trailer does not share any door with the main residence, even when parked in the driveway.

(3) Here, Ms. Murray's trailer does not share any door with the main residence, even when parked in the driveway.

Clinching the sale of your analogies and distinctions

Please take out your draft memo and a highlighter.

Application

Looking only at the Application/Analysis, choose an important analogy you drew, comparing the facts of a decided case to the facts of your case. Highlight that analogy only.

1. Does the analogy give the busy partner enough information to independently evaluate whether the fact from the decided case really is similar to the fact in your client’s case?

2. If you have no case names in the Application/Analysis, will the busy partner easily grasp what legal principles are being applied and what their sources are?

Rule Proof

Keeping in mind the analogy you highlighted above, now locate in the Rule Proof the explanation of the legal significance of the fact that you analogized to in the Application. Highlight the explanation/Rule Proof for that rule.

3 Does the Rule Proof tell the busy partner that the decided case is binding legal authority through proper attribution?

6 4 Does the Rule Proof explain that the fact you later analogize to in your Application was a key fact in the decided case?

5. Does the Rule Proof for that case include any unimportant facts that do not help the busy partner to understand why the court ruled the way the court did?