The Rule Proof Variations By Amy Bitterman Step One : State the general rule. Students first Amy Bitterman is a Legal Research and Writing Step Two : Illustrate the general rule by citing “ Instructor at Rutgers University School of Law– specific examples of how courts have applied wrestle with Newark in New Jersey. it to particular facts. synthesizing case Synthesizing multiple cases into a series of general The two-part Rule Proof is most effective when principles is a key technique for writing effective the general rule is self-evident or is determined by law when learning briefs and memoranda. It is also one of the most common usage and is not defined in any detail by a to draft the Rule difficult tasks for first-year students to master. Faced statute or case law. In such instances, a middle step with explaining numerous decisions, the tendency explicating the factors or criteria that courts use to Proof section of of most students is to deal with precedent by reach a conclusion about a specific element is not focusing on the facts of specific cases without necessary. However, where a more complicated the IRAC paradigm analyzing how those decisions relate to one another. judicial interpretation of an element is involved, employed in This method is not only inefficient when you have which is usually the case, the ability to formulate strict page limits, it also leads to heavy reliance on general principles from a series of specific examples legal writing fact-to-fact comparisons when arguing why case is crucial. I have found that the following three- for small-scale law mandates a particular decision when applied part Rule Proof, which requires students to lay out to a client’s problem. Thus, faced with a negative an additional “criteria” step, is an effective way of organization. holding, students tend to focus exclusively on encouraging case synthesis: ” factual differences between their client’s scenario Step One: State the general rule. and precedent, instead of considering the more Step Two: Flesh out the legal standard by persuasive argument that the underlying principles discussing up front the factors/criteria that of the prior decisions, when applied to the client’s courts use to evaluate whether the general facts, mandate a ruling in the client’s favor. In short, rule is met; in other words, synthesize the case after laying out the particulars of cases, students fail law by culling common themes from multiple to take the next step in the inductive reasoning authorities to arrive at the underlying process of moving to general conclusions. principles that tie the cases together. Students first wrestle with synthesizing case law Step Three: Use specific examples from case when learning to draft the Rule Proof section of law to show how the courts have applied the the IRAC paradigm employed in legal writing for factors/criteria to particular facts. small-scale organization. 1 To encourage case law synthesis, I have found it helpful to introduce Rule To illustrate the differences between the two Rule Proofs using a two-part model and a three-part Proof “variations,” I’ve had students work with the model. The two-part model breaks down as New York statute for criminal possession of stolen follows: property in the first degree, which provides that the prosecution must show: 1. The defendant knew the property was 1 The four-part small-scale organization paradigm is broken stolen; down as follows: I = identification of the legal rule 2. The defendant possessed the stolen R = examination of how the rule is applied in relevant precedent property; A = application of the rule to your client’s facts 3. The defendant intended to benefit himself; C = conclusion See, e.g. , Helene S. Shapo, Marilyn R. Walter & Elizabeth Fajans, and Writing and Analysis in the Law (5th ed. 2008). 109 Perspectives: Teaching Legal Research and Writing | Vol. 18 | Nos. 2 and 3 | Winter/Spring 2010 4. The stolen property was worth more than $1 However, the case law provides a more complicated million. 2 definition of the second element than the common usage definition of “possession.” 3 Pursuant to case The students are asked to consider whether the law, a defendant possesses the stolen property if he prosecutor has a case under the following facts: exercises control over the premises where the object One of the key In 2000, A’s brother, B, stole a Bible from a church was kept or if he exercises control over the item itself, “ after being fired from his job there. B told A that as evidenced by handling the item or arranging for its prewriting tools for the Bible was a gift from his former employer; he dispersal. 4 Thus, in this instance, the three-part Rule first-year students moved into A’s house the same year he stole the Proof is appropriate. Bible and the book has been in her house ever since. Sample Rule Proof: The prosecutor must establish is the preparation B was very secretive about the book and told A not that the defendant possessed the stolen property to mention it to anyone. In 2008, B disappeared and of case charts (Rule Proof 1). The prosecutor can satisfy this A does not know his whereabouts. From 2000 until element by showing that the defendant exercised summarizing the 2008, A did not touch the Bible. In 2009, A took the dominion and control over either the stolen item Bible to an antiques dealer for an appraisal. The itself or the premises where the item was kept (Rule key information dealer offered her $3,000 for it. A then brought Proof 2). Case A (finding that the possession element the Bible to Sotheby’s for a second appraisal. The provided in was met where the defendant was the manager of the Sotheby’s appraiser recognized the Bible as a stolen store where the stolen goods were kept) (Rule Proof opinions. work that was worth more than $3,000,000. While 3); Case B (determining that the possession element ” A claims she did not think the book was worth was not met where the defendant had nothing to do much as it was “old and had no pictures,” the with the sale of the goods) (Rule Proof 3). Sotheby’s appraiser testified that A sought a second appraisal because she thought the book was Prewriting Process worth more than $3,000. The Sotheby’s appraiser An effective Rule Proof at the writing stage begins also noted the Bible had a torn label on the first with effective prewriting techniques. One of the page and testified that the label probably identified key prewriting tools for first-year students is the the owner. preparation of case charts summarizing the key Applying the statute to these facts, the fourth information provided in opinions. Typical case element of section 165.54 provides a clear example charts start with the names and facts of the case, an of when a two-part Rule Proof is sufficient, since approach that tends to lead to overreliance on case- the valuation requirement is self-evident and by-case analysis. 5 To push students toward case the case law does not provide much additional synthesis, I suggest that they work with a case chart explication. Either the property at issue is worth that forces them to think about the criteria that more than $1 million on its face or as determined courts use to determine when a general legal element by expert valuations or the fourth element is not is met. For example: satisfied. Sample Rule Proof: To establish possession of stolen property in the first degree, the prosecutor must show that the item at issue was worth more than $1 million (Rule Proof 1). In Case A, the court determined that the first element was satisfied when 3 By way of example, the American Heritage Dictionary defines the defendant had a stolen painting valued at $4 “possess” as “to exert influence or control over.” million (Rule Proof 2). 4 See, e.g. , People v. Fetter, 607 N.Y.S. 2d 381, 382 (N.Y. App. Div. 1994). 5 Deborah Shore, A Revised Concept Chart: Helping Students Move Away from a Case-by-Case Analysis , 11 Perspectives: 2 N.Y. Penal Law §165.54 (McKinney 2004). Teaching Legal Res. & Writing 123 (2003). 110 Perspectives: Teaching Legal Research and Writing | Vol. 18 | Nos. 2 and 3 | Winter/Spring 2010 Relevant Rule Rule-Related Facts Outcome of Rule Criteria Used to Case Name Determine Rule Possession of stolen Defendant was the Satisfied Whether defendant Case A property manager of a store had control over the where stolen goods premises where the were found. stolen property was stored “I have used a Same Defendant was a Not satisfied Same; whether Case B variation of the security guard in a defendant had control warehouse. He did over the stolen $10,000 Pyramid not handle the boxes property itself that contained the game to stolen goods and did not direct their sale. encourage students to develop the I have used a variation of the $10,000 Pyramid I Defendant could not clearly identify the game to encourage students to develop the person who sold him a car that was missing inductive inductive reasoning skills needed to complete the its radio property. reasoning skills “criteria” column of the chart. Using samples from I The car radio was missing. 6 assignments or in-class exercises, I ask one set of needed to These facts can by “synthesized” into three basic students to list a series of fact findings from case criteria: complete the law relating to a specific issue and have another group come up with an underlying principle that evidence of recent, exclusive possession ‘criteria’ column unites these findings.