12

PERSPECTIVES

A TALE OF TWO ISSUES: instrument.” Useful case law may contain general
principles that define dangerous instrument in this
“APPLYING LAW TO FACTS” context, like “a dog is used as a dangerous
instrument when it is within the control of the
“Once you have VERSUS “DECIDING WHAT defendant and is trained to attack.” Or it may
contain a helpful “fact story” like “In the Smith
determined THE RULE SHOULD BE” case, a defendant ordered a 100-pound Rottweiler
that had attended Joe’s Guard Dog Obedience
what rules BY MARY DUNNEWOLD School to ‘sic ’em,’ and the court held the dog was
Mary Dunnewold is a Legal Writing Instructor at used as a dangerous instrument.”
apply and Hamline University School of Law in St. Paul, Minn. Once you have determined what rules apply
and what fact stories are available for comparison,
what fact The first objective memo assigned in law school you develop arguments on the basis of that
usually involves a fairly straightforward set of facts information. So for the dog example, one rule-
stories are that correspond with a fairly straightforward set of based argument might be “Here, the state can
rules and cases. Students are then set about the argue that the defendant used his dog as a
available for task of interpreting the existing law and applying it dangerous instrument because the dog was within
to the given facts. This kind of assignment his control and was trained to attack.” An
comparison, introduces important basic concepts like analogical argument might be “Like the dog in the
synthesizing a legal rule from existing authority Smith case, here the dog was a trained dog of about
you develop and making rule-based and analogical arguments 100 pounds. Further, just as the defendant in the
to achieve a result. Smith case told his dog to ‘get ’em,’ here, the
arguments Later assignments may, however, strike out into defendant told his dog to ‘sic ’em.’ Therefore, like
new territory. Instead of being asked to analyze in the Smith case, the court in this case will
on the basis how existing law applies to a novel set of facts, probably conclude that the dog was used as a
students may be asked to analyze what the law dangerous instrument.” Thus, through a developed
of that should be in a particular jurisdiction, either because set of criteria and through comparison to existing
the law is unsettled or because the legal question examples, you can draw a conclusion about
has never before arisen in that jurisdiction. This
information.
” type of legal issue requires a slightly different
approach. Students should understand the
whether the particular legal idea at issue is satisfied
in this case.

difference between these two types of legal Deciding What the Rule
questions before setting out into the library. Should Be
An analysis of and argument about what the
Applying Existing Law to Facts
law should be, however, involve a different kind of
When the legal issue presented requires an strategy and thinking. Consider two different
application of existing law to novel facts, a good scenarios that may require the legal writer to define
starting point is to decide what main legal idea the the law. First, suppose your legal issue is whether
issue involves. You can then focus on that main under this jurisdiction’s first-degree robbery statute
legal idea, or “phrase that pays,”1 finding and a dog can be considered a dangerous instrument.
analyzing authority that either 1) establishes what The courts in this jurisdiction have never decided
rules determine when the legal idea is satisfied and the issue, so there are two possible rules the court
when it is not; or 2) provides factual examples of could choose: yes, a dog can be considered a
when the legal idea is satisfied and when it is not. dangerous instrument, and no, a dog cannot be
For instance, if you are analyzing whether, under a considered a dangerous instrument. Or second,
particular fact scenario, a dog has been used as a suppose your legal issue is whether under this
dangerous instrument for purposes of a first-degree jurisdiction’s Heart Balm statute, fault should be a
robbery statute, the phrase that pays is “dangerous factor in deciding who gets to keep the ring after
an engagement is terminated.2 Numerous courts in
1 See Mary Beth Beazley, A Practical Guide to Appellate

Advocacy 54–55 (Aspen L. & Bus. 2002). 2 Thanks to Debby McGregor for sharing this example

through a problem bank.

Fall 2002 Perspectives: Teaching Legal Research and Writing Vol. 11

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PERSPECTIVES

this jurisdiction have decided the issue, but some dangerous instrument, so this court should too.
courts have decided yes, fault is a factor, and some Further, if earlier courts decided that a dog cannot
have decided no, fault is not a factor. So the be considered a dangerous instrument, but all
current court must choose which rule it will apply. courts in the last 20 years have decided that it can,
These two scenarios do not require analysis of
whether a particular definition is satisfied, such as
you can argue that the court should follow the
“modern trend.” Also, you may base an argument
“In deciding
was the defendant “at fault” or was the dog actually on the fact that certain well-respected courts or
which is the
used as a “dangerous instrument.” Rather, these judges or courts from neighboring jurisdictions
issues require analysis about which is the better have decided one way or the other. Research and better rule, the
rule. Only after we decide which rule will apply analysis involving this kind of issue should
can we move on to determine whether our facts fit therefore include good “mapping” of how other legal writer
the definitions the rule prescribes, the type of issue courts are deciding the same issue, when those
discussed earlier. decisions have been made, and what particular may also
To analyze which is the better rule, we have to courts and judges have made the decision.
use a different set of analytical tools than we used Finally, the legal writer deciding a “best rule” examine what
for the first kind of issue. A primary tool used to question should also be concerned about achieving
determine the better rule is policy analysis. The the most workable and just result for the most the majority of
judge adopting or applying a new rule will be people. Thus, the overall effect of the rule, the ease
concerned about whether the new rule implements or difficulty of applying the rule, and the practical other courts
sound policy. The policy driving the rule should be results in the case presented will all provide bases
consistent with the policy within that particular for argument. have held and
area of the law and consistent with policy within Notice that for the most part, when thinking
that jurisdiction in general. For instance, if the about what the rule should be, the facts of the what the trend
judge must decide whether fault should be particular case in front of you are not the main
considered in determining who gets to keep the
ring after an engagement termination, the judge
focus. Rather, the main focus is the proposed rule’s
shape, effect, and consistency with other rules in
seems to be.
”
may want to examine current policies in other areas that area of the law. This focus differs from the
of family law. Since other areas of family law analytical focus for an “apply existing rule to given
currently reject a fault analysis in favor of a no-fault facts” issue, where the concern is primarily about
analysis (e.g., in marital termination proceedings), whether our facts fit under the umbrella of the
you could argue that to ensure consistent policy, existing rule. The straight analogical analysis that
the court should adopt the no-fault rule. was so important to us under the “apply rule to
When researching a question like this, then, the facts” issue (“like the dog in the Smith case, the dog
researcher should look for discussion of the policy in our case was barking menacingly; therefore it
behind a particular rule and for discussion or clues was a dangerous instrument”) does not work here.
about the policies implemented in this area of the Rather, we have to make policy arguments and
law in general. Possible sources include cases from arguments about the “legal landscape” and how
other courts that have already decided to adopt or this rule fits into it.
reject a certain rule and cases from the governing
jurisdiction involving related areas of law. Legisla- Conclusion
tive history may also provide information about This discussion is not intended to exhaustively
the policy intent behind a statute that must be examine all the kinds of analysis helpful to these
interpreted. two types of legal issues. But the student legal
In deciding which is the better rule, the legal writer who sees the difference between the two
writer may also examine what the majority of other types of issues and thinks carefully about how to
courts have held and what the trend seems to be. approach each type before starting the research and
For instance, if the issue is whether a dog may be analysis process will plan and work more efficiently
considered a dangerous instrument, you may argue and effectively.
that all other courts that have entertained the issue © 2002 Mary Dunnewold
have decided that a dog can be considered a

Vol. 11 Perspectives: Teaching Legal Research and Writing Fall 2002