PART 3: QUESTIONS AND CASES

I. Questions

1. Why we should study legal reasoning?

2. What is the IRAC formula in legal reasoning?
3. How to summary a case?
4. How to define law applied in a case?
5. What are the questions to ask when reading a case?
6. How do you prepare an oral argument?
7. What are deductive arguments?
8. What are inductive arguments?
9. What is predictive writing?
10.What is Persuasive writing?
11.What is the difference between predictive and persuasive writing?
12.How to read texts about law effectively?
13.What are methods of reading texts about law?
14.How to evaluate what you are reading?
15.What is legal argument?
16.What are skills for argument?
17.What is the structure of an oral argument?
18.What are differences between written and oral argument?
19.What are the role and structure of a question presented?
20. How a persuasive question presented persuades?
21.How to evaluate your questions presented for persuasiveness?
22.How points and headings work?
23.How to evaluate your headings and sub-heading for effectiveness?
24.True or False statements (explanation needed)
a. The facts of a case suggest an issue
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b. Critical thinking is the only skills necessary for the study of legal reasoning
25.True or False statements (explanation needed)
a. In the narrow sense, legal reasoning is the arguments that judge give, frequently
in written form, in support of the decisions they render.
b. A thesis statement is a sentence (or two) that states what you are going to do in
your essay.

II. Topics for discussion:

1. Critical thinking skills
2. Predictive writing
3. Persuasive writing
4. Role of language in legal profession
5. Primary and secondary sources
6. General and specific language skills
7. Types of argument
8. Types of argument in legal profession
9. IRAC formula in legal argument
10.Effective oral argument
11.Writing memoranda
12.Fact statements: objective and persuasive
13.Question presented: objective and persuasive
14.Appellate practice
15.Writing the appellate brief

III. Case analysis

1. “The European Union Belongs to its Citizens: Three Immodest Proposals’

 (1997) 22 EL REV 150-56 (case will be provided)

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Stage 1: Preparation prior to reading
Indentify your reading intention with the following questions:
- Why am I reading this text?
- What do I hope to get out of this?
- What does the title of the article suggest?
Stage 2: Methods of reading
Reading very quickly and general through the text noting:
- Publication date: 1997. The date gives a context to the article. Today you are reading
this many years later it was written
- Headings and sub-headings:
1) Introduction
2) Proposal 1: The European Legislative Ballot
3) Proposal 2: Lexcalibur – the European Public Square
4) Proposal: limits to growth
- Author details
- The Introduction (details are given)
Stage 3: Understanding what is being read
- Guessing words you do not know
- Identifying main ideas
- Identifying subsidiary ideas
- Identifying overall text organisation
2. Case on oral argument
− Read the following extraction and analyze the structure of the argument?
− Which part of the argument summarizes the facts of the case?
− Which part of the argument states the rule applicable to the case?
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Your Honors, I am Clyde Farnsworth, representing Merritt Bressnahan, the appellant here
and the defendant below. This is an appeal from a criminal conviction

Ms. Bresnahan suffers from a medical condition known as gender dysphoria syndrome. A
person with this condition is psychologically of one gender but was born with the
reproductive organs of the other gender. Psychotherapy has been shown to have no effect on
this disorder. But the suffering it causes is so profound that clinics at leading hospitals must
resort to sex reassignment surgery to alleviate the condition. And wise medical practice
requires that before so radical a step, the patient must dress and live as person of the
psychological gender for a long period.

On her doctor’s orders, Ms. Bresnahan was so dressed when she was arrested for violaing
section 240.35 of the Penal law, which punishes anyone who – in the words of the statute –
is “in any way disuished by unusal or unnatural attire” and “loiters, remains, or congregates
in a public place” with others similarly attired. When arrested, Ms. Bresnahan was walikng
to luch in the financial distric of Manhattan wih two other people who suffer from the same
disease.

By appropriate motions in the trial court, Ms. Bresnahan sought dismissal of the charge on
the grounds that her conduct could not violate the statute, and that, if it did, the statute would
invade, among other things, her constitutional right to privacy. Even though the Prosecutor
concedes that Ms. Bresnahan was following her doctor’s orders according to accepted
medical treatment, the trial court denied the motions and convicted her.

The question before this court are whether the legislature really meant to punish people like
Ms. Bresnahan, and, if the legislature did, whether her constitutional right to privacy
nevertheless protects her freedom to choose her own clothing.

The legislature did not intend to restrain medical treatment of a person under legal
prescription… Thus, section 240.35 was never intended to punish a patient for complying
with an accepted medical treatment.

The second question before the Court is whether section 240.35, if it has the meaning urged
by the Prosecutor, violates Ms. Bresnahan’s constitutional right to privacy…

Therefore, the judgement below should be reversed because…

 Or: In conclusion, Ms. Bresnahan shall be released from the charge because…

3. Case for Predictive writing

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Case Summary: Bob hires Attorney Sally because he wants to sue his neighbor John.
John's dog has bitten Bob, causing injuries sufficient for Bob to seek treatment. Bob now
has medical bills totaling $800, and he wants John to pay. After the initial interview,
Attorney Sally and/or her crack paralegal will find the law applicable to the situation,
based on jurisdiction. That is, she will answer the question, 'What is the law that applies
in this case?' Then she will research the history of cases in that jurisdiction which used
that law as basis for decision. By comparing the client's fact pattern to the most similar,
on-point cases, she will show logically how the client's case is likely to fare before a
judge. From this, Attorney Sally can easily determine Bob's chances of prevailing in court
against John. Keep in mind that John's attorney will prepare a similar memorandum based
on the same law & cases which will be more or less identical in substance to the one
Attorney Sally prepares.

Every lawyer and paralegal must learn this writing style in order to effectively work in the
legal profession.

(http://www.webanswers.com/legal/attorneys-paralegals/what-is-the-significance-of
predictive-writing-4092ea)

Issue: What is the significance of predictive writing?

4. Case 4: Loman's Fashions - Breach of contract claim

Loman's Fashions, a retailer of women's and men's outerwear, distributed a circular in

November advertising a manufacturer's closeout of designer women's leather coats for
$59.99, coats that regularly sold for $300.00. The ad announced that the store would open
at 7 a.m. on Friday, November 30, and stated that the "early bird catches the savings!"
After about fifteen minutes, all the advertised coats had been sold. At 7:30 a.m., a shopper
inquired about the coats and was told that there were none left, but she complained that
Loman's was obligated to sell her a comparably valued designer leather coat at the
advertised price. The store manager declined, and the shopper filed a complaint in Small
Claims Court, alleging that Loman's had breached a contract by failing to sell the
advertised leather coats at the advertised price.

Loman's president, Willi Loman, stated that the store occasionally gives rain checks
when it is possible to replenish supplies of an item that Loman's can purchase at a
discount.
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In this case, the manufacturer had discontinued the line of coats and Loman's was not
prepared to sell other, designer leather coats at such a drastic markdown. Loman expressed
concern that, if the shopper's interpretation were to hold, Loman's would have to
reconsider its marketing strategies; she had assumed that the advertised terms applied
while supplies lasted. She asks whether Loman's would have any contractual obligation
under these circumstances.

1. Case Summary: Carlill v Carbolic Smoke Ball Co Ltd (1892)

Mrs. Carlill made a retail purchase of one of the defendant’s medicinal products: the
‘Carbolic Smoke Ball’. It was supposed to prevent people who used it in a specified way
(three times a day for at least two weeks) from catching influenza. The company was very
confident about its product and placed an advertisement in a paper, The Pall Mall Gazette,
which praised the effectiveness of the smoke ball and promised to pay £100 (a huge sum
of money at that time) to:

... any person who contracts the increasing epidemic influenza, colds, or any disease
caused by taking cold, having used the ball three times daily for two weeks according to
the printed directions supplied with each ball.

The advertisement went on to explain that the company had deposited £1,000 with the
Alliance Bank, Regent Street, London as a sign of its sincerity in the matter. Any proper
plaintiffs could get their payment from that sum. On the faith of the advertisement, Mrs
Carlill bought one of the balls at the chemists and used it as directed, but still caught the
‘flu’. She claimed £100 from the company, but was refused it, so she sued for breach of
contract.

2. Case Summary: Rex v Manley, 1 K.B. 529 (1933).

Facts: Manley made false allegations to the police that a man had taken her money after
hitting her. Manley was indicted and charged with committing an act tending to the public
mischief for making the false statement to the police and plead not guilty. Defendant
argued at trial that the indictment contained no offense known to law and that there was
no case for the jury to decide. The judge instructed the jury on the offense of public
mischief and

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that the offense in the indictment was a common law misdemeanor. Manley appealed her
conviction.

Issue: Is an act that prejudices the community indictable under the common law of
crimes?

Holding and Rule: Yes. An act that prejudices the community is indictable under the
common law of crimes.

Committing an act tending to the public mischief is a misdemeanor. The court indicated
that guilt of this crime would be predicated on the fact that the defendant caused two
officers to devote their time to a nonexistent crime and that other members of the public
who answered the description of the nonexistent suspect were put at peril of suspicion and
arrest. This burden of proof was met.

Disposition: Affirmed.

3. Case study: Donoghue v. Stevenson (1932)

This famous case established the civil law tort of negligence and obliged manufacturers to
have a duty of care towards their customers. The events of the complaint took place in
Scotland in 1928, when Ms May Donoghue was given a bottle of ginger beer, purchased
by a friend. The bottle was later discovered to contain a decomposing snail. Since the
bottle was not of clear glass, Donoghue was not aware of the snail until she had consumed
most of its contents. She later fell ill and was diagnosed with gastroenteritis by a doctor.
Donoghue subsequently took legal action against the manufacturer of the ginger beer,
Stevenson. She lodged a writ in the Court of Sessions (Scotland’s highest civil court)
seeking £500 damages.
Because her friend had purchased the drink, Donoghue could not sue on the basis that a
contract had been breached; her lawyers instead had to claim that Stevenson had a duty of
care to his consumers and that he had caused injury through negligence – an area of civil
law that was largely untested at that time. Stevenson’s lawyers challenged the action on the
basis that no precedents existed for such a claim. They referred to an earlier action, Mullen
v. AG Barr, where a dead mouse was found in a bottle of soft drink; judges in this case
dismissed it due to the lack of precedent. However Donoghue was later granted leave to
appeal to the House of Lords, which then had the judicial authority to hear appellate cases.
The leading judgement, delivered by Lord Atkin in 1932, established that Stevenson
should be responsible for the well-being of individuals who consume his products, given
that they could not be inspected. The case was returned to the original court; Stevenson
died before the case was finalised and Donoghue was awarded a reduced amount of
damages from his estate.