Week 0 - Legal Reasoning, Analysis and Writing

LEGAL REASONING,
ANALYSIS
AND
WRITING
UEL, 2020 Dr. Đào Gia Phúc (LL.D.)

Legal reasoning and analysis 2
COURSE OUTLINE
1. LEGAL ANALYSIS
2. CASE BRIEFS
3. LEGAL MEMORANDUM
4. ACADEMIC INTEGRITY

1. FROM
LEGAL ANALYSIS
TO
LEGAL MEMORANDUM

LEGAL ANALYSIS
- What is ‘Legal Analysis’?
- Why lawyers analyze legal questions?
Dr. Đào Gia Phúc (LL.D.)

LEGAL ANALYSIS
- Legal Analysis is not an ALIEN Mode of Thought!
- Legal Analysis is based on a way of thinking that you
use every day when you make decisions.

LEGAL ANALYSIS
Ex: A boyfriend wants to know whether his girlfriend
likes a lipstick for her birthday.
- The boyfriend’s Question: Will his girlfriend like the
lipstick?

LEGAL ANALYSIS
Ex: A husband wants to know whether his wife like a
lipstick for her birthday.
à By the logical way of thinking:
-  Step 1: Sift through past experiences
-  Step 2: Form an understanding of why she liked some
gifts and disliked others

-  Step 3: Apply that understanding to evaluate whether
she will like the lipstick.

LEGAL ANALYSIS
Exercise 1-A

LEGAL ANALYSIS
Steps are considered for Legal Analysis
- Step 1: Find relevant laws and similar cases
- Step 2: Analyze the law and cases to find the Rule
- Step 3: Apply the Rule to predict the Outcome

LEGAL ANALYSIS
Ex: Your client has been sued under a law that reads:
“If a dog injures a person without provocation, then
the dog’s owner must pay the medical expenses of
the injured person.”
Your client’s dog scratched Bobby after he inadvertently

stepped on the dog’s tail. Bobby’s mom brought him to
the doctor and send your client the bill.
Your client wants to know whether he must pay the bill.
LEGAL ANALYSIS
Ex: Your client has been sued under a law that reads:
“If a dog injures a person without provocation, then
the dog’s owner must pay the medical expenses of
the injured person.”
Questions:
(1)  Is a scratch an ‘injury’?
(2)  Is stepping on a dog’s tail by mistake a

‘provocation’?
LEGAL ANALYSIS
Ex: Your client has been sued:
The law defines ‘injury’ including:

“any physical harm, however small, resulting from a bite,
nibble, nip, chomp, snip, claw, scrape, or scratch at or
upon a person”
à Bobby’s scratch ‘legal issue’ is defined by the law

LEGAL ANALYSIS
However, the law does not defines the term

‘provocation’

LEGAL ANALYSIS
However, the law does not defines the term

‘provocation’
- How the term has been applied in the past similar
cases?

LEGAL ANALYSIS
-  The Newspaper case: A delivery boy threw a newspaper
over thick hedges and inadvertently hit a dog sleeping on the

other side. The dog ran after the boy and bit him. The judge
held that the dog was not provoked.
-  The Stick case: A girl hit a dog with a stick three times. The
dog then bit the girl. The judge held that the dog was
provoked.
-  The Stone case: A girl threw a stone at a dog but missed.
The dog then bit the girl. The judge held that the dog was
provoked. Dr. Đào Gia Phúc (LL.D.)
LEGAL ANALYSIS
Exercise 1-B
Exercise 1-C(1) and 1-C(2)

LEGAL ANALYSIS
Ex: Your client has been sued under a law
Use the Rule to predict how the judge would decide your
client’s case.
à A dog is provoked if the person bitten was trying to
anger or taunt the dog.

à A judge will probably decide that the dog was not
provoked because Bobby stepped on the dog’s tail by

mistake.
LEGAL ANALYSIS
Exercise 1-D

LEGAL ANALYSIS
Steps are considered for Legal Analysis
- Step 1: Find relevant laws and similar cases
- Step 2: Analyze the law and cases to find the Rule
- Step 3: Apply the Rule to predict the Outcome
à The purpose of Legal Analysis is to find out the

Legal Issues of the case

LEGAL ANALYSIS
Legal Analysis is an Art, not a Science or Mathematical
Method
- The answer to a legal question is rarely definitely
- Creativity and analytical skills need to be used to identify
legal questions, to find the law, and to predict an outcome

in a client’s case by applying the law to the fact.

2. READING CASES
AND
WRITING CASE BRIEFS

CASE BRIEFS
- What is a Case?
- Why lawyers analyze legal questions?

CASE BRIEFS
- The term Case refers to a court’s written decision or an
opinion.
- Lawyers and Law student read cases to learn the
interpretation of a law, to understand how the law

apply in facts, and to resolve legal questions.

CASE BRIEFS
A court written opinion generally states:
1.  The facts that give rise to the dispute (including how the
case got to court);

2.  The issue – a question about what the law means or how
(or whether) the law applies to the facts of the dispute;

3.  The law applicable to the dispute
4.  The holding – the court’s decision on the issue; and
5.  The reasoning, including any relevant policy interest, that
explain and supports the holding.

CASE BRIEFS
Reasons for Briefing a Case:
•  to understand to court’s opinion;
•  to predict the outcome of a case;
•  to come up with arguments for a client;
•  to master new case law in a particular area of expertise;
•  to show a judge how “late-breaking” law relates to the
proceedings;
•  to respond to a specific question about a case.

CASE BRIEFS
Structure:
1.  The facts, including important procedural facts;
2.  The issues;
3.  The law;
4.  The holdings; and
5.  The reasoning.


3. FROM
LEGAL PROOFS
TO
LEGAL MEMORANDUM

LEGAL PROOFS & LEGAL MEMORANDUM
- Legal memorandum is used to explain in writing the
answer from a legal question.
- A legal proof is a way to present your analysis using a
logical framework.

LEGAL PROOFS
IRAC
- Issue
– Rule
- Rule Support
– Application
– Conclusion

How do we solve a
legal problem/answer
an exam question ?
We follow the
IRAC
method !
Let’s practise this …
On 1 October 2010, Sam, a 22-year-old man from Sydney,

was stopped by police while riding his bicycle on the sidewalk
next to Main Street. Sam was charged with a violation of the
Road Traffic Act, 1985, Section 18.
MAIN STREET
SIDEWALK

Sam has hired you as his lawyer, and asks you to advise him
whether he should fight the charges in court or just go ahead
and pay the fine of $250. Please fully advise Sam.
MAIN STREET
SIDEWALK

How would
you advise
Sam?
First, you need to

identify the
legal issues
raised by the
question.
What’s the main

legal issue
presented by the
question?

Issue: Did Sam

violate the Road
Traffic Act, 1985,
Sec. 18?

What do we need
to know to solve
that legal issue?

We need to know the

relevant legal rules.
Which legal rules are

relevant here ?

The Road Traffic Act, 1985, Sec. 18:

(a)  It is a violation of this law for any “person” to “drive” any
“vehicle” on any “footpath”;
(b)  For purposes of this law, the following words are defined
as follows:
i.  a “person” is any human being over the age of 16 years old;
ii.  a “vehicle” is any method of mechanical transportation;
iii.  to “drive” a vehicle means to control how fast the vehicle goes and
the direction the vehicle goes in; and
iv.  a “footpath” is any sidewalk or path that is intended primarily for

people to walk on, not for vehicles;
(c) The penalty for any violation of this law shall be a fine of
$250 USD. Dr. Đào Gia Phúc (LL.D.)
Obviously, section 18 of the RTA is violated only if

these four elements are satisfied:
(1) a person;
(2) was driving;
(3) a vehicle;
(4) on a footpath.

So let’s apply the legal

rules to the facts of the
question.

Can each of the following elements be

proven in this case ?
1.  Is Sam a “person”?
2.  Is Sam’s bicycle a “vehicle”?
3.  Was Sam “driving” the bicycle?
4.  Is the sidewalk a “footpath”?

1.  Is Sam a person, Legal reasoning and analysis 45
•  He is a person because he is a human being over the age

of 16. He is 22.
2. Is Sam’s bicycle a ‘vehicle’ ?
•  It is ‘vehicle’ because it is a method of mechanical
transportation.
•  Indeed, a bicycle is a machine, is mechanical, and is a
means of transportation.
3. Was Sam ‘driving’ the bicycle ?
•  He was driving because he was controlling how fast the
bicycle was going and the direction it was going in.
4. Was the sidewalk Sam drove his bicycle on a ‘footpath’,
•  It is because sidewalks are intended primarily for people
to walk on, not vehicles.
•  Also the law specifically says a sidewalkDr.isĐào
a Gia Phúc (LL.D.)
footpath.
Conclusion:
Because Sam is a person who drove a vehicle on a footpath,

it can be concluded that he did violate the RTA and will likely
be required by the court to pay the fine of $250.

I.
R.
A.
C.
Issue
Rule
Application
Conclusion
To write an IRAC, you need to …

•  Correctly identify the legal issue that you
need to answer to solve the legal problem
•  Clearly state the relevant legal rules
•  Convincingly Apply the legal rules to the
facts of case
•  State your conclusion

On 1 October 2010, Nhung, a 14-year-old girl from Sydney,

was stopped by police while riding her horse on the sidewalk
next to Main Street. Nhung was charged with a violation of the
Road Traffic Act, 1985, Section 18.
MAIN STREET
SIDEWALK

Nhung has hired you as her lawyer, and asks you to advise
her whether she should fight the charges in court or just go
ahead and pay the fine of $250. Please fully advise Nhung.
MAIN STREET
SIDEWALK

How would
you advise
Nhung?
Dr. Dao Gia Phuc, LL.D.

*Note: Depending on the facts of the question,

some elements may be more important
than others.
•  For example, it may be clear that Nhung is
not a “person” and that the sidewalk is a
“footpath,” so we may not need to spend
very much time discussing those issues.
•  But maybe it is less clear whether a horse
is a “vehicle,” and whether Nhung was
“driving” the horse. So we should probably
spend more time discussing those issues.

What do you
think is the least
important part of
I.R.A.C.?
What do you
think is the least
important part of
I.R.A.C.?
What?!? How
can the
conclusion be
the least
important part?
Because identifying the

correct legal issues, clearly
stating the rule of law, and
correctly applying the rule of
law to the facts of the question
are all more important than
reaching the correct
conclusion.

•  Reaching the correct conclusion is

important,
… but if all you do is state a conclusion,
you will not receive many points on the
question. You might just be “flipping a
coin.”
•  It’s more important that your answer
shows that you can spot the legal issues,
clearly state the rule of law, and correctly
apply it to the facts of the question.

Q: “Teacher, on my exams, do I have to

actually write ‘issue,’ ‘rule,’ ‘application,’ and
‘conclusion.’”
A: “No”.
I.R.A.C. is just a method to help you

organize your thoughts and your answer.
You can actually write out I.R.A.C. on your
exams, but you do not have to.
(But you should make sure that your answer

does identify the legal issue, state the rule
of law, apply it to the facts of the question,
and reach a conclusion.)” Dr. Đào Gia Phúc (LL.D.)
Two Important Tips:

1.  What if you decide that one of the elements is not
proven?
For example, what if you decide that Nhung is not a

person? Should you stop answering the question at
that point or should you continue analysing the
other elements?
2. Do not try to guess what the conclusion should be

and work backward from there.
You truly need to apply the rule of law to the

facts to reach the conclusion, not go in reverse!
On 1 October 2010, Vinh, a 19-year-old man from Sydney,

was stopped by police while riding as a passenger on a
motorcycle being driven on the sidewalk next to Main Street.
Vinh was charged with a violation of the Road Traffic Act,
1985, Section 18. Vinh has hired you as his lawyer, and asks
you to advise him whether he should fight the charges in court
or just go ahead and pay the fine of $250 USD. Please fully
advise Vinh.
MAIN STREET
SIDEWALK

On 1 October 2010, Toan’s grandmother, a 108-year-old

woman from Sydney, was stopped by police while riding her
motorized wheelchair on Main Street. Toan’s grandmother was
charged with a violation of the Road Traffic Act, 1985, Section
18. She has hired you as her lawyer, and asks you to advise
her whether she should fight the charges in court or just go
ahead and pay the fine of $250 USD. Please fully advise
Toan’s grandmother.
MAIN STREET
SIDEWALK
LEGAL MEMORANDUM
•  Question presented
•  Brief answer
•  Facts
•  Discussion
•  Conclusion

4. ACADEMIC INTEGRITY

WHAT IS ‘ACADEMIC INTEGRITY’?

- University is a community of people engaged in a
shared activity, which is learning and the creation of

knowledge à professors, lecturers, researchers, and
students all belong to that community!
- There are certain rules and expectations about how
to do things and ideas about what is right in that

community.
à The CODE OF HONESTY = ‘Academic Integrity'.
Is it easy to practice ‘ACADEMIC INTEGRITY’?

- Not always, studying and researching are often high
pressure experiences and they can feel

overwhelming.
- However, it is compulsory to give full credit to the
people whose ideas are using and never to submit

someone else’s work as our own.
à We will cover the Concept of Plagiarism and
Paraphrasing.

PLAGIARISM
- A form of cheating in assessment and may occur in
oral, written or visual presentations.

- It is the presentation of the work, idea or creation of
another person, without appropriate referencing, as

though it is your own.

PLAGIARISM
1. What is Plagiarism?
a)  Using someone else’s ideas without proper
attribution.
b)  Stealing someone else’s ideas.
c)  Cheating
d)  All of the above

PLAGIARISM
There are a number of things that are considered plagiarism,
including:
- Buying an assignment that someone else has written
- Not referencing a source
- Copying from the internet
- Doing an individual assignment with a classmate
(submitting the sane assignment or part of assignment as a

classmate)
- Allowing someone else to copy your assignment.
PLAGIARISM
2. What is a common way that students

plagiarize?
a)  They copy a paragraph from the internet and
present it as their own.
b)  They check their assignment with someone
else.

Example of PLAGIARISM
The following sentence is in a textbook titled “Study
Methods” by John Cooke:
To be a successful tertiary student you need to be an
independent learner.
If the following words appeared in a student essay:

In order to be a successful tertiary student you need to
be an independent learner, and use active learning
strategies.
à This is plagiarism Dr. Đào Gia Phúc (LL.D.)
Example of PLAGIARISM
To avoid plagiarism:
In order to “be a successful tertiary student need to be

an independent learner,”1 and use active learning
strategies.
1. John Cooke, Study Tips: Avoiding Plagiarism, RMIT

University, Australia, 2012, p.23
Referencing
Accurate referencing is the key to avoiding plagiarism.
1. In-text citation:
- Paraphrasing: rewriting other’s ideas in your own words
and citing (referencing) them, using your own words and

sentence structure.
- Quoting: writing the author’s exact words using quotation
marks and citing the quotation.

2. Referencing list.

PLAGIARISM
3. What is best way to avoid plagiarism?
a)  Use citation and referencing
b)  Use paragraphing
c)  Use other people’s ideas

PLAGIARISM
4. What are ways that students plagiarize?
a)  Giving a short version of someone else’s ideas (summarizing)
without a citation
b)  Presenting someone else’s tables, graphs, or images without
proper attribution
c)  Expressing ideas from a text in different words (paraphrasing)
without providing the source
d)  Using words or sentence “word-for-word” from the original text
(quoting) withour a citation

e)  All of above
PLAGIARISM
5. What are 2 ways to incorporate information

into your assignment?
a)  Paraphrasing & Referencing
b)  Paraphrasing & Referencing List
c)  Paraphrasing & Quoting

Paraphrasing
6. What is paraphrasing?
a)  You write another author’s ideas in your own
words.
b)  It’s a form of a direct quote that is shorter
than a block quote.

Paraphrasing
7. How do you paraphrase?
a)  You shorten the length of the original text.
b)  You change the keywords and sentence
structure of the original text.

Paraphrasing
A paraphrase is a restatement in your own words of an idea
or item of information from the work of another person.
You must reference the source of paraphrase.
To paraphrase:
- Change the structure of the sentence(s), and
- Change words.

Paraphrasing
Changing the structure of a sentence:
1.  Read the relevant sentence(s) and make sure you
understand the main idea. Do not copy them down.

2.  Put the material away and write your paraphrase from
memory.
3.  Ensure that you have changed the order of words
4.  To avoid accidental plagiarism, check what you have
written against the original text. You should check that

your version is different and you have retained the
original idea.
Paraphrasing
Changing the words:
1.  Circle the specialized words, i.e. the words that the text
is actually about. They will need to included in your

paraphrase à without these words, the meaning of the
paraphrase will change completely.
2.  Underline the keywords that can be changed.
3.  Find other words and phrases that have similar
meanings that can be used to replace the keywords in

the text.
Paraphrasing, let’s practice!

Original text
The United States, Germany and Japan and other industrial
nations are being transformed from industrial economies to
knowledge and information based service economies, whilst
manufacturing has been moving to low wage countries. In a
knowledge and information based economy, knowledge and
information are the key ingredients in creating wealth.
(From: Laudon & Laudon (2000), Management information
systems: managing the digital firm, p 31.)

Original text
The United States, Germany and Japan and other industrial
nations are being transformed from industrial economies to
knowledge and information based service economies, whilst
manufacturing has been moving to low wage countries. In a
knowledge and information based economy, knowledge and
information are the key ingredients in creating wealth.
(From: Laudon & Laudon (2000), Management information
systems: managing the digital firm, p 31.)

Paraphrase 1:
The United States, Germany, Japan and other economies
are being dramatically changed from industrial economies to
knowledge and information based service economies as
manufacturing shifts to countries where the wages are low
cost. In knowledge and information economies, knowledge
and information are the focus in economic growth.(fn)

Paraphrase 2:
As manufacturing has moved to economies where wages
are low, developed countries such as the United States,
Germany and Japan have had to turn to knowledge and
information-based services to drive economic growth. (fn)

Direct quotes
In stead of changing the original text, direct quotes use exact
words, in exactly the same order.
Should not be used very often, because it would mean that
you are simply repeating the words of other people.
02 types of Direct Quotes:

- Short quotes: 3 lines or less
- Long quotes: more than 3 line – a block quote.

Direct quotes
Short quotes: 3 lines or less
- Copy the word exactly from the original source
- Use single quotation marks (“…”) at the beginning and the
end of the quote

- A footnote number should immediately follow the text to
which it is relevant.
Ex: Ha states that “it is important to understand the basics of

legal citation before starting to write an IRAC paper.”1
Direct quotes
Long quotes: more than 3 lines – a block quote
- Indented from the text margin
- Start on a new line
- Are introduced in the writing with a reporting word followed
by a colon
- Do not have quotation marks
- Use a smaller text size than the body text

Direct quotes
Long quotes: more than 3 lines – a block quote
Ex: There are a number of arguments regarding the best
way to organise a legal discussion. Ha proposes the
following:
The best framework for organising a legal discussion in the
IRAC method. The basic structure is: Issue, Rule, Analysis, and
Conclusion. Simply put, begin your answer by stating the issue
presented by the essay question. The rule describes which law
or test applies to the issue. The analysis is most important, and
the longest part of your answer. The conclusion is your answer
to the issue - state the result of your analysis.2Dr. Đào Gia Phúc (LL.D.)

Week 0 - Legal Reasoning, Analysis and Writing

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Week 0 - Legal Reasoning, Analysis and Writing

Uploaded by

Copyright:

Available Formats

LEGAL REASONING,

UEL, 2020 Dr. Đào Gia Phúc (LL.D.)

UEL, 2020 Dr. Đào Gia Phúc (LL.D.)

UEL, 2020 Dr. Đào Gia Phúc (LL.D.)

- What is ‘Legal Analysis’?

- Why lawyers analyze legal questions?

Dr. Đào Gia Phúc (LL.D.)

- Legal Analysis is not an ALIEN Mode of Thought!

- Legal Analysis is based on a way of thinking that you

use every day when you make decisions.

Dr. Đào Gia Phúc (LL.D.)

Dr. Đào Gia Phúc (LL.D.)

- Step 2: Form an understanding of why she liked some

gifts and disliked others

she will like the lipstick.

Dr. Đào Gia Phúc (LL.D.)

- Step 2: Analyze the law and cases to find the Rule

- Step 3: Apply the Rule to predict the Outcome

Dr. Đào Gia Phúc (LL.D.)

Your client’s dog scratched Bobby after he inadvertently

(2) Is stepping on a dog’s tail by mistake a

The law defines ‘injury’ including:

Dr. Đào Gia Phúc (LL.D.)

However, the law does not defines the term

Dr. Đào Gia Phúc (LL.D.)

However, the law does not defines the term

Dr. Đào Gia Phúc (LL.D.)

over thick hedges and inadvertently hit a dog sleeping on the

Exercise 1-C(1) and 1-C(2)

Dr. Đào Gia Phúc (LL.D.)

anger or taunt the dog.

provoked because Bobby stepped on the dog’s tail by

Dr. Đào Gia Phúc (LL.D.)

- Step 2: Analyze the law and cases to find the Rule

- Step 3: Apply the Rule to predict the Outcome

à The purpose of Legal Analysis is to find out the

Dr. Đào Gia Phúc (LL.D.)

- Creativity and analytical skills need to be used to identify

legal questions, to find the law, and to predict an outcome

Dr. Đào Gia Phúc (LL.D.)

Dr. Đào Gia Phúc (LL.D.)

- Why lawyers analyze legal questions?

Dr. Đào Gia Phúc (LL.D.)

- The term Case refers to a court’s written decision or an

- Lawyers and Law student read cases to learn the

interpretation of a law, to understand how the law

Dr. Đào Gia Phúc (LL.D.)

case got to court);

(or whether) the law applies to the facts of the dispute;

4. The holding – the court’s decision on the issue; and

5. The reasoning, including any relevant policy interest, that

explain and supports the holding.

• to predict the outcome of a case;

• to come up with arguments for a client;

• to master new case law in a particular area of expertise;

• to show a judge how “late-breaking” law relates to the

Dr. Đào Gia Phúc (LL.D.)

2. The issues;

3. The law;

4. The holdings; and

5. The reasoning.

Dr. Đào Gia Phúc (LL.D.)

Dr. Đào Gia Phúc (LL.D.)

Dr. Đào Gia Phúc (LL.D.)

- What is ‘Legal Analysis’?

- Why lawyers analyze legal questions?

- Legal Analysis is not an ALIEN Mode of Thought!

- Legal Analysis is based on a way of thinking that you

-  Step 2: Form an understanding of why she liked some

- Step 2: Analyze the law and cases to find the Rule

- Step 3: Apply the Rule to predict the Outcome

(2)  Is stepping on a dog’s tail by mistake a

- Step 2: Analyze the law and cases to find the Rule

- Step 3: Apply the Rule to predict the Outcome

- Creativity and analytical skills need to be used to identify

- Why lawyers analyze legal questions?

- The term Case refers to a court’s written decision or an

- Lawyers and Law student read cases to learn the

4.  The holding – the court’s decision on the issue; and

5.  The reasoning, including any relevant policy interest, that

•  to predict the outcome of a case;

•  to come up with arguments for a client;

•  to master new case law in a particular area of expertise;

•  to show a judge how “late-breaking” law relates to the

2.  The issues;

3.  The law;

4.  The holdings; and

5.  The reasoning.

- Legal memorandum is used to explain in writing the

- A legal proof is a way to present your analysis using a

ii.  a “vehicle” is any method of mechanical transportation;

iv.  a “footpath” is any sidewalk or path that is intended primarily for

1.  Is Sam a “person”?

2.  Is Sam’s bicycle a “vehicle”?

3.  Was Sam “driving” the bicycle?

4.  Is the sidewalk a “footpath”?

•  He is a person because he is a human being over the age

•  Reaching the correct conclusion is

- A form of cheating in assessment and may occur in