Thursday, October 12, 2006

The memo: issue statement as syllogism

Framing the issue as a syllogism
According to classical logic, the syllogism has three parts: a major premise, a minor premise, and a conclusion. The major premise states a broad and generally applicable truth. For example, "All humans will eventually die." The minor premise states a specific and usually more narrowly applicable fact: "My legal-writing professor is human." The conclusion then draws upon these premises and offers a new insight that is considered to be true based on the premises: "My legal-writing professor will eventually die." Thus

All humans will eventually die.
My legal-writing professor is human.
My legal-writing professor will eventually die.

One effective way to frame a legal issue is to model it on the syllogism. To do this, make your major premise a general rule of law or a legal principle based on a widely-known legal rule or on your own legal research. Then make your minor premise a statement of the key facts of the legal problem. Then make your conclusion into a legal question about the result when the major premise about the law is applied to the minor premise about the facts.

3d. Major premise about the law: Drivers who lapse into unanticipated fainting spells are not negligent for injuries they cause.

3e. Minor premise about the facts: Daniel Lee had unexpectedly lapsed into sleep once in a meeting and once in his office. He then lapsed into sleep while driving his car, which resulted in an accident.

3f. Legal question derived from the major and minor premises: Can Lee obtain a summary judgment in a negligence case against him on the ground that the third incident was unanticipated, and that therefore he was not negligent?

As simple as this example may seem, framing a legal issue this way requires a lot of work. You must research the law and be sure you are right about it before you can state the major premise about the law. You must be thoroughly familiar with the facts of your problem and be able to condense the key facts into a brief synopsis. And you must frame the underlying legal question accurately.

Often, framing an effective legal issue requires several drafts and must come after a draft of the discussion section of the memo. Here is another example:

3g. Major premise about the law: If a party in a suit has a claim against an opposing party that arises from the same transaction or occurrence as that opposing party'’s claim, it is a compulsory counterclaim and will be barred if not asserted.

3h. Minor premise about the facts: Anderson sued Dicenzo for injuries to his daughter caused by a horse that Dicenzo sold Anderson. Anderson still owes Dicenzo money for the horse.

3i. Legal question: Is Dicenzo's claim for the unpaid price a compulsory counterclaim in Anderson’s injury suit?

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