Teaching Legal Analysis: An Inventory of Skills
by
Lisa G. Lerman

It is unfortunate that our first-year courses are titled and organized as if their only objective were to impart legal doctrine. In my Contracts class, the teaching of substantive law is an important goal, but may be less important than teaching the skills of legal analysis.

Over the last few years, I have moved toward a skills-based approach to teaching Contracts. In part this reflects my orientation as a clinical teacher (my first few years in teaching were as a full-time live-client clinician), and in part it is a reaction to the apparent and expressed educational needs of the students in my Contracts class. Some students come into law school with intellectual skills that enable them to learn the complex skills of legal analysis with little explicit guidance. Most students, however, are better able to learn legal analysis and problem-solving if they are not only asked to do it, but shown how and given opportunities to practice each of the component skills.

This article contains an inventory of skills that are necessary to do legal analysis. The development of this inventory helped my teaching, because it required me to articulate more precisely what skills I want to work on during class. This led me to focus more explicitly on skill development, to allocate more time to discussions focusing on skill development, and to talk with the students about the skills that I was trying to teach them. The students responded very positively to my increasing emphasis on Contracts as a "skills" course and to the road-mapping I offered them.

My suggestion to other teachers is not to use my inventory, but to make your own. The process of examining one's own teaching and identifying and refining one's goals is more useful than adopting the goals of another. If I have a clear idea of what I am trying to teach, and why I believe that my goals are worthwhile, and let my students know why my goals are, they are in a better position to learn effectively.

1. Prerequisites

I begin with a list of skills which each of us possesses in different degrees and all of which are necessary to do legal analysis. Weakness in one or more of these areas could present an obstacle to learning the skills of legal analysis.

1. Logical thinking
2. Organizing ideas
3. Oral expression (includes the ability to think and speak simultaneously, requires self-confidence)
4. Writing (basic skills in exposition, grammar, spelling, and punctuation)
5. Reading comprehension
6. Listening, attentiveness
7. Formulating questions (identifying what one doesn't understand and articulating it)
8. Figuring out what is being taught and what will be tested
9. Thoroughness and attention to detail
10. Judgment, common sense
11. Notetaking (making a good record of class discussion for future study)
12. Sensitivity to ethical dilemmas
13. Creativity, imagination
14. Ability to concentrate
15. Time management and planning (making and implementing decisions about what to study and how to study, and monitoring and adapting one's study plans as the semester goes on)

2. Comprehension of law and facts (presented in court decisions)

1. Understanding facts
   1. Understand what happened in a case or the facts of a problem
      1. Comprehend an unfamiliar context (e.g., disposal of spent nuclear fuel)
      2. Learn unfamiliar vocabulary
   2. Understand the legal importance of facts to:
      1. Distinguish those that are important from those that are not
      2. Recognize ambiguities and omissions in a statement of facts

b. Understanding a legal doctrine
1) Understand the scope of the category of rules of which the doctrine is a part
2) Learn what are the sources of law in that category
a) How each source came into being
b) How much authority each source has
c) The relationship between the sources
3) Understand the structure of the source of law in which a particular doctrine appears
a) Recognize the parts of a rule
b) Understand the meaning of each part
c) Understand the relationship of the parts
d) Distinguish the general rule from the exceptions

c. Understanding a judicial opinion
1) Discern how an opinion is structured and identify its parts
2) Understand why and how the law and facts of other cases are used
3) Understand why and how statutes are applied
4) Understand why and how secondary sources are used
5) Understand the non-law factors that contributed to the analysis
6) Understand why and how an opinion departs from previous ones and how the departure is justified

3. Synthesis of multiple sources of law

1. Explain the relationship between multiple sources of law on a particular topic
2. Identify the concepts or elements that are common to the various sources
3. Identify those concepts or elements that differ among the various sources
4. If the synthesis is of case law, recognize these similarities and differences as to both facts and law
5. Explain which similarities or differences are most important and why
6. Explain patterns or trends that emerge from an analysis of the group of sources

4. Critical thinking about cases and statutes

Development of facility in recognizing and exploring:

1. Why the rule is x rather than y
2. Whether x is the best possible rule, or what would be a better rule
3. What is the relationship among a group of rules
4. What purposes are accomplished by particular rules
5. What interests are reflected in particular rules
6. What ambiguity exists in a rule, and what are the sources and consequences of that ambiguity
7. Whether the rule reflects an incorrect understanding of facts or false assumptions about a situation
8. What is the history of a rule; in what context has it been developed, and how has it changed over time
9. What is the economic impact of a rule
10. Does the rule have different impact on different groups (e.g., consumers, families, sellers, buyers)
11. What is the impact of the background, experience, social class, personality, sex, race, age, religion, marital status, sexual preference, education, intellectual ability, etc. of the decision maker (judge, lawyer, legislator, etc.) and the parties or persons affected by the rule

5. Application of law

Students need to learn how to take a set of facts, identify the legal issues that are presented in those facts, identify the relevant rules of law, and figure out what result would be produced by applying the law to the facts. In each court decision judges identify and apply the law to reach a result. In class we use judicial decisions as models of analysis, and the students are often asked to do their own analysis of written problems assigned as homework and then discussed in class.

a. Application of a statute to a set of facts
1) Overcome the foggy nauseous math-anxiety type of feeling that so often accompanies first encounters with statutes
2) Determine whether the statute applies at all or whether it is binding or persuasive authority with respect to the matter at hand and, if so, identify the relevant section(s)
3) Understand the relationship of different provisions in a statute
4) Read the statute word by word and identify the questions that must be answered about the facts of the problem
5) Distinguish the part of a statute that states a general rule and the parts that state exceptions to the general rule
6) Identify the relevant parts of any sources (commentary, precedent, scholarship) that help to understand what each word in the statute means and what questions it suggests
7) Answer each question raised by the statute about the facts of the problem
8) Use the statute to understand the logical sequence between the answers to the various questions
9) Draw a conclusion from the sequence of answers to the questions
10) Recognize questions asked by the statute that can be answered in more than one way and follow through first one analysis and then another
11) Recognize the purposes of the statute and assess whether the analysis comports with its purpose

b. Application of a court decision to a new problem
This involves all the skills listed above and, in addition, requires the students to:
1) Draw analogies, or make distinctions, between the facts of a case and the facts of the problem
2) Construct arguments based on those comparisons or contrasts

c. Application of multiple sources of law
5a and 5b in this list look at what is required to simply articulate the relationship between a case or statute and a new problem. Another set of skills involves doing the synthesis described in section 3 above for a problem-solving purpose. This would involve the additional skills of:
1) Constructing arguments for one or more parties based on the patterns identified in section 3
2) Determining the possible conclusions that might be drawn from the application of multiple sources to the problem
3) Evaluating which conclusion is most persuasive and why

6. Sensitivity to ethical issues

1. Alertness to and ability to analyze ethical considerations that are raised in judicial opinions
2. Recognition of ethical questions presented in the facts of a case but not addressed in an opinion
3. Sensitivity to ethical questions and constraints on the application of law to solve a problem

7. Problem-solving

Essentially what lawyers do is solve problems by determining what legal constraints or tools exist that relate to the problem, integrating the legal and non-legal factors that affect the problem, and developing some advice, an argument, or a strategy. All of the above-listed skills are building blocks, the purpose of which is to enable legal problem-solving.