Legal Analysis Guidance
Students often have problems doing the necessary legal analysis in the memo.
In writing a memo, everything you do must mesh, from what is said in the
introduction, to the content of your synthesis paragraphs, to the analysis of your
cases. When reading a memo, you should be able to see a repetition of terms within
paragraphs, and then a repetition of those terms in the analysis. You also need clear
signals within the paragraphs because all paragraphs in the memo have a distinct
format. Format is the key.
Synthesis paragraphs.
For our purposes (and not every memo will be like this), there should be a
synthesis paragraph for each case. There are not correct words I can tell you to use,
but there is a format that includes a holding, facts, and rationale. The rationale
must tie the facts into holding, and should echo the theme “because.” The court
reached its holding “because” of what facts? It is those components that should
reappear in the analysis. If you follow the format, you should always be able to tell
what is missing from a paragraph, even if you have not read the case.
Here’s an example of a synthesis paragraph using the case of Omnibus, one
of the cases used in the Trespass to Chattels memo that you have as a sample. I am
leaving out the citations:
In Omnibus, the court held that a trespass to chattels did not occur in a
situation where an entity sent unwanted faxes to the plaintiff. This case involved a
business that received seven or eight unwanted faxes over their facsimile machine.
The business claimed damage and interference to their property in the form of
expense for toner and for paper. In finding for the defendant, the court reasoned
that the use of toner and paper was not enough of a burden to constitute damage
necessary for the tort. The court further commented that the Company had not
been substantially deprived of the use of the machine for any extended period of
time.
Note the repetition of terms in the previous paragraph – “unwanted faxes,”
“damage,” “toner and paper.” Note also the signals that are used to indicate
holding, facts, and rationale. Note especially that they are written in the active voice
– “court held,” “case involved,” “business claimed,” “court reasoned,” “court
further commented.”
Here’s another example of the same case written in a slightly different
fashion:
In Omnibus, the court held that the plaintiff could not establish a trespass to
chattels action. In this case, Omnibus was a Company that received seven or eight
unauthorized faxes from A.T. & T. The Company brought the trespass to chattels
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action alleging both a loss of use of their fax machine, and damage in the form of
wasted toner and paper. In finding no cause of action to exist, the court reasoned
that wasted toner and paper was not sufficient harm to establish an action. The
court further reasoned that the loss of the use of the fax machine was not substantial
enough to constitute harm.
Note again the repetition of terms and the congruity of the paragraph. These terms
should be the exact terms that later appear in analysis.
Now take a look at this synthesis paragraph:
In Omnibus there was no trespass to chattels action because the court ruled
the plaintiff was not deprived of use for a substantial period of time. Seven or eight
unsolicited faxes were sent, but the court determined no action would lie.
What’s wrong with this paragraph? The Answer: There is no clear division
between holding, facts, and rationale. There are no “signals,” and no repetition of
terms. It would be impossible to do appropriate legal analysis based on this
synthesis paragraph.
Now take a look at this one:
In Omnibus, the court held there was no trespass to chattels action. Here,
seven or eight unsolicited faxes were sent. The defendant objected to these faxes.
The court reasoned that the plaintiff was not deprived of the fax machine for a
substantial amount of time.
What’s wrong with this one? The signals are there, but there is no congruity in the
paragraph. There is no repetition of terms, and the rationale does not link the facts
with the holding. In many ways, the rationale is actually a “fact” labeled as
rationale. With this synthesis paragraph, it would be fairly predictable that any
analysis of Omnibus later in the paper would be inaccurate.
Analysis.
In terms of analysis, the format is always the same. You must state a legal
premise that was theoretically set out in your synthesis paragraph, and then make
an analogy specifically related to this premise. Again, you must have repetition of
terms and clear signals. Topic and transition sentences are never to be combined
with the rule (at least now at this stage of your legal education). The topic sentence
is the signal that the rule is to follow.
Example:
Based on Omnibus, it is unlikely that the University will have a cause of
action. In Omnibus, the court determined that loss of toner and paper was not a
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sufficient harm to establish a cause of action for trespass to chattels. Here, it can be
argued that the University did not suffer sufficient harm to establish a cause of
action. Similar to the assessment that use of toner and paper was minor, it can be
argued that the University’s inconvenience in this situation is minor. The facts
indicate that nothing in the day-to-day workings of the University’s network was
affected.
Note here the repetition of terms, the “signals” of divisions, and the repetition of the
terms used from my first synthesis paragraph of Omnibus.
Here’s another example:
Based on Omnibus, it is likely that the University will succeed in establishing
a cause of action for trespass to chattels. In Omnibus, the court determined that
seven or eight unsolicited faxes did not constitute sufficient harm to establish a
cause of action. Here, however, the students sent mass emails totaling 21,000 with
each posting. It can be argued that 21,000 is an amount that the court may consider
to be sufficient in order to establish the necessary harm.
Again, note the repetition of terms within the paragraph and carried over from the
original synthesis paragraph.
Now look at this one:
It is unlikely the University will be able to establish a cause of action because
there was not sufficient harm. The University was not deprived of the use of its
system, and only ten emails were sent. This is similar to Omnibus where seven or
eight faxes were sent.
The problems in this paragraph are numerous. The topic sentence is combined with
a premise of law. There is no distinctive rule of law that precedes analysis. The
statements are argumentative rather than explanatory. The premise from Omnibus
is vague and the premise is not clearly related to the analogy being made. Also, the
facts are misrepresented. Although it appears that the numbers “ten” and “seven
and eight” are being compared, the paragraph avoids explaining that the ten emails
were mass emails.
Here’s another example:
It is unlikely the University will succeed. In Omnibus, the court determined
there was no substantial harm. In Valencia it can be argued that there was no
substantial harm. Consequently, there would be no trespass to chattels action.
This paragraph is, in fact, a paragraph with good structure and signals. The only
problem is that it doesn’t tell us anything. In order to tell us anything, you need a
“because,” i.e., “the Omnibus court determined there was no substantial harm
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because….” and, “it can be argued there was no harm in Valencia because….” The
analogy that goes there must come from the rationale you set out in your synthesis
paragraph for Omnibus. If your synthesis paragraph was not correct, your analysis
of the case cannot be correct.
Now, let’s put some synthesis and analysis together pretending that Omnibus
is the only case that has ever been decided on any issue related to trespass to chattels
and electronic media. My disclaimer here is that it is not necessarily “right” to do a
case-by-case, one for one analysis when writing any memo. Sometimes, writers set
out one case and then analyze, sometimes they set out a group of cases, and then
analyze the entirety. Sometimes it’s a mix. The constant in the memo is that all
analysis flows from the general rule (which is the constant in all cases) and then
makes analogies to specific premises from specific cases. These analogies, for the
most part, will have gotten their set up from the original synthesis paragraph for the
case being analogized.
Example:
In Omnibus, the court held that a trespass to chattels did not occur in a
situation where an entity sent unwanted faxes to the plaintiff. This case involved a
business that received seven or eight unwanted faxes over their facsimile machine.
The business claimed damage and interference to their property in the form of
expense for toner and for paper. In finding for the defendant, the court reasoned
that the use of toner and paper was not enough of a burden to constitute damage
necessary for the tort. The court further commented that the Company had not
been substantially deprived of the use of the machine for any extended period of
time.
Based on the sole case decided in the State of Valencia, it is likely that the
University will succeed in its trespass to chattels action. The general rule is that
trespass to chattels occurs when there is an unauthorized, interference or
intermeddling with the property of another. (cite) This interference or
intermeddling must cause some type of damage to the property of another. (cite) In
Omnibus, the court determined that damage in a trespass to chattels action must be
substantial and that neither minimal loss of toner nor loss of paper would suffice to
establish damage. (cite) In Valencia, it may be argued that the University did suffer
substantial damage because its loss was not limited to toner and paper. The facts
indicate that the University allocated considerable time to ending the problem of the
emails. It should be argued that these actions constitute substantial loss as discussed
in Omnibus.
The students, however, may defend their position based on another aspect of
Omnibus. In Omnibus, the court commented that there could be no trespass to
chattels where there is no deprivation of property for any extended period of time.
(cite) The students may argue that, not only wasn’t the University deprived of the
computer for an extended period of time, they weren’t deprived of the computer at
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all. The students may point out that the University has already admitted that the
emails sent caused no harm to the system, nor did they take up an inordinate
amount of storage space in the system that deprived anyone of access to the system.
The University has sufficient grounds to refute this argument. In Omnibus,
the court dealt with a situation involving a fax machine and tangible resources.
(cite) The Valencia situation, however, involves virtual storage, and a situation not
confronted by the Omnibus court. It could be argued that the facts of Omnibus are
so dissimilar that any physical comparison between a fax machine and a computer
network is inappropriate. It might also be appropriate to point out that 21,000
emails are delivered each time the students post a message and that this far exceeds
the 7-8 faxes sent in Omnibus. Although Omnibus did not define what would be
substantial damage, it could be argued that an excess amount of unsolicited
electronic materials fits into what the court would have considered substantial
enough for a trespass to chattels actions.
Note, too, that I put in notations of where cites should go in the analysis.
Here’s another example, again assuming Omnibus is our only case:
In Omnibus, the court held that the plaintiff could not establish a trespass to
chattels action. In this case, Omnibus was a Company that received seven or eight
unauthorized faxes from A.T. & T. The Company brought the trespass to chattels
action alleging both a loss of use of their fax machine, and damage in the form of
wasted toner and paper. In finding no cause of action to exist, the court reasoned
that wasted toner and paper was not sufficient harm to establish an action. The
court further reasoned that the loss of the use of the fax machine was not substantial
enough to constitute harm.
Based on Omnibus, it is unlikely the University will succeed in its cause of
action. The general rule is that trespass to chattels occurs when there is an
unauthorized, interference or intermeddling with the property of another. (cite)
This interference or intermeddling must cause some type of damage to the property
of another. (cite) In Omnibus, the court determined that no harm or damage
existed because the plaintiff was not deprived of its fax machine for a substantial
amount of time. (cite) Similarly, it may be argued that the University was not
deprived of its network for any length of time. The facts indicate that the
unsolicited emails did not take up an inordinate amount of storage, nor are there
any reports that the system was slowed down by the sending of the emails.
The University, however, has grounds to refute this position. In Omnibus,
the court determined that the use of toner and paper was insignificant; moreover,
the court found the actual time the machine was used to be insignificant. (cite) This
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is distinguishable from the Valencia situation. In Valencia, it may be asserted that
the memory used to store 21,000 messages at each posting was far more significant
than the toner and paper used to print the seven or eight faxes. Furthermore, it
may be argued that although there is no evidence the network system was “bogged
down” by the postings, the court should consider the cumulative time it took for
administrators and students to either read or delete these messages.
In response, the students may point to a distinguishing factor in Omnibus. In
Omnibus, the court dealt with measurable quantities of time and physical resources.
(cite). It may be argued that here, Valencia is essentially attempting to stop the
content of the messages rather than seek damages for any harm to physical
resources. The students may argue that this is not a type of harm contemplated
under the trespass to chattels tort.
Now, if you look at these two sections of analyses, you should be able to see
the proper structure. Get the format ingrained…. Topic sentence, Rule/Premise,
and Analogy based on the premise (with clear explanation, of course). Know that if
you’ve got a rule combined with your topic sentence, you’ve probably made a
mistake. Know that if you’ve written a topic sentence, then a rule most likely will
follow. (Think “In” as “In Omnibus.”) Know that if you’re mentioning facts in the
sentence with your rule, you’ve probably got a format problem.
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