Speaker 1: Hello, and welcome to the Law School Playbook. I'm Hallie Hera, and today's topic is using law and fact together, also known as legal analysis on essay exams. So I want you to look like the person in this picture, so excited, seeing the light bulb go on, and say, oh, that's what they mean about application. That's what they mean about legal analysis. I promise you, it's not as elusive as it seems. It's not rocket science. You absolutely can do this. It's a matter of learning to use those law words and those fact words together. That's what creates legal analysis, and so that's what we're going to cover in this short video. So you can't do legal analysis without identifying the rules. You have to know the rules cold, and those rules have to be broken down in a way that are usable to you, so into elements. And then particular facts may trigger sub-rules that need to be addressed through analysis. And we know through the global issue statement and the mini issue statement and through our introduction to IRAC video that taught us that we have to use an organizational paradigm, such as IRAC or CRAC or CREAC, that causes us to focus on one rule or one element at a time, including relevant sub-rules. So you also have to, in order to do this, you have to know those rules bold and know the big rules and the sub-rules, but you also have to classify the facts. Every fact pattern has material facts, so facts that matter to the outcome of the analysis, and immaterial facts. Sometimes those are just background facts to kind of set the stage for the story. Those immaterial facts don't affect the outcome of analysis. The way this is also referred to sometimes is as legally operative facts. Those are the material facts. And non-legally operative facts, which are the immaterial facts. So I have information about classifying facts on the Law School Playbook website. The roundup in particular is the blog. There's some blog posts, Not All Facts Are Created Equal and Using Facts on Law School Exams. So if you're struggling to classify the facts between material and immaterial, those are materials that you could turn to. OK, so legal analysis requires you to tie the exact facts to the rule statement. OK, so you're using the rule or sub-rule together with the material facts, typically within the same sentence if possible. And you have to address all elements, all of the sub-rules or sub-issues, even if another one is not satisfied. But occasionally, the call to the question will tell you only to address certain elements. So that's what you have to pay attention to. If you want to learn a little bit more, you can look at my podcast or listen to my podcast, which is anywhere where you can find podcasts, or on my website or my YouTube page, and look at the episode called Dear Student, Law Can Be Like Math. That will provide you a little more information. But let's run through some examples here so you can get what we're talking about, about using law and fact together for the application or the legal analysis. I'm just using a fictitious fact pattern based on material that we covered in our outlining video related to a fictitious swimming pool law course. So on June 1, 2019, Lola went to the recreational center pool with her younger brother, Liam. Lola had just arrived home from college, and the two thought the pool was a perfect way to spend a relaxing day. Just after rest period, Lola and Liam decided to see who can swim the width of the pool the fastest. The loser, they agreed, would buy dinner at Chipotle for the other person on the way home. From the start, Lola was in the lead. Just as Lola was about to touch the wall in victory, however, Liam grabbed her foot to hold her back. Liam was laughing, and Lola stood up choking. When she finally expelled the water she had swallowed, Lola smiled and said, you always were a cheater. The lifeguard, having observed the race, said, excuse me, ma'am, but you need to report to the pool office for violating pool policy. Will Lola be held liable for a pool violation? Explain your answer fully. So this would be an example of an issue spotting question that we would need to work through. Now we start with the rule. We know that the rule at issue because we are well-versed in the rule, and we've spotted the issue of no spitting in the pool based on these facts. So we have to start with what is our sub-rule? Our sub-rule or definition of spitting is spitting is the forcible ejection of saliva from one's mouth with an intent to express contempt or anger. So that's what our cases have told us, that the sub-rule for spitting is. So rules and sub-rules must be used together with the given set of facts to create legal analysis. So how might we do that? Let's stop for a moment. Think about that we have to mind the call of the question. What are you being asked to do? And that helps us determine which facts are material. So always at bottom, law school essay exams are reading tests, and you are going to fail that reading test if you don't pay careful attention to what you are tasked with doing on a given exam question. OK, so we're going to first classify the facts. And we're getting rid of, and we're kind of putting a line through some facts that just don't seem to matter, right? So on June 1, 2019, there doesn't seem to be a timing issue. So we're going to disregard that fact. Do we care that Liam is younger than Lola? Probably not. She had just arrived home from college. They thought it was a perfect way to spend a relaxing day and just after rest period. So all of those things seem to set the stage for what happened when she spit out the water or expelled the water, however we want to say it, from her mouth. Lola and Liam decided to see who'd swim the width of the pool the fastest. That seems to be probably a material fact. Do we care that they said that they would get Chipotle on the way home and that she was in the lead from the start? So those don't seem particularly relevant to the idea of whether or not she's going to be found guilty of violating the pool rule against spitting. But these facts that follow seem to be material, right? They seem to be facts we would consider that would influence the conclusion we would reach. So as she was about to touch the wall in victory, Liam grabbed her foot. He was laughing. She was choking. She expelled the water. And she smiled and said, you always were a cheater. And the lifeguard called her out for it. So now that we know the rule, no spitting, right? We're going to plan our answer. Again, I have a video on this. If there's one thing that I can convince you, one thing that will make me feel like I've done my job is to plan before you write your answer on a law school essay exam. It's nearly impossible to write an effective answer without spending that time thinking and planning and giving yourself the roadmap. So that's what this slide is designed to show you. So we're going to jot down the sub rule in a very brief way. And we're going to figure out, based on the facts provided, whether it's met or not met in this instance. So here, for example, we know the first requirement for the sub rule is the forcible ejection of saliva. And we find, yep, that's probably met because she expelled water and saliva from her mouth. From her mouth is the second element. For the same reason, we will find that met. And then let's look at the last element. And that really seems to be where the issue is on this question, the really sort of gray area, with an intent to express contempt or anger. Well, on balance, it seems gray. But we'd probably find that it was not met because she smiled, right? But a counter argument may be that she said, you always were a cheater, which could be construed as expressing contempt or anger. But probably the smile governs. So we're going to find that it was not met. And as a consequence, because element three of the sub rule was not met, we're going to find, in general, that spitting was not met. So now that we've spent a quarter of our time thinking and planning and jotting this down for ourselves, we have the exact answer that we just need to turn into sentences using the IRAC paradigm. OK, so let's look at the sample answer. The issue is whether Lola will be held liable for a pool violation. The recreational pool prohibits spitting in the pool. Spitting is, here's our definition, the forcible ejection of saliva from one's mouth with an intent to express contempt or anger. Here, which always signals our application or our analysis, Lola forcibly ejected water and saliva from her mouth when she began choking. However, which we know is about to present a counterargument, Lola did not intend to express contempt or anger. Rather, the saliva was ejected as a natural consequence of her choking. Further, Lola's smile after forcibly ejecting saliva from her mouth demonstrates the spitting was not intended to express contempt or anger. OK, here's the counterargument. Actually, it wasn't with that however above. We have different language introducing it. We say, although the lifeguard may argue that Lola's words, you always were a cheater, demonstrated her contempt and anger and thus suggest she spit for that reason, her smile after spitting makes this argument unlikely to prevail. Because Lola failed to satisfy the intent requirement, she will not be held liable for a pool violation based on spitting. So you're probably looking at that and thinking, well, that kind of makes sense. I get it. We're using the rule. But I want to be scientific about it so that you know how to do this when you go to write an exam answer. And the way to be scientific about it, it sounds very elementary and easy. I want you to use different color highlighters to pick. And this is a common thing that is recommended in law school, but it really is worth your time. When you write an answer, there are ways that you can check it to see how effective your answer is. And one is this highlighting method. So here, we chose a blue highlighter for the law words and a green highlighter for the fact words. And we're going to go through and identify that we are using both law and fact together, which create legal analysis. So again, we're using the IRAC paradigm. So we start with the issue. And here, we're only using the highlighting method for the A, the application or the analysis. But let's run through the IRAC. So the issue is whether Lola will be held liable for a pool violation. The recreational pool prohibits spitting in the pool. Spitting is the forcible ejection of saliva from one's mouth with an intent to express contempt or anger. So there we have our issue, our rule, our subrule. Now, we're going to get to the big A, which is where we know the points live. And we're not going to just paraphrase. We are going to use words directly from that rule and words directly from those facts. We're not just going to gloss over them, generalize, make them our own. We're going to use precision. And we're going to use the highlighter method to demonstrate when we are using law words and when we are using fact words. So here, law words, Lola forcibly ejected water and saliva from her mouth, fact words, when she began choking. However, Lola did not, law words, intend to express contempt or anger. Rather, the saliva was ejected, fact words, as a natural consequence of her choking. Further, Lola's smile, right, we're not going to call it her reaction. We're going to use the facts and say her smile, those are fact words, after law words, forcibly ejecting saliva from her mouth, demonstrates the spitting was not, law word, intended to express contempt or anger. Although the lifeguard may argue, we know that's a counter-argument here, and we're going to use the facts in support of the counter-arguments, Lola's words, fact words, you always were a cheater, demonstrated her, law words, contempt and anger, and thus suggest she spit, law words, for that reason. Her, go back to fact words, smile after spitting, makes this argument unlikely to prevail. Finally, the conclusion, because Lola did not satisfy the intent requirement, she will not be held liable for a pool violation based on spitting. So I want you to look at our A sentences, right, our application sentences, and see that they are using specific words from the rule, those blue words, with specific rules from the facts. Those are our green words. So let me go back for a second. So if you have all blue, right, you are merely reciting the law. And the more common problem is all green. And that would be merely using the facts, but not explaining how they tied to the law. So something like that, right, fact listing without the law might look something like this. So here Lola choked, she choked after she was swimming, but she smiled, she didn't seem angry, that word, you know, angry is not really a key law word, although the lifeguard may argue, you know, she said always we're a cheater, she did smile, therefore, right, so we just use the facts. And that is called fact listing or reciting the fact. It's missing those key law words. So all legal analysis is, I hope you look like the guy in the first slide of this deck, is to, all it requires is that you use the law words and the fact words together, right? You're not going to summarize, you're not going to say, well, she lost the race, right? You're going to use words from the facts and words from the rule. Let's look at another example. And we've seen this before. Again, don't use it for substance, but we've seen this in other presentations I've done for you. A DoorDash delivery driver becomes friends with a client who ordered weekly throughout the pandemic. The client is a wealthy woman known for her philanthropy, mentioned supportive education. Client encourages driver to attend truck driving school, saying that the tuition would be easy for the client to cover. The cost is $6,500. The driver quits the DoorDash job and enrolls in truck driving school. The client does make the initial payment of $500, but then doesn't pay anything else. The client promises, though, to pay the full tuition when the driver graduates. After graduation, the client refuses to pay. Driver and client never signed a contract. If driver sues client, what is the result? Okay? And hopefully from our contracts class, we know that this is a promissory estoppel issue. And we're going to briefly jot down, you know, what the rule is. Reasonable reliance, we're focusing on element three, reasonableness of reliance. And it connotes something more than simply a bare hope or anticipation. Those are the law words that we are going to use in this mini IRAC paragraph. So we're going to try and use law words and fact words together, right? And we know that the law words are in blue, the fact words are in green. And in order to have legal analysis, we want to use both. And so here, these are just the application or analysis sentences. So it says here, driver's actions were based on something more than simply a bare hope or anticipation. And we see that's taken right from the subrule. Instead, the driver law words reasonably relied on the fact words. Wealthy clients promise because, and I highlighted, I bolded and underlined because, because that word often helps you to connect the facts to the law. The client was known for supporting education, encouraged the driver to attend, and offered to pay once the driver graduated. So we see that there are, you know, precise words from the facts in green, precise words from the subrule in blue. They are used together, linked by the word because. That constitutes legal analysis. So practice, practice, practice in color for effective legal analysis. It doesn't have to be blue. It doesn't have to be green. It doesn't even have to be highlighting. But find a way to distinguish when you do a practice exam or, frankly, when you're writing a legal writing paper, where are my fact words? Where are my law words? And, again, you want to have the law words mixed with the fact words. If there are law words alone, you're just reciting the rule and then concluding. If there are fact words alone, you are fact listing and then just reaching a conclusion. If you're told that you have conclusory analysis, it's another way of saying that you're fact listing. So, again, you want both things. And you don't want to paraphrase. You want to use the key words from the rule, key words from the fact to create effective legal analysis. So I hope this, you know, provides some clarity about what we mean when we're saying we're looking for legal analysis. We're looking for application. Practice it. Hold yourself accountable through the highlighting method or another similar method that requires you to identify each to make sure both are present. And as always, just do your best and know that I'll be rooting for you. Thanks.