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Thinking Like A Lawyer

Thinking like a lawyer involves identifying rights and duties based on given circumstances, which is a more elaborate process than a non-lawyer's view of laws simply telling you what you can or cannot do. Lawyers must consider if any duties have been breached and think beyond the typical analysis by examining related cases and considering all angles, aiming for logical consistency while keeping explanations concise. Judicial precedent is important for stability, guiding behavior, and building upon past knowledge and experience, though precedents can be overturned if a decision is manifestly wrong or demands correction of a grave constitutional error.

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jobert cortez
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337 views8 pages

Thinking Like A Lawyer

Thinking like a lawyer involves identifying rights and duties based on given circumstances, which is a more elaborate process than a non-lawyer's view of laws simply telling you what you can or cannot do. Lawyers must consider if any duties have been breached and think beyond the typical analysis by examining related cases and considering all angles, aiming for logical consistency while keeping explanations concise. Judicial precedent is important for stability, guiding behavior, and building upon past knowledge and experience, though precedents can be overturned if a decision is manifestly wrong or demands correction of a grave constitutional error.

Uploaded by

jobert cortez
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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THINKING LIKE A

LAWYER
Thinking Like a Lawyer
Goal of legal thought: Identify rights and duties existing under given
set of circumstances.
Non-lawyers conception: law tells you what you can do and cannot
do.
Lawyers thought process more elaborate: has any duty been
breached?
Slip and fall
U.S. v. Holmes

Good Samaritan Rule


. Issue perception
Spotting issues
Ambiguous exams. Rightly so.
In law, no such thing as right or wrong answer; only good or bad answer.
But be consistent, logical, clear. Make sentences short, to the point, powerful.
Eliminate adverbs whenever possible.

Think beyond the box.


Prince v. Massachusetts, 321 U.S. 158 (1943). (JW minors selling leaflets on
public streets; religious freedom v. police power) Compare with: Gerona,
Ebralinag, Escritor, flag burning cases.
Judicial precedent
Basic concept: Building on knowledge learned in the past.
Making kinilaw
Holmes: Life of the law has not been logic, but experience.
Roman law evolved from blood feud; vengeance. Buying off
vengeance.
Two directions: Vertical and Horizontal.
Vertical precedent
Chain of command. Lower court obliged to follow higher court.
Children follow parents. Because I say so.
Employees follow superiors.
Heningsen v. Bloomfield Motors (disparity of bargaining power between car
dealer and typical purchaser, so court does not enforce buyers waiver of
warranties.)
Escola v. Coca-Cola Bottling Co. (exploding bottle; manufacturers strict
liability)
Estrada v. Escritor.
Horizontal precedent. (Stare decisis)
Let decision stand, or stand by the thing decided.
Earlier decision is superior not because it comes from higher
court, but because it is earlier.
Roe v. Wade; Planned Parenthood v. Casey.
Gerona v. Sec. of Educ.; Ebralinag v. Div. Supt. Of Sch.
Core idea: stability
Important to settle things so that people can rely on those
decisions and guide their behavior accordingly.
Brandeis: More important that the question be settled than
that it is decided right.
Merryman: Stare decisis has no bite when it means merely that
court adheres to a precedent it considers correct. It is significant
only when a court feels constrained to stick to a former ruling
although the court has come to regard it as unwise or unjust.
Roe/Casey; Gerona/Ebralinag
Escaping precedent
Previous decision extremely wrong as to demand overruling.
Grave constitutional wrong/manifestly wrong.
Mapp v. Ohio overruling Wolf v. Colorado (illegally obtained
evidence inadmissible, even if true).
Making distinctions. (People v. Ireland; conversion issues; alcohol
level in blood v. alcohol level in breath.)

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