14: Legal Memos - Discussion Section

Writing a counter-analysis

Very rarely are all of the legally significant facts undisputed. Facts are sometimes disputed, unclear, or subject to different interpretations/inferences. The purpose of factual counter-analysis is to anticipate an objective view of the facts that is different from what you wrote in the Application component of your IRAC analysis. Also, Often, there are several legal authorities relevant to the legal standard you discussed in your IRAC analysis. The purpose of legal counter-analysis is to anticipate an objective view of the legal authorities that is different from your own. Here are some suggested steps for writing counter-analysis:

Step 1: Review your Facts section in your legal memo. Remember, the Facts section of your legal memo contains all of the client facts, including the facts that don’t support the conclusion you reached in your IRAC analysis. Look for signal words such as apparently, allegedly.

Step 2: Identify legally significant facts that are disputed, unclear or are subject to more than one interpretation. Use a highlighter to mark those facts in your Facts statement that are

• Disputed by the parties or witnesses (for example, one person says the traffic light was green, and another person says the traffic light was red). These would be “black and white” disputes, meaning that if one version is true, the other must be false.
• Unclear due to a lack of testimony/evidence or several different versions of the facts. The more witnesses you have, the more different versions there likely will be as to what happened, when it happened, how it happened, or why it happened. These are “gray” disputes, meaning that several different versions could be true, based on the vantage point and perception of the various witnesses.
• Able to support different assumptions, interpretations, or inferences that can be drawn from the fact. Sometimes a person’s objective words or behaviors can reflect many plausible subjective motives, thoughts, or intents. For example, suppose you saw a person throw away a half-eaten apple. There are many logical inferences as to why: the person was no longer hungry; the person was going somewhere that didn’t allow food; the person discovered a worm in the apple.

Once you’ve marked those facts, compile a list of legally significant facts that might be important enough to change the outcome of your client’s legal matter. Your macro-synthesis worksheets (in which you listed client facts that were similar to or different from the facts of court decisions you briefed) can help with this.

Step 3: Determine how the facts identified in Step 2 would change the client’s outcome. In the Application component of your IRAC analysis, you assessed the credibility, bias, and ability to perceive, with respect to witness statements, testimony and documents; you then decided which facts you believed were the strongest or most likely to be true. As part of this process, you also made some reasonable assumptions, interpretations and inferences based on your view of the facts. This step asks you to consider how someone else’s assessment could be different from yours, and how that difference would impact the client’s outcome.

Step 4: Identify the differences in “rules of law” contained in the legal authorities.

Again, usually the differences arise in court decisions as opposed to conflicting statutes. While reviewing the court decisions, ask yourself these questions:

• Which court decisions have outcomes that are different from, or opposite to one another?
• Why are they different? There are several possibilities, such as
  • Differences in legally significant facts. Even a seemingly small difference in the facts can have a big impact on how the legal standard is applied.
  • The legal standard has changed/evolved during the time gap between the court decisions. Statutes are amended or repealed; sometimes new statutes are enacted; common law evolves. Pay particular attention to portions of court decisions describing the history of the statute/legal standard.
  • A new/different policy reason has emerged that supports a different outcome in the application of the legal standard. Courts sometimes describe the “why” behind a particular legal standard (who, or what, is being protected and why? Who is being held responsible and why?). Frequently, due to rules relating to precedent and stare decisis, later court decisions include an explanation of why they deviated from previous decisions.

Step 5: Review your case briefs and macro-analysis worksheets. In the Rule component of your IRAC analysis, you determined which court decisions were most applicable to the client’s legal question based in large part on your view of factual similarities and differences. Now it’s time to look more closely at the court decisions you determined were not applicable.

Step 6: Write factual counter-analysis identifying the facts in Step 2 and rules of law in Step 4 and why they do not change your conclusion. Once again, I recommend using a formula similar to what you see below for writing your counter-analysis. Using the same structure repeatedly also helps with writer’s block, and the consistency makes your writing more predictable and easier to follow.

• Start with a transitional word or phrase that signals the reader you are about to explain your counter-analysis. Some possibilities include however, nevertheless, nonetheless, conversely, on the other hand, or “A different view of the facts could lead to a different outcome.”
• State the general impact of the counter-analysis. For example, If the jury views the facts differently, our client might be held liable.
• Explain the counter-analysis factors in detail. Describe the black-and-white (or gray) dispute, and what the different resolutions of those disputes might be. Describe the different assumptions, interpretations, or inferences that can be drawn from the fact(s).
• Describe the specific impact that would occur if the jury viewed the facts differently from you, in the context of the legal standard analyzed in your IRAC analysis. For example, if the jury believes witness A’s testimony rather than witness B’s testimony, the jury might determine our client failed to stop for a red traffic light.
• End your counter-analysis with a conclusion regarding the failure of these differences to impact on your IRAC conclusion.

Going back to our client, Willy Wonka, you might recall there were some pretty interesting facts relating to the question of whether the People would be able to prove beyond a reasonable doubt that Wonka set the fire. Those facts are:

• Only Mary Worth claimed to have seen Wonka near the scene of the fire. No other witnesses saw Wonka.
• Charlie Bucket, joint owner of the Chocolate Factory with Wonka, is currently being audited by Weegocha Auditing Company for alleged improper business practices. Weegocha states that $1 million is unaccounted for in corporate record books.
• Corporate record books reflect that the factory has been operating at a financial loss for the last three years.
• Bucket, just like Wonka, has a Preferred Player’s Cards at LaCasino. LaCasino policy is to issue Preferred Player’s Cards only to regular customers gambling at least $1 million.
• During our interview, Bucket admitted that he has lost a substantial, though unknown, amount of money gambling at LaCasino over the last five years. However, Bucket denies using corporate monies to gamble.

Using these facts, our counter-analysis might look like this:

DISCUSSION

Will the People be able to prove beyond a reasonable doubt that Wonka “willfully and maliciously” set fire to the Chocolate Factory? To secure an arson conviction, Penal Code sections 450 and 451 requires proof that the accused had a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act. California courts have interpreted arson as a general intent crime where evidence of acts done "willfully and maliciously" do not require a showing of motive. Here, Wonka's willful and malicious acts are shown by several facts, such as the discovery of fire accellerants and an eyewitness who identified Wonka at the scene of the fire. For these reasons, the People will be able to prove beyond a reasonable doubt that Wonka willfully and maliciously set fire to the Chocolate Factory.

California Penal Code section 451 states, "[a] person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property." The law further states, '"Maliciously' imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." Pen. Code, § 450. The California Supreme Court stated “willfully and maliciously” for the purposes of arson, "require only that the illegal act or omission occur "intentionally," without regard to motive or ignorance of the act‘s prohibited character. Evidence of willful and malicious acts sufficient to support an arson conviction include the throwing of a large firecracker onto a brush-covered hillside, the firecracker's explosion in the dry brush, and that the explosion caused a brush fire. There is no requirement to prove the accused specifically intended to cause a fire in a building.

In People v. Atkins (2001) 25 Cal.4^th 76, 104 Cal.Rptr.2d 738, 18 P.3d 660, the defendant was intoxicated when he started a fire in a brush-covered area near his ex-girlfriend’s home, damaging nearby vegetation. He was charged with arson under Penal Code section 451 for willfully and maliciously setting fire to the brush. The defendant claimed arson was a specific intent crime in which the People were required to prove that he had the intent to set a fire. Accordingly, he believed the jury in his trial should have heard evidence of his intoxication since that would cast doubt on his intent to set a fire. The California Supreme Court said that arson requires only a general criminal intent and that the specific intent to set fire to, burn, or cause to be burned the relevant structure or forest land is not an element of arson. Therefore, evidence of the defendant's intoxication was irrelevant to whether he was guilty of "willfully and maliciously" setting fire to the brush-covered area under Penal Code section 451.

In re V.V. (2011) 51 Cal.4^th 1020, 125 Cal.Rptr.3d 421, 252 P.3d 979, involved two minors who threw large firecrackers into a large brush-covered hillside. The explosion of the firecrackers caused a five-acre fire. The boys claimed they wanted to hear the loud explosions from the firecrackers and did not intent on setting the hill on fire. The California Supreme Court said their conduct constituted "willful and malicious" acts under Penal Code section 451 because their acts of lighting the firecrackers and throwing them into the hillside brush knew were intentional acts that they knew created a fire hazard. The court further said that, "their intentional acts created a fire hazard were aware of facts that would lead a reasonable person to realize that the direct, natural, and highly probable consequence of throwing a lit "cherry bomb" from their location would be its landing in the dry brush...and causing a fire."

Based on the Atkins and In re V.V. cases, a determination of “willfully and maliciously” needs to be based on objective evidence of intentional acts and does not require a showing that those acts were specifically intended to cause a fire. In this case, similar to the Atkins and In re V.V. opinions, Mr. Wonka’s "willful and malicious" acts can be inferred from many facts. The fire inspector’s report noted use of accelerants in several sites. The fire started sometime after 1 a.m., long after the factory was closed. Finally, a witness testified that he saw Mr. Wonka dancing around across the street from the fire, yelling repeatedly, “Burn, baby burn!” All of these facts -- and especially the witness’ testimony – demonstrate Wonka’s intentional acts that were willful and malicious for purposes of Penal Code section 451.

Will the People be able to prove beyond a reasonable doubt that Wonka set the fire to the Chocolate Factory? There are challenges the prosecution could face. There is only one witness, Mary Worth, who claims to have seen Wonka near the scene of the fire. Moreover, there are significant arguments to establish Charlie Bucket had more reason to set fire to the Chocolate Factory than Wonka. Bucket admitted to having gambling losses and shared in the losses the Chocolate Factory has seen in recent years. While Bucket may also be a suspect and may have had greater motive to commit arson than Wonka, motive is not needed to be proven to establish arson under Penal Code section 451 as stated in Atkins. Also, while there is only one witness who saw Wonka at the scene of the fire, there are no witnesses who saw Bucket at the fire. For these reasons, it is unlikely that circumstances relating to Bucket will distract from the People's ability to prove Wonka is guilty of arson beyond a reasonably doubt under Penal Code section 451.

The legal research memo is almost complete! In the next chapter, you’ll learn how to put in the finishing touches – the Answers to the Questions Presented.