Online Companion: Legal Research, Analysis, and Writing

Chapter 13

CHAPTER 13 SUMMARY
Counteranalysis is the process of discovering and presenting the counterarguments to a legal position or argument. It is important because to be able to adequately address a legal problem, all aspects of the problem must be considered. This includes identifying all the potential weaknesses in a legal position and being prepared to respond to all challenges to the position.

Counteranalysis should be employed whenever you are researching a legal issue or addressing a legal problem. You should always be alert and look for counterarguments.

A prerequisite to engaging in counteranalysis is thorough research of the question or legal argument. This may help you identify some counterarguments and give credence to or dismiss those already identified. Once the research is complete, there are many approaches that may be employed to assist you in counteranalysis.

Since most legal arguments are based on enacted law or court opinions, this chapter focuses on various counterarguments that may be raised when attacking reliance on an enacted law or court opinion. The list of approaches presented in this chapter is by no means inclusive of all the available ways to challenge a legal argument or position. It is important to make sure that you engage in counteranalysis using all the avenues listed (and any other approach) when looking for potential weaknesses in or counterarguments to a legal position. You can count on the opposing side to discover weaknesses in your position and use them against you. Remember, whenever you are reviewing your client’s case in regard to addressing a legal issue, you are negligent if you fail to engage in counteranalysis.

CHAPTER 13 ASSIGNMENTS

ASSIGNMENT 1
Legislative Act: Section 51-2-314 of the state commercial code provides that a “warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” A merchant is defined as a person routinely engaged in the purchase and sale of goods of the type sold.
Facts: Mary makes wood rocking chairs at her home. Twice a month for the past five years Mary has taken her chairs to sell at the local flea market. Last month Pam purchased one of the chairs. Mary did not make any statement concerning the quality of the chair when Pam purchased it. When Pam took it home and sat in it, the chair collapsed and she was injured. Pam, relying on section 51-2-314, is suing Mary for breach of warranty.

Assignment: What is Mary’s counterargument to Pam’s reliance on section 51-2-314?

ASSIGNMENT 2

Common Law: The common law provides that in a negligence case punitive damages may be allowed when the defendant’s actions evidence a willful or wanton disregard of the safety or interests of others.

Case Law: In the case of Stewart v. Echo Gas the defendant negligently installed a propane conversion system in the trunk of plaintiff’s vehicle. The defendant allowed the plaintiff to pick up the vehicle knowing the vehicle was in an unsafe condition. In addition, defendant had performed over fifty conversions without ever filing the safety check list required by the state. In allowing punitive damages the court held that the negligence of defendant in releasing the vehicle knowing it was unsafe and the failure to file the safety check list amounted to wanton and reckless conduct.

Facts: Defendant, a local power company, installed a pole and power line across part of plaintiff’s property. The pole was crooked and over a period of time it gradually tilted to one side and the power line sagged. During a storm the power line touched plaintiff’s garage and set it on fire. Plaintiff is suing defendant for negligence in installing, maintaining, and inspecting the pole. The plaintiff claims punitive damages relying on Stewart v. Echo Gas.

Assignment: Discuss the counterargument to plaintiff’s reliance on Stewart v. Echo Gas.

ASSIGNMENT 3
Constitutional Law: Article V of the state constitution provides that an individual has the right “to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. . . .”

Case Law: In the case of State v. Wilson, the defendant sought access to psychotherapy records of the eight-year-old girl whom he had allegedly raped. The trial court reviewed all of the records to determine if the records contained information that would assist the defense. The trial court noted that there was no information in the files that would aid the defense and refused to allow defendant to inspect the records. In upholding the trial court, the court of appeals held that an in camera review by the trial court protected the defendant’s interests without violating the privilege against disclosure of communications between a patient and a psychotherapist.

Facts: Defendant is charged with various sex offenses against his stepdaughter. The stepdaughter met several times with a psychotherapist. The trial court refused defendant’s request for access to the psychotherapy records after a review of half of the records. The court stated that a review of the files revealed no information favorable to the defense. On appeal the prosecution argues that State v. Wilson supports the decision of the trial court.

Assignment: Discuss the counterargument to the prosecution’s reliance on State v. Wilson.


CHAPTER 13 LINKS TO INTERNET RESOURCES
At the time of the drafting of this text there were no Web sites dedicated specifically to counteranalysis. However, using a search engine such as http://www.google.com and “law counteranalysis” as a topic, a limited range of sites may be found (twenty-one when this text was drafted) which address some aspect of law and counteranalysis. Some sites involve counteranalysis in specific areas of the law such as military law, while others discuss the topic in relation to taking law school exams. Although, some sites briefly mention the role of counteranalysis in the analysis process, no site addresses the topic in depth.

When “law counterargument” is used as the topic, a much larger range of sites may be found (over two thousand when this text was drafted.) Most of these sites involve counterarguments in specific cases or do not discuss the role of counterargument in the legal analysis process.

Power Point Presentations

Counteranalysis Techniques -- Case Law

Counteranalysis Techniques -- Enacted Law