Online Companion: Legal Research, Analysis, and Writing
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
Counteranalysis should be employed whenever you are researching a legal
issue or addressing a legal problem. You should always be alert and look
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.
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?
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.
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.
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
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
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.
Techniques -- Case Law
Techniques -- Enacted Law