Dear 1L, Don’t make this mistake on your Memo.
It’s easy to make it. I did.
It was fatal.
Here’s what happened and 3 lessons learned.
***
A doctor had autopsied the wrong body. It was the corpse of a nine year-old girl who’d just died. Her mother had given no consent and was undone. The thought of her little girl’s body being butchered in that way was just too much for her, and she fell into deep despair.
But dwell on the mother I could not. Instead, under some faraway state’s common law, I had to answer:
—Was there a viable claim for intentional infliction of emotional distress?
That was the situation for me in 1993, and I shudder, still, at the ghoulishness of the whole thing, start to finish.
Long story short, I utterly botched the analysis. My mistake was this:
🚫 I focused on what the courts SAID.
🚫 I didn’t focus on how the courts RULED.
Essentially, I compared cases by comparing the language the court used about the issue, rather than comparing the facts and the outcomes of the cases.
🔻 It was a trap (a “dicta” trap, I later learned,* but don’t fret over what that elusive term means now).
Instead, focus on these 3 Keys for your Memo:
__________
3 KEYS
🔑 1: Don’t stray far into what the courts “say.”
—Courts say a lot of things called “dicta” (Latin plural for an “aside”).
—You don’t need to “get” dicta, or where it applies, for the Memo.
—You merely must focus on the fact patterns and how the courts rule (i.e., which side wins)—not what the courts happen to say along the way.
🔑 2: Discuss only the cases with FACTS most like yours.
—When you’re choosing which cases to use to compare and contrast, pick the cases with the fact patterns most like yours.
🔑 3: Compare each case, FACT-to-FACT, with the hypo in your assignment.
—You need to get far more specific than you think. Your court’s “likely outcome” may turn on details so small as:
-the color a party wore;
-the particular words they used;
-the specific number of trees around their house; or
-the precise number of errors in their work.
👉 I’ll demonstrate what I mean in a model Memo I’m creating for you and will circulate it soon.
__________
*I didn’t learn the Keys until spring term. Fortunately, a 1L friend relayed them to me. I am forever grateful to her.
—
🗳️ 1Ls: What questions do you have? How might I help?
Others: What was your 1L Memo about, and what helped you get through the daunting writing process?
Fondly,
💌 Amanda
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