Dear 1L: Don’t fall into the Dicta Trap

💌 Dear 1L, I fell into a trap in legal writing class. I’d like to spare you the same. (Skip to the 3 Keys if pressed for time.)

We learned that 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.

She fell into deep despair.

But dwell on the situation 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?

I shudder, still, and not just from the ghoulish facts.

🔹 I found the number of “relevant” cases crushing. The courts went every which way. I went every which way, too. And in the end, I utterly botched the analysis. Why?

➖In my analysis, I’d become fixated on what the courts SAID. I’d forgotten how they RULED.

🔻 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 Analysis:
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THREE 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 work on crafting some examples for you.
__________

*I didn’t learn the Keys until spring term. Fortunately, a 1L friend relayed them to me. I am forever grateful to her.

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📫 1Ls: What questions do you have? How might I help?

📫 Others: What was your 1L memo about, and what helped you get through this annual, daunting, 1L fall, writing process?

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Fondly,

💌 Amanda