Counteranalysis

1882 Words 8 Pages
Register to read the introduction… Those approaches are: 1) The elements of the statute are not met - Every statute is consisting of several elements. In order for statute to be applied to a case all those elements need to be applicable on the facts from the client’s case. 2) The statute is sufficiently broad. – If statute is too broad than we can expect a counterargument that different law can be applied because language in statute is too broad. 3) The statute has been misconstrued or does not apply. – That type of counterargument we very often can expect, and in those cases we should rely on case law to se in which way it was applied before. 4) The statute relied upon as a guide – Sometimes it can be held that different statute can be used as guidance because language and function of two statutes are too similar. 5) The statute relied on has not been adopted in your jurisdiction. - In such cases we are trying to persuade the court to adopt the law of another jurisdiction. 6) The interpretation of the statute urged by the opposition is unconstitutional or violates another legislative act. – Counteranalysis should always be used to discuss possibility that interpretation of a law violates a constitutional or statutory provision. 7) The statute relied on is unconstitutional. – Even if it difficult to find statute unconstitutional, we should consider constitutionality of the statute on which a legal position is based. Counterargument should be based on a challenging the constitutionality of the …show more content…
Challenging a legal position based on a court opinion has a several approaches: 1) Reliance on the court opinion is misplaced (Key facts) – it happens when key facts from client’s case and key facts from court opinion are too different. If we change nature of any of these facts that would affect the outcome of the decision. 2) Reliance on the court opinion is misplaced (rule of law) – Rule of law from court opinion can’t be applicable n the client’s case. 3) The court opinion is subject to a different interpretation – sometimes the interpretation we adopt may not be the only possible interpretation. 4) The rule or principle adopted in the opinion relied on is not universally followed. – This happens when there is no court opinion that is directly on point, and opponent is urging to court to follow other case with similar key facts and different outcome. 5) The opinion relied on presents several possible solutions to the problem; the one urged by the opposition is not mandatory and is not the best choice.- Here we need to determine if the opinion includes other solutions in addition to the one we are relied on. 6) The position relied on no longer represents sound public policy and should not be followed. – We know that precedent must be followed, but we should explore possibility for court to overrule precedent. Of course we should keep in mind that lower court can’t overrule higher court. 7. Other equally relevant cases do not support position adopted in case relied on. – Sometimes opinion of the higher court appears to conflict or a matter is not clearly settled, and than we can examine other options different than those brought by

Related Documents