Identify Analogous & Distinguishable Facts - Next Generation Bar Exam
- A precedent found a contract formed when the offeree signed and mailed an acceptance. The client mailed a signed acceptance before the offeror revoked. What fact makes the case analogous?
- The acceptance was dispatched before revocation. Under the mailbox rule, acceptance is effective on dispatch.
- How should an advocate respond to an opponent's analogy to an unfavorable precedent?
- Identify the legally significant facts that differ and explain why the difference matters. The difference must relate to the court's reasoning.
- A precedent found a covenant not to compete unreasonable because it covered the entire nation for 10 years. The client's covenant covers one county for one year. What is the strongest distinction?
- The client's covenant is far narrower in geographic scope and duration. Scope and duration drove the precedent's reasonableness analysis.
- What makes a fact legally significant for analogy?
- It was relevant to the court's reasoning or holding in the precedent. Facts that did not affect the outcome are not useful for comparison.
- What is reasoning by analogy?
- Arguing that a case should reach the same result as a precedent because their legally significant facts are similar. Analogy is the core method of common-law reasoning.
- What is distinguishing a case?
- Arguing that a precedent should not control because its legally significant facts differ. A precedent is binding only for cases with materially similar facts.
- A precedent held a landowner liable because the landowner knew of a dangerous hole and failed to warn. The client landowner did not know of the hole. What is the key distinguishing fact?
- The client's lack of knowledge of the danger. Knowledge was the basis for liability in the precedent.
- A precedent held a store owed no duty to protect customers from an unforeseeable attack. The client store had several prior similar attacks. What is the strongest distinction?
- Prior similar incidents made the attack foreseeable. Foreseeability was the basis for the no-duty holding.
- What is the most persuasive way to present an analogy?
- Explicitly compare specific facts of the client's case to the dispositive facts of the precedent. General statements that the cases are similar are less persuasive.
- Why should an advocate identify the reasoning, not just the facts, of a precedent?
- Because only facts that matter under the court's reasoning support analogies or distinctions. Reasoning shows which facts the court treated as decisive.