Identify Analogous & Distinguishable Facts - Next Generation Bar Exam

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.

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