Exam 11: Counteranalysis

Counteranalysis should be employed in every situation when legal research is conducted.

Under the American Bar Association's Model Rules of Professional Conduct , research and analysis can be considered complete even though all the legal arguments regarding an issue may not have been explored.

One way to challenge or attack a legal position or argument based on a court opinion is to show that the court opinion being relied on no longer represents sound public policy and, therefore, should not be followed.

Counterargument is an objective evaluation of the strengths and weaknesses of a legal argument.

One way to challenge or attack a legal position or argument based on a statute is to show that the statute has not been adopted by any other jurisdiction.

One way to challenge or attack a legal position or argument based on a court opinion is to show that the opinion being relied on is not mandatory precedent and another court opinion allows for other possible positions.

In essence, counteranalysis is the process of discovering and considering the counterargument to a legal position or argument.

A way to challenge or attack a legal position or argument based on a statute is to show that the statute has been misconstrued.

One way to challenge or attack a legal position or argument based on a statute is to show that the statute is not sufficiently broad to permit a construction different from that urged.

One way to challenge or attack a legal position or argument based on a court opinion is to show that the court opinion being relied on violates another legislative act.

To determine the strength of a client's case it is necessary to analyze the strength of the opponent's case.

The circumstances of each case will determine which counteranalysis technique(s)to use.

One way to challenge or attack a legal position or argument based on a court opinion is to show that facts are not present to support each element of the cause of action.

One way to challenge or attack a legal position or argument based on a statute is to show that the statute relied on as a guide is so functionally different that it cannot be used as a guide to interpret the statute being analyzed.

Under the American Bar Association's Model Rules of Professional Conduct , an attorney has an ethical duty to disclose legal authority adverse to the position of the client that is not disclosed by the opposing counsel.

One way to challenge or attack a legal position or argument based on a court opinion is to show that the opinion being relied on is not subject to an interpretation different from the one relied on.

When conducting counteranalysis, consider all possible counterarguments, no matter how ridiculous.

One way to challenge or attack a legal position or argument based on a court opinion is to show that the opinion being relied on is not on point because of key fact differences between the opinion and the client's case.