Deck 13: Counteranalysis

Question 1

In an interoffice research memorandum, counteranalysis should be placed after the analysis of each issue.

Answer 1

True

Question 2

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or attack a legal position or argument based on a court opinion is to show that the court opinion being relied on no longer represents sound public policy and therefore should not be followed.

Answer 2

True

Question 3

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

Answer 3

True

Question 4

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.

Question 5

One way to challenge or attack a legal position or argument based on a statute is to show that the different statute being relied on as a guide to interpret the applicable statute applies to such functionally different fact situations from the fact situation of the client's case that it cannot be used as a guide to interpret the statute being analyzed.

Question 6

In a court brief, counteranalysis should be presented at the end of the analysis.

Question 7

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

Question 8

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.

Question 9

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 by the opposing side.

Question 10

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.

Question 11

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

Question 12

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 his or her client that is not disclosed by the opposing counsel.

Question 13

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

Question 14

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

Question 15

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.

Question 16

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.

Question 17

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

Question 18

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

Question 19

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

Question 20

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 being relied on.

Question 21

What is included in a legal research memorandum?

A)Rule of law
B)Case
C)Introductory sentence
D)Conclusion
E)All of the above.
F)Answers a and b.
G)Answers c and d.

Question 22

Counteranalysis is important because:

A)An attorney has an ethical duty to disclose legal authority adverse to the position of his or her client that is not disclosed by the opposing counsel
B)Research and analysis are not complete unless all sides of an issue and all legal arguments have been considered
C)It is important to locate and disclose adverse authority in order to maintain credibility with your supervisor
D)If you have identified and addressed adverse authority in a legal brief is submitted to a court, you have an opportunity to soften the adverse authority's impact by discrediting or distinguishing it
E)All of the above
F)Answers a, b, and c above
G)Answers a, b, and d above

Question 23

Which of the following is a way to challenge or attack a legal position or argument based on a court opinion?

A)The opinion is not on point because of key fact differences.
B)Reliance on the opinion is misplaced because the principle applied does not apply to the case at hand.
C)The court opinion is not subject to a different interpretation.
D)The court opinion is universally followed.
E)All of the above
F)Answers a and b above
G)Answers a, b, and d above

Question 24

Which of the following is a way to challenge or attack a legal position or argument based on a statute?

A)The statute being relied on as a guide to interpret the applicable statute applies to such functionally different fact situations from the fact situation of the client's case that it cannot be used as a guide to interpret the statute being analyzed.
B)The statute being relied on has not been adopted in the jurisdiction.
C)The case being relied on to interpret the statute is persuasive authority.
D)The interpretation of the statute being urged by the opposition violates another legislative act.
E)All of the above
F)Answers a, b, and c above
G)Answers a, b, and d above

Question 25

Counteranalysis should be conducted:

A)Whenever the strengths and weaknesses of a case are being considered
B)When preparing an interoffice legal research memorandum
C)When you are just thinking about the legal issues in a case
D)Whenever legal interviews are being conducted
E)All of the above
F)Answers a, b, and c above
G)Answers a and b above

Question 26

Counteranalysis is:

A)An exploration of how and why a specific law does or does not apply to the facts of a case
B)The process of anticipating the argument that the opponent is likely to raise in response to your analysis of an issue
C)The process of discovering and considering the counterargument to a legal position or argument
D)The same as a counterargument
E)All of the above
F)Answers a, b, and c above

Question 27

Which of the following is a way to challenge or attack a legal position or argument based on a court opinion?

A)The opinion being relied on is mandatory precedent.
B)The opinion being relied on allows for other possible solutions.
C)There are equally relevant cases that do not support the position adopted in the case being relied on.
D)The court opinion being relied on no longer represents sound public policy.
E)Answers a and d above
F)Answers a, b, and c above
G)Answers b, c, and d above

Question 28

When conducting a counteranalysis, which of the following sources can be used?

A)Treatises
B)ALR annotations
C)Law review article
D)Check for dissent.
E)All of the above.

Question 29

Which of the following is a way to challenge or attack a legal position or argument based on a court opinion?

A)The statute interpreted in the case does not function differently from the statute in the client's case.
B)The statute interpreted in the case has been adopted in the jurisdiction.
C)The statute interpreted in the case does not conflict with a legislative act.
D)All of the above
E)Answers a and b above
F)None of the above

Question 30

Which of the following is done when researching case law?

A)Check the annotations.
B)Determine if other cases analyze the law differently.
C)Check the digest for other cases that analyze the law differently.
D)Check for dissent.
E)All of the above.
F)Answers a, b, and c.
G)Answers b, c, and d.

Question 31

Counteranalysis is placed:

A)In the middle of the analysis section of a court brief
B)At the beginning of the analysis section of a court brief
C)At the beginning of the analysis of each issue in an interoffice research memorandum
D)At the end of the analysis of each issue in an interoffice research memorandum
E)Answers a and d above
F)Answers b and c above
G)Answers a and c above

Question 32

What is the purpose of legal research?

A)To discover how the law applies to the client's case.
B)To determine the strength of the client's case.
C)To analyze the strength of the opponent's case.
D)To determine the strengths and weaknesses of the case.
E)All of the above.

Question 33

Which of the following is a way to challenge or attack a legal position or argument based on a statute?

A)The statute being relied on as a guide does not apply.
B)The statute is sufficiently broad to allow another interpretation.
C)The statute has been misconstrued.
D)The statute has been misapplied.
E)All of the above
F)Answers a, b, and c above
G)Answers b, c, and d above

Question 34

Which of the following is a way to challenge or attack a legal position or argument based on a statute?

A)The elements of the statute are not met.
B)The key facts of the client's case and the facts required by the statute are not sufficiently similar.
C)The statute is not sufficiently broad to allow an interpretation other than the one being relied on.
D)The case being relied on to interpret the statute is on point.
E)All of the above
F)Answers a, b, and c above
G)Answers b and d above

Question 35

Which of the following is done when researching statutory law?

A)Check the annotations.
B)Determine if other cases analyze the law differently.
C)Check the digest for other cases that analyze the law differently.
D)Check for dissent.