Analysis

A (Analysis).  Following your opening paragraph to your subsection are your Analysis paragraphs. 

1.  Follow the Factors that You Presented in Your Explanation. The easiest way to ensure that your Analysis section is well organized and compelling is to follow the road map that you should have provided in your Explanation.  If you identified relevant Factors in your Explanation, then simply discuss each of those factors, one by one in separate paragraphs (or subsections) in your Analysis section.  For this reason, you should make sure that your Explanation of your Rule effectively lays out the specific factors that you will address in your Analysis.

2.  Rule-based reasoning.  Another benefit to organizing your Analysis according to the factors that you identified in your Explanation is that you will then naturally organize your writing by factor or theme, according to the nature of the law, and not simply by case.  Legal writers often refer to this thematic approach as "rule-based reasoning."  In essence, using rule-based reasoning, you will analyze the Rule based on the legal factors or elements that courts consider when making determinations based on that rule.  Once you have identified those factors and chosen the factors that you wish to discuss, you will analyze those factors one-by-one.  Writers who do not consciously adopt the rule-based reasoning approach often analyze the issue at hand by simply discussing relevant cases one-by-one, often discussing one case per paragraph.  That is not a terrible approach, but it makes your Analysis seem more anecdotal and shallow - based on a few select cases rather than on the intricacies of the law.

3.  Paragraphing or Subsections.  Try to discuss each one of the factors identified in your Explanation in individual paragraphs.  If you feel that you have too much to discuss, then you might consider breaking your discussion out into further subsections. It is fine to have multiple layers of subsections, but it can get confusing to the reader.

4.  Organizing Your Analysis Paragraphs. You should begin each analysis paragraph with a topic sentence that clearly identifies the relevant theme or factor.  Follow the topic sentence with a discussion of controlling case law.  Then apply that case law to your facts by discussing the relevant similarities or differences between the case law and your case. Whenever possible, you should use more than one case per theme as it makes your argument more convincing, but you will sometimes find that you only have one case to discuss for a given theme/paragraph, which is fine. Thus, as a general rule for organizing your Analysis paragraphs, as mentioned above:

     a. Topic Sentence.  Begin with a topic sentence that identifies the theme of the paragraph;

     b. Precedent Case Law and Other Relevant Authority.  Following the topic sentence, briefly discuss precedent case law relating to the theme at hand; and

     c. Your Facts.  After discussing precedent case law, usually within the same paragraph, discuss the facts from your case that relate to the topic addressed within the paragraph.

5.   Topic sentence.  Begin each Analysis paragraph with a clear topic sentence, and, in each paragraph, only discuss facts and cases that relate to that topic and that topic alone.  It is impossible to stress this latter point enough.  If you stray from the topic at hand, your writing will quickly become confused and less convincing.

6.  Precedent case law.  After your topic sentence, discuss relevant case law to demonstrate how courts have previously treated the issue, preferably in situations relatively similar to yours.  Be sure to:

     a. Cite to cases that address the specific legal sub-issue at hand, preferably with fact patterns that are relatively similar to yours,

     b. Discuss relevant facts from those cases - the facts that pertain to the sub-issue that you are discussing in the subsection, and

     c. Include the holdings of each case that you discuss so the reader knows which way the court decided based on the facts from that case, which will allow the reader to compare each of those cases to your case.
     d. Model format to discuss cases.  I have found that the easiest way to succinctly discuss a case in a single sentence is with the following format: In [case name], the court held [holding as to relevant legal issue] because [statement of facts that caused the court to rule as it did] (e.g., "In Smith v. Jones, the court held that the defendant should have known that his conduct would cause the plaintiff injury because the plaintiff asked the defendant to cease threatening her as the threats were causing her severe distress.").  You may of course analyze cases using multiple sentences, and you often should do so.  However, the more succinct you are, the easier it is for the reader to compare the cases that you are citing to the facts of your own case that you are analyzing.

      As you feel more comfortable, you can combine your discussion of two cases into a single sentence, or you can combine your discussion of a case with your analysis of your facts all in a single sentence.  However, when you are just getting started, try to stick to one case per sentence.  Additionally, you can eventually experiment with squeezing analysis into crafty citations by using effective parentheticals.

      NOTE: While I recommend that you first discuss controlling case law and then discuss your facts, you are welcome to try reversing that order. 

7.  Your client's facts.  After you have introduced precedent case law, compare and contrast your client's facts to the facts and holdings that you presented from those cases to demonstrate your client's likelihood of success.  The aim is for you to compare/analogize and contrast/distinguish your facts from those of precedent cases to demonstrate to the reader which way the court is likely to hold.

8.  Be Sure to Compare and Contrast.  You will benefit from discussing cases where the court ruled favorably on an issue, as well as cases where the court ruled unfavorably. 

    -Compare/analogize.  Compare your facts to the cases where the court ruled favorably by showing that your case is similarly strong, perhaps even stronger. 

    -Contrast/distinguish.  Contrast your facts to the cases where the court ruled opposite from what you are arguing by showing that your case is different and will therefore be more likely to receive favorable treatment from the courts.

9.  Spectrum of cases.  I like to think of precedent cases on a spectrum that ranges from definite loser to definite winner.  Once you have collected enough cases to flesh out the spectrum, you should determine where in that case law spectrum, based on your facts, you case fits.  Discuss the case law in comparison to your case to demonstrate the likelihood of success for your client, analogizing to the cases where the court ruled favorably and distinguishing from those where the court ruled unfavorably.

X - - - - - - - - - - - - - - - - - x - - - - - - - - - - - - - - - - - - X

Definite                              Your                                  Definite

Loser                                 Case                                  Winner

10.  Repeat.  Repeat this process for each additional theme/factor that you discuss within the subsection.  Remember, each paragraph should include a topic sentence that clearly articulates the theme you are discussing.  And, most importantly, stick to that theme throughout the paragraph.  Do not stray into topics that you should discuss elsewhere.

11. Paragraphing.  Try to keep your paragraphs under one double-spaced page.  Additionally, if your analysis is confined to a single, concise paragraph, you should combine it with your Rule, Explanation, and second Conclusion to form a single paragraph, rather than separating your CREAC into three separate paragraphs.

     Sample Analysis:

     (Trade Secret hypothetical)

     NOTE:  Here, the analysis is broken down into a subsection to correspond to the first factor listed in the Explanation of the Rule.  The analysis is organized as a mini-CREAC, with (1) a conclusion used for the sub-heading, (2) a mini-rule/topic sentence used as the first sentence of the subsection is mini-rule, (3) followed by a brief elaboration/explanation of the rule, (4) followed by the core analysis - first case law discussion of the factor and then discussion of the client's facts that relate to the factor (which you can repeat as appropriate), and (5) a repetition of the mini-conclusion.

     Example 1:

     A.  Ms. Petersen's PPI System was not known outside of her business.

     In determining whether Ms. Petersen's PPI System is a trade secret, a court would consider the extent to which information pertaining to the System was known outside of her business. See Rivendell Forest Products, Ltd. v. Georgia-Pacific Corp., 28 F.3d 1042, 1046 (10th Cir. 1994). Even where alleged trade secrets include elements that are known outside of the business, courts have still found that such methods could constitute trade secrets.  Id. In Rivendell Forest Products, Ltd., plaintiff designed a database that generated on-demand, customer-specific statistics.  Id. at 965-66.  The appellate court reversed the trial court's ruling that the database could not be a trade secret because it had publicly known elelnents and held that, even if plaintiff s database contained publicly known elements, plaintiff's integration of such elements in a non-publicly know methodology gave plaintiff a competitive advantage and could therefore constitute a trade secret.  Id. at 1046.  In Ms. Petersen's case, although her client assessment method is known to current and former employees, this technique, in conjunction with the PPI Program, is a methodology that is not known to the public. Furthermore, courts have viewed evidence that a plaintiff is the exclusive user of a business method as evidence that the method is not publicly known. See Harvey Barnett, 338 F.3d at 1131. The Harvey Barnett court found the fact that no other aquatic organizations taught plaintiff's aquatic instruction program compelling in determining that the progranl was not publicly known. Id. In Ms. Petersen's case, the requests by fitness professionals for Ms. Petersen to present her methodology at public conferences indicates that her PPI System is not known among her competitors.

    NOTE: In the example above, after introducing the topic/mini-rule, the writer first discussed one case in comparison to her client's facts, and then discussed a second case, also in comparison to her client's facts.

     Example 2:

     C.  Ms. Petersen took sufficient precautions in guarding the secrecy of the PPI System.

     In determining whether Ms. Petersen's PPI System is a trade secret, a court would consider the extent to which she took precautions to protect the secrecy of her PPI System. See Network Telecommunications, Inc. v. Boor-Crepeau, 790 P.2d 901, 902 (Colo. App. 1990). The Network Telecommunications court indicated that reasonable efforts may consist of advising employees of a trade secret's secrecy and sharing information with employees only on a need-to-know basis. Id. A plaintiff's effort to patent or copyright a purported trade secret may also be evidence of precautions taken to guard secrecy. See Mineral Deposits, 773 P.2d at 607; Gates Rubber Company v. Bando American, Inc., 9 F.3d 823, 830 (10th Cir. 1993). In Mineral Deposits, plaintiff had applied for a patent on its mining equipment. 773 P.2d at 607. In Gates Rubber, plaintiff copyrighted its computer program. 9 F.3d at 830. Both courts found that plaintiffs could have trade secrets. Mineral Deposits, 773 P,2d at 607; Gates Rubber, 9 F.3d at 830. In Ms. Petersen's case, Ms. Petersen provided Ms. Dimitri with information about the PPI System only on a need-to-know basis, Ms. Petersen advised Ms. Dimitri of the system's secrecy by telling Ms. Dimitri about her plans to copyright the system so that no other fitness centers could use it, and Ms. Petersen is working with an attorney to procure copyrights and patents on the PPI System. These facts demonstrate that Ms. Petersen is actively guarding the PPI System's secrecy.

     A court may weigh the fact that Ms. Petersen has not had her employees enter into confidentiality or noncompete agreements against her. See Hertz v. Luzenac Group, 576 F.3d 1103, 1112 (10th Cir, 2009). In Hertz, the court noted that plaintiff's employee confidentiality agreements enhanced plaintiff's claim that its manufacturing process was a trade secret. Id. However, the court explained that there always are more security precautions that can be taken, just because there is something else that could have been done does not mean that the efforts were unreasonable under the circumstances." Id. at 1113. Thus, PPI's lack of confidentiality agreements may detract from Ms, Petersen's trade secret claim, but should not be dispositive in determining whether or not the PPI System could be a trade secret.

    NOTE: In the example above, the writer again starts with a topic sentence/mini-rule, then more discussion/explanation of the topic, followed by specific reference to prior case law and discussion of her client's facts.  Additionally, the writer includes a second paragraph that features "counter analysis," which mentions one of her client's weaker factual points, but concludes with the reassurance that the weakness is not fatal.