Legal research is not only about discovering how the law applies, it is also about determining how strong case is. Using legal research we are analyzing strength and weaknesses of client’s case, and using counteranalysis we determine how opponent can use weaknesses against us. In this paper we will establish why counteranalysis is important and why do we use it, when we use it and where we can apply it.
Analysis is application of law to the case. And when we know what analysis is it is not difficult to determine what is counteranalysis. Counteranalysis is anticipating of argument that is likely to be raised by opponent as a respond to your analysis. Argument that is brought as a result of other argument is called counterargument. We need to research and find every possible counterargument that can be presented as an answer on legal argument. There are several main reasons why counteranalysis is important. First is that an attorney has an ethical duty to reveal legal authority that is not going in favor of a client if it is not revealed from opposite side attorney. This is provided by Rule 3.3(a) (3) of the American Bar Association’s Model Rules of Professional Conduct. Main goal of adversary system is to serve justice, and legal researcher needs to provide attorney with all relevant authority, even with those that are adverse to the client. Also by Model Rule 1.1. attorney, paralegal, and law clerk are required to finish their job completely, and that means to analyze both sides of an issue. If they fail to do that it can be considered as malpractice. Being prepared means that you are ready to respond on any legal argument that is raised by the other side. One more importance of counter analysis is that it can aid while determining the merits or while selecting appropriate cause of action. Applying counteranalysis in right way is also important to maintain good reputation and credibility. If lawyer fail to find adverse authority before the court, it will be eventually brought by court or opposite side. Than you can look like someone who is not taking his job seriously, or like someone who done it on purpose. When you submit a legal brief to a court you can identify adverse authority in it. On that way you can use opportunity and discredit meaning of adverse authority. There you can soften its impact and state reasons why it shouldn’t be applied. On that way you can have impact on court’s thinking, and consider it in your context. If you fail to state it in brief, than you missed your opportunity. You can very easy lose on the court if you do not analyze counterargument because they not going to disappear if you ignore it. No matter how your arguments are strong, maybe other side has even stronger, and you can be ready to beat it.
It is also questionable when to use counteranalysis. And answer is simple, always! Counteranalysis should be used whenever we are analyzing strengths and weaknesses of one case. It should be used when addressing a legal problem, when preparing an interoffice legal memorandum, when conducting any research on an issue in a case, when assisting in the preparation of a response to a brief applied by the opposing party, when considering the legal issues in the client’s case. Counteranalysis should be used even hen we are in initial stages of a case. For example counteranalysis should be included in summary of the applicable law when paralegals and law clerks making an initial interview with a client where they should state all potentially weaknesses of clients case.
Next question is: Where does counteranalysis? There is no general rule where we can apply counteranalysis but there are some most common cases how we apply it in a court brief and interoffice research memorandum. In a court brief it should be presented in the middle of the analysis (before conclusion after analysis) where should be discussed about weaknesses and possible counterarguments. After personal...