“The Court is Likely to Find:” Bennardo on Abandoning Predictions

H/T to Jason Wilson. His recent Linkin post calls attention to Kevin Bennardo, Abandoning Predictions, 16 Legal Communication & Rhetoric ___ (2019 Forthcoming). Here’s the abstract for this interesting essay:

Analytical documents are a hallmark of the law school legal writing curriculum and of the practice of law. In these documents, the author usually applies a body of law to a set of facts and reaches a conclusion. Oftentimes, that conclusion is phrased as a prediction (“The court is likely to find…”), and many academics even refer to analytical documents as “predictive” document types. If that describes you, this Essay’s goal is to convince you to change your ways.

Simply put, there is a difference between conducting a legal analysis and predicting the outcome of a legal dispute. If the author of an analytical document has only conducted a legal analysis, they have no business claiming that they can predict the outcome of the dispute. That distinction should be recognized in the teaching of analytical document genres and should be conveyed by legal professionals in their communication of legal analyses.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.