When performing neutral, objective legal analysis, you want to foresee what the best legal arguments are for *BOTH* of the parties involved in the lawsuit. There are many instances where one might want to do this. For example, assume you are a law clerk working for a judge. The judge has an upcoming case and wants you to summarize the case so that the judge can understand the issue, the rule, and the best arguments from both sides. Then, the judge wants you to make a recommendation as to the stronger argument. This is similar to what a junior partner in a law firm might do for a senior partner, or a paralegal might do for a lawyer, or law students might do on exams in law classes. Or, even as an ordinary citizen, you can not accurately understand your legal rights unless you are able to *objectively* look at the law to *neutrally* evaluate whether you actually have a winning legal argument, or whether you instead merely have unrealistic wishful thinking in bringing a lawsuit to court.

The following example describes a hypothetical factual situation and then describes the IRAC legal analysis format that is commonly used in objective legal analysis.

Sample Examination Hypothetical Case:

Commonwealth of Kentucky v. White

Because of increasing state costs in having grand juries (bodies of 12-24 citizens who indict (charge) criminal defendants), the Commonwealth of Kentucky enacted a law eliminating grand juries and instead allowing state prosecutors to indict criminal defendants upon a showing of probable cause that a crime has been committed by the accused. This is the same standard that was applied by grand juries. Chris White, a resident of Kentucky, was indicted for murder by a state prosecutor. Chris demanded a grand jury under the 5th Amendment to the U.S., which states: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on . . . indictment of a Grand Jury." The judge rejected Chrisís argument because the U.S. Supreme Court had never considered the issue whether that provision was applied to the states through the 14th Amendment. Chris was convicted, and filed a lawsuit in Federal District Court, arguing the 5th Amendment right to a grand jury should be applied to the states through the 14th Amendment.. Legally analyze the case, putting your answer in IRAC (Issue, Rule, Analysis (by both parties) and Conclusion) form.

Model Exam Answer Outline (in IRAC form):
Issue:1 sentence precisely stating the legal question
Rule(s) of Law: 1-4 Sentences (or more if necessary, but that will be rare) exactly quoting the appropriate rule(s) of law
Analysis/Application/Argument : ***This is the most important part of the brief: *roughly* 8-12 sentences applying the rule(s) to the facts of the case. In other wrods, *roughly* 4-6 sentences (or more if necessary) presenting each side's best arguments in a lengthy paragraph or so. In this analysis, each element of the rule(s) must be discretely applied step-by-step. Within each step, creatively present the strongest possible arguments by the parties, analogizing or distinguishing the facts of this case to facts from other cases, with citations, skipping no steps in your logical reasoning. It is also essential that you present the *strongest and best* arguments from both sides on each element, where an argument is plausible, even if you don't agree with the argument!
Conclusion: 1 sentence *BRIEFLY* stating who has the better argument and why. There should be NO new arguments or analysis in your conclusion that did not appear in your anlysis/application section.

Sample Model Exam Answer: (Even though not perfect, it is concise, accurate, thorough, and creative, and so receives maximum credit)

ISSUE: The issue here is whether the 5th Amendment right to a grand jury in federal criminal cases is incorporated by the 14th Amendment and thus applicable to the states as well.

RULE: The U.S. Supreme Court has adopted the theory of "selective incorporation" where the question whether a right in the Bill of Rights applies to the States is determined on a case-by-case basis. A right in the Bill of Rights will apply to the states if that right is "of the very essence of the scheme of ordered liberty" and a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and such that "neither liberty nor justice would exist if it were sacrificed." Palko v. Connecticut. A right in a criminal proceeding must also be "essential to a fair trial." Duncan v. Louisiana.

ANALYSIS: Here, Chris would argue that, just as Duncan held there is right to a jury trial in criminal cases, a grand jury is a historical tradition and a basic part of our criminal justice system since before the Constitution. It is basic to our jurisprudence, and hence is "rooted in the traditions and conscience of our people." Also, just as Duncan said jury trials guard against an overzealous prosecutor, so too do grand jury trials guard against an overzealous prosecutor who might want to indict a person out of personal revenge or political ambition, but the grand jury can refuse to do so. Thus, the protections from a grand jury are a necessary part of a "scheme of ordered liberty" such that "neither liberty nor justice would exist" if the grand jury would elminated. As a necessary check against improper prosecution, a grand jury is "essential to a fair trial," so Duncan is controlling authority and should be followed directly here.

However, the Commonwealth of Kentucky would respond that Duncan is distinguishable. Unlike the situation with jury trials, many states have not used grand juries for many decades, so clearly grand juries are not "so rooted in the traditions and conscious of our people as to be ranked as fundamental." Also, In Duncan, a trial jury seemed to be the only safeguard against an overzealous prosecutor. Here, however, even if grand juries are eliminated, the trial jury itself still can refuse to convict, and thereby acts as a fundamental check against an overzealous prosecutor. Thus, grand juries, although helpful to protect liberty of criminal defendants, are not *necessary* to a "scheme of ordered liberty"; liberty and justice for criminal defendants would still exist, and so a grand jury is not "essential to a fair trial." Thus, although Duncanís rules apply here, its specific holding does not directly control this case.

CONCLUSION: I think Kentucky is correct because an additional procedural safequard is not necessary to ensure either liberty or justice.