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Kevin Bennardo
ABSTRACT: 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 future outcome of a legal dispute. Legal analysis is not synonymous with legal decisionmaking. Extralegal considerations may also affect the outcome. Thus, if an author has only conducted a legal analysis, she has no business formulating her conclusion as a prediction. Rather, her conclusion should communicate the limits of her analysis. This distinction between legal analysis and outcome prediction should be recognized in the teaching of analytical document genres and should be conveyed by legal professionals in the phrasing of their legal analyses.