4.1.1 USINGEXISTINGRULES AND THE“PHRASE-THAT-PAYS” TO STRUCTURE YOUR ARGUMENT

If your argument is based in whole or in part on well-established statutory or common law rules, you can structure your argument by looking for each rule’s “key terms,”⁴or, as I call them, the “phrases-that-pay.” I use this term to label the word or phrase that is the focus of controversy about whether or how a rule applies.

You can often identify phrases-that-pay by turning your rule into an if-then statement.⁵ An “if-then” rule says, in essence, “if a certain condition exists, then a certain legal status results.” The phrase-that-pays is almost always the “condition” that you are trying to prove the existence (or nonexistence) of. Thus, look for the phrases-that-pay in the “if” clause; that clause usually contains the narrow point that the writer is trying to explain or prove. For example, the petitioner in Minnesota v. Carter might write a rule within its brief as follows:

While a person’s home is, for most purposes, a place where he expects privacy, activities that are exposed “to the ‘plain view’ of outsiders are not protected” under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

The same rule stated as an if-then statement would read: IF a person exposes activities to the plain view of outsiders, THEN those activities are not protected against observation by the Fourth Amendment’s search and seizure limitations.

This writer is arguing, at least in part, that the defendant’s activities occurred within the plain view of police officers. Thus, “in plain view” is the phrase-that-pays for that section of the argument.

Sometimes, one rule will have more than one phrase-that-pays in controversy. To determine if this is true for a particular rule, consider both how courts have interpreted the rule and how the rule relates to a particular set of facts. For instance, in the previous example, the respondents might argue that they did not “expose” their activities to “outsiders,” even if the activities were technically within plain view. Some courts might conduct a separate analysis of what exactly it means to “expose” activities; they might also address who is considered an “outsider” for purposes of the plain-view doctrine. If the courts have conducted these separate analyses, it would be easy to divide the argument on this rule into three parts, with each one focusing on a different phrase-that-pays: (1) whether the activities were “exposed,” (2) whether the activities were in “plain view,” and (3) whether the activities were exposed to “outsiders.” On the other hand, if the courts have not addressed these issues separately, but have presumed that all activities in plain view are exposed to outsiders, it might not be worthwhile to address these issues separately.⁶The courts’ analysis is usually a good starting point.

Whether your rule comes from a statute or the common law, you may find that you can discover the true phrases-that-pay only after further research. Sometimes a term in controversy has one or more layers of judicial gloss, so that the actual phrase-that-pays is one or two layers away from the phrase-that-pays in the rule itself. For example, 28 U.S.C. § 1332 gives federal district courts “diversity jurisdiction” over certain lawsuits between “citizens of different states.” If you did not conduct further research, you might presume that you had to focus your analysis on the meaning of the term citizen as it applies to your client and his or her opponent.

An often-reliable test for the true phrase-that-pays is to identify the term that courts connect — or “apply” — to the facts of the case. In a diversity case, for example, the court might connect the concept of “citizenship” to “domicile,” and “domicile” to “intent.” If the court connects case facts to the terms “physical presence” and “intent” (“Ms. Lamb was physically present in Nevada through much of the relevant time period, and stated at a press conference her intent to remain”), you can be pretty confident that for the rule determining diversity of citizenship, the phrases-that-pay are “physical presence” and “intent to make a home there indefinitely.”

When deciding what points to argue in your brief, however, you must do more than identify the phrases-that-pay that exist within a rule; you must decide which phrases-thatpay are at issue. For example, you may have a diversity situation where a party to a case is obviously “physically present,” but where there is some controversy as to whether he or she has the requisite “intent” to make a home in the state. In that situation, you would acknowledge that there is no controversy as to physical presence and focus your argument on establishing intent. Chapter Five discusses how best to include uncontroversial issues within the argument.

Thus, you must look both to your case facts and to the courts’ analyses to identify the phrases-that-pay that are relevant to your argument: (1) determine what words or phrases the courts focus on when they apply law to facts in their analysis of the relevant issue(s); (2) determine how those words or phrases relate to the rule or statute at issue (are the words part of the rule, part of the courts’ definition of terms in the rule, or part of the courts’ explanation of how the rule applies?); finally, (3) determine which phrases-that-pay are at issue in your client’s case.

When writing, you must be sure to clarify how the phrases-that-pay relate to each other and to the relevant statutes or common law rules. Once you have analyzed all of the applicable rules, identified their phrases-that-pay, and determined which phrases-that-pay are in controversy in your case, you can begin to draft a working outline of your argument.