5.2.2 TELL ISSUES

As its name implies, a writer includes a Tell issue in legal analysis by telling the outcome of application of law to facts and then citing to authority. There are two kinds of Tell issues.

For example, suppose that your client, Sam Bell, is a young man who was injured while intoxicated after “hell night” activities at his fraternity. A hometown friend, Marvin Kobacker, had taken him from a supervised “drunk room” at the fraternity and later left him alone in an off-campus apartment, where he fell and injured himself. You are wondering whether Mr. Kobacker is liable to Mr. Bell.

A common law rule in your jurisdiction provides that “a person assumes a duty of care if he or she takes charge of a person who is helpless.” You look at the rule and realize that two phrases-that-pay are “take charge” and “helpless.” Upon doing the research, you discover that there are several factors to analyze when determining whether someone “took charge” of another person. Likewise, there are several ways to prove that a person is “helpless.” At first blush, it might seem that you need to complete two separate CREAC units of discourse. One case from the highest court in your jurisdiction, however, states unequivocally that a person who is intoxicated is “helpless” under this standard. In this situation, Mr. Bell was unequivocally intoxicated. Thus, this required element is without controversy in your case, and you can treat it as a Tell issue:

In Vanita, a person assumes a duty of care if he or she “takes charge” of a person who is “helpless.” Jenkins v. Diamond, 101 N.E.2d 104, 109 (Van. 2007). An intoxicated person is considered helpless.

The second kind of Tell issue is one that has been removed from the controversy in some way. In a First Amendment challenge to a statute, for example, a court will use strict scrutiny to analyze a content-based restriction, while it will use a lower level of scrutiny to analyze a content-neutral restriction. If you and your opponent disagree as to whether the restriction at issue is a content-based restriction, you would probably need to use a CREAC unit of discourse to argue that the statute does or does not impose a content-based restriction. However, if your opponent has conceded the issue — perhaps in a brief or in an oral argument to a lower court — you may treat the issue as a Tell issue, citing authority if possible:

As the petitioner concedes, the statute at issue criminalizes speech based on its content. Pet’r Br. at 16. Accordingly, this court should apply the strict scrutiny test when analyzing its validity. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985).

Tell issues can arise in different contexts, but they are most commonly found in two places in the brief: As is discussed in Chapter Ten, they can arise in introductory material; when you are providing context for your argument as a whole, you may need to address one or more Tell issues to provide context and clear away the uncontroversial points. Second, they can arise when you are articulating the rule, either as part of a rule cluster or as an uncontroversial but significant facet of a governing rule.