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PART ONE · THE GENERAL FRAMEWORK FOR IBTs 53
parties or found via the application of conflicts rules. Second, if this method is not
pos si ble or leads to undesirable outcomes, the gaps can be filled via reference to
general princi ples of law. This is not really dif fer ent in international contexts from
national settings, where courts also have to resort quite frequently to general princi-
ples of law if a new type of situation has never before been resolved by statutory or
case law rules. As always, mandatory public laws of the country or countries with
prescriptive jurisdiction provide the outer guardrails, certainly if the parties also
have to fear enforcement jurisdiction.
Section 5. Putting It All Together:
How to Analyze a Case in an Exam and in Practice
Checklist 1-1
8 Steps to a Winning Brief
Step 1: Gathering and Understanding the Facts of the Case
Step 2: Identifying Binary Claims: Who Wants What from Whom and Why?
(“5Ws”)
Step 3: Finding All Applicable Rules for the Case
Step 4: Identifying the Claim Bases in the Applicable Rule(s)
Step 5: Isolating the Conditions for a Claim to Have Arisen, Not to Be Extin-
guished, and to Be Enforceable
Step 6: Presenting a Persuasive Argument (1) — Road Map
Step 7: Presenting a Persuasive Argument (2) — Subsumption of the Facts
under the Law and the Four Levels of Analy sis
Step 8: Presenting a Persuasive Argument (3) — Conclusions
Explanations
For those accustomed to the so- called IRAC Method, Steps 1 and 2 fall into cate-
gory I — identification of the issues; Steps 3, 4, and 5 are part of category R — identi-
fication of the applicable rule(s); Steps 6 and 7 form core category A — application of
the rule(s) to the case at hand; and Step 8 is equivalent to category C — conclusions.
Step 1: Gathering and Understanding the Facts of the Case
In addition to the fact that students work with hy po thet i cal cases and any tri-
umphs and mistakes do not affect real clients, the biggest difference between the
work of a student in an exam and the work of a lawyer in practice is that the student
is working in a controlled and self- contained environment. The student only has to
deal with the information provided in the exam and has to take that information at
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54 PART ONE · THE GENERAL FRAMEWORK FOR IBTs
face value. She does not have to search for additional facts and she normally does not
have to worry about the accuracy of information, trustworthiness of witnesses, etc.
One would think that this would make Step 1 very easy for the student — gather-
ing and understanding all relevant facts. However, experience teaches that students
strug gle with Step 1 and often overlook impor tant pieces of information although
the entire hy po thet i cal provided for an exam may be no longer than a page or two.
This is unacceptable and also entirely unnecessary. The following method can teach
anyone to gather all relevant facts and to or ga nize them in such a way that their cor-
rect interpretation and understanding is virtually guaranteed.
Learning and practicing this method is all the more impor tant since the facts in
the real world are not delivered to the lawyer on a silver platter. Real cases may pre-
sent dozens of dif fer ent sources and hundreds or even thousands of pages of infor-
mation to be analyzed in a limited time. Naturally, the information is not presented
in a logical manner, at least not the way we would need it for the legal analy sis.
Furthermore, even though the amount of information may be vast, critical pieces of
the puzzle may be missing and have to be obtained via additional factual research,
or via interviews with clients, witnesses, or experts. Some critical information may
remain elusive. Other pieces of information seem to or may actually contradict each
other. This makes it all the more impor tant that students learn early and learn well
how to digest and dissect information. However, in a textbook, we can only address
this issue up to a point, since we cannot include information sources such as wit-
nesses to be interviewed. The method presented on the following pages focuses on
the analy sis of documents, such as an exam hy po thet i cal, business correspondence
and contracts in a moot court case or in a real case, written witness statements
and expert opinions, and of course judicial decisions and statutory provisions of
any kind. On its own, the method does not teach students how to deal with people,
such as clients, witnesses, jurors, judges, or arbitrators. Moot court competitions
can teach a certain mea sure of these skills. The rest has to be acquired by working in
legal clinics or externships as students, and by working as lawyers under a supervi-
sor or mentor on the job itself.
The challenge in Step 1 is to get a comprehensive and correct understanding of
all relevant facts. This begins with the extraction and logical rearrangement of the
information. It continues with the identification of missing information and how
it may be obtained, and the identification of contradictory facts or statements and
how they may be resolved. It also includes the question of who has the bear the
consequences if certain information cannot be found, or if some contradictions or
disputed facts cannot be conclusively resolved.
Surveying the Information and Making an Inventory
Challenge: Gather and or ga nize all relevant documents; understand the basics of
the case
The first step is gathering, reading, and organ izing all available information.
Which documents and materials are there? Who are the authors, who are the
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PART ONE · THE GENERAL FRAMEWORK FOR IBTs 55
addressees, and what was the title or purpose of each communication? What is the
under lying story? What is the prob lem? Which areas of law does it concern? What is
your role and what are the expectations of your client or boss?
At this stage, you just want to understand the general idea and direction of
the assignment. If there are many dif fer ent documents or pieces of information,
an inventory or table of contents should be produced. The entries in the inven-
tory should be nontechnical, for example, “letter of January 15,” “draft contract
of January 30,” “draft letter of credit of February 3,” “witness statement of Mr. X
of April 20,” etc. Unless a dif fer ent arrangement seems indicated, for example, a
breakdown into dif fer ent relationships (A and B, B and C), we can already sort the
documents in chronological order. Another way could be grouping communica-
tions by sender or by the party who submitted them to the court or arbitral tribunal
(for example, “submissions by the applicant”).
Once we know what kind of sources of information we have, the next step is a
fairly superficial reading to get the main ideas and understand what was going on,
who are the parties to the dispute, and what caused the prob lem between them.
Importantly, at this stage we also need to find out the role we are expected to play:
counsel to the seller or the buyer? Clerk or assistant to the judge or arbitrator? From
the outset, we need to avoid any actions or statements that are incompatible with
this role.
Since the analy sis is still proceeding on a superficial level, qualifications should
be avoided at this stage. For example, if it is not clear when a number of offers and
counteroffers actually led to the formation of a contract, a designation such as “the
contract of February 5” or “the ac cep tance of March 4” should be avoided, even if
the parties used those qualifications. Instead, neutral classifications should be used,
such as “buyer’s e- mail of February 16.” At a later stage, the communications will
have to be analyzed to see whether the fax or e- mail called “ac cep tance” by the
buyer was in effect an ac cep tance, or maybe another counteroffer.
Careful Reading with a Ruler and a Red Pen
Challenge: Mark all potentially relevant facts, arguments, claims, etc. in all avail-
able documents; understand the details of the case; make sure that nothing is
overlooked
Having understood on a superficial level what went on and what the case or dis-
pute is about, the second step is a comprehensive and careful analy sis of the facts
as they are currently presented or presenting themselves. To this end, all available
information must be analyzed in great detail. Not one relevant piece of informa-
tion should be overlooked. For example, if you rely on the fact that a par tic u lar
communication was sent on February 16 to conclude that a contract was formed,
you cannot overlook the information that Friday, February 16, was a public holi-
day in the seller’s country and nobody saw the communication until several days
later. Did the parties modify the written contract orally during their phone call of
April 30? What about the fact that pro cess was served on an office assistant, rather
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56 PART ONE · THE GENERAL FRAMEWORK FOR IBTs
than an authorized representative of the com pany? We don’t know at this early stage
whether these facts make a difference in law but we absolutely must not overlook
them later in our analy sis.
A good method for comprehensive information extraction is to read each docu-
ment very closely. Every piece of information that potentially has any legal signifi-
cance should be underlined separately in this pro cess. It is recommended that this
be done very meticulously, with a ruler and a red pen. Subsequently, when the facts
are subsumed under the law and integrated into our analy sis and arguments (Step
7), each underlined piece of information is then ticked off with a green pen when
it has been evaluated or when you have de cided that it is ultimately irrelevant. By
tracking our pro gress in this way, we can always see any facts or claims that have
not yet been fully dealt with in our analy sis. The Red- and- Green Method enables
us to verify, before we finish our analy sis, whether every potentially relevant piece
of information has indeed been taken care of and nothing has been overlooked.43 As
long as any information is still red and not green, you are not done.
Making a Time Line
Challenge: Make a comprehensive time line with all potentially relevant ele ments
of the story
Now that we know in detail what happened, we need to or ga nize the facts in a
logical manner. In almost all cases, we need a chronological organ ization because
we need to understand exactly how the story unfolded that ultimately led to the dis-
pute between the parties. The importance of this job should not be underestimated,
in par tic u lar if there are several story lines told by several parties or witnesses, or
in cases where deadlines had to be met or where the parties are arguing whether or
not certain communications were sent or received on time or were received before
others. To give just one illustration of the importance of careful organ ization, the
author has been involved in more than a few cases where the question whether or
not something was done before the deadline depended on the time zones where
seller and buyer were located. What was on time in one time zone does not mean
that it was on time in another.
As always in legal analy sis, precision is impor tant here. Claims of many millions
of dollars may turn on the question whether an offer was revoked before it was
accepted or whether a claim was presented within the statute of limitations. Even in
cases where there are no tight deadlines that may or may not have been missed, the
organ ization of the information in chronological order requires us to undertake a
43. In practice, at least in complex cases where tens or hundreds of thousands of pages of busi-
ness communications may have to be reviewed, this system has its limitations. Almost invariably,
it is not pos si ble for the lawyers to read each and every page very carefully. Instead, it is common
practice today to scan all documents that are still on paper and add them to the electronic docu-
ments and e- mails and then run keyword and name searches via computer to find the documents
that actually need careful review. Once those are identified, however, we can go back to printing
them out and reading them carefully with the Red- and- Green Method.
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PART ONE · THE GENERAL FRAMEWORK FOR IBTs 57
third reading of the facts and, in turn, promotes complete and correct understand-
ing of the under lying story.
Making a Relationship Chart
Challenge: Make a relationship chart with all potential players; understand exactly
how each of the players is connected to any other parties and who may have claims
against whom
In par tic u lar in cases where more than two actors are involved, it is impor tant
that we include every body in the analy sis of whose statements, actions, or omissions
may be of relevance, and to understand correctly their relationship to each other.
Who are the parties to the dispute? If there are other individuals or entities, what
is their relationship to the parties? We need to understand exactly the claims com-
pany A is bringing against com pany B and com pany C, whether counterclaims by C
are going to be presented only against A or also against B, whether A and B would
potentially be joint and severally liable for those counterclaims, and whether D, E,
and F were representing A, B, or C in the negotiations. If Mr. X was the managing
director of subsidiary S, are his statements also binding on the mother com pany M?
If subsidiary S is wholly owned by M, does it mean that Buyer B can bring claims
against both S and M? Although it is too early to answer the questions at this stage,
we need to be aware of all actual and potential relationships. If subsidiary S is in
liquidation, it would be professional malpractice if the buyer’s lawyers did not try to
bring their claims also against M.
Another impor tant point, as we begin to classify facts as to their relevance in law,
is an understanding of what is and what is not (potentially) in dispute. For example,
if it is not clear whether Agent A acted on behalf of Seller S or Buyer B, we may have
to make a reasoned argument for one option or the other. This raises two points:
which of two or more solutions do we advocate? And how detailed and sophisticated
should the argument for that solution be? The question of detail, which is ultimately
a question of dedicating time and resources to make an argument more forceful,
will be discussed below when we talk about the Four Levels of Analy sis. The ques-
tion of which position to take is related but also somewhat dif fer ent. On the one
hand, if the answer is not very impor tant because it does not really matter one way
or another for the final outcome whether Agent A acted on behalf of Seller S or
Buyer B, this is an indication that we will need only a low level of analy sis and may
even leave the answer open. On the other hand, and this is much more common, if
our argument on the question at hand may potentially affect the overall outcome of
the dispute, this is an indication that we will need a higher level of analy sis and that
we need to carefully consider which side we should take on the issue to best advance
the interests of our client. Fi nally, if we are advising a judge or arbitrator, we should
analyze both sides of the argument and simply recommend the answer that seems
more logical or better supported by the facts.
A useful rule of thumb has always been: if there are more than two dates, make a
time line; if there are more than two persons, make a relationship chart.
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58 PART ONE · THE GENERAL FRAMEWORK FOR IBTs
Telling an Or ga nized Story
Challenge: Tell an or ga nized story that is convincing and supportive of your posi-
tion in law
Now that we have essentially analyzed the factual information already four times
(superficially, carefully, chronologically, relationally), we should be able to summa-
rize the facts in an or ga nized way for our brief. This is a particularly tricky part of
the work of a lawyer and requires dif fer ent approaches depending on the position
we have in the dispute at hand. If we are advising the seller who wants to get paid
in spite of some prob lems with his per for mance, we will emphasize dif fer ent parts
of the story than if we are advising the buyer who does not want to pay although
she does want to keep the somewhat imperfect goods. There are impor tant ethical
considerations here: as a partisan attorney, we do not have an obligation to point
out factual ele ments that work against the interests of our client but may have been
overlooked by the other side. At the same time, however, we must never misrepre-
sent the facts or actively suppress evidence.
That being said, for our internal analy sis, we always want to have the full story,
with all details and all evidentiary ele ments, whether friendly or hostile to the posi-
tion of our client. In our brief we may not need to say that seller’s ac cep tance of
buyer’s terms was sent out late or that requesting a letter of credit from the bank
could be interpreted as an ac cep tance of the terms of the contract of sale. However,
we still need to be aware of these possibilities because they may be brought up by
the other side in their reply to our claims and we may need to warn our client in
advance of certain weaknesses in our position that, in turn, may suggest that a
settlement is preferable to litigation or arbitration.
Thus, you should put together a comprehensive story for yourself and then pick
out from it the ele ments that are common ground, those that need to be commu-
nicated to make the story coherent, and those that are supportive of your client’s
position and not in conflict with the truth, and put them into the summary of the
facts in your brief.
Fi nally, when telling the story of what happened, we need to include references
to the documents and other pieces of evidence that support our story. If the mate-
rial has not already been provided in a par tic u lar manner, for example, a common
rec ord of 60 or 600 or 60,000 pages with consecutive page numbering, we have to
produce the file or files ourselves. For the other side, references may have to be to
par tic u lar dated or named documents and perhaps a par tic u lar page or paragraph
in those. For our own purposes, we may want to have one master file with consecu-
tive page numbering to make it easy and quick to find any par tic u lar document and
information. Your test of whether your system is working is a hy po thet i cal ques-
tion by a judge or arbitrator in a hearing where you are making a par tic u lar claim:
“What is the source of that information?” If you cannot find the document within
a couple of seconds, your system is not working.
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PART ONE · THE GENERAL FRAMEWORK FOR IBTs 59
Highlighting Contradictions, Missing Information, Additional
Research Needs, and Other Questions
Challenge: Identify facts that are missing or disputed and need to be obtained or
clarified via discovery
In par tic u lar, if a story is quite complex and at least some ele ments in it may
not be common ground between the dif fer ent parties, we need to go over the facts
again — and during this fifth round of analy sis we focus on the identification of any
logical breaks in the narrative, and any contradictions or gaps. Along the way, we
also highlight any information, data points, or statements of fact that have already
been disputed by one side or the other and mark them accordingly (for example
“disputed by seller, see fax of March 15/p. 63 of the rec ord”).
Identifying How Any Contradictions, Missing Information or Open
Questions May Be Resolved and What Happens If They Are Not
Challenge: Come up with solutions how missing or disputed facts may be clarified
and how you will adjust your strategy and arguments if they are not
If information, data points, or statements are disputed or missing, this will
usually have consequences. Occasionally, it may turn out that it does not actually
matter whether a fax was received on a par tic u lar day or whether a witness state-
ment is credible or supported by other evidence. In such a case, we still need to
explain why we believe that the discrepancy does not matter and say so using one of
the four levels of analy sis. For example, we might say “buyer disputes seller’s claim
that the revocation of the offer arrived before or at the same time as the offer itself;
however, the question is ultimately moot because _____”
More likely than not, however, discrepancies, gaps, and disputed facts will be of
relevance. This raises the question who has the burden of proof, i.e., whose position
in the dispute will be affected negatively if the par tic u lar discrepancy or gap cannot
be resolved. For example, if the seller wants to collect the purchase price from the
buyer, he will need to demonstrate that a contract was concluded accordingly. If the
formation of the contract is in dispute, seller’s demand for payment is in jeopardy.
If our client has the weaker position, we need to think about pos si ble research, dis-
covery, or fact- finding options that could clarify the situation and strengthen our
position in the dispute. And we need to think about alternative legal strategies, as a
contingency plan, if we should ultimately not be able to prove our position in fact.
Step 2: Identifying Binary Claims: Who Wants
What from Whom and Why?
Breaking Down a Complex Case into Manageable Pieces
Corresponding to Legal Claims
In an exam, as in real life, the question may be quite clear:
1. A may say something like “I want my money back from B.” or
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60 PART ONE · THE GENERAL FRAMEWORK FOR IBTs
2. “I want damages from B for the failure to perform.”
On the other hand, the question may be far less obvious, along the lines of:
3. “What are the rights and obligations of the parties?” or
4. “Who can get what from whom?” or
5. “What can you do for this client?”
Even if the questions seem straightforward, some additional thought should be
invested before we narrowly focus on the answers. In example 1, there seems to be
a reference to a payment made by A to B that should be recovered. But recovery in
full may not be available if A cannot return all the goods or property received from
B in exchange for the money. On the other hand, recovery of monies paid may not
be enough if A has incurred additional damages on account of a breach of contract
or other obligations by B. Any claims for damages, like in example 2, require not
only persuasive justification in law, but also a persuasive calculation of the claimed
amount. Fi nally, there is always the question whether costs (for example, for legal
repre sen ta tion) and interest may be recoverable on top of items or monies claimed.
Thus, we should always go about a systematic analy sis of all pos si ble claims along
the 5Ws Formula: Who Wants What from Whom and Why?
Challenge: Formulate all actual and/or potential claims — primary claims, sec-
ondary claims, costs, and interest — for all pos si ble binary relationships
If there are more than two actors in the story, consider all pos si ble binary claims,
for example “A from B” and “B from A,” but also “A from C” and “B from C” and,
of course, “C from A” and “C from B.”
In each binary relationship, consider:
I. Primary claims: These are intended to put the parties in the position they
would have been in had there been no breach of law or promise. For example, the
primary claims of the seller against the buyer are for taking of delivery and pay-
ment of the purchase price. The primary claims of the buyer against the seller are
for delivery of conforming goods and transfer of owner ship or title. However, there
are also primary claims outside of contractual relationships, for example, for the
customer and potential buyer not to be harmed during pre- contractual negotia-
tions (see Part Two on pp. 71), or the claim of the property owner to recover pos-
session from the wrongful possessor. Fi nally, special contracts may involve special
primary obligations, for example the claim of the beneficiary named in a letter of
credit against the issuing and/or the confirming bank to honor a complying pre sen-
ta tion (see Part Three on pp. 409).
If primary claims can be brought, they should be brought. Alternatively, an
explanation should be provided why the claimant is no longer interested in the
primary claim and what the claimant wants instead. Certain (additional) condi-
tions may need to be met before a shift from the primary to one or more secondary
claims can be made. For example, if there was a contract of sale, it may have to be
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PART ONE · THE GENERAL FRAMEWORK FOR IBTs 61
avoided before the parties are released from their primary obligations and can claim
damages instead.
ii. Damages as secondary claims: These can be claimed instead of primary
claims or in addition to them. For example, if there was a contract of sale and the
seller fails to deliver or tenders non- conforming goods, the buyer may be entitled to
specific per for mance (primary claim) plus damages for delay and/or loss of profit
(secondary claims). If a contract was never concluded or it was concluded but also
successfully avoided, contractual or primary claims do not exist but damage claims
may remain. In general, damages may be due if the primary claim never came about
or if it was extinguished (the goods were destroyed; the contract was avoided), or if
per for mance of the primary claim alone does not put the claimant in the same posi-
tion she would be in had there been no breach of law or promise.
In some cases damages may be available only for the negative interest — putting a
party in the position it would be if she had never met the other party — or they may
be available for the positive interest — putting a party in the position as if the other
party had performed as promised. The extent of damages available is determined
by the legal basis, which may be statutory law with case law interpreting it, or case
law alone.
In some cases, damages may be claimed above and beyond what is necessary to
put the claimant in the same position she would be in had there been no breach of
law or promise. These are usually referred to as punitive damages. However, puni-
tive damages are only available if they are specifically mentioned in law. In all other
cases, the party claiming damages has to prove that it actually suffered these dam-
ages. A limited exception can apply if the contract provides for liquidated damages
that do not have to be proven.
Excessive and/or poorly substantiated damage claims can lead a court or tribunal
to reject all damage claims instead of reducing them to a realistic level.
iii. Cost: The commercial losses and expenses caused by a breach of contract or
other obligation are in genera l recoverable as damages. By contrast, t he legal expenses
have to be claimed as cost. In princi ple, they include attorney fees and expenses, as
well as the cost of the actual dispute settlement procedures, such as court fees, fees
of an arbitration tribunal and honoraria of arbitrators, travel expenses, and admin-
istrative expenses related to the procedure (conference rooms, translation and inter-
pretation expenses, secretarial ser vices, etc.). A thorough listing of costs incurred as
a consequence of a breach of law or contract may go beyond these, however, and
also include in- house counsel expenses, in- house administrative expenses such as
courier ser vices, and even extra work done by nonlegal employees of the claimant.
Whether or not a par tic u lar cost item will be recoverable depends on a number
of factors. First, the parties may have entered into an agreement in the context of
the initiation of litigation or arbitration pursuant to which each side has to bear
her own cost or only certain costs will be recoverable. In such a case, it is usually
not necessary to track other expenses very carefully and try to claim them (except
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62 PART ONE · THE GENERAL FRAMEWORK FOR IBTs
to claim them as business expenses for tax purposes). However, in the absence of
a party agreement or a statutory provision44 limiting claims for cost recovery, costs
imposed on one party by the breach of law or contract of the other will often be
recoverable, provided they are well- documented and reasonable.
iv. Interest: This can often be claimed from the time when a payment became
due to the time when the payment is actually made. An award of interest accounts
for the fact that money later is worth less than money sooner, in terms of purchas-
ing power — the so- called time value of money — and in terms of opportunity cost.
We sometimes distinguish between prejudgment interest,45 for the time from when
a payment was due until the court confirms the payment obligation, and post-
judgment interest,46 until payment is effected. In such cases, the court will typically
specify the amount of prejudgment interest as a lump sum and specify the amount
of post- judgment interest as a daily sum or based on an average interest rate to
encourage the obligated party to make payment sooner rather than later. In many
cases, interest will not be awarded ex officio, but must be specifically claimed. If
this is the case, it would amount to malpractice for an attorney to “forget” to claim
interest on behalf of her client. If the court or tribunal does not follow specific rules
regarding the calculation of interest, the claim has to specify in a persuasive way
the amount of interest that should be awarded. Typically, such a claim can be for a
certain percentage above the prime rate, depending on the actual borrowing cost of
the claimant. Excessive or unpersuasively high interest claims can lead to a rejection
of any interest instead of a reduction to a reasonable level.
Even when you are only representing one party in a dispute, you need to identify
the actual or potential claims of all parties in all binary relationships because claims
available to other parties can come back to you as counterclaims. Being aware of
them — and their respective strengths and weaknesses — can be crucial when
deciding whether or not to seek a settlement and/or how much time and money to
expend in litigation or arbitration.
Step 3: Finding All Applicable Rules for the Case
Making Sure That All Relevant Rules at All Levels Are Identified:
International, Regional, Bilateral, Federal, State, Statutory,
Case Law, Customary, Contractual, and Other
While the responsibility for the identification of all relevant facts is shared
between the client and the attorney, the identification of all applicable legal rules is
44. In Germany, for example, recoverable attorney and court fees are stipulated by law as a
function of the amount in dispute. Even if a party can demonstrate that they had higher attorney
expenses, these will normally not be recoverable.
45. For a useful discussion, see Michael S. Knoll, A Primer on Prejudgment Interest, Tex. L. Rev.
1996, Vol. 75, No. 2, pp. 293–374; as well as Anthony E. Rothschild, Prejudgment Interest: Survey
and Suggestion, Nw. U.L. Rev. 77 (1982-1983), pp. 192–222; and John C. Keir & Robin C. Keir,
Opportunity Cost: A Mea sure of Prejudgment Interest, Bus. Law. 1983, Vol. 39, No. 1, pp. 129–152.
46. See, inter alia, Susan Margaret Payor, Post- Judgment Interest in Federal Courts, 37 Emor y L.J.
495 (19 88).
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PART ONE · THE GENERAL FRAMEWORK FOR IBTs 63
entirely the attorney’s job. If it turns out during or after a dispute settlement proce-
dure that the client’s outcome was negatively affected because some factual infor-
mation was not brought (or not brought in time) to the attention of the court or
tribunal, the attorney will not be liable if she generally gathered all available infor-
mation, and asked the client and any witnesses or other sources of information
for specific missing information and any other relevant information. By contrast,
if it turns out that the client’s outcome was negatively affected because the attor-
ney overlooked an applicable rule, there is normally no way the attorney can escape
responsibility because she did not know, did not have time, or did not have access to
the par tic u lar rule.
Challenge: Find all applicable rules (statutory rules, case law, and contractual pro-
visions), understand what they say about the rights and obligations of the parties
and, if necessary, identify a hierarchy between potentially contradictory rules
Rules generally come in the form of statutory law (in the broadest sense of the
word, including applicable international conventions, applicable industry codes
such as the UCP 600, domestic legislation, domestic regulations, etc.), case law, and
contractual stipulations. The contract itself is usually the most impor tant source of
rules and the easiest to identify. Based on the freedom of contract between private
parties, contractual clauses can deviate from and even comprehensively displace
most other rules that might other wise apply. However, to the extent that a con-
tract does not comprehensively regulate a par tic u lar situation and/or that there are
mandatory public rules (both statutory and case law- based), several types of rules
will have to be applied si mul ta neously and questions of hierarchy may have to be
resolved.
Thus, the attorney first has to identify to what extent a par tic u lar legal relation-
ship — for example, the rights and obligations of buyer and seller in a given trans-
action — is comprehensively regulated in the contract that was validly concluded
between the parties and not validly avoided or terminated. Contractual terms are
the individually negotiated terms on the front of the contract. By reference in the
negotiated terms, general terms on the back of the contract may be elevated to the
status of contractual terms, but generally only to supplement and not to contra-
dict the individually negotiated terms. Second, the attorney has to identify to what
extent mandatory laws (ordre public, public policy) may apply to the legal relation-
ship and require a reinterpretation or non- application of some contractual provi-
sions or even cause the entire contract to be illegal and therefore null and void.
Third, the attorney has to identify to what extent optional rules of statutory law
may be applicable and regulate or at least affect some of the rights or obligations
of the parties in the absence of valid contractual rules on a given question or if
the contractual rules about the par tic u lar issue are unclear or other wise in need
of interpretation. Optional statutory rules may be found in international conven-
tions, national or subnational laws, and even in industry codes such as the UCP
600. They may apply by law for questions not comprehensively dealt with in the
contract between the parties, or they may apply by party agreement, i.e., by refer-
ence in the contract. Fourth, the attorney needs to fill any remaining gaps with case
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64 PART ONE · THE GENERAL FRAMEWORK FOR IBTs
law, especially if there are neither contractual stipulations nor applicable statutory
rules, or if the contractual stipulations and/or any applicable statutory provisions
are unclear and, therefore, in need of interpretation.
Comprehensive research, the identification of all applicable rules, and a correct
understanding of the hierarchy of these rules in relation to each other are of crucial
importance. The three biggest mistakes in this re spect are:
• overlooking an applicable rule, either a statutory rule or an exception in a dif fer-
ent part of the statute or in another applicable piece of legislation or regulation;
or overlooking an impor tant pre ce dent of persuasive, binding character;
• reliance on an outdated rule, either a statutory rule that had been amended or
repealed at the time the facts occurred, or a pre ce dent that has already been
overruled; and
• reliance on a lower- ranked provision of the law that is incompatible with a
higher- ranked provision of the law; for example, reliance on a contractual pro-
vision that is incompatible with a mandatory rule in the respective jurisdiction,
or reliance on an optional law that is incompatible with a contractual provision.
Step 4: Identifying the Claim Bases
Finding the Rules That Give Rights or Claims
After all applicable rules have been identified and ranked in a general manner
(for example, the contract, the CISG, cases x, y, and z), the analy sis has to home in
on specific provisions in these dif fer ent sets of rules. In statutory law this requires
analy sis of specific articles, or even paragraphs or sub- paragraphs of these articles.
In case law the equivalent may be a reference to a specific passage or paragraph in a
judgment.
Challenge : Identify and isolate the claim bases that support the binary claims found
in Step 2. A claim basis is a clear and unambiguous provision in a legal rule provid-
ing a right to bring a primary claim, and/or a secondary claim (damages), and/or
cost, and/or interest, if certain specified conditions are met. A claim basis typically
takes the form of “if X, then Y is entitled to/may demand/claim/require Z.”
Example 1 “The seller must deliver the goods, hand over any documents relat-
ing to them and transfer the property in the goods, as required by
the contract . . .” (Art. 30 CISG)
Example 2 “If the seller fails to perform any of his obligations under the con-
tract or this Convention, the buyer may (a) require per for mance . . .”
(Art. 45(1)(a) with Art. 46(1) CISG)
The provision in example 1 is not a claim basis. It merely stipulates obligations of
the seller but does not stipulate rights of the buyer. By contrast, the provision in
example 2 is a claim basis. The passage in example 2 “obligations under . . . this
Convention” actually refers to Art. 30, where the primary obligations of the seller
are spelled out. Thus, Arts. 45(1)(a) and 46(1) provide the claim basis for the buyer
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PART ONE · THE GENERAL FRAMEWORK FOR IBTs 65
to receive the goods and the relating documents and the owner ship or title in the
goods and anything else that may have been stipulated in the contract, such as qual-
ities of the goods, time and place of delivery, etc. Provisions such as Art. 31 CISG
about the place of delivery only become relevant if the contract itself does not pro-
vide a rule for the place of delivery.
In par tic u lar, if a statutory provision or the relevant passages in a judgment are
longer, it is impor tant to refer to the exact paragraph, sub- paragraph, sentence, and/
or alternative in the statute or judicial decision. Sloppy, imprecise references do not
show mastery of the subject and make your brief less persuasive.
Step 5: Isolating the Conditions for a Claim to Have Arisen,
Not to Be Extinguished, and to Be Enforceable
Enumerating the Conditions in the Rules That Give Rights or Claims
Since claim bases provide rights or claims only if certain conditions are met,
the next step is to identify all applicable conditions and exceptions. These may be
directly contained in the claim basis itself, i.e., in the same article or paragraph, or
they may be identifiable via references in the claim basis, or via provisions in the
chapter of the law or the surrounding passages of the judgment, where the claim
basis is provided.
Challenge: Identify all conditions that have to be met for every claim basis to be
successfully invoked
Again, it is of crucial importance that we identify all applicable conditions as
well as any relevant exceptions. It is simply unforgivable for an attorney to pre sent
an elaborate argument why her client should be entitled to x, y, and z, and then be
schooled by a judge or arbitrator about having overlooked a relevant exception that
invalidates most or all of her claims. Since conditions and, in par tic u lar, excep-
tions, are not always provided in the immediate vicinity of the claim basis itself, it
is impor tant to read all relevant parts of contracts, statutory materials, and cases.
Sometimes an exception or a bar against enforceability, such as a statute of limita-
tions, may be found at the end of a piece of legislation or in a dif fer ent piece of leg-
islation altogether.
Once the facts, parties, claims, applicable rules, claim bases, conditions, and
exceptions have been identified and understood for our internal analy sis, we can
fi nally proceed to the pre sen ta tion of our case.
Step 6: Presenting a Persuasive Argument (1) — the Road Map
Outlining a Written Brief or Oral Pre sen ta tion
Persuasive speaking and writing is often related to saying every thing three times:
“Tell them what you will tell them, tell them what you want to tell them, and tell
them what you just told them.” Translated to legal writing, we need a road map of
our arguments, the actual arguments, and a summary of these arguments.
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66 PART ONE · THE GENERAL FRAMEWORK FOR IBTs
Challenge: Pre sent an outline of the legal arguments you are making on behalf of
your client in short, clear, and affirmative style.
The road map should generally be kept short and affirmative. Thus, it may sound
something like this: “The buyer is entitled to delivery of conforming goods. Seller’s
obligation arises from the contract of January 15, as well as Articles x, y, and z CISG.
Conditions a, b, and c are fulfilled in the pre sent case. At the same time, the seller
cannot rely on exception d.”
Lacking confidence, students often avoid concrete and affirmative language
and use phrases such as “the question is whether ___” or “if this then that, how-
ever, if not then not” and the like. They may introduce their pre sen ta tion with
“I think ___,” which has never been a strong legal basis because the attorney on
the other side will prob ably think the opposite. It should be obvious to anyone that
none of this is conducive to making a persuasive argument and students should
diligently avoid this kind of language. If at a loss for models, students may want
to consult the Restatements of the Law, for example, the Restatement (Second) of
Contracts (Documents, p. I-199), for good examples of the kind of clear, straight-
forward, and affirmative language that makes for persuasive writing.47
Step 7: Presenting a Persuasive Argument (2) — Subsumption
of the Facts under the Law and the Four Levels of Analy sis
Showing How the Facts Correspond to the Conditions in the Rules
That Give Rights or Claims
The main part of the pre sen ta tion should follow the outline presented in the road
map. Each point in the outline now needs to be taken up and discussed in a way that
merges the facts and the law, or, better, draws the facts under the law (subsump-
tion). This is best done in the following steps:
I. Leading statement: “The buyer is entitled to delivery of conforming
goods.” This should be formulated affirmatively. The use of questions, such
as “ whether the buyer is entitled” introduces the possibility of alternative
outcomes and reduces persuasiveness.
ii. Applicable rules for the claim to arise : “The right of the buyer to demand
delivery of conforming goods is based on Articles x, y, and z of the CISG.
The CISG is applicable because _____ Articles x, y, and z are conditional
upon a, b, and c.”
iii. Subsumption of the facts, part 1 (positive conditions): “In the pre sent
case, condition a is met because _____; condition b is met because _____;
condition c is met because _____”
47. The best and most accessible book on the subject may well be A ntonin Scalia & Bryan A.
Garner, Making Your Case — The Art of Persuading Judges, Thomson West 2008.
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PART ONE · THE GENERAL FRAMEWORK FOR IBTs 67
iv. Negation of exceptions and other factors that might extinguish a claim
or bar its enforceability: “The seller cannot rely on exception d because its
conditions e and f are not met in the pre sent case.”
v. Subsumption of the facts, part 2 (negation of exceptions or other extin-
guishing factors): “Condition e is not met because _____; condition f is not
met because_____”
vi. Statement of interim result: “Therefore, buyer’s claim to delivery of
conforming goods based on the contract of January 15 and Articles x, y, and
z of the CISG is valid and seller cannot rely on the exception d.”
This procedure needs to be repeated for every primary claim, secondary claim,
alternative claims if the court or tribunal should not agree with any of the main
claims, as well as claims for costs and/or interest.
Challenge: Make a persuasive argument for each claim by drawing the facts of the
case under the applicable rules to show how the facts meet the conditions of the
rules; defeat obvious counterarguments against your claims by showing that the
facts do not meet the conditions of the counterarguments; use the Four Levels of
Analy sis to determine your priorities and how much to say with regard to each
argument or condition.
In addition to the correct identification of the facts, the parties, and their respec-
tive claims, as well as the correct interpretation and application of all applicable
rules and exceptions, mastery of the subject also requires the correct allocation of
time and effort to the dif fer ent parts of the analy sis. This question of priorities is
dictated in practice by the fact that the client has to pay several hundreds of dollars
per hour of her attorney’s time and would not want to pay for work that is unneces-
sary. Also, if an attorney does not clearly distinguish the impor tant from the unim-
portant arguments, the issues that really matter for a successful pre sen ta tion of her
client’s claims may get buried in irrelevant elaborations. In an exam, correct priori-
tization is required by the fact that time (and sometimes space) is limited. Thus, the
student, just like the attorney, cannot spend an unlimited amount of time and effort
on the case and cannot afford to discuss at length issues that are either not contro-
versial, or not conducive to the realization of the client’s claims. Misallocation of
time and effort leads to overcharging of the client in practice and to underper for-
mance in both exams and practice. The prob lem is that as human beings, we are
not naturally inclined to allocate our time and effort correctly in these cases. Thus,
students have to unlearn their natu ral inclinations and consciously learn a system
called the Four Levels of Analy sis.
As we work our way through Step 7, or the equivalent to part A of the IRAC
Method, our natu ral inclination is to write more where we are confident and believe
that we know the answers and where our position is strong. By contrast, we will be
inclined to avoid writing much with regard to points that are difficult, controver-
sial, or weak in our arguments. However, this natu ral inclination is diametrically
opposed to what is required from a good lawyer because it is simply not necessary
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68 PART ONE · THE GENERAL FRAMEWORK FOR IBTs
to spend much time or effort on issues that are obvious or that the other side will
concede. By contrast, we have to invest our time and effort where the other side will
try to exploit weaknesses in our legal or factual position to deny the claims we are
making on behalf of our client.
Thus, once the road map and outline are clear and before we start the actual writ-
ing of the brief, we need to consciously allocate one of the four levels of analy sis to
each point or question in the outline. In par tic u lar, in exams where time is limited,
we should do this early, when we still have time to think clearly.
Level 1 = So irrelevant that readers would be surprised to see the point even
mentioned:
“What does this have to do with that?” → Don’t even mention it.
Level 2 = Relevant but uncontroversial:
“Every body knows that.” → Mention the point, without explaining or jus-
tifying it, if it is necessary to understand the progression of thought, the
connection between dif fer ent and more impor tant points.
Level 3 = Impor tant and potentially controversial:
“I am not so sure about that.” → Elaborate the point with your supportive
arguments, which should end the doubt or controversy, since you have the
stronger position on this point.
Level 4 = The crux of the matter:
“I don’t believe that.” → Elaborate the point with your supportive argu-
ments as well as obvious counter- arguments and how and why those can
be disproven; try to deliver the triple punch: (i) state your main arguments
in favor and add persuasive reasoning “ because ____”; (ii) name the obvi-
ous or previously stated counter- arguments and explain why they are not
relevant or persuasive; (iii) state your supportive or alternative arguments
in favor, in case your first and second points have not fully persuaded the
court or tribunal. Conclude by summarizing why your arguments win,
although it may look as if the other side has the stronger position on this
point.
One prob lem on this level is deciding which counterarguments to antici-
pate and deal with before the other side has actually made or substantiated
them. On the one hand, we don’t want to wake up sleeping dogs by alerting
the other side to weaknesses in our position they may not be aware of. On
the other hand, we don’t want to write a beautiful brief that is then easily
destroyed by an obvious counterargument of the other side and leaves us
at a distinct disadvantage and in an uphill battle for our reply or rebuttal.
The distinction should be made along the lines of what is obvious and
what every halfway decent lawyer would understand and what the judges
or arbitrators will also think of immediately. Those points definitely need
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PART ONE · THE GENERAL FRAMEWORK FOR IBTs 69
to be anticipated and dealt with before the other side can even develop
them very forcefully. To the extent pos si ble, you never want the judges or
arbitrators to doubt your arguments because you did not deal with obvi-
ous counterarguments right away.
Fi nally, how do you decide which level to apply? Put yourself in the shoes of your
opposing counsel or a critic of your paper. Which points would the other side con-
cede? And where would they put in their greatest effort to prove you wrong?
Step 8: Presenting a Persuasive Argument (3) — Conclusions
Closing the Circle
In the overall conclusions, the brief should summarize or restate the outcome of
the analy sis of each primary, secondary, and alternative claim, as well as any claims
for costs and interest: “In summarizing, as we have shown, our clients are entitled
to _____ (primary claims), as well as _____ (damages), and _____ (costs), and _____
(interest).” The summary should correspond to the Road Map at the beginning.
Challenge: Wrap up by summarizing your claims, as they have been proven in
your brief, in clear, concise, and neutral style; avoid triumphant or emotional lan-
guage or ill- suited meta phors.
Checklist 1-2
Bryan Garner’s “10 Tips for Better Legal Writing”
1. Be sure you understand the client’s prob lem.
2. Don’t rely exclusively on computer research.
3. Never turn in a preliminary version of a work in pro gress.
4. Summarize your conclusions up front.
5. Make your summary understandable to outsiders.
6. Don’t be tentative in your conclusions, but don’t be overconfident, either.
7. Strike the right professional tone: natu ral but not chatty.
8. Master the approved citation form.
9. Cut every unnecessary sentence; then go back through and cut every
unnecessary word.
10. Proofread one more time than you think necessary.
Bryan Garner, 10 Tips for Better Legal Writing — You’ll Be Glad You Found Your
Mistakes Before Your Readers Do, ABA Journal, Vol. 100, No. 10, October 2014,
pp. 24–25, with additional details. For more information, see Bryan Garner,
Legal Writing in Plain En glish, Univ. Chicago Press 2nd ed. 2013.
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