Legal Writing. Professor Gary Chodorow Beijing Foreign Studies University 2006-07 Semester II. Sources of Law & Their Hierarchy. Overview of Ct Systems. Stare Decisis. Is Stare Decisis a Good Doctrine?. Strengths: Stability & certainty in the law Certainty in the law Promote fairness
Professor Gary Chodorow
Beijing Foreign Studies University 2006-07 Semester II
Costanza v. Seinfeld(N.Y. Sup. Ct. 1999)
Parties Court Date
E.g.: guy (pl) v comedian allegedly using his likeness in sitcom (def)
E.g.: Motion to dismiss claim for damages under NY common law & NY Civil Rights Law sec. 50 & 51.
I. Under NY common law, does a person have a valid claim for breach of the right of privacy, where his name and likeness are used in a sitcom without his written consent?
[Decision]. [Rule]. [Rule Application].
Issue: Under NY common law, does a person have a valid claim for breach of the right of privacy, where his name and likeness are televised without his written consent?
Holding: No. NY doesn’t recognize a common law right to privacy. [RA obvious].
Writing the BriefReasoning I
Writing the BriefIssue II
II. Under NY Civil Rights Law sec 50 & 51, does a person have a valid claim, where his name and likeness are used in a sitcom without his written consent?
Writing the BriefHolding II
Issue: Under NY Civil Rights Law sec 50 & 51, does a person have a valid claim, where his name and likeness are used in a sitcom without his written consent?
Holding: No. The statute only covers use of a living person’s name or likeness for “advertising” or “trade.” In contrast, this is a fictional comedic presentation.
Writing the BriefReasoning II
Writing the BriefJudgment
Writing the BriefAnalysis
Your questions and critical evaluation, such as:
READ FOR JURISPRUDENCE--imagine how different approaches would affect the outcome:
READ FOR RHETORIC & STYLE:
Ru: Main rule.
P: Prove & explain rule by (a) citing authority, (b) describing how authority stands for rule, (c) discussing subsidiary rules, (d) analyzing policy, (e) counter-analyses.
A: Apply rule’s elements to facts with aid of (a) subsidiary rules, (b) supporting authority, (c) policy, (d) counter-analyses.
C: Restate conclusion if discussion complicated.
A. Citation to Authority
B. Describe How Authority Stands for Rule.
C. Discuss Subsidiary Rules.
C. Counter-analysis: Evaluate reasonable contrary arguments that the rule should be applied to the facts in a different way.
D. Policy (Normative and Instrumental Analysis): Explain how your suggested rule application is best because it advances the policies the rule is designed to advance.
the rule proof
the rule application.
For each point you make about the rule in the RP, show how that point applies to the facts in the RA.
Issue: Will ct likely impose constructive trust?
Conclusion: Yes (No) …
Element 1: Confidential or Fiduciary Relationship [CRuPAC]
Element 2: Promise by the Transferee [CRuPAC]
Element 3: Transfer in Reliance on Promise [CRuPAC]
Element 4: Unjust Enrichment [CRuPAC]
Issue I: Will a ct likely impose constructive trust?
Conclusion: Yes (No) …
CRuPAC each sub-issue
Issue II: Will a ct likely find a b/k by nephew?
Conclusion: Yes (No)…
CRuPAC each sub-issue
Make one rule outline integrating both. See Nansen & Byrd exercise.
Formulating the Rule from a Judicial Opinion
When is Stare Decisis Inapplicable?
Rules can be formulated broadly or narrowly. Predictive writing should decide which is most accurate.
See Handout for Exercise.
Under stare decisis, only prior “holding”
must be followed.
Dictum may be used as background or as
analogy/distinction. E.g. Dobrin:
Among judicial decisions or enactments of
Formulating a Rule from Multiple Precedents
Analogizing and Distinguishing Precedents in the Rule Application
Scenario #1: Determinative facts distinguishable
Scenario #2: Issues Distinguishable
Scenario #3: The statement of law in the prior case is obiter dictum not a “holding.”
Scenario #4: Precedent is not mandatory because it was not decided by a court to which an appeal could be made on this issue.
Scenario #5: The precedent is no longer valid because it has been effectively overruled by a court decision or by the introduction of a new statute.
Scenario #6: There are two conflicting mandatory precedents. Choose the one of greater weight.
Scenario #7: Court may decide not to follow (“overrule”) its own precedent:
Working with Statutes
Working with Facts—see mindmap
Paragraphing and Effective Style
MOVED TO “Legal Writing Resources” Links on lawandobrder.com
The Shift to Persuasion
Developing a Persuasive Theory
Additional skills needed:
Motion Memo Format
Develop Motivating & Justifying Arguments Supporting Your Theory
Organize to Persuade
Edit for Persuasion
Don’t ignore adverse authority or facts.
LIMIT YOUR CONTENTIONS TO THOSE THAT HAVE A REASONABLE CHANCE OF PERSUADING THE COURT
JUSTIFYING ARGUMENTS—ORGANIZE TO EMPHASIZE THE IDEAS MOST LIKELY TO PERSUADE
MOTIVATING ARGUMENTS—WHERE TO THEY GO? LIKELY TO PERSUADE
MAKE YOUR ORGANIZATION OBVIOUS LIKELY TO PERSUADE
USE VIVID NOUNS AND VERBS TO FOR EMPHASIS
KEEP A CALM, NEUTRAL TONE LIKELY TO PERSUADE
HUMANIZE YOUR CLIENT; DEHUMANIZE THE ADVERSARY LIKELY TO PERSUADE
Handling the Procedural Posture
Point Headings & Sub-Headings
Statement of the Case
In litigation, “fact” is not ultimate truth but something established in court by a party carrying her burden of pleading, production, or persuasion.
Examples LIKELY TO PERSUADE
E.g.: Motion to Dismiss
To avoid dismissal, pl must meet burden of pleading in complaint facts that, if proven, would constitute each element of a cause of action.
Only “facts” are the allegations in pl’s complaint.
E.g.: Motion for Summary Judgment LIKELY TO PERSUADE
Def wins SJ if pl fails to meet burden of producing some evidence on each element of c/a.
Pl wins SJ if she meets the burden of producing some evidence on every element of c/a & def fails to meet burden of producing some opposing evidence on at least one element.
Only “facts” are those presented to the court in the form of affidavits or other documents. (See Neumann pp. 454-456).
E.g.: Trial LIKELY TO PERSUADE
1. The party with the burden of persuasion
wins only by meeting that burden.
2 a. In bench trial, “facts” are those that judge specifically includes in her written decision.
b. In jury trial, facts usually not specifically enumerated.
To avoid dismissal, pl must meet burden of
pleading in complaint facts that, if proven,
would constitute each element of a cause of
Example of Integrated Rule:
Complaint under Dog Bite Stat will be dismissed unless it alleges facts that, if proven, would constitute each of the following elements: (a) dog owned by def injures pl; (b) pl did not provoke dog; (c) pl is lawfully present; and (d) pl is peaceably conducting himself.
4. In your Rule Application, apply the procedural rule. E.g., for MTD, consider only facts in complaint & draw all reasonable inferences favorable to pl.
Example—Number of Point Headings: LIKELY TO PERSUADE
Mr. Pickett alleges that the Guard aimed a gun at him (Compl. ¶ 7) and told him to “shut up” (id. ¶ 8).