Legal writing
Download
1 / 151

legal writing - PowerPoint PPT Presentation


  • 349 Views
  • Updated On :

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

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'legal writing' - omer


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
Legal writing l.jpg
Legal Writing

Professor Gary Chodorow

Beijing Foreign Studies University 2006-07 Semester II





Is stare decisis a good doctrine l.jpg
Is Stare Decisis a Good Doctrine?

Strengths:

  • Stability & certainty in the law

  • Certainty in the law

  • Promote fairness

  • Judicial efficiency and credibility

    Weaknesses:

  • Bad precedent is binding.

  • Common law evolves too slowly.

  • Law is not neatly stated.




Class 4 l.jpg

Class 4:

BRIEFING CASES

OFFICE MEMORANDA


I briefing cases l.jpg
I. BRIEFING CASES

Why?

  • Improve comprehension.

  • Helpful for analogizing or distinguishing cases

  • Cheat sheet for Qs in class.

  • Helps study for exams in common law class.


Process of writing a case brief l.jpg
Process of Writing a Case Brief

  • Read case once for “big picture”

  • Make margin notes (e.g., “F” for facts). Facts (or other parts) may be scattered in various places throughout opinion.

  • Write brief. Be concise. Paraphrase.

  • Revise your brief based on class discussion.


Parts of a case brief l.jpg
Parts of a case brief:

  • Caption

  • Parties

  • Procedural History

  • Facts

  • Issue

  • Holding

  • Reasoning

  • Judgment

  • Separate Opinion

  • Analysis


Writing the case brief caption l.jpg
Writing the Case BriefCaption

Costanza v. Seinfeld(N.Y. Sup. Ct. 1999)

Parties Court Date

Decided


Writing the case brief parties l.jpg
Writing the Case BriefParties

E.g.: guy (pl) v comedian allegedly using his likeness in sitcom (def)


Writing the case brief procedural history l.jpg
Writing the Case BriefProcedural History

E.g.: Motion to dismiss claim for damages under NY common law & NY Civil Rights Law sec. 50 & 51.


Writing the case brief facts l.jpg
Writing the Case BriefFacts

  • Pl alleges character George in Seinfeld sitcom is based on him w/out his permission (same last name; short, bald, fat; friend of Seinfeld from college; from Queens)

  • Pl alleges this portrayal is humiliating (George is a self-centered loser)


Writing the case brief issue i l.jpg
Writing the Case BriefIssue I

  • Format: Under [specific law], is [specific legal issue] where [important facts]?


Writing the case brief issue i cont d l.jpg
Writing the Case BriefIssue I (cont’d)

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?


Writing the brief holding i l.jpg
Writing the BriefHolding I

Format:

[Decision]. [Rule]. [Rule Application].


Writing the brief holding i cont d l.jpg
Writing the BriefHolding I (cont’d)

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].


Slide20 l.jpg

Writing the BriefReasoning I

  • Rule: NY doesn’t recognize common law right to privacy.

  • Rule Proof:

    • Roberson held so (rejecting Harvard L. Rev. article theory)

    • In reaction, NY Civil Rights Law sec. 50 & 51 enacted.

  • [RA obvious]


Slide21 l.jpg

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?


Slide22 l.jpg

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.


Slide23 l.jpg

Writing the BriefReasoning II

  • Rule: Statute only covers use of a living person’s name or likeness for “advertising” or “trade.”

  • Rule Proof:

    • “Advertising” and “trade” are limited to solicitation for patronage. Delan.

    • Works of fiction and satire outside bounds. Hampton.

  • Rule Application: Sitcom is fictional comedic presentation so analogous to Hampton.


Slide24 l.jpg

Writing the BriefJudgment

Judgment: Dismissed.


Slide25 l.jpg

Writing the BriefAnalysis

Your questions and critical evaluation, such as:

  • ID argument type (Rule-Based, Case-Based, Normative, Institutional, Narrative)--consider counterarguments.


Writing the brief analysis cont d l.jpg
Writing the BriefAnalysis (cont’d)

ASK QUESTIONS:

  • How is problem identified? (Bias? Over-simplified? Are there other ways to characterize the problem? Are terms defined fairly?)

  • Are the facts presented accurately?

  • Is authority characterized properly?

  • Is reasoning clear & logical? (False dichotomy? Are there unstated reasons for the decision, perhaps related to the identity of the parties? Could other arguments be made? Are questionable assumptions made? Are counter-analyses made?)

  • Are the conclusions justified? What other conclusions could be reached?

  • What are the likely consequences of this decision to parties? As precedent?

  • Has the majority answered all the dissent’s arguments?


Writing the brief analysis cont d27 l.jpg
Writing the BriefAnalysis (cont’d)

READ FOR JURISPRUDENCE--imagine how different approaches would affect the outcome:

  • Formalism

  • Legal Realism

  • Legal Process

  • Fundamental Rights

  • Law and Economics

  • Critical Legal Studies

  • Feminist Jurisprudence


Writing the brief analysis cont d28 l.jpg
Writing the BriefAnalysis (cont’d)

READ FOR RHETORIC & STYLE:

  • Tone (assertive, objective, humorous, angry)

  • Word choice (bias)


Writing the brief analysis cont d29 l.jpg
Writing the BriefAnalysis (cont’d)

  • Examine the Legal Context:

    • Legislative:

      • Look at purpose of statute.

      • Look at predecessor statute.

      • Look at other legislative activity on subject.

    • Court decisions:

      • Look at lower court decisions.

      • Compare your case to cases raising analogous issues in related areas.

  • Probe the Broader Context: Do history, sociology, economics, psychology, etc. illuminate the subject?



Format discussion l.jpg
Format:Discussion

Tidbits:

  • Order elements discussed (see discussion below).


Is your memo written in an appropriate style l.jpg
Is your memo written in an appropriate style?

  • Avoid referring to yourself: Don’t say, “according to my research” or “in my analysis” or “according to my research” because the reader knows the memo is based on your research and analysis.

  • Avoid words like “obviously,” “clearly,” and “definitely,” especially where the point you are making is not.

  • Keep a neutral and objective tone.

  • Avoid informal style in the text of your memo:

    • Edit out inappropriate abbreviations. For example, don’t refer to the state as “Ill.” and don’t refer to the plaintiff as “pl.”

    • Write out numbers requiring just one or two words (e.g., “thirty-three apples” but “183 students”).

    • Edit out contractions such as “couldn’t” or “isn’t.”

  • Refer to parties in case law by role not name.

  • Do not use proper names when discussing case law. Refer to the parties in a published case generically; characterize them in terms of their real-life roles (father/son; landlord/tenant; purchaser/seller; plaintiff/defendant).

    • Sinclair discussion (p.444)

  • Discuss case law in past tense. E.g., “The Court held . . . .” (same Sinclair discussion).

  • “Here” refers to client’s case. “There” refers to precedent. (top p.446).


Slide33 l.jpg

Class 5:

  • Structuring Proof of a Conclusion of Law


Crupac structure l.jpg
CRuPAC Structure

C: Conclusion.

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.


Conclusion l.jpg
Conclusion

  • “Conclusion of law” = a determination of how law treats certain facts.

    • In predictive writing, it can be expressed as a prediction (e.g., “Washburn is not likely to be convicted of robbery”).

    • In persuasive writing, it can be expressed as a recommendation (e.g., “Washburn should not be convicted of robbery”).


Slide36 l.jpg
Rule

  • Rule = The main rule on which you rely in reaching your conclusion.


Rule proof l.jpg
Rule Proof

  • Rule Proof = Explanation of the rule and reasons given by the court for why this rule is the law in the jurisdiction.


Tools for rule proof l.jpg
Tools for Rule Proof

A. Citation to Authority

B. Describe How Authority Stands for Rule.

C. Discuss Subsidiary Rules.

  • Subsidiary rule = Rule that guides application of main rule or works with it in some way.


Tools for rule proof cont d l.jpg
Tools for Rule Proof (cont’d)

  • Policy (normative & institutional arguments): Use policy discussion to justify or clarify rule.

  • Counter-Analysis = Evaluation of reasonable contrary arguments that different rule is the really the law in the jurisdiction.


Rule application l.jpg
Rule Application

  • Rule Application = Demonstrate how rule applies to facts of this case.


Tools for rule application l.jpg
Tools for Rule Application

  • Subsidiary Rules: Apply them to facts (rule-based reasoning).

  • Authorities: Analogize or distinguish facts of authorities (case-based reasoning).


Tools for rule application cont d l.jpg
Tools for Rule Application (cont’d)

C. Counter-analysis: Evaluate reasonable contrary arguments that the rule should be applied to the facts in a different way.


Tools for rule application cont d43 l.jpg
Tools for Rule Application (cont’d)

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.


Relationship between rp ra l.jpg
Relationship between RP & RA

Always complete

the rule proof

before beginning

the rule application.


Relationship between rp ra cont d l.jpg
Relationship between RP & RA (cont’d)

For each point you make about the rule in the RP, show how that point applies to the facts in the RA.


Relationship between rp ra cont d46 l.jpg
Relationship between RP & RA (cont’d)

Exercise:

  • Re-read Buckley sub-issue A (Buckley’s unintentional misrepresentation of her age probably is insufficient to establish fraudulent misrepresentation) (pp. 2-3).

  • List each point made in the RP. Does the RA apply that point to the facts?



Slide48 l.jpg
How Organize Analysis of Issue with Multiple Elements? Give an Overall Conclusion & CRuPAC Each Element

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]


What order should the elements be discussed in l.jpg
What order should the elements be discussed in? an Overall Conclusion & CRuPAC Each Element

  • If not all elements are satisfied, discuss the most dispositive first.

  • If all elements are satisfied, follow order mentioned in rule, unless confusing or one element vastly more complex.


How organize analysis of multiple issues give overall conclusion for each issue crupac each element l.jpg
How Organize Analysis of Multiple Issues? Give Overall Conclusion for Each Issue & CRuPAC Each Element

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


How organize analysis if there are both procedural substantive issues l.jpg
How Organize Analysis if There Are Both Procedural & Substantive Issues?

Make one rule outline integrating both. See Nansen & Byrd exercise.


Class 6 l.jpg

Class 6 Substantive Issues?

Formulating the Rule from a Judicial Opinion

Selecting Authority

When is Stare Decisis Inapplicable?


I formulating a rule from a judicial opinion l.jpg
I. Formulating a Rule from a Judicial Opinion Substantive Issues?

  • Why Is it Difficult?

  • Inherited Rule v. Processed Rule

  • Finding the Processed Rule

  • Decide the Breadth of the Processed Rule

  • Holding v. Dictum


Why is it difficult l.jpg
Why Is it Difficult? Substantive Issues?

  • May be complex.

  • Even best legal writers sometimes write unclearly.

  • Judge’s primary job to resolve dispute between parties.

  • Prose not legislative format.

  • Hard to tell whether multiple opinions describe same rule with different words or describe slightly different rules.


Inherited rule v processed rule l.jpg
Inherited Rule v. Processed Rule Substantive Issues?

  • “Inherited Rule” = Rule ct finds in prior authorities.

  • “Processed Rule” = After ct goes thru process of applying rule to facts, the ct changes or amplifies the inherited rule. E.g., overrule, create exception, or just create a new example of how the rule is applied.


Finding the processed rule l.jpg
Finding the Processed Rule Substantive Issues?

  • Identify inherited rule.

  • Consider significant facts.

  • Consider how rule explained in RP.

  • Consider RA.


Example l.jpg
Example: Substantive Issues?


Decide the breadth of the processed rule l.jpg
Decide the Breadth of the Processed Rule Substantive Issues?

Rules can be formulated broadly or narrowly. Predictive writing should decide which is most accurate.

See Handout for Exercise.


Holding v dictum l.jpg
Holding v. Dictum Substantive Issues?

Under stare decisis, only prior “holding”

must be followed.

  • “Holding” means statement of law necessary to decide a case.

  • “Obiter dictum” is Latin for “a remark made in passing,” meaning a statement of law unnecessary to decide a case.


Holding v dictum cont d l.jpg
Holding v. Dictum (cont’d) Substantive Issues?

Dictum may be used as background or as

analogy/distinction. E.g. Dobrin:

  • Facts: Pl salesman entered def’s property to sell magazines. Path from sidewalk to def’s door. Chained dog on property obscured from pl’s view by bushes.

  • Holding: Pl lawfully present because path implicitly indicated he was welcome onto property and no indications to the contrary. There was no keep out sign or visible guard dog.

  • Dicta for Distinction: Presence of “a dog chained to guard its owner’s property where it can be seen, is notice that entry on the land is forbidden.”


Ii selecting authority l.jpg
II. Selecting Authority Substantive Issues?

  • Types of Authority

  • Hierarchy of Mandatory Authority within a Jurisdiction

  • How Cts Use “Foreign” Precedent

  • How to Fill Gaps with Persuasive Precedent

  • How Persuasive is Persuasive Precedent?


Types of authority l.jpg
Types of Authority Substantive Issues?

Primary Authority

SecondaryAuthority

Persuasive

Mandatory


Primary authority mandatory v persuasive l.jpg
Primary Authority: Substantive Issues?Mandatory v. Persuasive

  • Mandatory Authority:

    • Enactments of the jurisdiction

    • Decisions of appellate cts to which an appeal could be made on an issue.

  • Persuasive Authority:

    • Enactments from other jurisdictions

    • Decisions of other courts (including any trial court decision)


Issues of state law mandatory v persuasive authority l.jpg
Issues of State Law: Substantive Issues?Mandatory v. Persuasive Authority

  • Decision of highest ct mandatory authority for all other cts in state and all federal cts applying state law.

  • Decision of intermediate appellate ct mandatory on trial cts within its geographic jurisdiction.

  • Decision of ct from other state or of federal ct merely persuasive.


Issues of federal law mandatory v persuasive authority l.jpg
Issues of Federal Law: Substantive Issues?Mandatory v. Persuasive Authority

  • Decision of US SCt mandatory for all federal & state cts in US.

  • Decision of Ct of Appeal mandatory on all federal Dist Cts in its geographic jurisdiction.

  • Decision of Ct of Appeal or Dist Ct merely persuasive for state cts (very persuasive for state cts within the federal ct’s geographic jurisdiction).


Hierarchy of authority within a jurisdiction l.jpg
Hierarchy of Authority within a Jurisdiction Substantive Issues?

  • Constitution

  • Statute

  • Regulation

  • Judicial decision on common law


Hierarchy of authority within a jurisdiction cont d l.jpg
Hierarchy of Authority within a Jurisdiction (cont’d) Substantive Issues?

Among judicial decisions or enactments of

same type:

  • Higher trumps lower

  • At same level, later trumps earlier


How courts use foreign precedent l.jpg
How Courts Use “Foreign” Precedent Substantive Issues?

  • Never mandatory, only persuasive.

  • Consulted only where a gap appears in local law.

  • Argument is stronger if majority of other states have adopted a rule, or if there is a trend (not just single foreign precedent).

  • Opinion interpreting foreign statute persuasive only if similar to local statute.


How to fill gaps with persuasive precedent l.jpg
How to Fill Gaps with Persuasive Precedent Substantive Issues?

  • Step 1: Lay a Foundation: (a) Explain the extent of mandatory precedent; (b) define the gap that remains to be filled by persuasive precedent.

  • Step 2: Fill the gap

    • Synthesize the persuasive precedents into groups. If possible, identify majority or plurality or recent trend.

    • Foreign precedent most persuasive when its underlying policy same as local policy.


How persuasive is persuasive precedent l.jpg
How Persuasive Is Persuasive Precedent? Substantive Issues?

  • How persuasive is the reasoning?

  • What is the identity of the court and judge?

  • How has the precedent been treated subsequently by other courts and commentators?

  • Is the precedent recent but not untested?


Class 7 l.jpg

Class 7 Substantive Issues?

Formulating a Rule from Multiple Precedents

Analogizing and Distinguishing Precedents in the Rule Application


I formulating a rule from multiple precedents l.jpg
I. FORMULATING A RULE FROM MULTIPLE PRECEDENTS Substantive Issues?

  • Formulate single rule through synthesis.

  • Follow binding authority (stare decisis); reject conflicting authority.

  • If no authority is binding, choose the most persuasive authority; reject conflicting authority.


B reconciling l.jpg
B. Reconciling? Substantive Issues?


B when is stare decisis inapplicable l.jpg
B. When Is Stare Decisis Inapplicable? Substantive Issues?

The rule:

  • Court must follow holding from mandatory precedent that involved same issue & determinative facts as the present case.

  • Court should ordinarily follow own prior holding.


When is stare decisis inapplicable l.jpg
When Is Stare Decisis Inapplicable? Substantive Issues?

Scenario #1: Determinative facts distinguishable


When is stare decisis inapplicable77 l.jpg
When is Stare Decisis Inapplicable? Substantive Issues?

Scenario #2: Issues Distinguishable


When is stare decisis inapplicable78 l.jpg
When is Stare Decisis Inapplicable? Substantive Issues?

Scenario #3: The statement of law in the prior case is obiter dictum not a “holding.”


When is stare decisis inapplicable79 l.jpg
When is Stare Decisis Inapplicable? Substantive Issues?

Scenario #4: Precedent is not mandatory because it was not decided by a court to which an appeal could be made on this issue.


When is stare decisis inapplicable80 l.jpg
When is Stare Decisis Inapplicable? Substantive Issues?

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.


When is stare decisis inapplicable81 l.jpg
When is Stare Decisis Inapplicable? Substantive Issues?

Scenario #6: There are two conflicting mandatory precedents. Choose the one of greater weight.


When is stare decisis inapplicable82 l.jpg
When is Stare Decisis Inapplicable? Substantive Issues?

Scenario #7: Court may decide not to follow (“overrule”) its own precedent:

  • Overruling is proper where subsequent developments indicate the earlier decision was unsound or has become ripe for reconsideration.


Ii analogizing distinguishing precedents in the rule application l.jpg
II. ANALOGIZING (DISTINGUISHING) PRECEDENTS IN THE RULE APPLICATION

Steps:

  • Show authority is mandatory (not).

  • Show issue same (different).

  • Explain precedent’s significant facts & result.

  • Compare (contrast) the cases’ significant facts.

  • Show authority’s reasoning applicable (not applicable) in current case.


Which analogy is better l.jpg
Which Analogy Is Better? APPLICATION

  • Like the unattached garage in Picaroni, which was separated from the house by a walkway, here the trailer was separate from Ms. Peluso’s main house.

  • Like Picaroni, here the trailer was separate from Ms. Peluso’s main house.

  • Here, the trailer was separate from Ms. Peluso’s main house.


Which distinction is better l.jpg
Which Distinction Is Better? APPLICATION

  • Unlike the attached garage and enclosed patio in Cook, which qualified as integral parts of the main house because they were akin to additional rooms, here Ms. Murray’s trailer does not share any door with the main residence, even when the trailer is parked in the driveway.

  • Unlike Cook, here Ms. Murray’s trailer does not share any door with the main residence, even when the trailer is parked in the driveway.

  • Here, Ms. Murray’s trailer does not share any door with the main residence, even when the trailer is parked in the driveway.


Class 8 l.jpg

Class 8 APPLICATION

Working with Statutes


Class 9 l.jpg

Class 9 APPLICATION

Working with Facts—see mindmap


Class 10 l.jpg

Class 10 APPLICATION

Paragraphing and Effective Style


Week 11 l.jpg

Week 11 APPLICATION

CITATIONS

QUOTATIONS

MOVED TO “Legal Writing Resources” Links on lawandobrder.com


Class 12 l.jpg

Class 12: APPLICATION

The Shift to Persuasion

Developing a Persuasive Theory


I the shift to persuasion l.jpg
I. The Shift to Persuasion APPLICATION

Additional skills needed:

  • Develop persuasive theory.

  • Develop persuasive arguments, including formulating persuasive rule.

  • Ethical responsibilities of brief writer.

  • Work within procedural posture.

  • Formatting a motion memorandum, including point headings and statement of the case.

  • Persuasive style.


Ii developing a persuasive theory l.jpg
II. Developing a Persuasive Theory APPLICATION

  • Theory of case (motion, appeal) = view of the facts & law that provides legal justification & psychological motivation for decision in C’s favor.

  • Js are professional buyers of theories.



Characteristics of a persuasive theory neumann 276 278 l.jpg
Characteristics of a Persuasive Theory (Neumann 276-278) APPLICATION

  • Account for or explain undeniable facts?

  • Explain away in a plausible manner as many unfavorable facts as possible?

  • Explain why people acted they way they did?

  • Supported by the details?

  • Solid basis in law?

  • Common sensical & plausible?

  • Makes result seem fair?


Judges as readers l.jpg
Judges as Readers APPLICATION

  • Generalist  Teach J substantive law.

  • Engrossed by the facts Focus on facts.

  • Busy  KISS.

  • Skeptical.

  • Common sensical.

  • Need to write an opinion Help.

  • Want to make right decision  Be credible.


Judges as readers cont d l.jpg
Judges as Readers (cont’d) APPLICATION

  • Never forget what authority is mandatory  You shouldn’t.

  • Offended by heavy-handed persuasive techniques Use calm, logical style.

  • Expect to find strongest argument 1st Do it.


Process of developing a persuasive theory l.jpg
Process of Developing a Persuasive Theory APPLICATION

  • Read the assignment and the facts.

  • Identify the issues.

  • Outline the statutes and brief the precedents.

  • For each issue & sub-issue, formulate the possible rules (supporting each party).


Process of developing a persuasive theory cont d l.jpg
Process of Developing a Persuasive Theory APPLICATION(cont’d)

  • Under the rules for each sub-issue, list the relevant facts, including emotionally compelling facts (supporting each party).

  • Develop multiple possible theories for both parties.

  • Check persuasiveness of each theory.

  • Decide which theory is most persuasive.



Class 13 l.jpg

Class 13: APPLICATION

Motion Memo Format

Develop Motivating & Justifying Arguments Supporting Your Theory

Organize to Persuade

Edit for Persuasion

Argumentation Ethics


Motion memo format l.jpg
Motion Memo Format APPLICATION

  • Cover page

  • Table of contents

  • Introduction = Preliminary Statement

  • Statement of the Case = Statement of the Facts

  • Argument, broken up by point headings

  • Conclusion

  • Indorsement


Cover page l.jpg
Cover Page APPLICATION

  • Caption:

    • IDs court, parties (and procedural designation)

    • Case #

  • Title

  • Atty contact info


Table of contents l.jpg
Table of Contents APPLICATION


Introduction l.jpg
Introduction APPLICATION

  • Identifies the parties

  • Explains the nature of the litigation

  • Describes the motion before the court and the relief sought through the motion.


Statement of the case l.jpg
Statement of the Case APPLICATION

  • Similar to Statement of the Facts in predictive memorandum, but designed to persuade.


Argument l.jpg
Argument APPLICATION

  • Corresponds to the Discussion section of predictive memorandum but designed to persuade.

  • Organized into points, each of which is a single, complete, and independent ground for relief.

  • Points may have sub-headings.


Conclusion107 l.jpg
Conclusion APPLICATION

  • Very brief summary of argument.

  • Remind reader of what you seek.


Indorsement l.jpg
Indorsement APPLICATION

  • “Respectfully submitted”

  • Signature

  • L’s name

  • Indication of who L represents

  • Atty’s contact info


Miscellaneous l.jpg
Miscellaneous APPLICATION

  • Notice page #s:

    • none on cover page;

    • roman numerals for Table of Contents;

    • arabic numerals for rest.

  • Line Spacing: Double space except:

    • Cover page

    • Point headings & sub-headings

    • Block quotes

    • Indorsement


I steps in writing a persuasive memorandum l.jpg
I. Steps in Writing a Persuasive Memorandum APPLICATION

  • Formulate the most persuasive rule for each sub-issue.

  • Develop a theory of the case and anticipate your adversary’s.

  • Develop persuasive arguments supporting your theory.

  • Organize to persuade.

  • Edit for persuasion.


1 develop justifying and motivating arguments supporting your theory l.jpg
1. Develop Justifying and Motivating Arguments Supporting Your Theory

  • Argument = contention designed to persuade.

  • Arguments can be expressed:

    • “Defendant committed negligence by running a red light and hitting my client’s car.”

  • Arguments can be implied:

    • “My client entered the intersection with a green light and was hit sideways by the defendant, whose light was red.”


Slide112 l.jpg


Counter analysis l.jpg
Counter-Analysis showing whether the legal test is met or not.

Don’t ignore adverse authority or facts.

  • Ethical reasons.

  • Strategic reasons:

    • J may see you as untrustworthy.

    • Don’t give up opportunity for counter-analysis.


Counter analysis cont d l.jpg
Counter-Analysis (cont’d) showing whether the legal test is met or not.

  • Should you bring up an opposing argument that the adversary hasn’t mentioned yet?

  • How to attack precedent? See the 7 ways to argue that stare decisis not applicable.


Counter analysis cont d115 l.jpg
Counter-Analysis (cont’d) showing whether the legal test is met or not.

  • Avoid a defensive tone. Where anticipate opponent’s arguments, say:

    • Section 401(d)(1) provides for X and not for Y.

    • Not: Opposing counsel may argue that 401(d)(1) provides for Y, but…


Counter analysis cont d116 l.jpg
Counter-Analysis (cont’d) showing whether the legal test is met or not.

  • Place of counter-analysis in your overall argument:

    • Make a point in your RP or RA.

    • Give evidence that supports it.

    • Counter-analysis: Cite the important evidence against it, and refute as much of it as you can.

    • Weigh the evidence in favor & against the contrary evidence that you were unable to refute.

    • Draw conclusion.


Tell judge the real world consequences of ruling for you or opponent l.jpg
Tell Judge the Real-world Consequences of Ruling for You Or Opponent

  • How the parties have been affected by the dispute;

  • How they would be affected by the relief sought; or

  • How in some other way the ruling sought is fair.


Using policy l.jpg
Using Policy Opponent

  • Prove policy with authority.

    • May be openly announced in decisions or statutes.

    • May be implied.

  • Common policies:

    • Promote clarity in the law

    • Do not allow wrongdoers to profit from illegal acts.

  • How to introduce policy argument (see p.299)


Ii organize to persuade l.jpg
II. Organize to Persuade Opponent

LIMIT YOUR CONTENTIONS TO THOSE THAT HAVE A REASONABLE CHANCE OF PERSUADING THE COURT

  • “Strike for the jugular and let the rest go.”

    • Oliver Wendell Holmes

  • If possible, make your case seem like routine application of well-known rules rather than asking for an earth-shaking decision.


Slide120 l.jpg

JUSTIFYING ARGUMENTS—ORGANIZE TO EMPHASIZE THE IDEAS MOST LIKELY TO PERSUADE

  • Generally, the best sequence is to present the most persuasive material first:

    • Issue

    • Sub-issue

    • Points within RP & RA

    • Authority supporting a point.

  • Exception: Avoid confusing reader.


Slide121 l.jpg

MOTIVATING ARGUMENTS—WHERE TO THEY GO? LIKELY TO PERSUADE

  • Introduction § (option)

  • Statement of the Case

  • Opening ¶s of Argument (option)

  • Sprinkled throughout Argument


Slide122 l.jpg

MAKE YOUR ORGANIZATION OBVIOUS LIKELY TO PERSUADE

  • Use a roadmap at the beginning of the Argument.

  • Remember the C in CRuPAC.

  • ¶s need strong thesis sentences.

  • Use appropriate transition words.


Iii edit for persuasion l.jpg
III. Edit for Persuasion LIKELY TO PERSUADE

USE VIVID NOUNS AND VERBS TO FOR EMPHASIS

  • Simple and concrete words.

  • Words that paint a picture or describe a scene like in a movie.


Slide124 l.jpg

KEEP A CALM, NEUTRAL TONE LIKELY TO PERSUADE

  • You want to sound neutral even though you are making a partisan argument.

  • Avoid emotion-laden words.


Slide125 l.jpg

HUMANIZE YOUR CLIENT; DEHUMANIZE THE ADVERSARY LIKELY TO PERSUADE

  • Refer to your client in a sympathetic way (e.g., Mr. Skeffington).

  • Option to refer to the adversary in an unsympathetic way (e.g., the insurance company, the defendant).


Iv argumentation ethics l.jpg
IV. Argumentation Ethics LIKELY TO PERSUADE

  • L forbidden to knowingly make a false statement of law or fact to a court. MRPC 3.3(a)(1).

  • Must inform court of directly adverse authority in controlling jurisdiction not disclosed by opposing counsel. MRPC 3.3(a)(3).

  • L can’t advance a theory that is “frivolous” or “unwarranted under existing law,” except that can argue to modify judge-made law.


Class 14 l.jpg

Class 14: LIKELY TO PERSUADE

Handling the Procedural Posture

Point Headings & Sub-Headings

Statement of the Case


I handling the procedural posture l.jpg
I. Handling the Procedural Posture LIKELY TO PERSUADE

  • Procedural posture = The procedural event that places the issue before the court. E.g.:

    • Motion to dismiss

    • Motion for summary judgment

    • Trial


Review procedural rule determines what is a fact l.jpg
Review: Procedural Rule Determines What Is a Fact LIKELY TO PERSUADE

In litigation, “fact” is not ultimate truth but something established in court by a party carrying her burden of pleading, production, or persuasion.


3 kinds of burden of proof l.jpg
3 kinds of burden of proof: LIKELY TO PERSUADE

  • Burden of pleading: Are factual allegations sufficient to allow case to go forward?

  • Burden of production: Has party produced sufficient evidence to allow case to go forward?

  • Burden of persuasion: Has party sufficiently persuaded the fact finder?


Slide131 l.jpg

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.


Slide132 l.jpg

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).


Slide133 l.jpg

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.


Mtd rule in more detail l.jpg
MTD Rule in More Detail LIKELY TO PERSUADE

To avoid dismissal, pl must meet burden of

pleading in complaint facts that, if proven,

would constitute each element of a cause of

action.

  • Ct won’t consider facts beyond complaint.

  • Ct will assume truth of all well-pled facts.

  • Ct will draw all reasonable inferences in pl’s favor.

  • Conclusions of law or conclusions of fact unsupported by allegations of specific facts are not considered well-pled.


Write the procedural rule into the argument l.jpg
Write the Procedural Rule into the Argument LIKELY TO PERSUADE

  • Beginning of Argument must mention procedural rule & substantive rule.

  • Decide organization of the Argument section by integrating the two rules.


Write the procedural rule into the argument cont d l.jpg
Write the Procedural Rule into the Argument (cont’d) LIKELY TO PERSUADE

Example of Integrated Rule:

  • Dog bite c/a: (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.

  • To avoid dismissal: complaint must allege facts that, if proven, would constitute each element of c/a.

  • Integrated rule ?


Slide137 l.jpg

  • Integrated rule: LIKELY TO PERSUADE

    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.


Write the procedural rule into the argument cont d138 l.jpg
Write the Procedural Rule into the Argument (cont’d) LIKELY TO PERSUADE

  • In your CRuPAC on each issue, make sure the C reflects the integrated rule on that issue.

    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.


Ii point headings sub headings l.jpg
II. Point Headings & Sub-Headings LIKELY TO PERSUADE

  • Purpose: summarize your argument forcefully & clearly.

  • Each point heading should be independent & free-standing ground for ruling for your C on a c/a.


Slide140 l.jpg

Example—Number of Point Headings: LIKELY TO PERSUADE

  • Integrated rule: A complaint under the Dog Bite Statute should 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; & (d) pl is peaceably conducting himself.

  • Def files MTD contending pl provoked dog & not legally present.

  • How many point headings will def use in brief? Pl?


Content of point headings l.jpg
Content of Point Headings LIKELY TO PERSUADE

  • Identify the ruling you seek and assert its correctness.

  • Assert your conclusion for why the Integrated Rule entitles your client to the ruling.

  • “Because” often used to link 1 & 2.


Content of sub headings l.jpg
Content of Sub-Headings LIKELY TO PERSUADE

  • For each sub-issue, write a sub-heading with your Rule Application, including 1-3 determinative facts.

  • If the rule on a sub-issue is hotly contested, you can include sub-headings on the Rule Proof.

  • Except: It’s awkward to have just 1 sub-heading; to avoid that, put the contents of the sub-heading into the heading.


Edit for readability persuasiveness l.jpg
Edit for Readability & Persuasiveness LIKELY TO PERSUADE

  • Don’t assume any prior knowledge by judge (e.g., don’t cite cases; don’t give a statutory cite without stating subject of statute)

  • Keep subject & verb close together

  • Avoid nominalizations

  • Avoid unnecessary passive voice.

  • Avoid vague words.

  • Avoid multiple negatives.

  • Avoid wordiness.


Format l.jpg
Format LIKELY TO PERSUADE

  • Full sentences

  • Proper outline numbers

  • Single space

  • Indent left & right

  • All caps for heading; title caps for sub-heading


Capitalization in titles bluebook rule 8 l.jpg
Capitalization in Titles LIKELY TO PERSUADE(Bluebook rule 8)

  • Capitalize the initial word

  • Capitalize the word immediately following a colon

  • Capitalize all other words except

    • Articles (a, an, the)

    • Conjunctions (connect words, clauses, or sentences) of 4 or fewer letters (so that, as long as, as if, and, but, or, for, of, both/and, who, Although, that…)

    • Prepositions (link verb/noun with another) of 4 or fewer letters (at, by, from, in, into, of, on, to, with, Within…)


Statement of the case146 l.jpg
Statement of the Case LIKELY TO PERSUADE

  • SOC is critical: J intensely interested in facts.

  • Purposes:

    • Set forth every fact used in your Argument.

    • Imply your theory and justifying arguments.


Limit soc to facts in the record l.jpg
Limit SOC to Facts in the Record LIKELY TO PERSUADE

  • Use only facts in record.

  • Cite to record for each fact.

  • Citation style:

    Mr. Pickett alleges that the Guard aimed a gun at him (Compl. ¶ 7) and told him to “shut up” (id. ¶ 8).


Review what s a fact l.jpg
Review: What’s a Fact? LIKELY TO PERSUADE

  • Nonexistence of a fact is a fact. The complaint does not allege that Mr. Jones experienced withdrawal symptoms after he stopped smoking.

  • Not facts:

    • Conclusion of Law

    • Inference

    • Characterization


Contents of the soc l.jpg
Contents of the SOC LIKELY TO PERSUADE

  • Organization: chronological or topic or combination (same as predictive memo)

  • Use sub-headings that reflect your organization (not argumentative)

  • Start with a punch: 1 or 2 ¶s of facts summarizing your theory.


Edit soc for persuasion l.jpg
Edit SOC for Persuasion LIKELY TO PERSUADE

Neumann 344-349


Slide151 l.jpg


ad