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LEGAL WRITING SKILLS

LEGAL WRITING SKILLS

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LEGAL WRITING SKILLS

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  1. LEGAL WRITING SKILLS http://stepstomootcourt.weebly.com STEPS TO MOOT COURT II

  2. 1 3 Writing styles 2 Structure of a memorial Contents Writing process 4 IRAC HCMULAW Moot Community - 23 Oct 2011

  3. BEFORE WRITING OBJECTIVE Win the case Win the competition or HCMULAW Moot Community - 23 Oct 2011

  4. BEFORE WRITING STRUCTURE Content Format and HCMULAW Moot Community - 23 Oct 2011

  5. BEFORE WRITING ACHIEVING “ONE VOICE” • Paragraph flow • Words, phrases tend to repeat • Delegate team members to writing task HCMULAW Moot Community - 23 Oct 2011

  6. BASIC RULES OF WRITING SENTENCE CONSTRUCTION • Short, direct, easy to understand, does not create ambiguity S – V – O • To emphasize or present a weak argument, use PASSIVE VOICE • Modifier (by …) • Parallel writing: verbs should be used in same form HCMULAW Moot Community - 23 Oct 2011

  7. BASIC RULES OF WRITING WORD USAGE • Appropriate legal words TENSE USE - Keep the tense consistent HCMULAW Moot Community - 23 Oct 2011

  8. BASIC RULES OF WRITING CITATION • Know the correct form of citation • Be true to what you cite • Be well-organized • Use the power of technology HCMULAW Moot Community - 23 Oct 2011

  9. CITATION SAMPLE – Index of authorities HCMULAW Moot Community - 23 Oct 2011

  10. CITATION SAMPLE – Index of authorities HCMULAW Moot Community - 23 Oct 2011

  11. CITATION SAMPLE – Footnotes HCMULAW Moot Community - 23 Oct 2011

  12. CITATION SAMPLE – Footnotes HCMULAW Moot Community - 23 Oct 2011

  13. Writing styles Accuracy, Brevity, and Clarity HCMULAW Moot Community - 23 Oct 2011

  14. Structure of a memorial HCMULAW Moot Court 2011’s Official Rules: “7.1 Content of Memorials The Memorials must comprise: (a) Front cover– with Team number on the top right hand corner followed by “C” for Claimant Memorial and “R” for Respondent Memorial (e.g. Team number F2030 would put “F2030-R”), name of the tribunal (ie Ho Chi Minh City Arbitration Center, year of the Competition, name of the case (e.g. "Rolga v. Astoria") and title (e.g. “Memorial for Respondent”); (b) Table of Contents; (c) Table of Authorities – list of all legal authorities cited in the Memorial; (d) Statement of Jurisdiction; (e) Questions Presented; (f) Statement of Facts – the given facts and any relevant inferences from the moot problem; (g) Summary of Pleadings – an objective and substantial summary of the Pleadings of the memorial; and (h) Pleadings (including Conclusion/Prayer for Relief) – Substantive, confirmatory legal argument or legal interpretation of the facts of the moot problem.” HCMULAW Moot Community - 23 Oct 2011

  15. Front Cover • Team number followed by “C” for Claimant Memorial and “R” for Respondent Memorial Example: Team number F2030:“F2030-R”, “F2030-C” • Name of the tribunal Example: Ho Chi Minh City Arbitration Center • Year of the Competition • Name of the case Example: "Rolga v. Astoria" • Title Example: “Memorial for Respondent”, “Memorial for Claimant” HCMULAW Moot Community - 23 Oct 2011

  16. Table of Contents (TOC) • A table of contents (TOC) is a list of the parts of a memorialorganized in the order in which the parts appear and indicating the page numbers where each part starts. • A good Table of Contents will assist a reader in finding key sections of the memorial and create a first good impression that you have organized the memorial appropriately and logically. HCMULAW Moot Community - 23 Oct 2011

  17. Table of Contents (TOC) The TOC usually includes • The first-level heading: the main submissions of the memorial. • The second-level heading: the arguments in each submission • The third-level heading: the sub-arguments in each argument. …. How many heading levels in the memorial depends on the length of the memorial and its details. HCMULAW Moot Community - 23 Oct 2011

  18. Table of Contents (TOC) • Try to use only three (maximum four) levels of headings in the TOC • Suggested headings styles: • Level 1: I., II., II.,… • Level 2: A,. B., C.,… • Level 3: 1., 2., 3.,… ** Utilize the automated Table of Contents application in the Word processing. HCMULAW Moot Community - 23 Oct 2011

  19. Table of Authorities (TOA) • A Table of Authorities (TOA) is a list of all legal authorities cited in the Memorial with the page number(s) of the Memorial on which the authority is cited. The TOA gives an impression of the depth and breadth of your research and the persuasiveness of your sources of law. • According to HCMULAW Moot Court’s Official Rules, TOA is not required to include the page number(s) on which the authority is cited. **The styles and forms of citations will be explained in the technical skills trainning workshop. HCMULAW Moot Community - 23 Oct 2011

  20. Table of Authorities (TOA) • Authorities cited in the memorial are divided into major groups, and within the groups the authorities are listed in alphabetical order. • The following groups are suggested: (teams may differ their grouping) (1) International treaties (2) Cases (3) National laws (4) Treaties and other books (5) Journal articles and essays (6) Miscellaneous HCMULAW Moot Community - 23 Oct 2011

  21. Statement of Jurisdiction • The prerequisite condition for a court in order to hear a case is that the court has the jurisdiction over the dispute. • The jurisdiction of the court is acknowledged by the parties’ agreement and the procedural laws governing the dispute. HCMULAW Moot Community - 23 Oct 2011

  22. Statement of Jurisdiction • The contents of a statement of jurisdiction include: • Jurisdiction acknowledgement • Governing procedural laws • Scope of jurisdiction • Validity of the court’s decision • In case one of the parties challenge the jurisdiction of the court, the Statement of Jurisdiction for the party disputing jurisdiction must state that the party does not accept the jurisdiction of the court. ** The jurisdiction is not disputed by the parties in the HCMULAW Moot Court problem HCMULAW Moot Community - 23 Oct 2011

  23. Questions Presented • This part states the disputing issues between the parties. • You can simply repeat the questions in Moot problem. • However, teams may also break down the questions in Moot problem into different issues or sub-issues. HCMULAW Moot Community - 23 Oct 2011

  24. Statement of Facts In the statement of facts, you brief the relevant facts in such a way that can maximize the advantages of your client. Try not to merely copy and paste the facts! Note: HCMULAW Moot Court’s Official Rules: The statements of Facts must be no longer than 350 words. HCMULAW Moot Community - 23 Oct 2011

  25. Summary of Pleadings • This part provides the brief statements of your submissions. • The Summary of Pleadings is very important and is often the first section read by judges. It must more than a copy of headings and should be drafted carefully. Note: HCMULAW Moot Court’s Official Rules: The Summary of Pleadings must be no longer than 350 words. HCMULAW Moot Community - 23 Oct 2011

  26. Pleadings This is the crucial part of a memorial where you demonstrate your arguments to argue for or against the case. Note: HCMULAW Moot Court’s Official Rules: The Pleadings must be no longer than 3000 words. HCMULAW Moot Community - 23 Oct 2011

  27. Pleadings • Notes: • Separate the submissions into logical arguments and sub-arguments of which the most important one should be stated first. • Avoid the unnecessary arguments because your words are limited. • Citation, citation and citation!!! AND strictly follow IRAC in each argument!! HCMULAW Moot Community - 23 Oct 2011

  28. Prayer for relief • This is a required element of the Pleadings. It is what you request the court to declare after considering all the above submissions. • You may simply use some sample of Prayer for relief in your memorials. HCMULAW Moot Community - 23 Oct 2011

  29. Writing process • Read the facts carefully and look for the issues in the Moot Problem • Preliminary research • Building arguments  outline • Deeper research  develop the arguments • Starting to write: • First draft (not write in the order of the parts in memo) • Revise for organization and analysis • Revise for fluidity and clarity • Editing and formatting the documents: make use of the word-processing software. HCMULAW Moot Community - 23 Oct 2011

  30. Writing process Table of authorites Table of content Statements of jurisdiction Questions presented Statement of facts Summary of pleadings Pleadings Prayer for relief HCMULAW Moot Community - 23 Oct 2011

  31. Types of legal argument • Authority arguments based on Statutes - Plain meaning - Legislative intent • Authority arguments based on precedent A decision is binding or persuasive? • Policy arguments • Moral arguments • Social policy arguments • Economic arguments HCMULAW Moot Community - 23 Oct 2011

  32. IRAC • IRAC is a analytical paradigm and organizational structure, mostly used in legal writing. • The IRAC structure makes the arguments more persuasive and helps the readers follow the complex reasoning process. HCMULAW Moot Community - 23 Oct 2011

  33. IRAC • IRAC stands for: I = Issue R = Rule A = Application C = Conclusion • There are some modified forms of IRAC such as: CIRAC (Conclusion, Issue, Rules, Application, Conclusion), CREAC (Conclusion, Rules, Explanation, Application, Conclusion), IRREAC… HCMULAW Moot Community - 23 Oct 2011

  34. IRAC – Issue Issue: The first sentence of IRAC is to identify the legal problem to be solved. • Identify issue in the form of a question Example: The issue is whether the respondent’s failure to deliver the goods in proper quality constitutes a breach of contract. • Identify issue in the form of a statement (conclusion). It may also be the heading of your (sub-)arguments. Example: The respondent’s failure to deliver the goods in proper quality constitutes a breach of contract. HCMULAW Moot Community - 23 Oct 2011

  35. IRAC - Rule Rule: state the applicable rules governing the dispute. • Statement of the rule (The rule is from statutory law, case law, common practice) Example:According to Article 31 of TRIPS, the patent rights can be granted without the authorization of the patent holder in case of national emergency. • Explanation of the rule (usually requires using cases to explain) Example: […] National emergency, as common pratice, includes disaster, crisis, war or rebellion in a part or the whole of a country.[Citation] HCMULAW Moot Community - 23 Oct 2011

  36. IRAC - Rule • Statutory laws: • What is the law? • What is not in the law? (Exceptions) • What factors will the court consider? • Case law: • Background • Reasoning • Holding HCMULAW Moot Community - 23 Oct 2011

  37. IRAC – Application • Step 1: State the relevant facts, i.e. facts on which judges rely to analyze the rules and reach the conclusion. • Step 2: Compare with the facts in the instant case • Analogies • Distinctions • Step 3: Connect to the expected results  reach the conclusion HCMULAW Moot Community - 23 Oct 2011

  38. IRAC – Conclusion Answer to the legal issue, i.e. you should state (or restate, if you have already stated it in your topic sentence) your conclusion on the issue. **Conclude each legal issue before drawing the final overall conclusion HCMULAW Moot Community - 23 Oct 2011

  39. Example Person A walks into a grocery store and picks up a loaf of bread. He then stuffs the bread beneath his jacket. A security attendant sees him and follows him to the cash register. Person A passes through without stopping to pay for anything. The security attendant stops him at the gate. He detains person A while he interrogates him. Person A is held for a period of two hours at the end of which it is found that he had actually put the loaf of bread back and was not stealing. Person A sues the grocery store for false imprisonment. Would person A prevail in court? HCMULAW Moot Community - 23 Oct 2011

  40. Example I The issue here is whether person A could prevail in court by alleging that he was falsely imprisoned. Most jurisdictions in the United States allow recovery for false imprisonment. The courts look at two elements in determining whether a person has been falsely imprisoned, namely just causeand authority. In looking at the element of just cause, courts further analyze two factors: reasonable suspicion and the environmentin which the actions take place. If a person suspects that he is being deprived of property legally attached to him and he can show that his suspicions are reasonable then he is said to have a reasonable suspicion. Courts also look at whether the activity in question took place in an environment where stealing is common. In looking at the other element of authority, the courts tend to favor people directly charged with handling security as people with the authority to detain a person in comparison to private individuals. R HCMULAW Moot Community - 23 Oct 2011

  41. Example The security attendant saw person A pick up a loaf of bread and stuff it beneath his jacket. This is an uncommon action as most grocery shop customers usually do not hide produce under their personal belongings. The security attendant, therefore, has reasonable suspicion because a reasonable person in his place would have also considered this action to be suspicious. Person A further walks by the cash register without paying. The security attendant has already seen person A hiding the bread under his jacket and honestly believes that person A is still in possession of the loaf of bread. A reasonable person in the security attendant’s stead would arguably act to stop person A. Thus, this seems to satisfy the first factor of the element of just cause, reasonable suspicion. A HCMULAW Moot Community - 23 Oct 2011

  42. Example The activity takes place in a grocery store. A grocery store is usually a place where shoplifters and other thieves operate regularly. The security attendant has to be unusually vigilant and suspicious of a person's motive because of his location. This then seems to satisfy the second factor of the element of just cause, environment. The person performing the detention of A is the security attendant of the grocery store. He is the person charged with securing the grocery store and its property. The security attendant sees person A put the loaf of bread underneath his coat and walk through the checkout without paying. The security attendant now has to act because he has been charged with the security of the store and he has just cause. A HCMULAW Moot Community - 23 Oct 2011

  43. Example Person A would not prevail in the courts because the security attendant does not satisfy either element of false imprisonment. The detention of person A was legal because the security attendant had both just cause and authority. Person A, therefore, has no recourse under the law. C HCMULAW Moot Community - 23 Oct 2011

  44. Notes • Registration deadline for those who have not teammates: 12:00AM, 30 Oct 2011 • Pair up interview: 10:30AM, 30 Oct 2011 (Workshop 4) • Moot problem + teams list announcement: 5:00AM, 30 Oct 2011 • Deadline of requesting for correction & clarification: 6 Nov 2011 • Moot problem explaining: in the workshop 5 – 6 Nov 2011 • Teams Registration deadline is extended to 13 Nov 2011 HCMULAW Moot Community - 23 Oct 2011

  45. Thank You! See you next Sunday!! Legal research & Technical skills