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Chapter 3 The Fundamentals of Legal Writing

Chapter 3 The Fundamentals of Legal Writing. Never rely on your own opinion Always rely on authority Law supercedes non-law Write concisely Reread/Proof your document. Forms of Legal Writing. Correspondence

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Chapter 3 The Fundamentals of Legal Writing

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  1. Chapter 3The Fundamentals of Legal Writing Never rely on your own opinion Always rely on authority Law supercedes non-law Write concisely Reread/Proof your document

  2. Forms of Legal Writing • Correspondence • Letters/emails between attorneys/paralegals, clients, witnesses, agencies, adversaries • Pleadings • Complaint, answer, reply • Discovery • Interrogatories, R/Admissions, etc. • Motions • Requests to the court on procedural matters • Briefs/Memoranda • Argue legal issues • Internal Memo: Objective and informative • External Memo: Subjective, arguing your client’s position

  3. Correspondence: Demand Letter • Elements: • 1. Be clear and straight forward • Set forth the claim & the damages • 2. Don’t argue in the letter • 3. Provide documentation of claim • Don’t prove your case, only establish the event • 4. Provide documentation of damages • E.g., receipts, invoices, bills, hospital charges

  4. February 11, 2004 Jeff Smith Smith & Hawkins 345 West Main Nowhere, State 98999 re: Cathy Kipp Dear Mr. Smith, This is a demand for payment for injuries suffered by our client, Keith Pickard. Enclosed are the following: 1. Mercy Ambulance Bill $2,000 2. UMC Emergency Care $4,500 3. Dr. Henry Morpheus $ 500 You will recall that Keith Pickard suffered injuries when your client, Cathy Kipp, failed to yield at a stop sign on January 5, 2004. As indicated by the records, there are no preexisting conditions for which Mr. Pickard was being treated nor did he have any restrictions in his day to day activities at home or in his employment. Enclosed are copies of photos depicting the property damage. Mr. Pickard is not making a lost wage claim at this time. Demand for resolution of this claim is made in the sum of $7,000. Please review the materials enclosed and respond in writing to this demand within 20 days of the above date. Sincerely, __________________________________ Janie Asay, J.D.

  5. Correspondence: Client Letter • Purpose: • Keep your client informed • Send promptly!! February 12, 2004 John Doe 382 Simmons Lane Memphis, TN 39273 Dear Mr. Doe, Attached please find a copy of the Demand Letter sent to Mr. Smith. If we have not received payment within 20 days, the attorney will contact you to discuss your options. Please feel free to contact me if you have any questions regarding this matter. Respectfully, Zee Hathaway Paralegal

  6. Commandments of Legal Writing • 1. Never rely on your own opinion • 2. Always rely on authority, preferably primary • 3. “We should argue …”/”Our position should be” • 4. Write in complete sentences • 5. Use short, clear sentences • 6. Use plain English, not legalese • 7. Never use an unfamiliar term • 8. Quote authority exactly or note changes • 9. If you use emphasize, note (emphasis added) • 10. Reread and proof for grammatical errors

  7. Introduction to Analysis • Structure of Legal Analysis: • Issue Introduction/Statement • A statement introducing how courts deal with the issue • E.g., Courts generally hold that … • Rule • The authority being relied on • E.g., case facts and court holding (quote) • Application • Apply the law/authority to your client’s facts • Conclusion • Answer the issue

  8. Comparing & Distinguishing Cases • Comparing Authority • Note similarities between authority and your case Example: In the instant case, the Defendant attacked with a baseball bat. Although not designed with that intent, a baseball bat has even “more potential . . . to inflict serious bodily harm” than does a walking cane. • Distinguishing Authority • Note why the differences in your case and the authority are 1. Relevant 2. Make the authority inapplicable • Example: Bird is distinguishable from the instant case in that there is not claim of self-defense in our client’s case.

  9. Analyzing Statutes and Rules • Elementize: • Break the statute or rule into elements • Statute: H.R.S. §645.120: Any private verbal or written communication between a husband and wife is privileged, and a party possessing the privilege (the accused) may not be required to testify, and may prevent the spouse from testifying • Elements: • 1. Any private • 2. verbal or written communication • 3. between a husband • 4. and wife • 5. is privileged, • 6. and a party possessing the privilege (the accused) may not be required to testify, and may prevent the spouse from testifying.

  10. Memorandum Form • Interoffice Memorandum • 1. Caption • 2. Assignment • 3. Facts • 4. Issues • 5. Analysis • 6. Conclusion • 7. Recommendation

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