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					        Legal Writing




    Professor Gary Chodorow
Beijing Foreign Studies University
        2006-07 Semester II          1
Sources of Law & Their Hierarchy




                              2
Overview of Ct Systems




                         3
Stare Decisis




                4
  Is Stare Decisis a Good Doctrine?
Strengths:
1. Stability & certainty in the law
2. Certainty in the law
3. Promote fairness
4. Judicial efficiency and credibility
Weaknesses:
1. Bad precedent is binding.
2. Common law evolves too slowly.
3. Law is not neatly stated.             5
Exercise: Hierarchy of Authority




                                   6
II. TYPES OF LEGAL REASONING


• See LW Mindmap




                           7
Class 4:



   BRIEFING CASES
   OFFICE MEMORANDA
        I. BRIEFING CASES
Why?
1. Improve comprehension.
2. Helpful for analogizing or distinguishing
   cases
3. Cheat sheet for Qs in class.
4. Helps study for exams in common law
   class.

                                               9
Process of Writing a Case Brief
1.   Read case once for ―big picture‖
2.   Make margin notes (e.g., ―F‖ for facts).
     Facts (or other parts) may be scattered
     in various places throughout opinion.
3.   Write brief. Be concise. Paraphrase.
4.   Revise your brief based on class
     discussion.

                                                10
           Parts of a case brief:
1.    Caption
2.    Parties
3.    Procedural History
4.    Facts
5.    Issue
6.    Holding
7.    Reasoning
8.    Judgment
9.    Separate Opinion
10.   Analysis

                                    11
            Writing the Case Brief

                Caption

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




      Parties            Court       Date
                                     Decided
                                            12
                Writing the Case Brief

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




                                                13
               Writing the Case Brief

          Procedural History


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




                                            14
                  Writing the Case Brief

                      Facts
•   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)




                                                   15
                Writing the Case Brief

                   Issue I
1. Format: Under [specific law], is [specific
   legal issue] where [important facts]?




                                                16
                Writing the Case Brief

            Issue 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?



                                                17
                Writing the Brief

               Holding I
Format:

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




                                          18
                Writing the Brief

         Holding 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].
                                             19
                  Writing the Brief

              Reasoning I
1. Rule: NY doesn’t recognize common law
   right to privacy.
2. Rule Proof:
   – Roberson held so (rejecting Harvard L.
     Rev. article theory)
   – In reaction, NY Civil Rights Law sec. 50 &
     51 enacted.
3. [RA obvious]

                                                  20
                 Writing the Brief

                 Issue 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?




                                          21
                  Writing the Brief

                Holding 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.
                                                 22
                      Writing the Brief

                 Reasoning II
1. Rule: Statute only covers use of a living
   person’s name or likeness for “advertising” or
   “trade.”
2. Rule Proof:
    –   ―Advertising‖ and ―trade‖ are limited to solicitation
        for patronage. Delan.
    –   Works of fiction and satire outside bounds.
        Hampton.
3. Rule Application: Sitcom is fictional comedic
   presentation so analogous to Hampton.
                                                            23
               Writing the Brief

             Judgment

Judgment: Dismissed.




                                   24
                   Writing the Brief

                  Analysis
Your questions and critical evaluation, such
as:
  – ID argument type (Rule-Based, Case-
     Based, Normative, Institutional, Narrative)--
     consider counterarguments.




                                                     25
                        Writing the Brief

                 Analysis (cont’d)
ASK QUESTIONS:
1. How is problem identified? (Bias? Over-simplified? Are
   there other ways to characterize the problem? Are terms
   defined fairly?)
2. Are the facts presented accurately?
3. Is authority characterized properly?
4. 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?)
5. Are the conclusions justified? What other conclusions
   could be reached?
6. What are the likely consequences of this decision to
   parties? As precedent?
7. Has the majority answered all the dissent’s arguments? 26
                   Writing the Brief

            Analysis (cont’d)
READ FOR JURISPRUDENCE--imagine how
   different approaches would affect the outcome:
1. Formalism
2. Legal Realism
3. Legal Process
4. Fundamental Rights
5. Law and Economics
6. Critical Legal Studies
7. Feminist Jurisprudence

                                                27
                 Writing the Brief

          Analysis (cont’d)
READ FOR RHETORIC & STYLE:
• Tone (assertive, objective, humorous,
  angry)
• Word choice (bias)




                                          28
                          Writing the Brief

               Analysis (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?                                       29
OFFICE MEMOS




               30
                    Format:
                Discussion
Tidbits:
1. Order elements discussed (see discussion
   below).




                                              31
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.‖

 1.       Refer to parties in case law by role not name.
 2.       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)

 3.       Discuss case law in past tense. E.g., ―The Court held . . . .‖ (same Sinclair discussion).

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


                                                                                                                          32
        Class 5:

I. Structuring Proof of a
   Conclusion of Law

                            33
          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             34
                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‖).


                                                      35
                   Rule
•   Rule = The main rule on which you rely
    in reaching your conclusion.




                                             36
               Rule Proof
• Rule Proof = Explanation of the rule and
  reasons given by the court for why this
  rule is the law in the jurisdiction.




                                             37
         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.



                                                  38
   Tools for Rule Proof (cont’d)
D. Policy (normative & institutional arguments):
   Use policy discussion to justify or clarify
   rule.

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


                                               39
          Rule Application
• Rule Application = Demonstrate how rule
  applies to facts of this case.




                                            40
     Tools for Rule Application
A. Subsidiary Rules: Apply them to facts (rule-
   based reasoning).
B. Authorities: Analogize or distinguish facts of
   authorities (case-based reasoning).




                                                    41
 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.




                                                 42
  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.




                                               43
Relationship between RP & RA


       Always complete
        the rule proof
       before beginning
     the rule application.

                             44
  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.



                                     45
  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?
                                          46
                     My Eyes Only
Minor estopped from disaffiriming     Buckley’s case dif than precedents
k only if (a) affirmatively misreps   where minor estopped: (a) she
age (b) nttly & (c) ntt to mislead    didn’t affirmatively state age, esp
seller.                               not in writing; (b) she had no ntt to
                                      misrep or (c) mislead.
Neg or unnttl misrep insufficient.    Buckley misunderstood dealer’s Q,
                                      so misrep was unnttl. Similar to
                                      precedent where minor not
                                      estopped where signed form w/out
                                      reading it—in both cases, no ntt to
                                      deceive.
Policy behind misrep xpn (allow
minors to escape mistaken reps)
consistent w/policy behind infancy
doc (allow minors to escape                                              47
mistakes of j’t).
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]
                                                   48
What order should the elements be
         discussed in?

• 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.



                                            49
 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                            50
 How Organize Analysis if There
Are Both Procedural & Substantive
             Issues?

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




                                              51
Class 6
 I.   Formulating the Rule
      from a Judicial Opinion
 II. Selecting Authority
 III. When is Stare Decisis
      Inapplicable?
      I. Formulating a Rule from a
            Judicial Opinion
•   Why Is it Difficult?
•   Inherited Rule v. Processed Rule
•   Finding the Processed Rule
•   Decide the Breadth of the Processed Rule
•   Holding v. Dictum



                                           53
         Why Is it Difficult?
1. May be complex.
2. Even best legal writers sometimes write
   unclearly.
3. Judge’s primary job to resolve dispute
   between parties.
4. Prose not legislative format.
5. Hard to tell whether multiple opinions
   describe same rule with different words
   or describe slightly different rules.
                                             54
 Inherited Rule v. Processed Rule
• ―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.
                                              55
     Finding the Processed Rule
1.   Identify inherited rule.
2.   Consider significant facts.
3.   Consider how rule explained in RP.
4.   Consider RA.




                                          56
                        Example:
Inherited    Effective offer must include all essential k
rule:        terms.
Significant Pl’s communication didn’t include price. No
facts:      prior party dealings or other standard to
            determine price.
New info     Price an essential term. Must be stated
about rule   expressly or be discernible from parties’ prior
(RP)         dealings or some other accepted standard.
RA           Plaintiff didn’t make an effective offer.
Processed    Effective offer must include all essential k
rule:        terms, including price. Price must be stated
             expressly, or must be implied from parties prior
             dealings or other accepted standard.          57
    Decide the Breadth of the
        Processed Rule

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



       See Handout for Exercise.

                                             58
         Holding v. Dictum
Under stare decisis, only prior ―holding‖
must be followed.
a. ―Holding‖ means statement of law
   necessary to decide a case.
b. ―Obiter dictum‖ is Latin for ―a remark
   made in passing,‖ meaning a statement
   of law unnecessary to decide a case.

                                            59
        Holding v. Dictum (cont’d)
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.‖         60
       II. Selecting Authority
1. Types of Authority
2. Hierarchy of Mandatory Authority within a
   Jurisdiction
3. How Cts Use ―Foreign‖ Precedent
4. How to Fill Gaps with Persuasive
   Precedent
5. How Persuasive is Persuasive
   Precedent?
                                          61
       Types of Authority


 Primary Authority          Secondary
                             Authority




Mandatory      Persuasive
                                         62
         Primary Authority:
       Mandatory v. Persuasive
1. Mandatory Authority:
   – Enactments of the jurisdiction
   – Decisions of appellate cts to which an
     appeal could be made on an issue.

2. Persuasive Authority:
   – Enactments from other jurisdictions
   – Decisions of other courts (including any
     trial court decision)
                                                63
     Issues of State Law:
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.

                                               64
    Issues of Federal Law:
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).
                                               65
     Hierarchy of Authority within a
              Jurisdiction
1.   Constitution
2.   Statute
3.   Regulation
4.   Judicial decision on common law




                                       66
    Hierarchy of Authority within a
         Jurisdiction (cont’d)
Among judicial decisions or enactments of
same type:

•   Higher trumps lower
•   At same level, later trumps earlier




                                            67
68
      How Courts Use ―Foreign‖
            Precedent
1. Never mandatory, only persuasive.
2. Consulted only where a gap appears in
   local law.
3. Argument is stronger if majority of other
   states have adopted a rule, or if there is
   a trend (not just single foreign
   precedent).
4. Opinion interpreting foreign statute
   persuasive only if similar to local statute.
                                              69
        How to Fill Gaps with
        Persuasive Precedent
• 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.      70
   How Persuasive Is Persuasive
           Precedent?
1. How persuasive is the reasoning?
2. What is the identity of the court and
   judge?
3. How has the precedent been treated
   subsequently by other courts and
   commentators?
4. Is the precedent recent but not untested?

                                           71
Class 7
 I.  Formulating a Rule from
     Multiple Precedents
 II. Analogizing and
     Distinguishing Precedents
     in the Rule Application
I. FORMULATING A RULE FROM
    MULTIPLE PRECEDENTS
A. Formulate single rule through synthesis.
B. Follow binding authority (stare decisis);
   reject conflicting authority.
C. If no authority is binding, choose the
   most persuasive authority; reject
   conflicting authority.


                                               73
B. Reconciling?




                  74
     B. When Is Stare Decisis
          Inapplicable?

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.
                                          75
      When Is Stare Decisis
         Inapplicable?

Scenario #1: Determinative facts
distinguishable




                                   76
      When is Stare Decisis
         Inapplicable?

Scenario #2: Issues Distinguishable




                                      77
      When is Stare Decisis
         Inapplicable?
Scenario #3: The statement of law in
the prior case is obiter dictum not a
―holding.‖




                                        78
       When is Stare Decisis
          Inapplicable?
Scenario #4: Precedent is not
mandatory because it was not decided
by a court to which an appeal could be
made on this issue.




                                         79
 When is Stare Decisis Inapplicable?

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.




                                        80
       When is Stare Decisis
          Inapplicable?
Scenario #6: There are two conflicting
mandatory precedents. Choose the one
of greater weight.




                                     81
      When is Stare Decisis
         Inapplicable?
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.




                                               82
        II. ANALOGIZING
       (DISTINGUISHING)
    PRECEDENTS IN THE RULE
          APPLICATION
Steps:
1. Show authority is mandatory (not).
2. Show issue same (different).
3. Explain precedent’s significant facts & result.
4. Compare (contrast) the cases’ significant facts.
5. Show authority’s reasoning applicable (not
   applicable) in current case.
                                                 83
    Which Analogy Is Better?
1. 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.
2. Like Picaroni, here the trailer was
   separate from Ms. Peluso’s main house.
3. Here, the trailer was separate from Ms.
   Peluso’s main house.

                                         84
    Which Distinction Is Better?
1. 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.
2. 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.
3. Here, Ms. Murray’s trailer does not share any
   door with the main residence, even when the
   trailer is parked in the driveway.                85
Class 8
Working with Statutes
Class 9
Working with Facts—see
mindmap
Class 10

Paragraphing and Effective Style
Week 11

I.  CITATIONS
II. QUOTATIONS
MOVED TO ―Legal Writing Resources‖
    Links on lawandobrder.com
         Class 12:
I.    The Shift to Persuasion
II.   Developing a Persuasive
              Theory
    I. The Shift to Persuasion
Additional skills needed:
1. Develop persuasive theory.
2. Develop persuasive arguments, including
   formulating persuasive rule.
3. Ethical responsibilities of brief writer.
4. Work within procedural posture.
5. Formatting a motion memorandum, including
   point headings and statement of the case.
6. Persuasive style.

                                           91
II. Developing a Persuasive Theory
1. Theory of case (motion, appeal) = view
   of the facts & law that provides legal
   justification & psychological motivation
   for decision in C’s favor.
2. Js are professional buyers of theories.




                                              92
Examples of a Persuasive Theory




                                  93
  Characteristics of a Persuasive
   Theory (Neumann 276-278)
1. Account for or explain undeniable facts?
2. Explain away in a plausible manner as
   many unfavorable facts as possible?
3. Explain why people acted they way they
   did?
4. Supported by the details?
5. Solid basis in law?
6. Common sensical & plausible?
7. Makes result seem fair?                    94
          Judges as Readers
1.   Generalist  Teach J substantive law.
2.   Engrossed by the facts Focus on facts.
3.   Busy  KISS.
4.   Skeptical.
5.   Common sensical.
6.   Need to write an opinion Help.
7.   Want to make right decision  Be
     credible.

                                           95
   Judges as Readers (cont’d)
8. Never forget what authority is mandatory
     You shouldn’t.
9. Offended by heavy-handed persuasive
    techniques Use calm, logical style.
10. Expect to find strongest argument 1st
    Do it.




                                          96
      Process of Developing a
        Persuasive Theory
1. Read the assignment and the facts.
2. Identify the issues.
3. Outline the statutes and brief the
   precedents.
4. For each issue & sub-issue, formulate
   the possible rules (supporting each
   party).

                                           97
       Process of Developing a
         Persuasive Theory
               (cont’d)
5. Under the rules for each sub-issue, list
   the relevant facts, including emotionally
   compelling facts (supporting each party).
6. Develop multiple possible theories for
   both parties.
7. Check persuasiveness of each theory.
8. Decide which theory is most persuasive.
                                           98
Escape from Prison Exercise




                              99
       Class 13:
I.   Motion Memo Format
II. Develop Motivating &
     Justifying Arguments
   Supporting Your Theory
III. Organize to Persuade
  IV. Edit for Persuasion
V. Argumentation Ethics
       Motion Memo Format
1. Cover page
2. Table of contents
3. Introduction = Preliminary Statement
4. Statement of the Case = Statement of
   the Facts
5. Argument, broken up by point headings
6. Conclusion
7. Indorsement
                                           101
              Cover Page
1. Caption:
  – IDs court, parties (and procedural
    designation)
  – Case #
2. Title
3. Atty contact info



                                         102
Table of Contents




                    103
              Introduction
1. Identifies the parties
2. Explains the nature of the litigation
3. Describes the motion before the court
   and the relief sought through the motion.




                                           104
      Statement of the Case
• Similar to Statement of the Facts in
  predictive memorandum, but designed to
  persuade.




                                           105
               Argument
1. Corresponds to the Discussion section of
   predictive memorandum but designed to
   persuade.
2. Organized into points, each of which is a
   single, complete, and independent
   ground for relief.
3. Points may have sub-headings.


                                          106
             Conclusion
• Very brief summary of argument.
• Remind reader of what you seek.




                                    107
               Indorsement
•   ―Respectfully submitted‖
•   Signature
•   L’s name
•   Indication of who L represents
•   Atty’s contact info




                                     108
            Miscellaneous
• 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
                                            109
  I. Steps in Writing a Persuasive
            Memorandum
A. Formulate the most persuasive rule for
   each sub-issue.
B. Develop a theory of the case and
   anticipate your adversary’s.
C. Develop persuasive arguments
   supporting your theory.
D. Organize to persuade.
E. Edit for persuasion.
                                            110
     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.‖

                                                             111
• Justifying argument = Appeals to the mind.
  Focuses on showing whether the legal test
  is met or not.

• Motivating argument = Appeals to the
  heart (justice, sympathy). Focuses on
  facts and policy.


                                          112
         Counter-Analysis

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.


                                          113
      Counter-Analysis (cont’d)

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

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

                                          114
     Counter-Analysis (cont’d)

3. 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…



                                               115
     Counter-Analysis (cont’d)
4. Place of counter-analysis in your overall
   argument:
   a. Make a point in your RP or RA.
   b. Give evidence that supports it.
   c. Counter-analysis: Cite the important
      evidence against it, and refute as much
      of it as you can.
   d. Weigh the evidence in favor & against
      the contrary evidence that you were
      unable to refute.
   e. Draw conclusion.
                                            116
    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.

                                           117
                   Using Policy

• 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)


                                                           118
       II. Organize to Persuade
   LIMIT YOUR CONTENTIONS TO THOSE
   THAT HAVE A REASONABLE CHANCE OF
   PERSUADING THE COURT

1. ―Strike for the jugular and let the rest go.‖
    – Oliver Wendell Holmes
2. If possible, make your case seem like
   routine application of well-known rules
   rather than asking for an earth-shaking
   decision.
                                              119
  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.
                                                   120
     MOTIVATING ARGUMENTS—WHERE
     TO THEY GO?

1.   Introduction § (option)
2.   Statement of the Case
3.   Opening ¶s of Argument (option)
4.   Sprinkled throughout Argument


                                       121
MAKE YOUR ORGANIZATION OBVIOUS

•  Use a roadmap at the beginning of the
   Argument.
• Remember the C in CRuPAC.
1. ¶s need strong thesis sentences.
2. Use appropriate transition words.


                                           122
       III. Edit for Persuasion

 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.

                                             123
    KEEP A CALM, NEUTRAL TONE

•   You want to sound neutral even though
    you are making a partisan argument.
•   Avoid emotion-laden words.




                                            124
 HUMANIZE YOUR CLIENT;
 DEHUMANIZE THE ADVERSARY

• 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).
                                              125
      IV. Argumentation Ethics
1. L forbidden to knowingly make a false
   statement of law or fact to a court. MRPC
   3.3(a)(1).
2. Must inform court of directly adverse authority
   in controlling jurisdiction not disclosed by
   opposing counsel. MRPC 3.3(a)(3).
3. L can’t advance a theory that is ―frivolous‖ or
   ―unwarranted under existing law,‖ except that
   can argue to modify judge-made law.

                                                 126
        Class 14:

I.    Handling the Procedural
              Posture
 II. Point Headings & Sub-
             Headings
  III. Statement of the Case
I. Handling the Procedural Posture
• Procedural posture = The procedural
  event that places the issue before the
  court. E.g.:
  – Motion to dismiss
  – Motion for summary judgment
  – Trial




                                           128
 Review: Procedural Rule
Determines What Is a Fact

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



                                             129
    3 kinds of burden of proof:
1. Burden of pleading: Are factual
   allegations sufficient to allow case to go
   forward?
2. Burden of production: Has party
   produced sufficient evidence to allow
   case to go forward?
3. Burden of persuasion: Has party
   sufficiently persuaded the fact finder?
                                                130
              Examples
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.                                 131
E.g.: Motion for Summary Judgment

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).
                                                132
E.g.: Trial

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.

                                                133
     MTD Rule in More Detail
To avoid dismissal, pl must meet burden of
pleading in complaint facts that, if proven,
would constitute each element of a cause of
action.
1. Ct won’t consider facts beyond complaint.
2. Ct will assume truth of all well-pled facts.
3. Ct will draw all reasonable inferences in
   pl’s favor.
4. Conclusions of law or conclusions of fact
   unsupported by allegations of specific
   facts are not considered well-pled.
                                             134
    Write the Procedural Rule into the
                Argument


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

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


                                           135
    Write the Procedural Rule into the
            Argument (cont’d)

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 ?
                                             136
• 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.
                                              137
    Write the Procedural Rule into the
            Argument (cont’d)

3. 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.
                                              138
II. Point Headings & Sub-Headings

1. Purpose: summarize your argument
   forcefully & clearly.


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



                                              139
Example—Number of Point Headings:
• 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?
                                            140
    Content of Point Headings
1. Identify the ruling you seek and assert its
   correctness.

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

3. ―Because‖ often used to link 1 & 2.
                                             141
    Content of Sub-Headings
1. For each sub-issue, write a sub-heading
   with your Rule Application, including 1-3
   determinative facts.

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

3. Except: It’s awkward to have just 1 sub-
   heading; to avoid that, put the contents
   of the sub-heading into the heading.
                                              142
          Edit for Readability &
            Persuasiveness
1. 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)
2. Keep subject & verb close together
3. Avoid nominalizations
4. Avoid unnecessary passive voice.
5. Avoid vague words.
6. Avoid multiple negatives.
7. Avoid wordiness.
                                                     143
                    Format
1.   Full sentences
2.   Proper outline numbers
3.   Single space
4.   Indent left & right
5.   All caps for heading; title caps for sub-
     heading


                                                 144
          Capitalization in Titles
            (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…)

                                                           145
       Statement of the Case
• SOC is critical: J intensely interested in
  facts.

• Purposes:
  – Set forth every fact used in your
    Argument.
  – Imply your theory and justifying
    arguments.
                                               146
 Limit SOC to Facts in the Record
1. Use only facts in record.
2. Cite to record for each fact.
3. Citation style:
   Mr. Pickett alleges that the Guard aimed
   a gun at him (Compl. ¶ 7) and told him to
   ―shut up‖ (id. ¶ 8).



                                          147
      Review: What’s a Fact?
1. Nonexistence of a fact is a fact. The
   complaint does not allege that Mr. Jones
   experienced withdrawal symptoms after
   he stopped smoking.

2. Not facts:
   – Conclusion of Law
   – Inference
   – Characterization
                                          148
       Contents of the SOC
1. Organization: chronological or topic or
   combination (same as predictive memo)
2. Use sub-headings that reflect your
   organization (not argumentative)
3. Start with a punch: 1 or 2 ¶s of facts
   summarizing your theory.



                                         149
Edit SOC for Persuasion

     Neumann 344-349




                          150
 Exercises from Edwards 335-339?
 Post cklist of procedures to website?




                                          151

				
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