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.
2.
3.
4.
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.
10
Parts of a case brief:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Caption
Parties
Procedural History
Facts
Issue
Holding
Reasoning
Judgment
Separate Opinion
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, CaseBased, 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 counteranalyses 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:







1.
2.
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)
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
complicated.
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 (rulebased 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
k only if (a) affirmatively misreps
age (b) nttly & (c) ntt to mislead
seller.
Buckley’s case dif than precedents
where minor estopped: (a) she
didn’t affirmatively state age, esp
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
mistakes of j’t).
47
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)…
50
CRuPAC each sub-issue
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.
2.
3.
4.
Identify inherited rule.
Consider significant facts.
Consider how rule explained in RP.
Consider RA.
56
Example:
Inherited
rule:
Effective offer must include all essential k
terms.
Significant Pl’s communication didn’t include price. No
facts:
prior party dealings or other standard to
determine price.
New info
about rule
(RP)
RA
Processed
rule:
Price an essential term. Must be stated
expressly or be discernible from parties’ prior
dealings or some other accepted standard.
Plaintiff didn’t make an effective offer.
Effective offer must include all essential k
terms, including price. Price must be stated
expressly, or must be implied from parties prior
57
dealings or other accepted standard.
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
60
notice that entry on the land is forbidden.”
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
Mandatory
Secondary
Authority
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.
2.
3.
4.
Constitution
Statute
Regulation
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.
II.
The Shift to Persuasion
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.
2.
3.
4.
5.
6.
7.
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.
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:
Motion Memo Format
II. Develop Motivating &
Justifying Arguments
Supporting Your Theory
III. Organize to Persuade
IV. Edit for Persuasion
V. Argumentation Ethics
I.
Motion Memo Format
1.
2.
3.
4.
Cover page
Table of contents
Introduction = Preliminary Statement
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 counteranalysis.
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.
2.
3.
4.
Introduction § (option)
Statement of the Case
Opening ¶s of Argument (option)
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 & SubHeadings
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 subheading; 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.
2.
3.
4.
5.
Full sentences
Proper outline numbers
Single space
Indent left & right
All caps for heading; title caps for subheading
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