The first lesson of legal writing: keep it clear and simple.

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Introduction to Legal Writing
Friday, Sept. 9, 2011
Available online under:
U of T Faculty of Law website
Faculty List and Directory
Full-Time Faculty
Stern, Simon
Legal Writing.ppt
Overview
1. A few general points in legal writing
2. Memo structure / paragraph structure
3. Remember the audience: objective vs.
persuasive writing; analogies &
distinctions
4. Strategies for revising
Basic points
1.
2.
3.
4.
Keep It Simple
Be Precise
Support Your Arguments
Front-load your conclusions
1. keep it clear and simple.
* “In order to effectuate the attainment of a
more substantive and comprehensive equality
jurisprudence, legal theorists and civil rights
advocates must engage in a sober reading of
Lawrence, Gratz, and Grutter.” – A recent law
journal article (emphasis added)
Legal writing is supposed be
complicated, right? Wrong.
Words to Avoid
“said,” as in “said vehicle”
“hereinafter”
“heretofore”
“aforesaid”
“furthermore”
In general, multisyllabic words that were
appealing because of their multisyllabicity
2. be precise
“The basis for [the majority] opinion is that . . .
unwelcome physical conduct of a sexual nature is
sufficient to establish a cause of action under Title
VII of the Civil Rights Act, regardless of whether that
harassment constitutes discrimination because of
race, color, religion, gender, or national origin. I
disagree because this eliminates an essential
element of that statute, [namely] that the
harassment be because of discrimination against
one of the five specified categories of persons
named in the statute.”
-- Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061,
1070 (9th Cir. 2002) (Hug, J., dissenting)
be precise, cont’d
“Procedural fairness requires that decisions be …
free of reasonable apprehension of bias.” (para. 45)
The test is: “what would an informed person, viewing
the [decision] realistically and practically …
conclude.” (para. 46)
Here, “I do not believe that a reasonable … member
of the community would conclude that [the officer]
approached this case with … impartiality. … I conclude that the notes of Officer Lorenz demonstrate
a reasonable apprehension of bias.” (para. 48)
-- Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 (L’HeureuxDubé, J.)
3. Support your arguments
Why legal writing is different
Most forms of writing are meant to entertain
or inform, in a context in which the reader
trusts the writer. Legal writing assumes a
skeptical audience, an audience prepared
to challenge every argument. This is
true even for in-house memos. You must
support every argument with analysis and
authority.
Analysis and authority
Analysis: avoid conclusory arguments. Every
major step of the argument must be explained
and justified.
Authority: every doctrinal argument must be
supported by legal authority. Rely primarily on
cases, statutes, and regulations (if applicable).
You may also use treatises and journal articles,
but not as a first resort. If you can do without
treatises and journal articles, so much the better.
4. Front-load your conclusions
Prof.: “I had trouble figuring out what’s going on in
this case until I got to page 15.”
Judge: “Yes, I see that.”
Prof.: “Now that I know what the issues are, it
seems to me that 12 of the first 15 pages could
be omitted, since they don’t help to understand
the issues.”
Judge: “Yes, I see that.”
Prof.: “Why did you wait until page 15 to state the
issues?”
Judge: “To be honest, I didn’t know what the
issues were myself until I got to page 15.”
What is the lesson of this interchange??
The Lesson (courtesy of Judge
William C. Canby, Jr.)
The Written Product
Should Not
Recapitulate the
Thought Process
Memo Structure
The first lesson: keep it boring.
Source: Brewer & Lichtenstein, “A structural-affect theory of
stories,” Journal of Pragmatics, 6, 473-486 (1982).
Suspense
Curiosity
(detective)
(Legal Memo)
1. Butler poisons
wine
4. Lord H. dies
1. Butler poisons
wine
2. Butler brings
wine to Lord H.
2. Butler brings
wine to Lord H.
4. Lord H. dies
3. Lord H. drinks
wine
3. Lord H. drinks
wine
2. Butler brings
wine to Lord H.
4. Lord H. dies
1. Butler poisons
wine
3. Lord H. drinks
wine
“Detecting Doctrines: The Case Method
and the Detective Story,” p. 355
The case method teaches students that answers to legal
questions generally cannot be found on the surface, but
must be discovered by sifting the visible evidence to find
a meaning that is buried at a deeper level. The corollary
of this lesson is that when a legal interpretation depends
on probing under the surface of a case to bring out
implicit meanings, that interpretation should be preferred
to one that remains content with the surface meaning. By
conducting the search, the interpreter models the
technique of an expert and thereby certifies her analysis
as the product of a legal professional. The aesthetic
values associated with this mentality include orderliness,
precision, thoroughness, and ingenuity.
“Detecting Doctrines,” p. 363
[W]hat law students learn through the case method is how to
read legal clues, and how to recognize various elements of
the opinion as clues that can serve an instrumental function.
. . . That these skills resemble those of the detective finds
striking confirmation in a recent study of the reading
strategies exhibited by successful law students. A study by
Leah Christenson of high-achieving and low-achieving first
year students showed that the first group, while reading an
opinion for the first time, “talked back to the text, made
predictions, hypothesized about meaning, and connected to
purpose.” These students’ explanations for engaging
dynamically with the text showed that they sought to
“account for the author’s purpose, context and effect on the
audience.” The low achieving students, by contrast, moved
through the opinion in a more linear fashion without
attending to its functions or goals. These students used
strategies such as “paraphrasing, rereading, . . . underlining
text, and making margin notes,” but tended to focus on
minutiae instead of the big picture.
This just in … (fictional) spoilers don’t spoil!
(Leavitt & Christenfeld, “Story Spoilers Don’t Spoil
Stories,” 22(8) Psych. Sci. 1-3 (Aug. 2011)
Why might readers prefer to know the outcome?
Leavitt & Christenfeld:
“[S]poilers may allow readers to organize
developments, anticipate the implications of
events, and resolve ambiguities that occur in the
course of reading.”
Is A Whistleblower Incentive Program Right for Canada?
On February 24, 2004, Olympic gold medalist Myriam Bédard alleged
that she was forced out of her job at Via Rail after she questioned
some transactions related to the Sponsorship Scandal (CBC News
Online, 2006). The Sponsorship Scandal and the related allegations
of whistleblowers being silenced prompted the Canadian federal
government to consider and implement significant legislative reforms
such as the Federal Accountability Act to protect whistleblowers and
deter potential fraud in the future. One of the possible reforms
considered by the Conservatives was to introduce whistleblower
incentive legislation similar to the False Claims Act (FCA) in the U.S.
(May, 2006). This paper will first provide a brief background on the
False Claims Act and explain why introducing similar legislation in
Canada is worthy of consideration. Then, it will analyze the potential
financial costs and benefits of implementing FCA-like legislation in
Canada. Finally, it will explore the ethical implications of such
legislation. By analyzing the financial and ethical implications, this
paper aims to determine whether introducing FCA-like legislation
would be good public policy in Canada.
Memo Structure
• 1. Problem Posed & Short Answer
• 2. Facts
• 3. Discussion
- Umbrella, CRAC / TRAC / IRAC
• 4. Conclusion
Our case
Madame Sosostris gives palm readings for
$10 on Bloor Street. She is charged under
s.365(b) of the Code, which provides that
“everyone who fraudulently … undertakes,
for a consideration, to tell fortunes … is
guilty of an offence punishable on summary conviction.” Witnesses are prepared
to testify that Madame Sosostris refers to
her clients as “delightful ignoramuses.”
A Short Discursus on Facts
• Separate facts from other things
• Focus on the determinative facts; separate them
from other kinds of facts
• Purge analysis of hidden and unsupportable
assumptions
How to Frame the Question
x Will Madame S. be convicted under s. 365(b)?
x Is Madame S. guilty of fraudulently telling
fortunes?
Can Madame S. be convicted for “fraudulently”
telling fortunes “for a consideration” under s. 365
of the Criminal Code, given that she has a
commercial palm-reading business and has
been known to call her clients “delightful
ignoramuses”?
A Possible Short Answer
• Madame S will likely be convicted if the finder of
fact concludes that in calling her clients
“ignoramuses,” she meant that she duped them
into believing in her powers. But Madame S.
may be able to avoid conviction if she can show
that by “ignoramuses,” she meant that her
clients lack her special talents. While the law is
unclear, it appears that a fortune-teller who
honestly believes that she can predict the future
can avoid liability for “fraudulently” telling
fortunes, because her honest belief negates the
required mens rea for this offence.
The Discussion Section
• Umbrella paragraph or section
– Summarize the legal rule for each issue
– Any other info about the rule? (i.e., burden of
proof? presumptions?)
– Identify elements not in dispute & why
– Roadmap to rest of memo
• Element 1: CRAC
• Element 2: CRAC
• And so on….
CRAC
• State your Conclusion (i.e., a one
sentence prediction about how a court
would rule on the factor you are
discussing)
• State the governing Rule of law
• Apply the rule to your facts, using
analogies and counteranalogies
• State your Conclusion again
• Rinse, wash, and repeat
Umbrella Paragraphs
Whether Madame Sosostris will be convicted depends on
whether her conduct is deemed to be fraudulent. The
mere telling of a fortune is not per se illegal, as the
Crown must prove an intent to delude or defraud. R. v.
Dazenbrook (2004), 64 O.R. (3d) 27 (C.A.). The offence
in s.365(b) does not require proof that the predictions
were false or that the accused expressly claimed to have
the power to predict the future. R. v. Labrosse (2006), 82
O.R. (3d) 522 (C.A.). In Labrosse, the Supreme Court of
Canada held that an accused may be convicted if she
did not honestly believe she could predict the future, but
the court left open the question of whether conviction is
appropriate if she had an honest belief about this ability.
Because blameworthy conduct is an essential
requirement for criminal liability in Canadian law,
Madame S. will likely be acquitted if she show that she
had an honest belief about her abilities.
How Not To Do It
There are many considerations that bear on
the possibility of conviction for fraudulently
telling fortunes. In Dazenbrook he was
charged with defrauding but he lacked the
proper mens rea. In Labrosse she did not
honestly believe what she was saying so
she was convicted. But the most important
thing is that without the proper mens rea a
person accused of a crime cannot be
convicted.
What is wrong with the preceding example?
- The first line does not telegraph the argument; instead, it
tells the reader, “Hold on tight, there’s a lot of stuff
coming at you, and I’m not going to help you process it.”
- The cases are summarized hastily, with no effort to
provide context. It’s as if the reader is supposed to have
already read them. Who is “he”? Who is “she”? Why
were mens rea and “honest belief” at issue?
- The big point is not presented at the outset; it arrives
suddenly at the end
- There are no citations
- Takeaway: prepare your reader for what is to follow;
take the time to explain the cases in detail; highlight the
important points and quote from the cases to show what
the courts emphasized.
CRAC for Madame S.
Madame S. can probably escape liability here if she can
show that she honestly believed she could tell the future.
In general, a party can be charged with fraud only if she
sought to deceive another party, to the financial
detriment of the latter. For example, in [case], the
accused was held liable for fraud because . . . [more
examples]
Courts have been reluctant to hold parties liable for fraud
unless the party knew that she was making false
representations.
Therefore, if Madame S can show that she believed in her
ability to tell the future by reading palms, she will likely
escape liability for fraud.
CRAC for Madame S, cont’d
• In this case, whether Madame S’s conduct
is deemed fraudulent depends in large
part on whether the Crown can show that
she thought she was duping her clients. …
[similar caselaw, if available]
Topic v. Thesis Sentences
Topic sentences: favoured by teachers of
composition; excellent for writing essays.
Terrible for writing legal memos.
A topic sentence leads the reader into the
paragraph by hinting at what is to follow,
and deliberately avoids giving away the
argument that is to follow. This is a bad
idea in legal writing.
Topic v. Thesis Sentences
Thesis sentences: disfavoured by teachers
of composition, but loved by teachers of
legal writing. Remember the lesson: keep
it boring. Begin the paragraph by explaining, as concisely and directly as possible,
the concepts to be discussed and the
conclusion they will point to. Do not hint at
what will follow; state what will follow.
Topic v. Thesis Sentences
Topic sentence [avoid]:
– Wapner v. Denton dealt with when a choice is
sufficiently voluntary to constitute assumption
of the risk.
Thesis sentence [better]:
– A choice is not voluntary if the person is
forced to choose between the threatened
harm and another equal or greater harm.
Topic v. Thesis Sentences
Topic sentence [avoid]:
– In evaluating liability for fraud, courts have
considered a wide variety of factors including
materiality.
Thesis sentence [better]:
– An accused cannot be convicted for fraud if
her allegedly false representations were not
material to the transaction.
More (bad) topic sentences
The voluntariness requirement for mens rea
has been the subject of debate for many
years.
Courts have long sought a principled basis
for the bar on relitigating fully adjudicated
claims.
The Rooker-Feldman doctrine is one of the
most complicated aspects of the modern
law of abstention.
Objective versus Persuasive Writing
Remember the audience. In objective
writing (such as a memo), we assess the
landscape as a “reasonable person”
would, and include all relevant objects that
complicate the landscape. There is
nothing wrong with advancing a particular
position in a memo, but it is crucial that
you give due regard to all sides of the
issues. You are not helping your
supervisor (or the client) if you ignore the
counterarguments.
Objective versus Persuasive Writing
In persuasive writing (such as a factum), we
describe the landscape as we want others
to see it, focusing on key objects that
support this perspective. Who is the
audience? The court. Your goal is to get
the court to adopt your position.
The Writer’s Job in a Memo is . . .
to guide the reader through a forest of
saplings
The Writer’s Job in a Factum is
to guide
the reader to
the base
of the
sequoia
Analogies and Distinctions
Again, remember the audience. What is
your reader looking for?
Beddoes held that no cause of action arises
under s.3 of the Ontario Human Rights
Code against an owner of commercial real
estate, because that kind of property is not
a “dwelling.”
A bad example:
the point is buried at the end
In Beddoes v. Tulkinghorn (1982), 344 O.R. (2d) 319 (C.A.),
the court held that where the owner of Tulking-horn’s
Properties, Inc. refused to sell rent space for a law office
to an Indian-Canadian attorney, the landlord was not
liable under s.3 of the Ontario Human Rights Code,
because even though (1) the neighborhood was zoned
for residential housing; (2) the office space was in the
same building as an apartment complex, and (3) the
office space included a kitchen, the office itself was not a
“dwelling” and residential use of the space was
specifically prohibited in the lease.
A better example:
the point appears at the outset
Courts have consistently held that a refusal to
rent office space does not violate s.3 of the
Ontario Human Rights Code. For example, the
Ontario Court of Appeal has held that where a
landlord refused to rent space in an office
building to an Indian-Canadian attorney who
wanted to open a law office, the landlord’s
refusal did not “make unavailable [to the
attorney] . . . a dwelling,” but the plaintiff might
have a cause of action under various other civil
rights statutes. Canard v. Petts (1998), 22 O.R.
(3d) 817 (C.A.).
An even better example
Courts have consistently held that a refusal to rent office
space does not violate s.3 of the Ontario Human Rights
Code, because that section extends only to residential
property. For example, in Canard v. Petts, (1998) 22
O.R. (3d) 817 (C.A.), the court quoted the statutory
prohibition on engaging in discrimination to “make
unavailable . . . a dwelling” to a member of a protected
class, but the court declined to apply the prohibition to
commercial office space. In Canard, the defendant
landlord refused to rent space in an office building to an
Indian-Canadian attorney, because of the attorney’s
ethnicity. The court held that because the office was not
a “dwelling,” s.3 did not apply, although the plaintiff might
have a cause of action under various other civil rights
statutes.
Analogies must be explicit and
obvious
OK but not great:
• Here, the rental property was a video
rental shop.
Better:
• As in Canard, the rental property here was
not a “dwelling” but instead was available
only for commercial, non-residential use.
Distinctions must also be explicit
and obvious
Not great: Here, Ms. Murphy advertised her
garage in the newspaper as a “charming
and spacious junior efficiency.”
Better: Unlike Canard, which involved an
office space for which residential use was
impermissible, here Ms. Murphy sought to
rent her garage for residential use.
Canard involved a commercial office
space that was not equipped for
residential use and for which residential
use was prohibited. Here, by contrast, Ms.
Murphy installed a stove and bathroom in
her garage, and she advertised it for rent
as a residential unit.
Revising
Goals of Revision:
1
2
3
4
Clarify the Facts
Clarify the Argument
Streamline Your Sentences
Make Your Citations Easy to Understand
Clarify the facts
a. Don’t leave implicit any details that need to
be explained, but don’t burden the reader
with unnecessary details.
b. Review for any relevant facts that are
missing.
c. Make sure you didn’t leave out relevant facts
just because they don’t support your
position.
d. Create short forms for names of parties and
statutes.
What if you need more
information?
• It is always appropriate, when writing a memo, to
devote space to any factual questions that still
remain to be ascertained, if you need to them to
evaluate the problem.
• However, before putting those questions in the
memo, check back with your supervisor about
the factual questions that need to be answered.
Your supervisor may know or may be able to get
the relevant details, and may simply have failed
to realize they were significant.
Clarify the argument
A. The order of your arguments should
reflect a deliberate choice about how to
present them effectively. Front-load your
most important ideas and arguments; put
the secondary ones later. Consider
relegating minor points to the footnotes.
This applies to the argument as a whole,
and to each section and paragraph.
Clarify the argument, cont’d
B. Keep in mind your basic theories and
the result you are seeking. Look out for
sections, paragraphs, and sentences that
might distract the reader. If you need to
address minor points that interfere with the
flow of your argument, consider putting
them in a footnote.
Clarify the argument, cont’d
C.
Use thesis sentences. One way to check for
effective use of thesis sentences is to read only
the first sentence of each paragraph. That
should allow you to track the development of the
argument.
D.
When dealing with a multi-part legal test, or
setting out various alternatives, use numerals
and then deal with each point in the enumerated
order. Even if the court didn’t use this approach
when explaining a test, it may be a helpful way
to present the issues.
Streamline Your Sentences
A. When possible, use verbs instead of nouns.
E.g., “administered a test”  “tested”
“raised the argument”  “argued”
“presented a claim”  “claimed”
B.
Be sparing of adverbs, but be aware that a
well-chosen adverb can be your friend.
E.g.: The defendant states that the test for
“good faith” includes motive, but that is
incorrect.  The defendant incorrectly treats
motive as a factor in the test for “good faith.”
Streamline Your Sentences, cont’d
C. Keep subjects and verbs close together.
S … V ... DO  S – V- DO
(bad) “The Crown, despite failing to point to any
proof that Ms. Fitt was even aware of the
relevant regulations, proposes to saddle her
with liability for ‘knowing’ violation of the
Metropolitan Public Carriage Act.”
 “The Crown charges Ms. Fitt with ‘knowingly’
violating the Metropolitan Public Carriage Act
even though there is no evidence that she had
ever heard of the relevant regulations.”
Streamline Your Sentences, cont’d
D. Keep verbs close their complements, and if
possible, build the complement into the verb.
(bad) “The court held that the statute, which
required all persons wishing to post handbills
to register in advance, was unconstitutional.”
 (better) “The court held unconstitutional the
statute, which required preregistration for all
persons wishing to post handbills.”
 (even better) “The court rejected [struck down,
invalidated] the statute requiring preregistration
for all persons wishing to post handbills.”
Make it easy to understand the
authorities you cite
Review your quotations to make sure they
are effective and concise. Quote only as
much as you need. If you are quoting a
fact-intensive decision in which the court
explained the details at length, consider
replacing that part of the quotation with
your own, shorter description, outside of
the quotation. Use ellipses to shorten the
quotation.
Prune and simplify!
As the court explained in Beatty, “. . .
however, criminal negligence requires a
‘marked’ departure from the ordinary
standard of care, whereas civil liability for
negligence may arise in any of the
multifarious circumstances in which a
party can be shown to have made only a
trivial departure from that standard.”
Improved
As the court explained in Beatty, “[C]riminal
negligence requires a ‘marked’ departure
from the ordinary standard of care,
whereas civil . . . negligence . . . [requires]
only a trivial departure from that standard.”
Prune and simplify!
Meeker held that “[O]n the other hand,
privacy, like property, has also been
regarded by many thinkers, in a relevantly
similar context, as a ‘bundle of rights’ . . .”
Improved
Meeker observed that “privacy, like property,
[may be] regarded . . . as a ‘bundle of
rights.’”
Meeker observed that “privacy . . . [may be]
regarded . . . as a ‘bundle of rights.’”
Envoi
Go forth and simplify!
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