Legal Rhetoric
Handbook
Washington College of Law
Fall 2012
Table of Contents
Syllabus ................................................................................................................................1
Course Requirements and Policies.......................................................................................8
Introduction to Legal Rhetoric........................................................................................... 12
Planning Strategies.............................................................................................................20
The Basic Principles ..........................................................................................................21
Revision Checklist .............................................................................................................24
The Legal Process ..............................................................................................................26
No Text is an Island ...........................................................................................................27
Using CREAC ....................................................................................................................28
Research Curriculum .........................................................................................................31
Legal Rhetoric Style Sheet.................................................................................................32
Clumsy Words and Phrases................................................................................................35
Syllabus
Fall 2011
Overview of the Semester
Weeks 1-6: Writing a closed office memorandum: client interview (Client 1), memo format and
purpose, writing strategies, knowledge of (but not doing) basic research (statutes and cases),
learning basic citation form, analyzing a statute, writing legal analysis, synthesizing rules from
cases, serving a client well, professionalism.
Students write a mini-memo (which may serve as an “umbrella” for the full memo) and two
drafts of the closed memo for Client 1 (final version due Week 6).
Week 6: Writing an advice letter: re-analyzing audience and purpose, understanding shift in
lawyer’s role and voice, substance and purpose of an advice letter.
Students write an advice letter to Client 1 based on their closed memos (due Week 7).
Weeks 7-11: Writing an office memorandum: new client interview (Client 2), preparing a
research plan, researching, preparing an annotated outline, and reinforcing skills from Weeks 17.
Students research and write three drafts of an office memorandum for Client 2 (final version due
Week 12); they also prepare a basic research plan (due Week 8) and an annotated outline (due
Week 9) and an advice letter to Client 2 (due Week 13).
Weeks 12-13: Introduction to advocacy writing: format and purpose of a Trial Court
Memorandum, writing strategies for persuasive writing (characterizing facts and law,
analogizing and distinguishing cases, etc.).
Students write one draft of the facts and argument for a Trial Court Memorandum (opposing
or supporting a Motion to Dismiss) for Client 1 (due Week 13).
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Legal Rhetoric Orientation
August 18, 19
Overview of the Legal System
The Legal Discourse Community
What Do Lawyers Write and What Makes It Good Writing?
Introduction to the Bluebook
Introduction to the Research Curriculum
Overview of the Legal Rhetoric Course
Read for Week 1: Legal Rhetoric Handbook; Edwards, Chapter 1, “Overview of the Lawyer’s
Role,” pp. 3-12; part of Chapter 3, “Briefing and Synthesizing Cases,” pp. 31-36; Chapter 6,
“The Writing Process and Law-Trained Readers,” pp. 67-77.
Week 1: August 22
In class: Introductions; review of course requirements and policies; the Legal Discourse
Community; the Writing Process; using Planning Strategies; revising exercise (if time).
DF “Write and Cite” presentation: Writing Professional Emails.
Read for Week 2: Edwards, Chapter 12, “Writing an Office Memo,” pp. 131-143; Chapter 4,
“Interpreting Statutes,” pp. 45-53; Sloan, Chapters 1, 2, and 6.
Week 2: August 29
In class: Basic Principles and Revision Checklist; the legal system; writing an office
memorandum; writing the facts; how to analyze a statute; introduction to CREAC.
Handout: statute (discussion of research strategies for finding statute).
DF “Write and Cite” presentation: Overview of Bluebook; Statutory citation.
Read for Week 3: Reread Legal Rhetoric Handbook, “Using CREAC”; Edwards, part of
Chapter 5, “Forms of Legal Reasoning (Rule-Based Reasoning),” pp. 55-56; Chapter 7, “Large
Scale Organization: Creating an Annotated Outline,” pp. 79-89; Chapter 21, “Paragraphs,
Sentences, and Style,” pp. 273-289.
Write: Mini-memo (due week 3).
Research Class: Statutory Research (Check TWEN for your specific class time).
Read before research class: Sloan, Chapter 1, “Introduction to Legal Research”; Chapter 2,
“Generating Search Terms”; Chapter 6, “Statutory Research”; Edwards, Chapter 2.
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Assignment: Research Assignment A (Statutory Research) (due at beginning of regular class,
week 4).
In library: DF session in library for library tour and to work on Research Assignment A
(arranged by DF).
Week 3: September 5
Monday is Labor Day and Monday classes will be rescheduled for later in the week.
Mini-memo due at beginning of class; bring two copies (or submit one electronically and
bring one copy for use in class—follow instructor’s directions).
In class: Discussion or peer review of Mini-memo; discuss predictive writing and research
strategies; learning to write rule-based reasoning; synthesizing rules from cases; relationship of
statutory and case law; organizing the Discussion; writing an umbrella section; CREAC
structure.
Handout: cases (discussion of research strategies for finding cases).
DF “Write & Cite” presentation: Active verbs, subject-verb-direct object order; controlling
sentence length.
Read for Week 4: Edwards, Chapter 2, “The Legal System, Common Law Process, and Kinds
of Authority,” pp. 13-28; rest of Chapter 3, pp. 37-43; rest of Chapter 5, pp. 56-63; Chapter 8,
“Small Scale Organization: Explaining the Law,” pp. 91-101; Chapter 9, “Small-Scale
Organization: Applying the Law,” pp. 103-110; Chapter 10, “Discussing Multiple Issues: Putting
It All Together,” pp. 111-118; Chapter 20, “Citations and Quotations,” pp. 247-271; Sloan,
Chapters 4 and 5; Bluebook, Rule 10.
Write: Expand and revise Mini-Memo into full memo adding cases (and synthesized Rules) and
using full office memorandum format; complete draft due week 4.
Week 4: September 12
Draft 1 of Memo 1 due at beginning of class.
Research Assignment A due at beginning of class.
In class: Peer review of drafts using Revision Checklist and self-grading guidelines; discussion
of strengths and weaknesses of drafts; more work on reading and synthesizing cases/rules; focus
on Synthesized Rules from cases; umbrella section; CREAC structure.
Sign up for conferences (review preparation for conferences; see week 5).
DF “Write & Cite” presentation: Case Citation, Rule 10: Case Names, Reporters, Date
Parentheticals, Court Information.
Write: Second draft of Office Memo 1.
Research Class: Case Research (check TWEN for specific class time).
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Read before research class: Sloan, Chapter 4, “Case Research,” and Chapter 5, “Research with
Citators.”
Assignment: Research Assignment B (Case Research) (due at beginning of regular class week
7).
Week 5: September 19: No regular classes.
Individual conferences: Prepare for the conference by writing a complete revised second draft
of Office Memo 1, writing a list of questions (see “Using Drafts” in Course Requirements and
Policies for kinds of questions) for your instructor, and highlighting portions of the draft that you
want to discuss. Follow your instructor’s instructions for submitting these materials. Conferences
should last about twenty minutes. Failure to write and deliver a complete draft or to show up for
the conference will result in the lowering of your grade in the course.
Write: Write final draft of Office Memo 1 (due at beginning of class week 6).
Read for Week 6: Edwards, Chapter 13, “Writing Professional Letters,” pp. 147-159.
Week 6: September 26
Final version of Office Memo 1 due at beginning of class.
In class: Self-evaluation of performance on Memo 1—set goals for improvement; rethinking
audience and purpose (for an advice letter) using Planning Strategies; writing professional
letters; writing an advice letter (with a partner—collaboration exercise).
DF “Write & Cite” presentation: Alterations, Omissions, Block Quotations; common writing
errors, unified paragraphs, and strong topic sentences.
Write: Advice letter 1 to Client 1 (due in class week 7).
Read: Sloan, Chapter 3, “Secondary Source Research”; Chapter 10, “Electronic
Legal Research”; and Chapter 11, “Developing a Research Plan.”
Week 7: October 3
Research Assignment B (Case Research) due.
Advice letter 1 due at beginning of class.
In class: Role playing: give oral advice to client based on advice letter; review of memo format
and requirements; CREAC structure; new client (student interviewers).
DF “Write & Cite” presentation: Signals and Explanatory Parentheticals; Review of Revision
Checklist.
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Write: Basic Research Plan (Research Assignment C) and preliminary results that must include
any statute(s) and at least two case briefs (due in writing in class week 7); draft facts.
Research Class: Secondary Sources (check TWEN for specific class time).
Read before research class: Sloan, Chapter 3, “Secondary Source Research”; Chapter 10,
“Electronic Legal Research”; Chapter 11, “Developing a Research Plan.”
DF Workshop on Research offered this week (DF will announce time and place).
Week 8: October 10
Basic Research Plan (results from Secondary Source Research Assignment C) and case
briefs for Memo 2 due at beginning of class; submit two copies (or per instructor).
In class: Discuss draft of facts and preliminary research; refine basic research plan; revise basic
research plan into annotated outline or working draft (see Edwards, pp. 79-89); draft issues;
discuss law–strengths and weaknesses of client’s case; in small groups working on Discussion
(CREAC); counterarguments.
DF “Write & Cite” presentation: Secondary Sources; avoiding clumsy words and phrases.
Research: Complete research for Client 2’s problem.
Reread for Week 10: Edwards, Chapter 5, “Forms of Legal Reasoning,” pp. 55-63.
Write: Annotated Outline of Memo 2 (it must include all research for memo); due at the
beginning of class week 9). Bring two copies.
Week 9: October 17
Office Memo 1 returned.
Advice Letter 1 returned (not graded; comments only).
Annotated Outline due at beginning of class. Bring two copies (or per instructor).
In class: Role-playing: meeting with supervisor to discuss research (research must be complete
at this point); discuss forms of reasoning and how to use them; reading cases thoroughly;
recognizing forms of reasoning; review rule synthesis.
DF “Write and Cite” presentation: context paragraphs.
Write: Draft 1 of Memo 2.
5
Week 10: October 24
Draft 1 of Memo 2 due at beginning of class; bring two copies (or per instructor).
In class: Structured self-revision in class and peer review; working on Question Presented and
Brief Answer; rule synthesis; CREAC structure.
Write: Draft 2 of Memo 2.
Week 11: October 31
Draft 2 of Memo 2 due at beginning of class.
Blackout period begins 48 hours after class.
In class: Instructor and peer review of Draft 2.
Write: Final draft of Memo 2 (due at beginning of class week 12).
Read for Week 12: Edwards, Chapter 14, “Introduction to Brief Writing,” pp. 163-173;
Chapter 15, “Questions Presented and Point Headings, pp.175-188; Chapter 16, “Writing the
Argument Section,” pp. 189-198.
DF Workshop on Citation offered this week (DF will announce time and place).
Week 12: November 7
Final version of Office Memo 2 due at beginning of class.
In class: Introduction to advocacy writing: reconsidering audience and purpose; characterizing
facts and law; introduction to a Trial Court Memorandum; reflect on personal use of strategies
for improvement from week 6.
Write: Advice Letter 2 to Client 2; Statement of the Facts for Trial Court Memorandum on
closed memo case (both due in class week 13).
Week 13: November 14
Advice Letter 2 and Statement of Facts due at beginning of class.
In class: More advocacy: reading cases to make an argument; characterizing the law;
arguing a motion.
Write in class: Argument section of Trial Court Memorandum in Client 1’s case.
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Research, Citation, and Writing Exam–November 18 (day students);
November 19 (evening students).
Monday, November 21
Showcase Argument for Motion in Closed Memo case.
Legal Rhetoric professors argue the motion for the parties in Memo 1.
Graded Memo 2 will be returned at the end of the first class next semester. If
you would like the memo returned sooner, you may give your instructor a
stamped self-addressed large envelope by December 14. No memos will be
mailed or returned in any way until after the last 1L final exam.
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Course Requirements and Policies
Attendance
Students must attend all classes. Absences will adversely affect the grade and can result in failing
the course. Any absence from a research lecture will require the completion of an extra make-up
assignment in order to pass the course.
Class Preparation
Students are expected to do all the reading assigned for class and to come to class prepared to
discuss it.
Assignments
Students must turn in all assignments, including drafts, on time. Failure to turn in an assignment
will result in failing the course. The due dates for the assignments are listed in the Syllabus, and
assignments are due at the beginning of class or they will be considered late. All late assignments
that are not turned in during class must be turned in at the Legal Rhetoric Office. Late
assignments are penalized 15 points. In addition, students must thoroughly proofread all
assignments, including drafts, before handing them in. Any assignment that contains more than
four proofreading errors will be returned without further assessment and will not be counted as
handed in until it is corrected (students are responsible for checking their email after an
assignment is turned in to be sure that it is not returned for proofreading errors). Papers returned
for proofreading errors must be resubmitted to the Legal Rhetoric Office within 24 hours of
notification. You may not make substantive changes during the 24 hour period if your paper is
returned for proofreading errors. Any paper that violates the proofreading rule will be penalized
15 points. In addition, all drafts must be complete or they will not be counted as turned in and
will be returned for completion and counted as late. Drafts will be checked for sufficiency during
the class. Students must turn in all assignments to pass the course.
Texts
The following texts are required and available at the bookstore:
1. Linda H. Edwards, Legal Writing and Analysis (3d ed. 2011).
2. Amy E. Sloan, Basic Legal Research: Tools and Strategies (4th ed. 2009).
3. The Bluebook: A Uniform System of Citation (19th ed. 2010).
The following books are recommended if you want a style manual that helps with usage,
grammar, and punctuation (available on Amazon; also a few copies in the small Rhetoric library
in the Rhetoric conference room that you may consult):
Richard C. Wydick, Plain English for Lawyers (5th ed. 2005).
Ian Gallacher, A Form and Style Manual for Lawyers (2005).
Strunk and White, The Elements of Style (2008).
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Anne Enquist and Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the
Legal Writer (3d ed. 2009).
Research Curriculum
The research portion of the class is taught in three separate classes in Weeks 2, 4, and 7. The
specific room, date, and time information is on TWEN; the classes are arranged according to the
doctrinal sections; students must attend the assigned classes. The Legal Rhetoric course
concludes several weeks before other classes in November, and the extra classes during the
semester create the adequate number of classroom hours for credit in the course. Attendance at
these classes is mandatory; any absence will adversely affect the grade and require a make-up
assignment. There is a reading assignment from Sloan that should be read before each research
class; this reading is critical to understanding what is going on in the research lectures. Take your
laptop to the research class as you will need it to complete an in-class assignment based on the
class presentation. Full information on the Research Curriculum may be found on page 31 of this
Handbook.
Using Drafts
The Legal Rhetoric course is designed to teach students how to use drafts on their own. To that
end, students are introduced to a variety of tools: Planning Strategies, Revision Checklist, Basic
Principles, checklists in the texts, handouts, etc. Peer review and in-class global comments about
drafts in general can also be fruitfully used in the revision process. In law practice, drafts are
used by the writers themselves to improve the final product. One, but only one, source of input
(in the class, but obviously not in practice) is the instructor’s comments. These comments come
on some drafts, after students have redrafted at least once, on the grading sheets that accompany
graded papers, and in conferences. It is never the instructor’s job to read line-by-line and revise
and edit a student’s work, just as it would not be the job of a supervising attorney in a legal job.
That responsibility resides with the student, including the responsibility to transfer comments
from one section of a draft to another. Instructors respond to drafts on a macro level and respond
to specific questions and uncertainties that a student may have. The Dean’s Fellow, as well, can
respond, in a macro fashion, to drafts. In any case, the quality of the draft and the questions a
student poses will greatly determine the quality of the feedback. No one can do much with a
hastily written, incomplete draft or vague questions, such as “is this okay?” Good questions are
along the lines of these: “I am struggling with how many facts I should put in the Question
Presented. Have I struck the right balance?” “I’d like to discuss the difference between the Brief
Answer and the Conclusion. Mine seem repetitive.” “I know from class exercises that I’m
struggling with the active/passive voice. Can we work through a few examples?” Notice that
these questions demonstrate that the student-writer has thought about drafting choices. Selfediting and conscious selection of writing strategies are the hallmarks of good legal writing.
Grading
The course grade is determined by grades on the individual assignments, the overall quality of
the other assignments, the grade on the research and writing final, and class participation: Memo
1 (closed), 20%; Memo 2 (open), 35%; Research, Citation, and Writing Strategy Exam, 15%;
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Advice Letter 2, 10%; Class Participation, 10%; Other Assignments, 10%. Grading criteria forms
that all instructors use for the graded assignments–the two memos and the second advice letter-are available on TWEN Main Page.
TWEN
TWEN is our on-line classroom support system and is one of the principal ways we
communicate with students and distribute assignments. Students will receive a password at
orientation and should immediately register on Westlaw’s TWEN so that they do not miss
information. All students should check TWEN (both the Main Course page and their own small
class page) and email regularly for class information.
How to get Extra Help
Aside from one mandatory conference with the instructor that will occur during the semester, we
encourage students to meet with instructors and Dean’s Fellows whenever they feel they need
additional guidance or instruction. All instructors and Dean’s Fellows have office hours that they
will announce at the first class. All students may also meet with Professor Phelps, the Director of
the Legal Rhetoric Program, or any of the full-time Rhetoric professors, even if these are not
your classroom teachers. Call or e-mail for an appointment or drop in during posted office hours
(posted in the Legal Rhetoric Office and on TWEN). Additionally, there are several Dean’s
Fellows whose full-time job is to provide Rhetoric students with additional assistance, including
some Fellows who specialize in ESL. These Writing Fellows have regular hours that are posted
in the Legal Rhetoric Office and on TWEN. The sign-up procedure is also posted on TWEN.
Students may not meet with Rhetoric Writing Fellows within 24 hours of the time that a paper is
due.
In addition to this crucial one-on-one work, the Legal Rhetoric Program puts on a series of
supplemental workshops during the semester. Some students may be required to attend some of
them; all are welcome to attend them. Students will receive a schedule of the supplemental
workshops early in the semester; the schedule is also posted in the Legal Rhetoric Office and on
TWEN. Also, students may ask questions on TWEN.
In short, we see our job as helping students become the best legal writers and researchers
possible and are willing to provide whatever it takes to accomplish that end. USE the resources!
WCL Honor Code
Like an exam or any other law school assignment, all work you do in the Legal Rhetoric course
must be your own and you must have observed the WCL Honor Code and Legal Rhetoric course
requirements in preparing it. Any course-specific requirements outlined in the course materials
come under the Honor Code.
You may not work with other people, students, or resources, including peer review,
proofreading, and research, outside of class unless your instructor explicitly permits you to do so.
Although we discuss the assignments extensively in class and work together on them, such
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discussions and work are not permitted outside of class and violate the WCL Honor Code. You
may not review or consult any other student’s actual written work (including outlines, drafts, and
results of research), give or solicit advice as to how a document should be written (its substance
and writing), or discuss the facts of an assignment or how the law applies to those facts. If, in
exceptional circumstances, you request and receive permission to use the assistance of a typist,
the typist may not correct spelling, grammar, citation form, or any other aspect of the
assignment.
Any material taken from another source must be acknowledged with quotation marks (if directly
quoted) and a citation.
You may work on any Legal Rhetoric matter with your instructor, your Legal Rhetoric Dean’s
Fellow, other Legal Rhetoric instructors, other Legal Rhetoric Dean’s Fellows, Legal Rhetoric
Writing Fellows, and WCL reference librarians. You may discuss with other students, in general
terms and without any reference to the facts of an assignment, the legal issues involved in an
assignment. For example, you may discuss a particular statute and cases that interpret it, but not
how that statute or case might apply to your Legal Rhetoric problem.
Professionalism
Legal Rhetoric, like many other law school classes, not only teaches the substance of the course,
it also helps to shape students as professionals. Therefore, in Legal Rhetoric students are
expected to practice the traits of professional responsibility, including civility; attention to detail
in work products on which clients, other lawyers, and judges rely; effective time management;
promptness and timeliness in completing and submitting work; honesty and candor in the use of
legal materials and in writing; truthfulness; respectfulness; and a sense of responsibility to peers
and to the profession.
A Word About Next Semester. . . .
Although the semesters are graded independently, the second semester of Legal Rhetoric
continues the first. Your first assignment in the Spring semester will be based on Memo 2 from
the Fall semester.
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Introduction to Legal Rhetoric
The Legal Discourse Community
Welcome to Washington College of Law and to the Legal Discourse Community (LDC). By
entering law school, you have become a fledgling member of the LDC, and you may have
already noticed that language is sometimes used in ways that are unfamiliar to you: meanings
and language conventions that are different and, consequently, confusing. The LDC is the world
of language that lawyers inhabit. Many, many discourse communities exist. If you came to law
school directly from undergraduate school, you were a member of the academic discourse
community. You learned to read, write, and speak using the conventions that are successful
there. If you came from the business world, you were a member of the business discourse
community; from the military, the military discourse community; and so forth. Discourse
communities are everywhere and you may, in a single day, move from one to the other without
even noticing. Think about the ways that these words are used in the overlapping discourse
communities portrayed below: battery, briefs, ERA.
Baseball
Military
Law
You?
Each discourse community has its own conventions and rules. Some words have particular and
specific meanings; arguments are made using certain things as proof; specific kinds of
documents are used. Members of it read, write, and speak in a particular way that is
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“acceptable.” Entry into a new discourse community requires some initiation, some guidance,
and much, much practice.
That’s the purpose of the Legal Rhetoric course: to introduce you to the rules and conventions of
the LDC and to provide an environment in which you can become a full-fledged member of that
community by reading and writing as a lawyer. This initiation also occurs in your other courses,
of course, as you learn to “brief” cases, to answer “hypotheticals” from a professor who is using
the “Socratic method,” and to introduce yourself as a “1L” In the Legal Rhetoric course you will
practice reading and writing in the LDC, making the mistakes that are always inevitable in the
learning process, without risking your job or your client’s welfare. Our contract with you is that
if you give us your best effort, we will work just as hard to guide you, and by the end of the
semester, you will be reading and writing confidently and competently in the Legal Discourse
Community.
What is “Good” Legal Writing?
The Communication Triangle helps us to hone in on what kinds of writing lawyers do and to
begin to develop ways by which we can judge whether writing is “good” or not.
Reality (Objective writing)
Language
(Literature)
Reader
(Persuasive writing)
Writer
(Expressive writing )
Every act of writing involves the four elements portrayed on the triangle: the writer, the reader,
the “reality” (the things being written about), and the language in which it is embedded. A
particular act of writing and the document that is produced may be classified according to which
of these four receives primary attention; that is, which of the four is the primary goal or purpose
13
of the writing. For example, if you are taking notes or keeping a diary, you are writing for
yourself; the document, such as it is, is written for you, the writer. We call this kind of writing
“expressive” writing (the lower, left point of the triangle). If the reality, the thing about which
you are writing, is most important, we call that “objective” writing (the upper point of the
triangle); if the primary purpose of the document is to bring about a change in the reader, we call
that “persuasive” writing; if the primary purpose of the document is to create beautiful language,
we call that “literature.” All four elements are present and receive attention in any act of writing,
but one of them takes preeminence in a particular document.
You can probably begin to see that any “rule” for writing falls apart under this analysis. Take
one of the first writing rules you learned: “spell words correctly.” Does that rule apply to all four
kinds of writing described above? Perhaps not all of them, all of the time. If we can’t use rules
to judge whether writing is “good” or not, what can we do? We can judge whether a document is
good by whether the writing strategies (not rules) used in it achieve the desired goal of the
document for the designated audience. In other words, you have to ask yourself before and while
writing any document, “who is this for and what do I want it to achieve?” That’s the approach
taken in the Legal Rhetoric course: strategies, not rules, and strategies based on analyzing
audience and purpose for any document. The “Planning Strategies” form on page 20 will assist
you in doing this analysis. Also “The Basic Principles” on pages 21-23 give you some strategies
that have proven effective in the Legal Discourse Community.
What Kinds of Writing Do Lawyers Do?
The Communication Triangle also helps to clarify what kinds of writing lawyers do and the
kinds of writing that you will be learning and practicing in the Legal Rhetoric course. The first
semester of the course focuses on written legal discourse; in the second semester, you will begin
also to use spoken legal discourse (of course, you are learning to “talk like a lawyer” every day
in law school, in classes and elsewhere). So what is it that lawyers write and what special
characteristics does legal discourse have?
Legal discourse functions in distinctive ways and has some special qualities. First, legal writing
tends to be either objective or persuasive (the top and bottom right angles of the triangle); it is
rarely creative or expressive (at least not in the workplace). Second, legal discourse occurs in
different kinds of documents. Lawyers write in various forms and with various voices: analyst,
strategist, counselor, advocate, for example. They also write to different audiences and for
different purposes: to inform another lawyer, to counsel a client, to persuade a judge, to name
some of the most frequent purposes and audiences. “The Legal Process” chart on page 26
delineates some of the documents that lawyers write and shows when these documents arise in
the legal process (also see Edwards, pp. 3-5). Third, legal documents often give rise to other
legal documents. “No Text is an Island” on page 27 demonstrates how an office memorandum
may be used as the basis for an advice letter or for a legal memorandum. Finally, legal discourse
has a significant impact beyond the confines of the legal discourse community. The way lawyers
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use language matters. Legal discourse not only interprets the law; it also creates the law.
Lawyers’ writing affects people’s lives.
Writing as a Process
The Legal Rhetoric course will treat writing as a process, rather than as a product. For a long
time, writing was taught using the product approach: teachers gave students a writing
assignment, the student wrote it (the product), and the teacher graded it, perhaps with comments
in the margins. Then there would be another assignment, and so on. The student’s writing might
improve, or not; it was all rather serendipitous. It wasn’t clear that writing could be taught at all.
A few decades ago, composition theorists at some major universities (Carnegie Mellon, Purdue,
and Southern Cal, among others) began to investigate what good writers did in the process of
producing good documents. By taking protocols (taped monologues) from “expert” and “novice”
(good and bad) writers as they worked on a document, the researchers were able to detect some
patterns: good writers did certain things in the process of writing. Now there was something to
teach novice writers.
One broad pattern that emerged from the protocols looked something like this:

Planning←→



Drafting←→ Revising→ Final Editing




Expert writers engaged in more planning activities in the writing process than did novice writers;
they asked themselves some specific questions before, during, and after drafting (notice that
some of the arrows go in both directions; the process is not linear, but recursive). These
questions included information about the reader and the purpose of writing. The questions are
adapted for legal documents in “Planning Strategies” on page 20 of this Handbook. In addition,
the expert writers engaged in substantial revision (re-vision = re-seeing) of the document, writing
context paragraphs, topic sentences, changing sentence structure, etc. Many of the revising
techniques are included in the “Revision Checklist” on pages 24-25. Then they did a final edit–
fixing spelling, etc. Some expert writers planned a great deal before drafting; others planned
loosely, but always moved back into planning after an initial “zero” draft (getting ideas down).
As a novice legal writer, you will more easily become expert by being attentive to the process of
producing legal documents. We will work on various aspects of the process in class, sometimes
in small groups, as you become familiar with it.
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Who Teaches the Course?
Unlike the other first semester first year courses, Legal Rhetoric is taught in small sections by
many different teachers. Some students will be taught by full-time faculty, others by adjuncts.
Both full-time faculty and adjuncts bring experience, training, skill, and dedication to the course
and to the students. Here’s a look at some of them:
Full-time Legal Rhetoric Teachers
The full-time faculty of the WCL Legal Rhetoric Program ranks among the best in the country
with a combined over forty years teaching legal writing and research and over fifty years
practicing law. They publish widely in the discipline of legal writing, give presentations
nationally, and give writing workshops to government agencies, law firms, and courts. They are
active participants in the national legal writing community and serve on prestigious boards and
committees.
Professor Teresa Godwin Phelps, Director
Professor Phelps joined the WCL faculty in 2006 after 26 years teaching legal writing and
directing the program at the University of Notre Dame Law School. She has three degrees from
the University of Notre Dame and one from Yale Law School. She is considered a pioneer in the
field of teaching legal writing: she was a founding member of the Legal Writing Institute; she
published a seminal article, “The New Legal Rhetoric,” that helped to shape the way that legal
writing is taught across the country; she is on the Editorial Board of the Journal of the
Association of Legal Writing Directors; she has lectured and consulted nationally on legal
writing for over 20 years; and she has taught as a distinguished visitor at other U.S. and
international law schools. In addition, she has published three books and over thirty articles: on
legal writing, women and the law, law and literature, and international human rights, including
the recent well-reviewed Shattered Voices: Language, Violence, and the Work of Truth
Commissions. She is the recipient of the Legal Writing Institute’s 2010 Courage Award.
Professor Paul Figley
Prior to coming to WCL in 2006, Professor Figley was a U.S. Department of Justice litigator for
thirty-two years. During his last fifteen years he served as Deputy Director in the Torts Branch of
the Civil Division. At Justice, Professor Figley represented the United States and its agencies in
appellate and district court litigation involving torts, national security, and information law. His
expertise is in motions practice. His success in that practice is reflected in his more than seventyfive reported decisions. Professor Figley is a graduate of Southern Methodist University School
of Law, where he was Leading Articles Editor for the Journal of Air Law & Commerce, and
Franklin & Marshall College. Since joining the WCL faculty, Professor Figley has given writing
workshops to government agencies and national organizations and written for national legal
writing publications.
16
Professor David H. Spratt
Professor Spratt received a B.A. degree in Government and Psychology from The College of
William and Mary and graduated summa cum laude from American University, Washington
College of Law. In 2001, Professor Spratt was a founding partner of Schwartz & Spratt, PLC, a
family law firm in Fairfax, Virginia. Previously, Professor Spratt worked as an associate at the
Law Office of Betty A. Thompson, Ltd., and at The Lewis Law Firm, both in the area of family
law. Prior to joining the WCL faculty in 2006, Professor Spratt taught Legal Writing and
Research at the George Washington University School of Law, Legal Analysis and Writing at
Concord School of Law, and Legal Methods at the Washington College of Law. He is a past
chair of the Virginia Bar Association, Domestic Relations Section and the Northern Virginia
Regional Advisory Committee. Professor Spratt regularly writes a column, “Writer’s Block,” in
the Virginia Bar Association News Journal.
Professor Elizabeth Keith
Professor Keith joined the WCL faculty in 2008. Prior to joining WCL, she had been Assistant
Director and Acting Director of Legal Research, Writing & Analysis at George Mason
University School of Law where she had taught upper-level courses in Appellate Writing and
Legal Drafting since 2004. Prior to becoming a law professor, she practiced law with Odin,
Feldman & Pittleman, P.C. in Fairfax, Virginia, specializing in civil litigation. She has a B.A.
with distinction from the University of North Carolina at Chapel Hill and a J.D. cum laude from
George Mason School of Law, where she was Editor-in-Chief of the George Mason Law Review
and a member of the Moot Court Board and Inns of Court. She is a member of the Legal Writing
Institute and the Virginia State Bar.
Professor Heather Ridenour
Professor Ridenour joined the WCL faculty in 2008 as Director of the Legal Analysis Program
and Legal Rhetoric professor. Prior to joining the WCL faculty, she worked with the Academic
Support Program at Texas Wesleyan Law School where she was Instructor of Academic Support
and Legal Writing Specialist. Before taking that position, she had a probate and guardianship
practice. From 2005 to 2007, she was the guardianship auditor at the Tarrant County Probate
Court, working under Judge Patrick Ferchill. She graduated cum laude from the Texas Wesleyan
University School of Law in 2004, where she was Associate Editor and Articles Editor on the
Texas Wesleyan Law Review. She remains active in taking pro bono guardianship cases. She is a
member of the Legal Writing Institute.
Professor Elizabeth Beske
Professor Beske joined the WCL Legal Rhetoric faculty as a full-time instructor in 2010, after
serving two years as an adjunct instructor in the Program. Professor Beske graduated from
Princeton University and from Columbia University Law School, where she was Editor-in-Chief
of the Columbia Law Review and received the Ordronaux Prize on graduation for highest
academic achievement in her class. After law school, she clerked at the United States Court of
Appeals for the D.C. Circuit for Judge Patricia Wald and at the United States Supreme Court for
Justice Sandra Day O’Connor. She was an associate in litigation at Munger, Tolles & Olson LLP
17
in San Francisco, with particular emphasis on appellate work, First Amendment, and
copyright/trademark.
Professor Bethany Dickman
Professor Dickman joins the Legal Rhetoric faculty as a 2011–2012 Graduate Teaching Fellow.
Professor Dickman graduated magna cum laude from the Washington College of Law in 2011.
During her time at WCL, she served as the Executive Editor of the American University Law
Review and as a Legal Rhetoric Writing Fellow. She also interned with the Bureau of
Competition at the Federal Trade Commission and the Library of Congress. She received her
undergraduate degree in philosophy from the George Washington University in 2002.
Professor Jennifer Mullins
Professor Mullins joins the Legal Rhetoric faculty as a 2011–2012 Graduate Teaching Fellow.
Professor Mullins graduated cum laude from the Washington College of Law in 2011. At WCL,
she served as the Editor-in-Chief of the American University Journal of Gender, Social Policy &
the Law. She also worked at the U.S. State Department, Executive Office of the President, and
the law firm of DLA Piper. Prior to law school, Professor Mullins worked as a paralegal at
Crowell & Moring for two years. She graduated from the University of North Carolina at Chapel
Hill with honors and distinction in 2006. She is the author (with Nancy Leong) of An Empirical
Examination of Gender and Student Note Publication 1999-2009 and Lessons Learned from
Glamis Gold v. United States.
Adjunct Legal Rhetoric Faculty
The adjunct faculty brings a wealth and variety of practice experience to the Legal Rhetoric
Program. Some have taught Legal Rhetoric at WCL for many years; all are experienced teachers
and practitioners. Because Washington College of Law is located in the nation’s capital, it is able
to draw on a particularly deep pool of legal talent to supplement its full-time faculty. The
Adjunct Professors who teach in the Legal Rhetoric Program bring to their students practical
experience from a wide range of practice areas. One is the Legal Editor of BNA’s Privacy and
Security Law Report. Another is an associate general counsel for one of the nation’s largest and
fastest growing labor unions. Several are in private practice in partnerships ranging from
specialized boutiques to the largest, most prestigious firms in the country. Many served in
clerkships, including at the Supreme Court of the United States.
The Adjunct Professors are also recruited from all three branches of government. In the
legislative branch one works for the Committee on Education and the Workforce in the U.S.
House of Representatives. Those in the judicial branch include clerks and staff attorneys for the
United States Court of Appeals for the Armed Forces, the District of Columbia Court of Appeals,
and the United States District Court for the District of Columbia. Others work in federal agencies
ranging from the Office of the Legal Adviser in the Department of State, to the Office of
Inspector General of the Department of the Interior, to the Litigation Division of the Office of
the Comptroller of the Currency. Many practice in the Department of Justice in places such as
the U.S. Attorney’s Office for the District of Columbia, the Counterespionage Section of the
National Security Division, the Civil Frauds Section of the Civil Division, and the Executive
18
Office for Immigration Review of the Board of Immigration Appeals. There is also an Assistant
Commonwealth’s Attorney for Culpeper County, Virginia.
The Adjunct Professors meet as a group with the Program’s Director and full-time instructors
several times throughout the year, including Orientations before the start of both semesters. Each
also belongs to one of four smaller Instructor Teams headed by a full-time instructor. The
Program provides the Adjunct Professors with bench memos to give background on each
problem and weekly teaching notes to insure that key material is covered in each classroom
during the same week. These materials are supplemented with a weekly Adjunct Message email.
The Adjunct Professors are encouraged to communicate with each other, the Director, and the
full time instructors, and they do so regularly in person, on the phone, and through a Program
website.
19
PLANNING STRATEGIES
Before you begin any writing assignment, answer the following questions as well as you can.
Return to the questions as you draft the document and refine your answers. The answers will
help you decide what to write about and how to write it. They also will help you decide what
language to use, what to include, and what to omit.
1.
What question(s) should this document answer?
2.
What is my answer to each question (no more than a few words)?
3.
Who is my reader?
4.
What is my reader's relationship to me?
5.
How much does my reader know about the subject and my answer?
6.
What is my reader's attitude about the subject and about my answer?
7.
What does my reader need to know to understand my answer? List in "need to know"
order.
8.
Why am I writing this (to inform, to persuade, to accomplish some other end)?
9.
What constraints do I have?
20
THE BASIC PRINCIPLES
What makes a “good” document?
Why do some documents succeed and others fail? The difference between a “good” document
and a “bad” one is more than spelling, punctuation, and grammar (although these certainly count
in the equation). If we can pin down the qualities of successful documents, we are well on our
way to producing them and to helping others produce them.
A. A good document achieves its designated purpose for its specific audience.
To achieve this quality, a writer should ask certain questions before and during drafting and
revising:
1. For whom is this document written (audience)?
2. What will that person do with it (purpose)?
3. What question(s) is the document supposed to answer?
4. What is the answer?
In the world of legal discourse, documents are “working documents,” not academic exercises.
Real people need and use the documents you write to answer significant questions. However
perfectly it may be written, a legal document fails if it does not achieve its designated purpose
for its designated audience.
B. A good document immediately gives its reader an overall picture of what the document
is about, including the question it is answering and the answer. It also leaves the reader
with a clear answer.
5. Does the document immediately (i.e. on page one) and clearly present the question or
questions it addresses, the answer(s), and a brief explanation of the answer(s)?
6. Does the final sentence or paragraph (conclusion) make the answer crystal clear?
Documents are more useful to readers if they supply context–that is, if they tell the reader
what the document is about right away and give the reader an overall picture of what the
document will do. Legal documents, in particular, should not be “mystery stories.” Give both
the question and the answer in the first paragraph.
21
C. A good document is easy to follow; a reader can tell immediately what a paragraph is
about and how paragraphs fit together.
7. Does the first sentence in each paragraph contain the topic of that paragraph?
8. Are all the sentences in that paragraph related to that topic?
9. Is the relationship between paragraphs shown by the effective use of transitions?
10. If appropriate, are subtitles used to guide the reader through the document?
Paragraphs and “white space” in a document are useful organizational tools for a reader, as a
reader struggles to understand the meaning. Well organized paragraphs in which the topic is
quickly identified makes the struggle for meaning easier. Effective transitions create “flow”
and act as signposts through the document. Subtitles also act as signposts. (Picture the reader
on a hike through unfamiliar terrain.)
D. A good document is easy to read.
11. Do sentences rarely exceed twenty-five words (2 ½ typed lines)?
12. Are long sentences controlled with parallel structure?
13. Is sentence length and type varied?
14. Are the first and last words in each sentence the most important?
15. Are important ideas in main clauses and less central information in subordinate clauses or
phrases?
Many studies have shown that readers comprehend shorter sentences more easily. At the same
time, a document comprised entirely of short sentences is tedious and droning, and sometimes
long sentences are useful, as long as they are controlled and not sprawling. Other studies
show that readers pay the most attention to the last and first words in sentences (“impact”
positions). Also, grammatical structures carry meaning: if information is in the main or
independent clause, it is read as important information; if it is in a subordinate or dependent
clause, it is seen as less important–dependent or contingent on the important information.
16. Are verbs in the active voice unless you have a specific reason for using another structure?
17. Are “to be” verbs with nominalizations kept to a minimum?
18. Are sentences generally in subject-verb-direct object order?
22
The clearest, shortest and most direct sentence structure is subject-active verb-direct object.
Readers comprehend this structure most easily. Active verbs give your writing clarity and
crispness. Nominalizations in the place of active verbs make the writing sound stiff, abstract,
and bureaucratic.
19. Are all pronoun referents clear and accurate?
20. Are modifiers kept to a minimum?
21. Are modifying phrases next to the nouns they modify?
22. Is “legalese” eliminated, unless critical to the meaning?
23. Are “clumsy words and phrases” revised?
In legal documents, ambiguity can be deadly. To avoid any chance that the meaning is not
clear, use pronouns only when there can be no doubt as to the referent. When in doubt, repeat
the noun. Inaccurate use of modifying phrases can also change the meaning. Strong nouns
and verbs should carry the writing without the use of many modifiers. Moreover, legal
documents are difficult enough to read without the use of unnecessary legalese and four
words instead of one (see list of “clumsy words and phrases” on pages 35-37).
23
*REVISION CHECKLIST
After you have completed a draft of your document, review it with these questions in front of
you. Use this checklist to revise the document. This checklist focuses on strategies that have
proven most effective for clarity and economy of language and should be used in writing
objective documents.
Verbs
1. Are the verbs in the active voice unless I have a specific reason for using another
structure?
2. Are verbs generally next to subjects and sentences in subject, verb, and direct object
order?
3. Have I eliminated “there is” (was, are, were) and “it is” from the beginning of
sentences?
Nouns
4. Are my nouns precise?
5. If I use synonyms, is my meaning clear?
Pronouns
6. Are all pronoun referents clear and accurate?
Modifiers
7. Have I kept adverbs and adjectives to a minimum, allowing strong nouns and verbs to
carry my prose?
8. Are modifying phrases next to the nouns they describe?
Generally
9. Is every word necessary?
10. Is every legal term necessary and defined (if required)?
Sentences
11.
12.
13.
14.
15.
16.
Are most sentences in subject, verb, direct object order?
Do sentences rarely exceed twenty-five words?
Are long sentences controlled with parallel structure?
Do I vary sentence length and type?
Are the first and last words in each sentence the most important?
Are important ideas in main clauses and less central information in subordinate
clauses or phrases?
Paragraphs
17. Have I written a context paragraph telling the reader what the document is about and
providing a road map?
24
18. Does the first sentence of each paragraph contain not only the topic but also the
paragraph’s major assertion (if I read only the first sentence of each paragraph, can I
understand the point of the document?)?
19. Does information in each paragraph move from familiar (to the reader) to
unfamiliar?
20. Are paragraphs linked with transitions or echoing words and phrases?
Organization
21. Have I provided my reader with signs along the way by effectively using titles,
subtitles, etc?
22. Have I avoided the mystery story syndrome by telling my reader what the document
is about in the first paragraph?
Overall
23. Have I proofread several times?
24. Am I proud of the finished product? Knowing that my written work gives an
irrevocable impression of me, can I sign it without reservation?
*You may also use “The Basic Principles” as a checklist.
25
THE LEGAL PROCESS
Client with a
problem
Office memorandum
Facts
Issues
Law
Legal analysis
Conclusion
Recommendation
(Audience: La wyer)
Complaint
Facts A
Law A
(Audience: Judge,
O pposing Counsel)
Judge’s decisions on
pretrial motions
Facts
Law
Analysis
Conclusion
(Audience: Part ies,
At torneys, Higher Courts,
Public)
Opinion letter
Facts
Issues
Law
Legal analysis
Conclusion
Recommendation
(Audience: Client)
Answer
Facts B
Law B
(Audience: Judge,
Opposing Counsel)
Decision
(Audience: Part ies,
Att orneys, Higher Court,
Public, Law Students)
Trial*
Appellate briefs
Facts (including trial procedure)
Law
Argument
Conclusions
(Audience: J udges, Opposing
Counsel, Public)
Appe al
Pretrial motions and
supporting
memoranda
Facts
Law
Argument
(Audience: Judge)
Appe llate opinions
Facts
Law
Reasoning
Decision
(Audience: Parties, Attorneys,
Higher Court, Public, La w
Students)
= Le gal Di scourse
* Although the trial is enacted, everything that occurs is transcribed and becomes the trial record.
26
No Text is an Island
Courts’
Opinions
(cases)
Statutes
Office
Memorandum
Client’s
Problem
Advice
Letter
Appellate
Brief
Pleadings
Pre-trial
Motions
Opinion
Trial
Court
Opinion
27
Other Side’s
Brief
Using CREAC
Written legal analysis has a particular structure that reflects the structure of legal reasoning. The
acronym that we use for the written structure is CREAC, which stands for Context/Conclusion,
Rule, Explanation of the Rule, Application of the Case Facts, and Conclusion.1 CREAC provides
a frame on which we can hang legal analysis, which proceeds by finding and articulating the
rules on which a case turns, applying those rules to the facts at hand, and concluding a likely
outcome (sound familiar from the hypotheticals in your other classes?). This piece alone would
be RAC (Rule, Application, Conclusion). CREAC fills in the gaps to make the basic structure
both thorough and readable. So, for the reader, we give some Context for the Rule and we say up
front what we will conclude. Then, after we have articulated the Rule, we also give an
Explanation of why that is the Rule and how it is played out in significant cases (if appropriate).
Your text discusses CREAC without using the acronym in Chapters 8-10 (see especially pp. 104
and 117). A caveat: legal reasoning is not simple and CREAC (the acronym itself) is deceptively
so. Remember it’s a framework.
Here’s an example from the Discussion section of the Sample Office Memorandum in Edwards
at pp. 308-311. The big, overall question that this memo is designed to answer is whether Beth
Buckley, a minor, can get out of (“disaffirm”) the contract she signed. The first two paragraphs
under “I. Can Beth Buckley disaffirm the contract?” create the umbrella section (see Edwards, p.
113-114). The umbrella section sets up the problem, gives some background legal standards,
focuses on the big overall Rule that will govern the case, lays out the elements of the Rule, and
finally gives the reader a roadmap of the organization that follows. Then the basic CREAC
structure begins. The umbrella itself also uses the elements of CREAC.
Context/Conclusion
Heading A gives the Conclusion for the first Rule (first element of the overall Rule) that will be
discussed; the first sentence gives some Context. So put a big C in the margins next to the
heading and the first sentence.
Rule
“A minor makes a false and fraudulent representation when the minor ….” (paragraph 3, second
sentence). The writer has synthesized this Rule from relevant cases: Carney, Clemons, Watters,
Woodall, and Siegelstein. The writer has researched in the relevant jurisdiction (here, Georgia),
read the cases and holdings carefully, and synthesized from those cases what the writer believes
will be the Rule that a Georgia court will apply in Beth Buckley’s case. Put an R in the margins
next to this single sentence.
1
Different legal writing programs and different legal writing textbooks may use slightly
different acronyms; they all refer to the same structure.
28
Explanation of the Rule
The rest of paragraph 3 and the next five paragraphs are all the Explanation of the Rule (E of
CREAC). In other words, the writer is laying out for the reader the relevant facts, holdings and
reasonings from the applicable cases so the reader can see and understand why the writer thinks
the articulated Rule is what the court will use. Notice that the writer makes comparisons and
distinctions to tease out the right Rule for Beth Buckley’s case. Also notice that in the final
paragraph of this section, the writer uses some policy to support the way that the writer
constructed the Rule that should be used in Buckley’s case. Put an E in the margins next to the
end of paragraph 3 and the next five paragraphs.
Application of the Case Facts
“Here, the sales agent simply asked ….” Every case turns not on Rules alone, but on the specific
facts of the case at hand and the Rule. The writer is using the foundation established in the
lengthy E section and comparing Beth Buckley’s facts to the facts in the relevant cases so the
reader can see how the writer reaches the Conclusion (that her unintentional misrepresentation
probably is insufficient–articulated initially in Heading A and again at the end of the paragraph
at the top of p. 310). Put an A in the margin next to “Here, the sales agent simply asked ….”
Conclusion
“Since Buckley did not intend to deceive ….” That sentence is the final C in CREAC. It’s quite
short because the CREAC structure is like a syllogism with the Rule the major premise, the
application of the case facts the minor premise. Then, as with a syllogism, the Conclusion
follows naturally and does not require additional defense. Put a C in the margin next to the
referenced sentence.
Subsections B and C of the sample memo are similarly organized. See if you can identify the
parts. Notice that the second Rule that section B discusses and the third Rule that section C
discusses were set up (given a roadmap) in the umbrella section on page 308. Also notice that
some of the same cases are revisited, but discussed differently because they are now being used
for the Explanation of different Rules. You can also trace out the CREAC structure in the TrialLevel Brief and Appellate Brief in Edwards’ Appendix.
The tricky parts of CREAC are synthesizing and articulating the Rule and its Explanation.
Learning to do that is what “thinking like a lawyer” means. The Legal Rhetoric course will help
you in learning to write down the Rule and its Explanation in a way clear to a reader who must
use the information.
Rules sometimes come from a case or series of cases as they did in Beth Buckley’s case. They
can also come from a statute or constitution if the language is crystal clear. If there’s some
ambiguity in the statute (as is typical), the Rule then comes from the statute and cases that clarify
or interpret the language of the statute. Or, clarification can come from legislative history or
another source.
29
The CREAC structure can often be arranged in a variety of ways. One way is to take small
portions of Rules and set up CREAC for each portion. Consider this part of a CREAC structure
(from the sample Evans memo):
Context/Conclusion ( C)—See page 3 of the Sample from “Under . . . liability.” It gives the
answer (Evans would be immune) and some context for the statute, including the policy that
underlies it.
Rule (R )—See the bottom of page 3, top of page 4: “The Washington recreational use statute
provides:”
Note that the exact language of relevant part(s) of the statute, not a paraphrase is used. The law
turns on exact language; if a Rule comes from a statute, you should quote the relevant part(s)
directly.
Explanation of the Rule (E)—The writer pulls out the elements of the statute and lays out a
clear grid that explains just how the statute works.
Application of the Case Facts (A) and Conclusion ( C) (merged here because of the brevity)—
See the first full paragraph on page 4: “Under the statute . . . location.” The specific facts from
the client’s case are applied to the elements of the statute and the writer concludes about the
likely outcome.
All of this section constitutes an initial overall CREAC for the case that is sometimes called an
“umbrella section.” The writer then proceeds to demonstrate in sections A, B, and C how the
facts fit the elements. Some are clear (he owned the land) and need no development; some are
not (latent) and need a full explanation because those will be the points that the parties are likely
to dispute. In the middle are necessary parts of the statute that won’t be in dispute (fee, known,
dangerous, artificial), but the partner (reader) will want some law so she or he can understand
why the writer doesn’t think they will be in dispute. Remember that an office memo prepares the
reader to handle the case in an informed and intelligent way.
30
INTRODUCTION TO WCL LEGAL RESEARCH CURRICULUM
Legal research is the foundational building block to legal argument and persuasion. To begin any
legal document, a lawyer must identify, locate, and understand the legal authority governing that
issue. Every law student should know how to conduct correct, comprehensive, and cost-effective
research to complete a range of assignment types. Legal research is a skill, and like any skill, it is
only developed through consistent reinforcement and practice. WCL’s Legal Rhetoric Program
teaches and reinforces legal research skills in four critical ways:
(1) Introductory Research Lectures: In the Fall Legal Rhetoric semester, students attend three
mandatory lectures designed to teach basic legal research: what the various sources are, how to
find them efficiently, and how to use them effectively and accurately. Lectures are co-taught by
the Legal Rhetoric and Pence Law Library Faculty to each doctrinal section. Lectures
supplement required student textbook reading with interactive demonstrations using hypothetical
research issues. The lectures introduce online commercial database skills as well as library print
research.
(2) Assignments to Reinforce Research Instruction: Following each lecture, students must
complete and pass a short supplemental assignment. The assignments are designed to reinforce
the lecture instruction and to prepare students for their client writing in class. The assignments
will require students to develop library and online research skills using all appropriate
commercial databases. Students must receive a satisfactory score on each assignment to
complete the course. Unsatisfactory assignments will be returned for revision. Dean’s Fellows
and program resources are available to help students complete these assignments successfully.
(3) Mandatory Westlaw and LexisNexis Training: All WCL first-year students must complete
Westlaw and LexisNexis training before November 2, 2012. Westlaw and LexisNexis
representatives will report attendance to the Legal Rhetoric department. Failure to attend either
or both units of training will adversely affect a student’s fall Legal Rhetoric grade.
(4) Final Skills Exam: All WCL first-year students must demonstrate a basic competency in
research, writing, and citation to complete the course curriculum. In November, students take a
uniform Research, Writing, and Citation Exam. The exam is administered in two hours and
requires students to demonstrate the basic skills that are essential to success in the practice of
law. Top performers on the exam receive a Certificate of Excellence demonstrating outstanding
performance in these metrics. Students who do not pass the exam will have to retake the exam
until they have received a passing grade.
Collectively, these four components of the WCL legal research curriculum – introductory
lectures, assignments to reinforce material, detailed instruction in commercial databases, and a
final competency exam – ensure that our first-year students are prepared for successful and
satisfying careers.
31
Legal Rhetoric Style Sheet
Format
For memoranda and briefs:
 Use Times New Roman, 12-point font, regular typeface only;
 Use 1-inch margins on all sides; justify left only;
 Number all pages (unless specific rules say otherwise) in the bottom center;
 Double-space except for headings, subheadings, footnotes, and block quotes;
 Underline and use all caps for major section headings: i.e. INTRODUCTION;
 Observe all page limits: office memoranda do not have page limits, but most
documents submitted to a court do; page limits do not include the Certificate of
Service;
 Do not orphan a heading or subheading at the bottom of a page;
 Check and follow Bluebook capitalization rules; don’t assume or copy from cases;
 Number and block all headings and subheadings with the numerals and letters
indicated in the samples (see below):
I.
Students should format all memoranda submitted for Legal Rhetoric according
to the Style Sheet because professionalism and attention to detail are essential
for effective legal writing.
A. Effective writing requires attention to detail so that the reader is not distracted.
1. Overlooking even small details, such as correct spacing, undermines the final
product.
Common Errors
Pronoun referents: Pronouns must match in number and gender the noun to which they
refer; the referent noun must also be clear and not ambiguous.
Wrong: Neither Susan nor Jane felt that they had been treated fairly.
Right: Neither Susan nor Jane felt that she had been treated fairly.
Wrong: JMart frequently changed their security guards’ routines.
Right: JMart frequently changed its security guards’ routines.
Wrong: Each student must hand in their assignment on time.
Right: Each student must hand in his or her assignment on time.
Right: All students must hand in their assignments on time.
Wrong: The testator and the Defendant were in a confidential relationship because he received
32
financial advice.
Right: The testator and the Defendant were in a confidential relationship because the testator
received financial advice.
Subject/verb agreement when verb is separated from subject.
Wrong: The profits earned by the pharmaceutical industry is too high.
Right: The profits earned by the pharmaceutical industry are too high.
Comma splices: Independent clauses may not be joined together by a comma (“however” is
not a conjunction and may not be used to join independent clauses).
Wrong: The explosion was loud, it could be heard a mile away from the construction site.
Wrong: The explosion was loud, however it could not be heard a mile away.
Right: The explosion was loud; it could be heard a mile away from the construction site.
Right: The explosion was loud, and it could be heard a mile away from the construction site.
Even Better: The loud explosion could be heard a mile away from the construction site.
Semi-colon use: Semi-colons have two uses—to join independent clauses instead of starting
a new sentence (see above) and to join items in a series if the items have internal commas.
Right: The court considered whether the defendant, who was a minor at the time of the contract,
could be held responsible for his actions; whether the plaintiff, who knowingly sold to a minor,
could be seen as negligent; and whether the defendant’s parents, who knew nothing of the
transaction, could be held liable.
Colons: A colon is only properly used when the syntax comes to a full stop; a colon should
not interrupt the natural flow of a sentence.
Wrong: The factors that the court considered are: whether the testator suffered from an insane
delusion, and whether the will was a product of that insane delusion.
Right: The court considered two factors: whether the testator suffered from an insane delusion,
and whether the will was a product of that insane delusion.
Commas: Commas are properly used to indicate grammatically separate parts of a
sentence: (1) two independent clauses, (2) an introductory clause, (3) items in a list, and (4)
extra explanatory words, such as appositives and some transition words. Commas should
not separate a subject and a verb, even when the verb is the second in a compound verb.
Right: (1) The mascot asked the spectator if she would like to dance on the dugout roof, and
the spectator agreed to do so.
Right: (2) If the defendant knowingly consented to dancing with the mascot, he should not be
permitted to sue the baseball club for his injuries.
Right: (3) The plaintiff had seen others dance with the mascot at previous games, saw the
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warning sign at the entrance, and willingly agreed to dance.
Right: (4) The plaintiff, however, did not expect a hip bump.
Right: (4) The plaintiff, Terry Mason, did not expect to be injured while at a baseball game.
Wrong: Terry Mason attended the game, and danced on the dugout.
Its/it’s: “Its” is a possessive pronoun; “it’s” is a contraction for “it is”; they are not
interchangeable.
Right: A leopard cannot change its spots.
Right: It’s probably going to rain today. (Note: contractions should not be used in formal
writing—that is, most of the kind of legal writing you will encounter.)
The floating “this”: “this” should nearly always have a noun following it.
Wrong: Lavelle suffered the insane delusion that he had a magical guitar pick, and Allenby
suffered the consequences of that delusion when he accused her of stealing the guitar pick. This
is similar to the situation in Benjamin in which the testator’s wife was drawn into and suffered
the consequences of her husband’s delusion.
Right: This effect on making a will is similar to . . . (or some other noun or phrase that sums up
what the writer means)
Comparing like to like: in comparing facts in cases, compare people to people, situations to
situations, not to case names:
Wrong: Unlike Moore, Lavelle did not depend financially on Jellico.
Right: Unlike the testator in Moore, Lavelle did not depend financially on Jellico.
Bluebook rules: The Bluebook has particular rules for things like spelling out numbers and
capitalization. For example, sometimes “court” is capitalized and sometimes not, but the
capitalization is not random: it follows particular rules. Always look up the rules and do not
assume or copy from cases you are reading.
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*From Academic Legal Writing by Eugene Volokh
CLUMSY WORDS AND PHRASES
1. Generally
a bad thing...............................bad
a good thing............................good
a large number of ...................many
a number of.............................some or several or many or something more precise
at present.................................now
at the place that.......................where
at the present time...................now
at this point in time.................now or currently or at this point (rarely) or some such
at this time..............................now or currently or some such
concerning the matter of........about
does not operate to.................does not
during the course of...............during
during the time that................while
excessive number of..............too many
for the duration of.................during or while
for the reason that..................because
had occasion to......................omit
I would argue that..................omit
in a case in which..................when or where
in accordance with.................by or under
in an X manner......................Xly, e.g. “hastily” instead of “in a hasty manner”
in circumstances in which.....when or where
in close proximity..................near
in point of fact.......................in fact (or omit altogether)
in reference to.......................about
in regard to............................about
in the course of.....................during
in the event that.................... if
is able to................................can
is cognizant of.......................knows or is aware of
is lacking in...........................lacks
is unable to............................cannot
it could be argued that..........replace with an argument for why the argument is sound (if
that’s what you mean)
it has been determined that...omit
it is apparent that..................clearly or omit
it is arguable that .................replace with an argument for why the argument is sound (if
that’s what you mean)
it is clear that.......................clearly or omit
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it should be noted that..................omit
most of the time...........................usually
negatively affect..........................hurt or harm or decrease or some such
on a number of occasions...........often or sometimes
on the part of ..............................by
piece of legislation......................law or statute or bill
referred to as...............................called
serves to X..................................Xs (e.g. exchange “this only serves to strengthen the
opposition” to “this only strengthens the opposition”)
sufficient number of...................enough
the case at bar.............................this case
the manner in which...................how
this case is distinguishable.........all cases are distinguishable; you probably mean “this
case is different”
to the effect that..........................that
under circumstances in which....when or where
with regard to.............................about
2. Verbs turned into nouns or Adjectives
accord respect to........................respect
during the pendency of X..........while X was pending
for the purpose of doing............to do
has a deleterious effect on.........hurts or harms
has a negative impact on...........hurts or harms
is aware that..............................knows
is binding on.............................binds
is desirous of...........................wants
is dispositive of........................disposes of
made negative reference to......criticized or disagreed with
render assistance.......................help
was aware that..........................knew
with regard to..........................about
3. “The Fact That”
The phrase “the fact that” adds an extra conceptual level; you're not just talking about an
event or condition (“John sold the land to Mary”), but rather about the fact that the event or
condition occured (“the fact that John sold the land to Mary”). Sometimes this extra complexity
is necessary - but rarely. The phrase can usually be omitted entirely (perhaps with some
grammatical adjustment of the following clause, e.g. “John’s selling the land to Mary”), or
replaced with “that”:
because of the fact that............because
despite the fact that.................despite or though
due to the fact that...................because
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in light of the fact that...........because or since
the fact that...........................that
C. Redundancies
These are phrases in which one word simply repeats what is already embodied in another;
this is sometimes worth doing for emphasis, but only rarely. If you replace the phrases with their
simpler equivelants, you'll find that the result is usually clearer, and no less emphatic.
any and all............................all
cease and desist....................stop (except in “cease and desist order” or “cease and desist
letter”)
consensus of opinion...........consensus
each and every.....................every
null and void........................void
period in time......................time or period
point in time....................... time or point
provision of law..................law
rate of speed.......................speed
still remains........................remains
until such time as...............until
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