Discussion Section
Professor Ricks
Congratulations on completing the initial draft of the Discussion Section for the memo
evaluating Alexandra Pyche’s potential claim for negligent infliction of emotional distress.
As Justice Brandeis said, “There is no such thing as good writing. There is only good
rewriting.”
In revising your draft of the NIED discussion, please pay particular attention to the following
areas, as well as all of the comments directly on the draft.
Organization
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Does the Discussion include a roadmap paragraph that follows CRAC (minus Rule Proof) format?
Does the roadmap paragraph avoid citing case law or quoting case law? Save the legal and factual
detail for later in the Discussion section.
Does the roadmap include conclusions on each element of NIED?
Does the roadmap paragraph briefly apply the law to the facts?
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Does the Discussion include headings phrased as conclusory statements on each element? The
headings should provide the Reader with a fact-specific conclusion of each issue, rather than merely
inform the Reader of what will be discussed below in general terms. This way, the busy reader can
grasp the gist of the analysis from reading only the headings.
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For each element of NIED, does the Discussion follow C-R-R Explanation-A-C?
In other words, does the Discussion of each issue:
– begin with a fact-specific conclusion for that element and explain how it relates to the main
NIED issue?
– following the conclusion, set forth the relevant legal rule for that element?
– following the statement of the legal rule, prove that rule by explaining how it is supported
by the case law?
– following the rule explanation/proof, apply the law to Pyche’s facts?
– conclude by reiterating the conclusion for that element of NIED?
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Does the Discussion finish explaining the law before applying it to Pyche’s facts?
– For more guidance, Edwards Ch. 8
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Do most paragraphs begin with a sentence announcing “here’s what this paragraph will prove” (a
thesis sentence)? Do Rule Explanation/Proof paragraphs tell the Reader up front what legal principle
the paragraph will prove? Do Application/Analysis paragraphs tell the Reader up front what legal
principle the paragraph will apply?
Analysis
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Does the Discussion answer the precise question the busy supervising attorney asked?
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Does the Rule Explanation/Proof for each issue start with a statement of the governing legal
principle running through the cases (a synthesized rule) rather than simply discussing one case after
another? Try to begin the Rule Explanation/Proof paragraphs with a thesis sentence – this is the
place to set out the legal principle synthesized from multiple cases. Then use the case law to support
the thesis. This way, the Reader knows right away why a case is cited.
For more guidance:
– Handout: Parental Immunity Sample # 1= synthesized rule, rule proof/explanation
– Handout: New Jersey Law Journal, 3/23/2003 “Begin Paragraphs With Ideas”
– Edwards text pp. 36-41
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Is the Rule Explanation/Proof organized around legal tests, rather than “In Case A, in Case B”?
Does the Rule Explanation/Proof provide specific examples of what has and what has not been held
to constitute observation of serious bodily harm shortly after its occurrence but without material
change in the condition or location of the victim?
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Does the Discussion explain the law in sufficient detail that the Target Reader will have confidence
that s/he understands the law without having to read the cases?
In other words, does each Rule Proof in the Discussion:
– include the key facts of each case?
– include the holding of the case?
– include the reasoning of the court for each case?
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The first time it is laid out in the Rule Explanation/Proof, does the Rule Explanation/Proof quote the
legal test that a court grappling with the legal issue must apply in order to resolve the issue? While it
not necessary to quote the legal test every time it is referred to, paraphrasing the legal test may miss
the nuance of the precise language.
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Does the Rule Explanation/Proof avoid overuse of direct quotes? Except for quoting key language
from the cases, the Discussion is clearer and more concise when it paraphrases rather than directly
quotes. Too many quotes is a sign of adequate research but inadequate analysis.
For more guidance: Edwards p. 265; ALWD Rule 48.
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Does the Rule Explanation/Proof avoid verbatim recital of entire sections of a case? Instead, excerpt
only what you need, using ellipses. For more guidance: Edwards p. 263; Garner Section 1.43; New
Jersey Law Journal 2/24/2003; ALWD Rule 50
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Does the Rule Explanation/Proof introduce quotes with your own language, to tell the Reader what
will be demonstrated by the quote? For more guidance: New Jersey Law Journal 12/30/2002.
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Does the Application/Analysis only apply legal principles that have first been proved in the Rule
Proof? A case must not appear for the first time in the application. It must first be discussed in the
rule explanation/proof and then applied. Otherwise, the Reader cannot decide whether s/he agrees
with the application of the law to the specific facts of this case without first going back to re-read
each place where various aspects of the law are explained, and then re-reading the various places
where different legal principles are applied to the new facts. Edwards, Chapter 8.
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Does the Application/Analysis apply every legal principle that has been proved in the Rule Proof?
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Does the Application/Analysis make explicit comparisons and contrasts between the decided cases
and Pyche’s facts? Does the Application/Analysis explain to the Reader why the presence or
absence of a particular fact in Pyche’s case makes his case more or less similar to a decided case?
Examples: like the apartment in Case A, the trailer burglarized here was not regularly used
for sleeping but was used for sleeping on rare occasions
For more guidance: Edwards at 101-08, 120-23, Handout Burglary #2 = sufficiently explicit
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Does the Application/Analysis anticipate and address reasonable potential weaknesses in the
reasoning leading to the conclusion the Discussion reaches; that is, does it address rational
counterarguments? For more guidance: Edwards, p. 93.
Writing style
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Is the credibility of the Discussion undercut by typos, misspellings or grammatical errors? For more
guidance: Garner at Section 10.10(a) (noun-pronoun mismatch); Garner pp. 3-10 (commas); Garner
pp. 41-42, 90-94 (plurals vs. possessives).
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Does the Discussion use transitional words to tell the Reader how the ideas relate to one another?
For more guidance: Edwards p. 271, New Jersey Law Journal 12/16/02; LRW Manual p. 173.
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Does the Discussion discuss case law in the past tense and avoid 1st person, legalese, wordiness &
the names of the parties from the case law? For more guidance: Edwards pp. 275-79
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Does the Discussion avoid referring to decisions as “the Jones court”? That formulation obscures
which court is talking – information important in evaluating the weight of authority.
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Does each paragraph address one topic? Valuable information can be lost if paragraphs are too long.
For more guidance: Edwards, p. 270
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Does the Discussion sound natural when it is read out loud?