Legal Writing

1
Legal Writing

• Professor Gary Chodorow
• Beijing Foreign Studies University 2006-07
  Semester II

2
Sources of Law Their Hierarchy
3

Overview of Ct Systems

4
Stare Decisis
5
Is Stare Decisis a Good Doctrine?

• Strengths
• Stability certainty in the law
• Certainty in the law
• Promote fairness
• Judicial efficiency and credibility
• Weaknesses
• Bad precedent is binding.
• Common law evolves too slowly.
• Law is not neatly stated.

6
Exercise Hierarchy of Authority
7
II. TYPES OF LEGAL REASONING

• See LW Mindmap

8
Class 4

• BRIEFING CASES
• OFFICE MEMORANDA

9
I. BRIEFING CASES

• Why?
• Improve comprehension.
• Helpful for analogizing or distinguishing cases
• Cheat sheet for Qs in class.
• Helps study for exams in common law class.

10
Process of Writing a Case Brief

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

11
Parts of a case brief

• Caption
• Parties
• Procedural History
• Facts
• Issue
• Holding
• Reasoning
• Judgment
• Separate Opinion
• Analysis

12
Writing the Case BriefCaption

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

Parties Court Date Decided
13
Writing the Case BriefParties

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

14
Writing the Case BriefProcedural History

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

15
Writing the Case BriefFacts

• Pl alleges character George in Seinfeld sitcom is
  based on him w/out his permission (same last
  name short, bald, fat friend of Seinfeld from
  college from Queens)
• Pl alleges this portrayal is humiliating (George
  is a self-centered loser)

16
Writing the Case BriefIssue I

• Format Under specific law, is specific legal
  issue where important facts?

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Writing the Case BriefIssue I (contd)

• I. Under NY common law, does a person have a
  valid claim for breach of the right of privacy,
  where his name and likeness are used in a sitcom
  without his written consent?

18
Writing the BriefHolding I

• Format
• Decision. Rule. Rule Application.

19
Writing the BriefHolding I (contd)

• Issue Under NY common law, does a person have a
  valid claim for breach of the right of privacy,
  where his name and likeness are televised without
  his written consent?
• Holding No. NY doesnt recognize a common law
  right to privacy. RA obvious.

20
Writing the BriefReasoning I

• Rule NY doesnt recognize common law right to
  privacy.
• Rule Proof
• Roberson held so (rejecting Harvard L. Rev.
  article theory)
• In reaction, NY Civil Rights Law sec. 50 51
  enacted.
• RA obvious

21
Writing the BriefIssue II

• II. Under NY Civil Rights Law sec 50 51, does a
  person have a valid claim, where his name and
  likeness are used in a sitcom without his written
  consent?

22
Writing the BriefHolding II

• Issue Under NY Civil Rights Law sec 50 51,
  does a person have a valid claim, where his name
  and likeness are used in a sitcom without his
  written consent?
• Holding No. The statute only covers use of a
  living persons name or likeness for
  advertising or trade. In contrast, this is a
  fictional comedic presentation.

23
Writing the BriefReasoning II

• Rule Statute only covers use of a living
  persons name or likeness for advertising or
  trade.
• Rule Proof
• Advertising and trade are limited to
  solicitation for patronage. Delan.
• Works of fiction and satire outside bounds.
  Hampton.
• Rule Application Sitcom is fictional comedic
  presentation so analogous to Hampton.

24
Writing the BriefJudgment

• Judgment Dismissed.

25
Writing the BriefAnalysis

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

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Writing the BriefAnalysis (contd)

• ASK QUESTIONS
• How is problem identified? (Bias?
  Over-simplified? Are there other ways to
  characterize the problem? Are terms defined
  fairly?)
• Are the facts presented accurately?
• Is authority characterized properly?
• Is reasoning clear logical? (False dichotomy?
  Are there unstated reasons for the decision,
  perhaps related to the identity of the parties?
  Could other arguments be made? Are questionable
  assumptions made? Are counter-analyses made?)
• Are the conclusions justified? What other
  conclusions could be reached?
• What are the likely consequences of this decision
  to parties? As precedent?
• Has the majority answered all the dissents
  arguments?

27
Writing the BriefAnalysis (contd)

• READ FOR JURISPRUDENCE--imagine how different
  approaches would affect the outcome
• Formalism
• Legal Realism
• Legal Process
• Fundamental Rights
• Law and Economics
• Critical Legal Studies
• Feminist Jurisprudence

28
Writing the BriefAnalysis (contd)

• READ FOR RHETORIC STYLE
• Tone (assertive, objective, humorous, angry)
• Word choice (bias)

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Writing the BriefAnalysis (contd)

• Examine the Legal Context
• Legislative
• Look at purpose of statute.
• Look at predecessor statute.
• Look at other legislative activity on subject.
• Court decisions
• Look at lower court decisions.
• Compare your case to cases raising analogous
  issues in related areas.
• Probe the Broader Context Do history, sociology,
  economics, psychology, etc. illuminate the
  subject?

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OFFICE MEMOS

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FormatDiscussion

• Tidbits
• Order elements discussed (see discussion below).

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Is your memo written in an appropriate style?

• Avoid referring to yourself Dont say,
  according to my research or in my analysis or
  according to my research because the reader
  knows the memo is based on your research and
  analysis.
• Avoid words like obviously, clearly, and
  definitely, especially where the point you are
  making is not.
• Keep a neutral and objective tone.
• Avoid informal style in the text of your memo
• Edit out inappropriate abbreviations. For
  example, dont refer to the state as Ill. and
  dont refer to the plaintiff as pl.
• Write out numbers requiring just one or two words
  (e.g., thirty-three apples but 183 students).
• Edit out contractions such as couldnt or
  isnt.
• Refer to parties in case law by role not name.
• Do not use proper names when discussing case law.
  Refer to the parties in a published case
  generically characterize them in terms of their
  real-life roles (father/son landlord/tenant
  purchaser/seller plaintiff/defendant).
• Sinclair discussion (p.444)
• Discuss case law in past tense. E.g., The Court
  held . . . . (same Sinclair discussion).
• Here refers to clients case. There refers to
  precedent. (top p.446).

33

• Class 5
• Structuring Proof of a Conclusion of Law

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CRuPAC Structure

• C Conclusion.
• Ru Main rule.
• P Prove explain rule by (a) citing
  authority, (b) describing how authority stands
  for rule, (c) discussing subsidiary rules, (d)
  analyzing policy, (e) counter-analyses.
• A Apply rules elements to facts with aid of
  (a) subsidiary rules, (b) supporting authority,
  (c) policy, (d) counter-analyses.
• C Restate conclusion if discussion
  complicated.

35
Conclusion

• Conclusion of law a determination of how law
  treats certain facts.
• In predictive writing, it can be expressed as a
  prediction (e.g., Washburn is not likely to be
  convicted of robbery).
• In persuasive writing, it can be expressed as a
  recommendation (e.g., Washburn should not be
  convicted of robbery).

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Rule

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

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Rule Proof

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

38
Tools for Rule Proof

• A. Citation to Authority
• B. Describe How Authority Stands for Rule.
• C. Discuss Subsidiary Rules.
• Subsidiary rule Rule that guides application of
  main rule or works with it in some way.

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Tools for Rule Proof (contd)

• Policy (normative institutional arguments) Use
  policy discussion to justify or clarify rule.
• Counter-Analysis Evaluation of reasonable
  contrary arguments that different rule is the
  really the law in the jurisdiction.

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Rule Application

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

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Tools for Rule Application

1. Subsidiary Rules Apply them to facts (rule-based
   reasoning).
2. Authorities Analogize or distinguish facts of
   authorities (case-based reasoning).

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Tools for Rule Application (contd)

• C. Counter-analysis Evaluate reasonable
  contrary arguments that the rule should be
  applied to the facts in a different way.

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Tools for Rule Application (contd)

• D. Policy (Normative and Instrumental Analysis)
  Explain how your suggested rule application is
  best because it advances the policies the rule is
  designed to advance.

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Relationship between RP RA

• Always complete
• the rule proof
• before beginning
• the rule application.

45
Relationship between RP RA (contd)

• For each point you make about the rule in the RP,
  show how that point applies to the facts in the
  RA.

46
Relationship between RP RA (contd)

• Exercise
• Re-read Buckley sub-issue A (Buckleys
  unintentional misrepresentation of her age
  probably is insufficient to establish fraudulent
  misrepresentation) (pp. 2-3).
• List each point made in the RP. Does the RA apply
  that point to the facts?

47
My Eyes Only
Minor estopped from disaffiriming k only if (a) affirmatively misreps age (b) nttly (c) ntt to mislead seller. Buckleys case dif than precedents where minor estopped (a) she didnt affirmatively state age, esp not in writing (b) she had no ntt to misrep or (c) mislead.
Neg or unnttl misrep insufficient. Buckley misunderstood dealers Q, so misrep was unnttl. Similar to precedent where minor not estopped where signed form w/out reading itin both cases, no ntt to deceive.
Policy behind misrep xpn (allow minors to escape mistaken reps) consistent w/policy behind infancy doc (allow minors to escape mistakes of jt).
48
How Organize Analysis of Issue with Multiple
Elements? Give an Overall Conclusion CRuPAC
Each Element

• Issue Will ct likely impose constructive trust?
• Conclusion Yes (No)
• Element 1 Confidential or Fiduciary Relationship
  CRuPAC
• Element 2 Promise by the Transferee CRuPAC
• Element 3 Transfer in Reliance on Promise
  CRuPAC
• Element 4 Unjust Enrichment CRuPAC

49
What order should the elements be discussed in?

• If not all elements are satisfied, discuss the
  most dispositive first.
• If all elements are satisfied, follow order
  mentioned in rule, unless confusing or one
  element vastly more complex.

50
How Organize Analysis of Multiple Issues? Give
Overall Conclusion for Each Issue CRuPAC Each
Element

• Issue I Will a ct likely impose constructive
  trust?
• Conclusion Yes (No)
• CRuPAC each sub-issue
• Issue II Will a ct likely find a b/k by nephew?
• Conclusion Yes (No)
• CRuPAC each sub-issue

51
How Organize Analysis if There Are Both
Procedural Substantive Issues?

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

52
Class 6

1. Formulating the Rule from a Judicial Opinion
2. Selecting Authority
3. When is Stare Decisis Inapplicable?

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I. Formulating a Rule from a Judicial Opinion

• Why Is it Difficult?
• Inherited Rule v. Processed Rule
• Finding the Processed Rule
• Decide the Breadth of the Processed Rule
• Holding v. Dictum

54
Why Is it Difficult?

1. May be complex.
2. Even best legal writers sometimes write
   unclearly.
3. Judges primary job to resolve dispute between
   parties.
4. Prose not legislative format.
5. Hard to tell whether multiple opinions describe
   same rule with different words or describe
   slightly different rules.

55
Inherited Rule v. Processed Rule

• Inherited Rule Rule ct finds in prior
  authorities.
• Processed Rule After ct goes thru process of
  applying rule to facts, the ct changes or
  amplifies the inherited rule. E.g., overrule,
  create exception, or just create a new example of
  how the rule is applied.

56
Finding the Processed Rule

1. Identify inherited rule.
2. Consider significant facts.
3. Consider how rule explained in RP.
4. Consider RA.

57
Example
Inherited rule Effective offer must include all essential k terms.
Significant facts Pls communication didnt include price. No prior party dealings or other standard to determine price.
New info about rule (RP) Price an essential term. Must be stated expressly or be discernible from parties prior dealings or some other accepted standard.
RA Plaintiff didnt make an effective offer.
Processed rule Effective offer must include all essential k terms, including price. Price must be stated expressly, or must be implied from parties prior dealings or other accepted standard.
58
Decide the Breadth of the Processed Rule

• Rules can be formulated broadly or narrowly.
  Predictive writing should decide which is most
  accurate.
• See Handout for Exercise.

59
Holding v. Dictum

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

60
Holding v. Dictum (contd)

• Dictum may be used as background or as
• analogy/distinction. E.g. Dobrin
• Facts Pl salesman entered defs property to sell
  magazines. Path from sidewalk to defs door.
  Chained dog on property obscured from pls view
  by bushes.
• Holding Pl lawfully present because path
  implicitly indicated he was welcome onto property
  and no indications to the contrary. There was no
  keep out sign or visible guard dog.
• Dicta for Distinction Presence of a dog chained
  to guard its owners property where it can be
  seen, is notice that entry on the land is
  forbidden.

61
II. Selecting Authority

1. Types of Authority
2. Hierarchy of Mandatory Authority within a
   Jurisdiction
3. How Cts Use Foreign Precedent
4. How to Fill Gaps with Persuasive Precedent
5. How Persuasive is Persuasive Precedent?

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Types of Authority
SecondaryAuthority

• Primary Authority

Persuasive
Mandatory
63
Primary AuthorityMandatory v. Persuasive

• Mandatory Authority
• Enactments of the jurisdiction
• Decisions of appellate cts to which an appeal
  could be made on an issue.
• Persuasive Authority
• Enactments from other jurisdictions
• Decisions of other courts (including any trial
  court decision)

64
Issues of State LawMandatory v. Persuasive
Authority

• Decision of highest ct mandatory authority for
  all other cts in state and all federal cts
  applying state law.
• Decision of intermediate appellate ct mandatory
  on trial cts within its geographic jurisdiction.
• Decision of ct from other state or of federal ct
  merely persuasive.

65
Issues of Federal Law Mandatory v. Persuasive
Authority

• Decision of US SCt mandatory for all federal
  state cts in US.
• Decision of Ct of Appeal mandatory on all federal
  Dist Cts in its geographic jurisdiction.
• Decision of Ct of Appeal or Dist Ct merely
  persuasive for state cts (very persuasive for
  state cts within the federal cts geographic
  jurisdiction).

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Hierarchy of Authority within a Jurisdiction

1. Constitution
2. Statute
3. Regulation
4. Judicial decision on common law

67
Hierarchy of Authority within a Jurisdiction
(contd)

• Among judicial decisions or enactments of
• same type
• Higher trumps lower
• At same level, later trumps earlier

68
(No Transcript)
69
How Courts Use Foreign Precedent

1. Never mandatory, only persuasive.
2. Consulted only where a gap appears in local law.
3. Argument is stronger if majority of other states
   have adopted a rule, or if there is a trend (not
   just single foreign precedent).
4. Opinion interpreting foreign statute persuasive
   only if similar to local statute.

70
How to Fill Gaps with Persuasive Precedent

• Step 1 Lay a Foundation (a) Explain the extent
  of mandatory precedent (b) define the gap that
  remains to be filled by persuasive precedent.
• Step 2 Fill the gap
• Synthesize the persuasive precedents into groups.
  If possible, identify majority or plurality or
  recent trend.
• Foreign precedent most persuasive when its
  underlying policy same as local policy.

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How Persuasive Is Persuasive Precedent?

1. How persuasive is the reasoning?
2. What is the identity of the court and judge?
3. How has the precedent been treated subsequently
   by other courts and commentators?
4. Is the precedent recent but not untested?

72
Class 7

1. Formulating a Rule from Multiple Precedents
2. Analogizing and Distinguishing Precedents in the
   Rule Application

73
I. FORMULATING A RULE FROM MULTIPLE PRECEDENTS

1. Formulate single rule through synthesis.
2. Follow binding authority (stare decisis) reject
   conflicting authority.
3. If no authority is binding, choose the most
   persuasive authority reject conflicting
   authority.

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B. Reconciling?
75
B. When Is Stare Decisis Inapplicable?

• The rule
• Court must follow holding from mandatory
  precedent that involved same issue
  determinative facts as the present case.
• Court should ordinarily follow own prior holding.

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When Is Stare Decisis Inapplicable?

• Scenario 1 Determinative facts distinguishable

77
When is Stare Decisis Inapplicable?

• Scenario 2 Issues Distinguishable

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When is Stare Decisis Inapplicable?

• Scenario 3 The statement of law in the prior
  case is obiter dictum not a holding.

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When is Stare Decisis Inapplicable?

• Scenario 4 Precedent is not mandatory because
  it was not decided by a court to which an appeal
  could be made on this issue.

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When is Stare Decisis Inapplicable?

• Scenario 5 The precedent is no longer valid
  because it has been effectively overruled by a
  court decision or by the introduction of a new
  statute.

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When is Stare Decisis Inapplicable?

• Scenario 6 There are two conflicting mandatory
  precedents. Choose the one of greater weight.

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When is Stare Decisis Inapplicable?

• Scenario 7 Court may decide not to follow
  (overrule) its own precedent
• Overruling is proper where subsequent
  developments indicate the earlier decision was
  unsound or has become ripe for reconsideration.

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II. ANALOGIZING (DISTINGUISHING) PRECEDENTS IN
THE RULE APPLICATION

• Steps
• Show authority is mandatory (not).
• Show issue same (different).
• Explain precedents significant facts result.
• Compare (contrast) the cases significant facts.
• Show authoritys reasoning applicable (not
  applicable) in current case.

84
Which Analogy Is Better?

1. Like the unattached garage in Picaroni, which was
   separated from the house by a walkway, here the
   trailer was separate from Ms. Pelusos main
   house.
2. Like Picaroni, here the trailer was separate from
   Ms. Pelusos main house.
3. Here, the trailer was separate from Ms. Pelusos
   main house.

85
Which Distinction Is Better?

1. Unlike the attached garage and enclosed patio in
   Cook, which qualified as integral parts of the
   main house because they were akin to additional
   rooms, here Ms. Murrays trailer does not share
   any door with the main residence, even when the
   trailer is parked in the driveway.
2. Unlike Cook, here Ms. Murrays trailer does not
   share any door with the main residence, even when
   the trailer is parked in the driveway.
3. Here, Ms. Murrays trailer does not share any
   door with the main residence, even when the
   trailer is parked in the driveway.

86
Class 8

• Working with Statutes

87
Class 9

• Working with Factssee mindmap

88
Class 10

• Paragraphing and Effective Style

89
Week 11

• CITATIONS
• QUOTATIONS
• MOVED TO Legal Writing Resources Links on
  lawandobrder.com

90
Class 12

1. The Shift to Persuasion
2. Developing a Persuasive Theory

91
I. The Shift to Persuasion

• Additional skills needed
• Develop persuasive theory.
• Develop persuasive arguments, including
  formulating persuasive rule.
• Ethical responsibilities of brief writer.
• Work within procedural posture.
• Formatting a motion memorandum, including point
  headings and statement of the case.
• Persuasive style.

92
II. Developing a Persuasive Theory

1. Theory of case (motion, appeal) view of the
   facts law that provides legal justification
   psychological motivation for decision in Cs
   favor.
2. Js are professional buyers of theories.

93
Examples of a Persuasive Theory
94
Characteristics of a Persuasive Theory (Neumann
276-278)

1. Account for or explain undeniable facts?
2. Explain away in a plausible manner as many
   unfavorable facts as possible?
3. Explain why people acted they way they did?
4. Supported by the details?
5. Solid basis in law?
6. Common sensical plausible?
7. Makes result seem fair?

95
Judges as Readers

1. Generalist ? Teach J substantive law.
2. Engrossed by the facts? Focus on facts.
3. Busy ? KISS.
4. Skeptical.
5. Common sensical.
6. Need to write an opinion? Help.
7. Want to make right decision ? Be credible.

96
Judges as Readers (contd)

1. Never forget what authority is mandatory ? You
   shouldnt.
2. Offended by heavy-handed persuasive techniques?
   Use calm, logical style.
3. Expect to find strongest argument 1st? Do it.

97
Process of Developing a Persuasive Theory

1. Read the assignment and the facts.
2. Identify the issues.
3. Outline the statutes and brief the precedents.
4. For each issue sub-issue, formulate the
   possible rules (supporting each party).

98
Process of Developing a Persuasive Theory
(contd)

• Under the rules for each sub-issue, list the
  relevant facts, including emotionally compelling
  facts (supporting each party).
• Develop multiple possible theories for both
  parties.
• Check persuasiveness of each theory.
• Decide which theory is most persuasive.

99
Escape from Prison Exercise
100
Class 13

1. Motion Memo Format
2. Develop Motivating Justifying Arguments
   Supporting Your Theory
3. Organize to Persuade
4. Edit for Persuasion
5. Argumentation Ethics

101
Motion Memo Format

• Cover page
• Table of contents
• Introduction Preliminary Statement
• Statement of the Case Statement of the Facts
• Argument, broken up by point headings
• Conclusion
• Indorsement

102
Cover Page

• Caption
• IDs court, parties (and procedural designation)
• Case
• Title
• Atty contact info

103
Table of Contents
104
Introduction

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

105
Statement of the Case

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

106
Argument

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

107
Conclusion

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

108
Indorsement

• Respectfully submitted
• Signature
• Ls name
• Indication of who L represents
• Attys contact info

109
Miscellaneous

• Notice page s
• none on cover page
• roman numerals for Table of Contents
• arabic numerals for rest.
• Line Spacing Double space except
• Cover page
• Point headings sub-headings
• Block quotes
• Indorsement

110
I. Steps in Writing a Persuasive Memorandum

1. Formulate the most persuasive rule for each
   sub-issue.
2. Develop a theory of the case and anticipate your
   adversarys.
3. Develop persuasive arguments supporting your
   theory.
4. Organize to persuade.
5. Edit for persuasion.

111
1. Develop Justifying and Motivating Arguments
Supporting Your Theory

• Argument contention designed to persuade.
• Arguments can be expressed
• Defendant committed negligence by running a red
  light and hitting my clients car.
• Arguments can be implied
• My client entered the intersection with a green
  light and was hit sideways by the defendant,
  whose light was red.

112

• Justifying argument Appeals to the mind.
  Focuses on showing whether the legal test is met
  or not.
• Motivating argument Appeals to the heart
  (justice, sympathy). Focuses on facts and policy.

113
Counter-Analysis

• Dont ignore adverse authority or facts.
• Ethical reasons.
• Strategic reasons
• J may see you as untrustworthy.
• Dont give up opportunity for counter-analysis.

114
Counter-Analysis (contd)

1. Should you bring up an opposing argument that the
   adversary hasnt mentioned yet?
2. How to attack precedent? See the 7 ways to argue
   that stare decisis not applicable.

115
Counter-Analysis (contd)

• Avoid a defensive tone. Where anticipate
  opponents arguments, say
• Section 401(d)(1) provides for X and not for Y.
• Not Opposing counsel may argue that 401(d)(1)
  provides for Y, but

116
Counter-Analysis (contd)

• Place of counter-analysis in your overall
  argument
• Make a point in your RP or RA.
• Give evidence that supports it.
• Counter-analysis Cite the important evidence
  against it, and refute as much of it as you can.
• Weigh the evidence in favor against the
  contrary evidence that you were unable to refute.
• Draw conclusion.

117
Tell Judge the Real-world Consequences of Ruling
for You Or Opponent

• How the parties have been affected by the
  dispute
• How they would be affected by the relief sought
  or
• How in some other way the ruling sought is fair.

118
Using Policy

• Prove policy with authority.
• May be openly announced in decisions or statutes.
• May be implied.
• Common policies
• Promote clarity in the law
• Do not allow wrongdoers to profit from illegal
  acts.
• How to introduce policy argument (see p.299)

119
II. Organize to Persuade

• LIMIT YOUR CONTENTIONS TO THOSE THAT HAVE A
  REASONABLE CHANCE OF PERSUADING THE COURT
• Strike for the jugular and let the rest go.
• Oliver Wendell Holmes
• If possible, make your case seem like routine
  application of well-known rules rather than
  asking for an earth-shaking decision.

120

• JUSTIFYING ARGUMENTSORGANIZE TO EMPHASIZE THE
  IDEAS MOST LIKELY TO PERSUADE
• Generally, the best sequence is to present the
  most persuasive material first
• Issue
• Sub-issue
• Points within RP RA
• Authority supporting a point.
• Exception Avoid confusing reader.

121

• MOTIVATING ARGUMENTSWHERE TO THEY GO?
• Introduction (option)
• Statement of the Case
• Opening s of Argument (option)
• Sprinkled throughout Argument

122

• MAKE YOUR ORGANIZATION OBVIOUS
• Use a roadmap at the beginning of the Argument.
• Remember the C in CRuPAC.
• s need strong thesis sentences.
• Use appropriate transition words.

123
III. Edit for Persuasion

• USE VIVID NOUNS AND VERBS TO FOR EMPHASIS
• Simple and concrete words.
• Words that paint a picture or describe a scene
  like in a movie.

124

• KEEP A CALM, NEUTRAL TONE
• You want to sound neutral even though you are
  making a partisan argument.
• Avoid emotion-laden words.

125

• HUMANIZE YOUR CLIENT DEHUMANIZE THE ADVERSARY
• Refer to your client in a sympathetic way (e.g.,
  Mr. Skeffington).
• Option to refer to the adversary in an
  unsympathetic way (e.g., the insurance company,
  the defendant).

126
IV. Argumentation Ethics

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

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Class 14

1. Handling the Procedural Posture
2. Point Headings Sub-Headings
3. Statement of the Case

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I. Handling the Procedural Posture

• Procedural posture The procedural event that
  places the issue before the court. E.g.
• Motion to dismiss
• Motion for summary judgment
• Trial

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Review Procedural Rule Determines What Is a Fact

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

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3 kinds of burden of proof

1. Burden of pleading Are factual allegations
   sufficient to allow case to go forward?
2. Burden of production Has party produced
   sufficient evidence to allow case to go forward?
3. Burden of persuasion Has party sufficiently
   persuaded the fact finder?

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Examples

• E.g. Motion to Dismiss
• To avoid dismissal, pl must meet burden of
  pleading in complaint facts that, if proven,
  would constitute each element of a cause of
  action.
• Only facts are the allegations in pls
  complaint.

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• E.g. Motion for Summary Judgment
• Def wins SJ if pl fails to meet burden of
  producing some evidence on each element of c/a.
• Pl wins SJ if she meets the burden of producing
  some evidence on every element of c/a def fails
  to meet burden of producing some opposing
  evidence on at least one element.
• Only facts are those presented to the court in
  the form of affidavits or other documents. (See
  Neumann pp. 454-456).

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• E.g. Trial
• 1. The party with the burden of persuasion
• wins only by meeting that burden.
• 2 a. In bench trial, facts are those that judge
  specifically includes in her written decision.
• b. In jury trial, facts usually not specifically
  enumerated.

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MTD Rule in More Detail

• To avoid dismissal, pl must meet burden of
• pleading in complaint facts that, if proven,
• would constitute each element of a cause of
• action.
• Ct wont consider facts beyond complaint.
• Ct will assume truth of all well-pled facts.
• Ct will draw all reasonable inferences in pls
  favor.
• Conclusions of law or conclusions of fact
  unsupported by allegations of specific facts are
  not considered well-pled.

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Write the Procedural Rule into the Argument

1. Beginning of Argument must mention procedural
   rule substantive rule.
2. Decide organization of the Argument section by
   integrating the two rules.

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Write the Procedural Rule into the Argument
(contd)

• Example of Integrated Rule
• Dog bite c/a (a) dog owned by def injures pl
  (b) pl did not provoke dog (c) pl is lawfully
  present and (d) pl is peaceably conducting
  himself.
• To avoid dismissal complaint must allege facts
  that, if proven, would constitute each element of
  c/a.
• Integrated rule ?

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• Integrated rule
• Complaint under Dog Bite Stat will be dismissed
  unless it alleges facts that, if proven, would
  constitute each of the following elements (a)
  dog owned by def injures pl (b) pl did not
  provoke dog (c) pl is lawfully present and (d)
  pl is peaceably conducting himself.

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Write the Procedural Rule into the Argument
(contd)

• In your CRuPAC on each issue, make sure the C
  reflects the integrated rule on that issue.
• 4. In your Rule Application, apply the
  procedural rule. E.g., for MTD, consider only
  facts in complaint draw all reasonable
  inferences favorable to pl.

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II. Point Headings Sub-Headings

1. Purpose summarize your argument forcefully
   clearly.
2. Each point heading should be independent
   free-standing ground for ruling for your C on a
   c/a.

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• ExampleNumber of Point Headings
• Integrated rule A complaint under the Dog Bite
  Statute should be dismissed unless it alleges
  facts that, if proven, would constitute each of
  the following elements (a) dog owned by def
  injures pl (b) pl did not provoke dog (c) pl is
  lawfully present (d) pl is peaceably
  conducting himself.
• Def files MTD contending pl provoked dog not
  legally present.
• How many point headings will def use in brief? Pl?

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Content of Point Headings

1. Identify the ruling you seek and assert its
   correctness.
2. Assert your conclusion for why the Integrated
   Rule entitles your client to the ruling.
3. Because often used to link 1 2.

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Content of Sub-Headings

1. For each sub-issue, write a sub-heading with your
   Rule Application, including 1-3 determinative
   facts.
2. If the rule on a sub-issue is hotly contested,
   you can include sub-headings on the Rule Proof.
3. Except Its awkward to have just 1 sub-heading
   to avoid that, put the contents of the
   sub-heading into the heading.

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Edit for Readability Persuasiveness

1. Dont assume any prior knowledge by judge (e.g.,
   dont cite cases dont give a statutory cite
   without stating subject of statute)
2. Keep subject verb close together
3. Avoid nominalizations
4. Avoid unnecessary passive voice.
5. Avoid vague words.
6. Avoid multiple negatives.
7. Avoid wordiness.

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Format

1. Full sentences
2. Proper outline numbers
3. Single space
4. Indent left right
5. All caps for heading title caps for sub-heading

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Capitalization in Titles(Bluebook rule 8)

• Capitalize the initial word
• Capitalize the word immediately following a colon
• Capitalize all other words except
• Articles (a, an, the)
• Conjunctions (connect words, clauses, or
  sentences) of 4 or fewer letters (so that, as
  long as, as if, and, but, or, for, of, both/and,
  who, Although, that)
• Prepositions (link verb/noun with another) of 4
  or fewer letters (at, by, from, in, into, of, on,
  to, with, Within)

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Statement of the Case

• SOC is critical J intensely interested in facts.
• Purposes
• Set forth every fact used in your Argument.
• Imply your theory and justifying arguments.

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Limit SOC to Facts in the Record

• Use only facts in record.
• Cite to record for each fact.
• Citation style
• Mr. Pickett alleges that the Guard aimed a gun
  at him (Compl. 7) and told him to shut up
  (id. 8).

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Review Whats a Fact?

• Nonexistence of a fact is a fact. The complaint
  does not allege that Mr. Jones experienced
  withdrawal symptoms after he stopped smoking.
• Not facts
• Conclusion of Law
• Inference
• Characterization

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Contents of the SOC

1. Organization chronological or topic or
   combination (same as predictive memo)
2. Use sub-headings that reflect your organization
   (not argumentative)
3. Start with a punch 1 or 2 s of facts
   summarizing your theory.

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Edit SOC for Persuasion

• Neumann 344-349

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