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Chapter 3 The Fundamentals of Legal Writing  Never rely on your own opinion  Always rely on authority  Law supercedes non-law  Write concisely  Reread/Proof.

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Presentation on theme: "Chapter 3 The Fundamentals of Legal Writing  Never rely on your own opinion  Always rely on authority  Law supercedes non-law  Write concisely  Reread/Proof."— Presentation transcript:

1 Chapter 3 The Fundamentals of Legal Writing  Never rely on your own opinion  Always rely on authority  Law supercedes non-law  Write concisely  Reread/Proof your document

2 Forms of Legal Writing Correspondence Correspondence Letters/ s between attorneys/paralegals, clients, witnesses, agencies, adversaries Letters/ s between attorneys/paralegals, clients, witnesses, agencies, adversaries Pleadings Pleadings Complaint, answer, reply Complaint, answer, reply Discovery Discovery Interrogatories, R/Admissions, etc. Interrogatories, R/Admissions, etc. Motions Motions Requests to the court on procedural matters Requests to the court on procedural matters Briefs/Memoranda Briefs/Memoranda Argue legal issues Argue legal issues Internal Memo: Objective and informative Internal Memo: Objective and informative External Memo: Subjective, arguing your client’s position External Memo: Subjective, arguing your client’s position

3 Correspondence: Demand Letter Elements: Elements: 1. Be clear and straight forward 1. Be clear and straight forward Set forth the claim & the damages Set forth the claim & the damages 2. Don’t argue in the letter 2. Don’t argue in the letter 3. Provide documentation of claim 3. Provide documentation of claim Don’t prove your case, only establish the event Don’t prove your case, only establish the event 4. Provide documentation of damages 4. Provide documentation of damages E.g., receipts, invoices, bills, hospital charges E.g., receipts, invoices, bills, hospital charges

4 February 11, 2004 Jeff Smith Smith & Hawkins 345 West Main Nowhere, State re: Cathy Kipp Dear Mr. Smith, This is a demand for payment for injuries suffered by our client, Keith Pickard. Enclosed are the following: 1. Mercy Ambulance Bill$2, UMC Emergency Care$4, Dr. Henry Morpheus$ 500 You will recall that Keith Pickard suffered injuries when your client, Cathy Kipp, failed to yield at a stop sign on January 5, As indicated by the records, there are no preexisting conditions for which Mr. Pickard was being treated nor did he have any restrictions in his day to day activities at home or in his employment. Enclosed are copies of photos depicting the property damage. Mr. Pickard is not making a lost wage claim at this time. Demand for resolution of this claim is made in the sum of $7,000. Please review the materials enclosed and respond in writing to this demand within 20 days of the above date. Sincerely, __________________________________ Janie Asay, J.D.

5 Correspondence: Client Letter Purpose: Purpose: Keep your client informed Keep your client informed Send promptly!! Send promptly!! February 12, 2004 John Doe 382 Simmons Lane Memphis, TN Dear Mr. Doe, Attached please find a copy of the Demand Letter sent to Mr. Smith. If we have not received payment within 20 days, the attorney will contact you to discuss your options. Please feel free to contact me if you have any questions regarding this matter. Respectfully, Zee Hathaway Paralegal

6 Commandments of Legal Writing Commandments of Legal Writing 1. Never rely on your own opinion 1. Never rely on your own opinion 2. Always rely on authority, preferably primary 2. Always rely on authority, preferably primary 3. “We should argue …”/”Our position should be” 3. “We should argue …”/”Our position should be” 4. Write in complete sentences 4. Write in complete sentences 5. Use short, clear sentences 5. Use short, clear sentences 6. Use plain English, not legalese 6. Use plain English, not legalese 7. Never use an unfamiliar term 7. Never use an unfamiliar term 8. Quote authority exactly or note changes 8. Quote authority exactly or note changes 9. If you use emphasize, note (emphasis added) 9. If you use emphasize, note (emphasis added) 10. Reread and proof for grammatical errors 10. Reread and proof for grammatical errors

7 Introduction to Analysis Structure of Legal Analysis: Structure of Legal Analysis: Issue Introduction/Statement Issue Introduction/Statement A statement introducing how courts deal with the issue A statement introducing how courts deal with the issue E.g., Courts generally hold that … E.g., Courts generally hold that … Rule Rule The authority being relied on The authority being relied on E.g., case facts and court holding (quote) E.g., case facts and court holding (quote) Application Application Apply the law/authority to your client’s facts Apply the law/authority to your client’s facts Conclusion Conclusion Answer the issue Answer the issue

8 Comparing & Distinguishing Cases Comparing Authority Comparing Authority Note similarities between authority and your case Note similarities between authority and your case Example: In the instant case, the Defendant attacked with a baseball bat. Although not designed with that intent, a baseball bat has even “more potential... to inflict serious bodily harm” than does a walking cane. Distinguishing Authority Distinguishing Authority Note why the differences in your case and the authority are 1. Relevant Note why the differences in your case and the authority are 1. Relevant 2. Make the authority inapplicable Example: Bird is distinguishable from the instant case in that there is not claim of self-defense in our client’s case. Example: Bird is distinguishable from the instant case in that there is not claim of self-defense in our client’s case.

9 Analyzing Statutes and Rules Elementize: Elementize: Break the statute or rule into elements Break the statute or rule into elements Statute: H.R.S. § : Any private verbal or written communication between a husband and wife is privileged, and a party possessing the privilege (the accused) may not be required to testify, and may prevent the spouse from testifying Statute: H.R.S. § : Any private verbal or written communication between a husband and wife is privileged, and a party possessing the privilege (the accused) may not be required to testify, and may prevent the spouse from testifying Elements: Elements: 1. Any private 1. Any private 2. verbal or written communication 2. verbal or written communication 3. between a husband 3. between a husband 4. and wife 4. and wife 5. is privileged, 5. is privileged, 6. and a party possessing the privilege (the accused) may not be required to testify, and may prevent the spouse from testifying. 6. and a party possessing the privilege (the accused) may not be required to testify, and may prevent the spouse from testifying.

10 Memorandum Form Interoffice Memorandum Interoffice Memorandum 1. Caption 1. Caption 2. Assignment 2. Assignment 3. Facts 3. Facts 4. Issues 4. Issues 5. Analysis 5. Analysis 6. Conclusion 6. Conclusion 7. Recommendation 7. Recommendation


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