The Prediction When you make a prediction, be sure to include your reasoning
The Prediction What side am I on? Be objective It’s okay to flip flop during the writing process, but after editing Make a Decision/Prediction
Addressing Opposing Arguments Brainstorm and make a list Could a counter-argument be made based on the plain meaning of the rule, case comparisons, or public policy Look at what parties argued in similar cases Look at dissenting opinions If possible, explain how the client can address the opposing argument What is your prediction regarding its success
Analogous Cases Before describing, set out the rule or point the case is used to illustrate The proximity of the structure to the primary residence is also a relevant factor. In McIntyre, for example, when holding that the porch... In the cases in which the courts have held that the plaintiff consented to the interception, the defendant had told the plaintiff that all of his or her phone calls would be intercepted. For example, in Griggs-Ryan v. Smith, the defendant...
Explain Your Conclusions Give a reason to support your conclusions Don’t make unsupported conclusory statements Explain WHY the factual similarities between the cases are significant
Roadmaps & Transitions A roadmap places things in context for your reader Transitions tell the reader where they are, what to expect, and how the pieces are connected. Example: Ms. Johnson can make four arguments. First, she can argue that...Second, Ms. Johnson can argue that...
Effective Transitions Refer to cases, or puts things in context In Hughes, the Court found In the instant case From the Plaintiff’s perspective
Generic transitions Generic transitions link sentences & paragraphs Important, but overuse is distracting Don’t become married to one word However Although Like See H-37-38
Sophisticated vs. Unsophisticated Roadmaps Avoid first person pronouns Focus on the Court as actor In this memorandum, I (we) will examine three issues. First, I will look at whether the statute applies. If I find that it does not, then I will look at whether the Oregon Wilderness watchers had an easement. If I find that an easement was created, then I will examine the scope of the easement.
Sophisticated Version In deciding this case, a court will consider three issues. First a court will determine whether the statute applies. If it does not, the court will then determine whether the Oregon Wilderness Watchers had an easement. If the court determines that an easement had been created, the court will then decide the scope of the easement.
Organizing the Issues Familiar Order - if elements are listed in logical order (criminal, contract issues) Threshold Issues – if have an issue that will be dispositive Standing – criminal case; exhaustion of administrative remedies Remember factors are flexible standards. Elements are requirements. The absence o a factor is usually not dispositive
Effective Sentences, Paragraphs & Words Involves editing “There is no such thing as good writing. There is only good rewriting.” -Justice Brandeis The best writing uses your own language Avoid overuse of quotations
Word Choice Should be precise and correct Beware of shades of meaning
Problem Words Regardless is a word. Irregardless is not. Judgment is preferred spelling in American legal writing over judgement (used in British writing) That vs. Which. That refers to necessary information. The clause that you need the most is not punctuated. Which is used for alternate information that is nonessential to the sentence’s meaning. The clause, which is not essential to the sentence, disappeared from the eye when it was set off with commas.
Problem Words i.e./e.g. – i.e. is an abbreviation of id est – “that is,” and is used to indicate an inclusive list or statement. I like literature; i.e., I read everything I can get my hands on. Compare with e.g., an abbreviation of exempli gratia means for example. I like literature; e.g., I am reading all of Alice Walker this month.
Problem Words-Affect/Effect Affect – verb: to influence; to cause a response. Effect – noun : result or accomplishment; or as a verb – to cause or bring about – common use in legal writing Effects (plural noun): goods or property: The deceased man’s effects were willed to charity.
Problem Words: Its/It’s Its is possessive Mary knew the paper had its faults, but she did not know how to fix them. It’s is the contraction of “it is” or “it has” It’s clear to me now how “it’s” become such a common mistake.
Commonly Confused Words Statue Council Ensure It’s Cite Principle Compliment Tortious everyday Statute Counsel Insure/Assure Its Site Principal Complement Tortuous/Torturous every day See Brian Garner’s Redbook for additional examples
Order ideas logically Brainstorm, then group ideas create pre and post drafting outline write main ideas in margin in rough draft Pull out the topic sentence out of every paragraph, can the reader get the gist of the memo Does the order of the question match brief answer, rule explanation and application?
Headings Roadmaps, guide the reader Satisfy the reader’s needs Element One; The Line-up; The Admissibility of Line-up Identifications
Headings Consistency is key can’t have A without B; I without II formatting - sentences, typeface Should always be independent of text Never count on the reader to review the heading to understand the text
Readability Don’t make your paragraphs overwhelming (too long) Each paragraph should have a topic sentence (provides context) Include transitions Watch out for extra-long sentences (more than 4 lines) and consider revising
Paragraphs - Length Avoid over-using long paragraphs (7-8 sentences) 8-sentence paragraph is about a full page of type A full page paragraph will have a negative visual impact on your reader Length is ultimately determined by content Variety in paragraph length will keep your reader interested Too many short paragraphs makes writing look choppy
Watch for Parallel Construction When you have info in a series, the information must be of the same grammatical type (nouns, adjectives, verbs, etc.) Ex: The judge excluded the evidence because she thought it was irrelevant, immaterial, and bound to be prejudicial. Better: The judge excluded the evidence, holding it irrelevant, immaterial and prejudicial.
Parallel Construction Ex: The detective proposed a plan to raid the drug dealer’s office and arresting all his workers. Better: The detective proposed raiding the drug dealers office and arresting all his workers.
Sentence Review Subject + Verb (& sometimes an object) = sentence Thomas researched the law Subject + verb + object Missing subject or verb = fragment
Short sentences are best Too many ideas in one sentence is difficult to follow But, too many super short sentences can make writing seem choppy
Don’t forget your articles the, an, a Omitting articles is a common mistake for students concerned with verbosity Especially a problem with English Second Language students Leads to choppy, unsophisticated writing – resembling a police report Ex: Plaintiff claims that cat turned on him and scratched him before ambulance arrived.
Check your punctuation Comma usage Semi-colons Colons Apostrophes
Punctuation can alter meaning MU0&NR=1 MU0&NR=1 See handout
Dealing with Numbers Numbers under 100 must be spelled out Exceptions Dates, time of day Addresses Fractions, decimals, percentages, scores, statistics Exact amounts of money, identification numbers (serial numbers) See Diana Hacker p. 288 or Bluebook Rule 6.2
Cutting the Fat Editing
Effective Sentences - Concise Don’t worry about conciseness or order in first draft Cut the fat during editing process
Four Easy Ways To Cut The Fat Avoid nominalizations Avoid meaningless phrases, lawyer talk and pompous language Prefer the active voice Keep subject, verb and object close together
Nominalizations Take a perfectly good verb and turn it into a noun Focus on the real action The parties reached an agreement on the settlement terms. Real action isn’t reaching, it’s agreed The parties agreed on the settlement terms.
Nominalizations Typical endings: --al; --ment; --ant; --ency; --ion; Lead to verbosity made a statement stated made the assumption assumed determination determined Commencement commence or - begin Through justification of the evidence and explanation of the determination of outrageous and extreme conduct Lamar satisfies all three elements establishing a prima facie case of intentional infliction of emotional distress against defendant Waters.
Meaningless words and phrases Beware of “it is _____ that” pattern It is essential that essentially It is obvious that obviously It is conceivable that conceivably It may be argued that arguably it should be noted that omit It is important to note that omit
Meaningless Words & Phrases Does the phrase add anything kind of; practically because of the fact that because for the purpose of to for the reason that because In the case of in he was aware of the fact that he knew
Pompous Language & Lawyer Talk Elucidate explain notwithstanding the fact that although endeavor try supposition belief; thought
Delete Redundant words Includes words implied by other words or words that simply repeat the meaning of other words first and foremost true and accurate basic and fundamental terrible tragedy free gift
Prefer the Active Voice Use the actor as the subject, not the object Subject - noun; object - noun that receives the action of the verb. Subject + verb = sentence. Some verbs need an object Lawyers [subject] make [verb] arguments [object] or Lawyers argue.
Prefer the Active Voice Find the subject Is the subject the actor? Is the subject doing something. - active voice Is the subject being acted upon? Does a verb phrase include a form of “be” --is; was; were; are; been A verdict [object/subject] was reached [verb] by the jury vs. The jury reached a verdict.
Active Voice - why care? Because I care Preferred style in legal writing (most writing except science) It is more concise
How evil is the passive voice? Sometimes effective, but be ready to justify your use Anytime the actor doesn’t matter or you don’t want to emphasize the actor or subject (think criminal defense cases) The marshal left the summons; The summons was left by the marshal. My client struck his wife with a baseball bat in self-defense. Or The victim was struck with a baseball bat in self-defense. The child was killed while wrestling with Jones. Or Jones killed the child while wrestling with him.
Keep the subject & verb close Keeps writing concise the wider the gap between the subject and verb more likely unnecessary words makes writing easier to understand large gaps between the subject and verb may confuse reader minimizes passive voice
Failure to Keep the Subject, verb & object closely connected Interrupts sentence flow Leads to confusion & verbosity The lawyer, who was feeling sick and had not been to the office in several days, drafted, without the benefit of the proper statutory material or the pertinent cases, the memo. Sick and absent from the office for several days, the lawyer drafted the memo, even though he did not have the proper statutory material or the pertinent cases.
Closing the Gaps Flip-flop the sentence. Put the subject & verb first The defendant, in addition to having to pay punitive damages, may be liable for plaintiff’s costs and attorneys fees. Or The defendant may have to pay plaintiff’s costs and attorney fees in addition to punitive damages.
Closing the Gaps Avoid giving long descriptive information before the main subject and verb Given the absence of accurate and effective fines for disciplinary violations and an incentive on the part of lawyers to maximize overall gain by engaging in the unethical conduct, a court, faced with a choice between applying a narrow disciplinary rule such as the dishonesty rule, will achieve a more efficient result by adopting the narrower approach. No accurate and effective fines exist for disciplinary violations, plus lawyers have an incentive to maximize overall gain by engaging in the unethical conduct. Thus, a court will achieve a more efficient result by adopting the narrower approach, even when faced with a choice between... A court will achieve a more efficient result by adopting the narrower approach when it is faced with a choice between...