Presentation on theme: "Legal Writing & Memos Legal Research & Writing II Mike Brigner, J.D."— Presentation transcript:
1Legal Writing & Memos Legal Research & Writing II Mike Brigner, J.D. Sinclair Community CollegeLegal Memo WritingLegal Research & Writing IIMike Brigner, J.D.PAR 112 Mike Brigner, J.D.
2Different Purposes of Memos Trial Brief= “Post-trial Memo”= “Persuasive Memo”=“Advocacy Memo”Argument50 points (Writing only)Rough Draft Due2nd Week of QuarterFinal Draft Due 4th WeekInformation Memo= “Interoffice Memo”= “Long Memo”Objectivity100 pts (Research and Writing required)Rough Drafts & Memos Due end of Quarter (see Master Calendar)
3Use your advocacy (argument) skills Trial BriefUse your advocacy (argument) skillsTrial’s over - now persuade the judge that your client should prevail, based upon the proof (case summary) & the law (6-7 cases)Re-read Text, Chap 17; and ALWD Citation Manual, Chap 29 + Parts 5 & 6Use all the tips your learned in R & W IUse the caption you received in assignmentUse citation style you received in assignmentUse ONLY the 6 cases you received
4Interoffice Memorandum Back to objectivity skillsRe-Read Text, Chap 16Read fact scenario (coming mid-term)Identify issue(s) and key words to researchStart research with A.L.R. article.This will lead you to cases to find and readFormat: Interoffice MemoCorrect citations required: from ALWD
5Getting Started Read each case Outline relevant part of each case Put outline in order you want to discussPrep heading in proper Memo FormatWriteRe-write, editRe-write
6Advocacy Memo FormatUse exactly the format given you in the assignmentThis is how court pleadings startThe advocacy memo is a court pleading, a memorandum to the court on an issue of law
7Info Memo Format To: Mike Brigner, Supervising Attorney From: Perceptive L. ParalegalDate: December 6, 2003Re: Potential liability of our client Clyde Crankcase for driving a golf cart into his neighbor’s swimming poolISSUE: Do DUI laws apply when
8Q - S - F - A - C Advocacy Memo Question -- What is legal issue/question?Short Answer – One or two sentences summarizing law & answering “Question”Facts -- Summary (mostly favoring our client)Argument -- Discuss EACH case, & how it applies to your facts, & favors our clientConclusion -- Briefly stated, why should the court decide in our client’s favor?
9Q - S - F - A - C Information Memo Question -- What is legal issue/question?Short Answer -- One or two sentences summarizing law & answering “Question”Facts -- Summary, favorable & unfavorableAnalysis -- Analyze EACH case: facts, ruling & how it helps/hurts our client’s positionConclusion -- Briefly stated, what advice can firm give client, per your research?
10Try This Order of Writing Question 1st: What is Q? (Do this before any reading, research, or writing!!!)Facts 2nd: EasiestAnalysis/Argument is 3rd: Do 1-2-page outline of each caseConclusion 4th: Sums up all of A in 1 or 2 paragraphsShort Answer 5th: Boils C down to 1 or 2 sentences
11Q = Question (Issue) Presented Q – S – F – A – CQ = Question (Issue) PresentedWrite Q so it can be understood even by a reader who doesn’t know facts of the case(Parties are described generally; facts are described specifically)“Do DUI laws apply when an individual is operating a golf cart on private property?”NOT: “Is Mr. C legally liable for his action?”
12Q = Question (Issue) Presented Q – S – F – A – CQ = Question (Issue) PresentedMake question a readable lengthUse short concrete subject and active verbAvoid passive subjects that are nouns made out of verbs or gerunds (made by adding –ing)NO: “Whether the failure to appear is contempt”YES: “Does an attorney commit contempt when he fails to appear at a court hearing?”NO: “Does refusing to stop constitute eluding?”YES: “Does a driver ‘elude’ police if he refuses…”
13S = Short Answer to “Question” Q – S – F – A – CS = Short Answer to “Question”Give a brief summary of how the law you have found answers the question raisedNot just “Yes” or “No.” Give a summary of the law, in a few sentencesBe conclusory. Give answer and reason w/o the pros & cons or strengths & weaknesses
14S = Short Answer to “Question” Q – S – F – A – CS = Short Answer to “Question”No discussions of authority in this section(QUESTION was: “Do DUI laws apply when an individual is operating a golf cart on private property?”) EXAMPLE OF SHORT ANSWER:“An individual can be charged with DUI for driving a golf cart while intoxicated, because a golf cart fits the legal definition of ‘motor vehicle’ in the statute. A person charged with DUI cannot claim a defense that he was on private property at the time because the statute applies anywhere in the state, not just on public roads.”
15Q – S – F – A – CF = FactsPurpose of Facts section is to briefly state the facts of our case and tell what happenedOmit irrelevant facts, conclusions, citations of law, procedural mattersIf you are asked for a memo on a legal issue only (“Does Ohio have a law that forbids cruelty to wild animals?”) you can omit the Facts section
16Q – S – F – A – CF = FactsUse only relevant facts: those that are used to prove or disprove the legal conclusionEvery fact that is mentioned in other sections, or gives necessary background information should be includedDo not omit unfavorable facts. Those are as important to a legal evaluation as favorable facts are.
17Q – S – F – A – CF = FactsStart with who the client is, what the client wants, and what the problem is aboutThen explain who the other parties areGive necessary descriptionsOften chronologically is best approachSometimes topically is bestGroup like facts. Don’t be random.
18A = Argument or Analysis Q – S – F – A – CA = Argument or AnalysisBriefly give facts of FOUND caseThen tell what that court did and WHYThe WHY is the critical “Legal Reasoning”. This IS “The Law”“Apply the law to the facts” =Analyze by applying the relevant legal reasoning from the FOUND case to the facts of OUR case
19A = Argument or Analysis Q – S – F – A – CA = Argument or AnalysisAlso examine the facts of the FOUND case:to compare those facts with your facts, &to examine the logic for that court’s rulingThe purpose is to determine whether the facts of the FOUND case are:sufficiently similar to make that case and its legal principle applicable to our caseOR sufficiently different to make the FOUND case “distinguishable” from our case
20A = Argument or Analysis Q – S – F – A – CA = Argument or AnalysisFor EVERY case discussed, before moving on to next case, “APPLY THE LAW”:Reach a conclusion about the legal principle of the FOUND case and predict how it will affect the outcome of OUR caseEXAMPLE: “The court’s ruling that a golf cart is a motor vehicle under the DUI statute is significant to the Crankcase situation, because. . .”
21A = Argument or Analysis Q – S – F – A – CA = Argument or AnalysisWithin the ‘A’ Section, try the FRA approach:F Facts – Briefly state facts of found caseR Rule of Law – What the court did concerning the issue we seek,and WHY, WHY, WHYA Apply – How is our case decided if our judge relies exclusively on this Rule of Law?
22Q – S – F – A – C C = Conclusion Summarize here the Analysis & “apply the law” sections from all of your casesApply the controlling law to your problemReach an overall conclusion about the controlling legal principles from all your research, and predict how they will affect the outcome of our caseClearly and accurately answer the Question Presented
23Q – S – F – A – C C = Conclusion Again, reach a conclusion. DON’T SAY: “It’s all up to the court.”“The court will have to decide. . .”“It depends on whether the jury believes. . .”“If the court can be persuaded that. . .”These are just ways of not answering the QGive your conclusion. What do you think the court should do? (Adv) Will do? (Info)
24Rough Drafts TRIAL BRIEF: Turn in Draft Sept 18 I grade & return Sept 20Final Draft due Sept 27Purpose is partly evaluation (to give you a grade – 20%), and partly assessment (to give you direction & guidance)I’ll suggest strengths, areas for improvementWith my advice, you will need to reorganize & rewrite the draft into final memoINFO MEMO: Bring two (2) copies of your completed memorandum to Rough Draft Meeting Nov 13
26Rough Draft Meeting Rules “Completed” means completed & typedDo not turn in or bring a stack of notes, index cards, copies of cases, partial memoAn outline does NOT = a rough draftNumber all pagesNo complete rough draft, or no rough draft meeting = you lose 10 points & start out with a “B”Be on time for your Info Memo appointment
27Strategies for Effective Writing Techniques to achieve the five hallmarks of effective legal writing:PrecisionClarityReadabilityBrevityOrder
28Plain Language Initiative Writing should be reader-oriented, clearly showing the author is writing to the customers of the agencies, not to other government employees;Writing should use natural expressions, using commonly known and used words; andDocuments should be visually appealing.
29Guidelines for Plain English Use short sentences.Use definite, concrete, everyday language.Use the active voice rather than the passive voice.Use tables and lists to present complex information.Avoid legal and financial jargon and highly technical business terms.Continued, next slide
30Guidelines for Plain English Avoid multiple negatives.Avoid weak verbs, abstract terms, and superfluous words.Enhance readability through attractive design and layout.
31Ten Pointers for Effective Brief Writing Know the rules of the court to which the brief will be submitted.Do more than summarize the cases.Write from the client’s perspective.Avoid a rote or routine method of writing.Avoid string-citing unless there is a definite need to do so.Avoid sarcasm, humor, or irony.Continued, next slide
32Ten Pointers for Effective Brief Writing Avoid the overuse of quotations.Keep the focus on your argument.Do not distort or overstate your position.Use prominent placement to emphasize the strongest arguments.
33Reviewing and Revising: Stage One Your initial review should be to ensure that the writing accurately conveys all the information needed.Focus on content and organization.
34Reviewing and Revising: Stage Two Focus on these four specific areas:Sentence lengthNeedless words and phrasesLegalesePassive voice
35Techniques for Proofreading Place a ruler under each line as you read a document.Read the project backwards, from the last page to the first page and from right to left.Read the document aloud with a partner who has a copy of the document.Read sections of the project out of order.Devote extra attention to the parts of the project that were prepared last.
36Check Your Voice One of the secrets of clear writing: The reader must ALWAYS be able to tell who is speaking EVERY sentence.Your brief states: The law says the defendant goofed.Who SAID that?The trial court?The appeals court?YOU?
37Cases Fit Where?You cases fit into your overall Q-S-F-A-C outline at where? Analysis/ArgumentMEMO:QuestionShort AnswerFactsAnalysis – Cases go hereConclusion
38Outlining Each Case for A Narrative paragraphs. Don’t label these sections.1. Start with Transition (more on this later)2. FACTS: Facts in FOUND case, briefly3. RULE: Question/Issue in FOUND caseThe What & Why. What did court do? Why did it say it did that? This is “The Law”; the court’s reasoning; the most important part of each case outline4. ANALYSIS: Finally, apply RULE from FOUND case (court’s reasoning) to OUR facts. Then give your conclusion about how this case affects our client’s case.
39What is Correct Order of Cases? Insert each 1-2 page outline in the “A” sectionMay choose chronologicalMaybe group Ohio & Other StatesMaybe group federal & state casesMaybe group positive cases & negativeRecall & Use: Mandatory & PersuasiveMandatory: U.S. Sup Court; 6th Cir App; So Dist of Ohio Fed Trial CourtsPersuasive: Other Circuits; Other Fed Trial CtsMandatory: Oh Sup Ct; 2nd Dist Ct of Apps; Montg Co Trial CtsPersuasive: Other State Sup Cts; Other Ohio App Dists; Other State App Cts; Ohio Trial Cts; Other State Tr Cts
40Memorandum Requirements Final memo must be printed, double-spaced, & follow Quality StandardsCorrect spelling & grammar requiredNumber the pagesUse past tense for all but latest casesCitations must be in proper formatFor Advocacy Memo: Use format style attached to assignmentFor Information Memo: Use ALWD Manual
41Writing TechniquesA legal memorandum is a professional piece of writing, so:Avoid slangAvoid contractions & informal speechNO: “they’ll” or “she’d” or “shouldn’t”Use 3rd person pronouns, not 1st or 2nd“He/she/it/they will act properly”NOT “I think” or “You can tell”
42Avoid LegaleseDon’t use stilted terms like “whereas,” or “herein,” or “the said document”Don’t use convoluted sentences“One can conjure up multiple scenarios for fulfillment of the client’s several objectives.”INSTEAD: “The client can fulfill her objectives in several ways.”
43Avoid Legalese Use the active voice, not the passive voice “The court held. . .”NOT “It was held by the court. . .”Don’t use empty phrases“It is clear that. . .” or “the fact that. . .”
44But, This doesn’t mean you should avoid all legal words Legal words from statutes or court opinions are sometimes essential, even though the public wouldn’t say it that wayTheft: “A person shall not knowingly exert control over the property of another with the purpose to deprive the owner thereof.”Avoid “Cease & desist” unless law says that!
45Effective ParagraphsA paragraph is a group of sentences developing a dominant idea, usually beginning with a topic sentence that summarizes that paragraph’s basic ideaA ¶ should have unity and coherenceUnity = Every sentence relates to topicCoherence = Smooth and logical flow
46Paragraphs Transitions See Text, page 507Transitions are the glue that holds your argument/discussion togetherThey help reader move from one paragraph to another, one idea to anotherShows reader how you are building your ideas
47Transitions: Can be 1 word AndAlsoMoreoverIn other wordsFurthermoreIn additionEqually importantHoweverNextFinallyBesidesSimilarlyAnother reasonLikewiseAlthoughBecause
48Transitions: Careful!But DON’T just stick a transition word at beginning of each paragraph!Think about what you are sayingOne word may be OK, but a transition phrase/sentence is probably much betterThe most important transitions are the ones that connect your cases.
49Transition Purposes Raise a new point Keep track of issues “Although Poe sang, he also wrote poetry.”Keep track of issues“The second exception to that rule is when…”Show relationship between paragraphs“Those excuses do not explain the defendant’s other actions, such as fleeing the scene…”Show connection with prior paragraph“Because of that law, the court will require evidence that our client burps quietly.”
50Concluded Thank you Mike Brigner, J.D. Legal Memo WritingConcluded Thank youMike Brigner, J.D.END OF CLASS: (EVERY Class) Clean up classroom; log off computers; check for personal property & computer disks; make sure you have signed in.