1. The Writing Process Drafting the Discussion (pt. 1 Rule Explanation)
- Professor Mathis Rutledge

2. Today’s Goal: The Discussion
But first, some pointers . . .

3. The Assignment Process
Get the necessary details
Timing is Everything – plan well
What’s the deadline
What is the format
Desired length (billable hours)
Any special information (case, file, contact person)
Consider an Outline or just write

4. Timing Goal is to produce a professional document that is Well written
Well reasoned
Well edited

5. Clean-up (Editing)
After analysis & drafting don’t forget check citation & the PUGS
P – punctuation
U – usage
G – grammar
S – spelling

6. Quoting Common problem –excessive When to quote Distracting
Limits your own reasoning
When to quote
Rarely
When you have THE perfect passage that is especially well written

7. But Keep legal terms of art Keep the “phrase that pays”
Don’t rephrase just to avoid redundancy
Consistency is important for legal terms
Keep the “phrase that pays”
Use quotation remarks around first instance only
Statutory language should be precise
Quote the pertinent information early (usually in the overview section)

8. Language of the Law Found – finding of fact:
the jury found the purse was worth more than $200
Ruled – the court’s decision:
the court ruled that the evidence was admissible
Held – the court’s holding:
the appellate court held that the trial court had not erred in granting the plaintiff’s summary judgment motion.
See course handout H-80

9. Tense Present tense – current rules of law
Past tense – actions of courts and parties
Keep formality
Don’t refer to client or other parties by first name. Don’t confuse plaintiff & defendant
Stay away from colloquial language

10. The Memorandum Discussion Question Presented Brief AnswerTo
From Re
Question Presented
Brief Answer
Statement of Facts
Discussion
Conclusion

11. Organizing - the Big Picture
Overall organization is by topic - the claim
Your entire discussion is an analysis of the claim, organized by issue
If the client has 2 claims, discussion has 2 main sections
I. Introduction - overview paragraph (CR)
II. Body (discuss claim)
A. Thesis Paragraph - CR
B. Issue One - EAC
C. Issue Two

12. The Big Picture
Organize around the issues the claim raises, not individual cases
Issues found
court opinion, statute, synthesized rule, vague rule extracted from factors

13. Organizing the Discussion
Paragraph on Rule of Law - CR (overview or thesis paragraph)
Paragraphs on Case Law - Explanation
Paragraphs on Application Precedent - Analysis/Application
Paragraphs on Counter-arguments
Conclusion

14. Memo Discussion Template
Overview Paragraph (elements)
Thesis Paragraph
Conclusion about an element
Rule determining when element satisfied
Explanation (rule support) paragraphs
Application/Analysis paragraphs (case comparisons)
Restate Conclusion

15. Discussion Blueprint A. (CR) Introduction - Overview Paragraph
ultimate conclusion or prediction, law - elements; undisputed issues, disputed issues
B. (CR) Body - Thesis Paragraph - first issue
conclusion or prediction, rule for first issue, factors or legal definitions used for the element, (1 transition/application)
(E) Disputed Element 1, topic sentence
explain prior cases dealt with issue and applied element;
give facts, reasoning relevant to that issue
(A) topic sentence - How analogous cases relate to your case (case comparisons) Discuss opposing arguments
(C) - tie it together, restate & give prediction
C. (CR) Thesis Paragraph - second issue

16. Overview Paragraph State your conclusion
Some writers prefer starting with the rule of law and stating the conclusion at the end of the overview paragraph. Either approach is acceptable, but for this assignment, begin with the conclusion.
Describe the elements or components of the rule of law
Identify elements that do not present issues under the client’s fact situation
Identify elements at issue

17. Overview/Umbrella Paragraphs
Describes the rules components
Unnecessary if rule only has one element
If dealing with a law that has a single element, write a thesis paragraph that includes a description of the rule

18. Give the conclusion and rule
Dorfman has a successful claim against Bonn for intentional infliction of emotional distress (IIED). To state a cause of action for IIED, the plaintiff must allege facts proving these three elements: 1) the conduct involved must be truly extreme and outrageous; 2) the defendant either intended to inflict severe emotional distress or knew that there was a high probability that its conduct would do so; and 3) the defendants conduct actually caused severe emotional distress.

19. Undisputed Elements
Dealing with Non-Issues: Get them out the way early
Explain why the element is not in dispute
Not always necessary, depends on the complexity of the issue
Can be accomplished in a few words
Provide a transition to discuss the disputed elements

20. Examples
There is no real dispute that Arnold “knowingly” entered the Stripe’s garage, or that his entry was “without authority.” Whether the garage is a “dwelling place” is more problematic.

21. Non-Issues & Issues
The second element of intent is met in this case. Liability extends to situations where there is a high probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it. Public Finance Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976). Bonn knew eating Dorfman’s fish would cause him severe emotional distress because Dorfman suffered a nervous breakdown after Bonn had eaten his fish years before. The first and third elements, proving Bonn’s conduct was extreme and outrageous, and that Bonn caused Dorfman to actually suffer severe emotional distress are still in dispute.

22. In our case, both sides will agree that the first element, that the person giving consent be a party to the communication, is not in dispute. In each of the phone calls at issue, Johnson was one of the parties involved in the call. Thus, the only element that is in dispute is whether Johnson gave prior consent.

23. CR – thesis paragraph
Overview paragraph for a particular issue or element
State the conclusion, and BRIEFLY explain why
Summarize the rule of law and factors the court will consider

24. Thesis Paragraph Thesis paragraph is a roadmap for a specific issue
answer the question: how the issue will affect your client
Why is your conclusion sound
Summarize the rule of law, factors the court will consider
The rules of law and factors will serve as a roadmap for the reader

25. In determining the severity of the emotional distress, the courts consider factors such as the intensity and duration of the distress. McGrath, 533 N.E.2d at Dorfman has suffered an intense nervous breakdown. He has been in the hospital since the day of the incident and a prominent psychologist has concluded that Dorfman shows signs of serious depression. The court will likely find Dorfman’s emotional distress sufficiently severe.

26. Using Roadmaps & Transitions
A roadmap gives the reader an overview of the document.
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 . . .

27. Thesis Paragraph Exercise

28. Topic Sentences
Topic sentences are roadmaps and can serve as transitions
You can use a court’s holding to develop a topic sentence.
Topic sentences
Introduce the topic
Assert something about the topic
Ex: In determining whether service was proper under Fed. R. Civ. P. 4(d)(1) courts have considered several other factors.
Compare to: The next thing I am going to discuss is . . .

29. Drafting Topic/Thesis Sentence
Why are you using that particular case?
What principle are you using the case to illustrate?
The answer to these questions should be reflected in your topic sentence
Roadmap, gives the main point of the paragraph

30. CREAC – an improved IRAC
Conclusion – state your conclusion about the issue
Rule – state the applicable rule of law
Explanation – Explain the rule
Application – Apply the rule to client’s facts
Conclusion – Restate your conclusion

31. CREAC Discussion
CR- Paragraph(s) on Rule of Law - (overview or thesis paragraph)
E- Paragraph(s) on Case Law - Explanation
A-Paragraph(s) on Application Precedent - Analysis/Application
Paragraph(s) on Counter-arguments
C- Conclusion

32. CReac – conclusion/rule
Overview Paragraph
Your choice – start with rule or conclusion
Describe rule components or elements
Identify non-issues
Identify elements at issue
Thesis Paragraph
Conclusion about specific element
Relevant factors

33. crEac- Rule Explanation
Two parts: State the Rule & Explain It

34. Rule Explanation pt. 1 – State the Rule
Most basic sense – set forth the rule – the “black letter law”
Where it comes from – jurisdiction, court
Can be from several sources (synthesized) or from one source (one case or statute)

35. Pt. 2 – Explain the Rule Case description
Show how applied to a set of facts
Include essential facts, holding and reasoning

36. Goals in Rule Explanation
Educate reader about prior cases
Give detailed case description
Provide foundation for your analysis

37. Primary Components of Rule Explanation
Thesis sentence
Legally relevant facts of the case
Court’s rationale and holding

38. Component 1- Thesis Sentence
A sentence that presents the main point. Sentences that follow explain this sentence in some way. Example
The owners must use a structure for activities associated with living quarters for the structure to be classified as a dwelling. [Cite]
One of the factors from the synthesized rule

39. Rule Explanation Where analogous cases introduced
Before describing, set out the rule or point the case is illustrating
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

40. Component 2- Legally Relevant Facts
Select the facts that relate to that particular factor and give only as much information as necessary to understand the court’s holding –
In McIntyre, the owners used a screened porch for “sitting, eating and cooking.” They ate their meals on the porch in the summer and cooked meals there during the winter. [cite]

41. Component 3 – Rationale & Holding
Give only the part of the holding and rationale that relates to that particular factor
The court held that the porch was a “living quarters” under the Statute, reasoning that the owners’ use of the porch for “sitting, eating and cooking” made it “part of the living quarters” of their home. [cite]

42. Rule Explanation Focus on the rule, not individual cases
Cases are just examples of how the rule was applied
They show when the rule’s requirements were met or not

43. Common Mistakes in Rule Explanation
Mixing explanation with application
Do NOT discuss client facts in the rule explanation section
Focus on the rule itself

44. Length of Rule Explanation
Coverage should match coverage in rule application section
Length varies
Could be single paragraph explaining a few simple cases
Could be multiple paragraphs, using a case to explain a different aspect of the rule
Paragraph number is irrelevant

45. Choosing Cases for the Explanation
Which case (cases) best illustrates the rule or factor
Seminal cases may be needed to cite the general rule, but may be unhelpful in explaining the rule

46. creAc- Rule Application/Analysis
Analyze the client’s issue in light of the precedent
Make an argument (both sides) based on facts, precedent, policy concerns, and common sense
Also 2 parts: Lawyering Part
Why a court may rule in client’s favor
Why a court may rule in opponent’s favor
(legitimate reasons)