Legal Writing Class Notes 1/8/04

It will be about 12 or 13 weeks. Our final memos are due by the time the semester ends.

Say we’re competent writers: how do we apply that to legal writing?

There are two main assignments that come out of this class: (1) the office memo and (2) the trial court brief. The issues invoked will be similar, but the brief will be more complex and will require more independent research. The memo will be less of an open assignment than the brief. In other words, we’ll have more latitude in looking up the case law in the second assignment that the first.

The structure of the course

We’ll basically talk about how to write for about four weeks. Then we’ll write working drafts of memos which we’ll review with Verdun individually. Then we do the final draft of that and start a working draft of a trial brief. We do conferences on that, and then we do the final draft of that.

Verdun will not review final drafts with us. At some point, what’s done is done and that’s how it goes in the real world. We’ll get our final drafts back with comments.

The roles of a lawyer

Predicting – Office memos predict an outcome. This is also the kind of writing you usually do on law school exams.

Persuading – A brief, directed usually at a judge, is a form of persuasive writing.

Verdun likes the Redbook! It has grammar in it. When the heck was the last time we did grammar? It’s been a while! So this book has a little refresher course. “It’s like an adult grammar manual.” But it has oh so much more! So if you’re rusty on your writing skills, check it out!

Forms of legal reasoning

What do lawyers really do when they write an office memo or trial brief? There are some basic types of reasoning they’ll use to try to persuade a judge or jury.

When you use rule-based reasoning, you must first figure out just what the rule is. If the rule is a statute, for example, it will be easy to pick out. It’s harder to pick out the rule from case law. Once you know the rule, you can use the rule to solve the problem at hand. In a predictive memo you say: “If you do this, then based on these authorities this will probably happen.”

Analogical reasoning is something we’ve done all our lives. You look for similarities between the authorities and the case at hand. You say: “The facts of this case are like the facts of the case where the rule comes from.” Notice how this is similar to rule-based reasoning.

Counter-analogical reasoning is just the opposite. You point out the differences between the facts of the case at hand and the facts the case where the rule comes from. This is something you will want to do if the rule is bad for your client. You say: “Sure, that was the rule in that case, and if it were applied to this case I would lose. But this case isn’t like that case.” This is what we do when we say that a certain case or hypothetical is distinguishable from an authoritative case.

Policy-based reasoning goes along with counter-analogical reasoning. “Say the rule is X. Let’s also say that the rule was created to eliminate behavior Y. But what we have in the present case is behavior Z, which is not the behavior we were trying to prevent. In fact, it might be behavior society wants to encourage. Therefore, we should not enforce rule X in the case of behavior Z.”

Narrative reasoning is frequently seen in closing arguments on TV trials. You persuade the listener by telling a story in a compelling way so that your story has a gut appeal. You have the chance to color your case and client with whatever characteristics they have which are most appealing or favorable. Take Hawkins v. McGee for example: you could spin the story to make the grafting doctor a right bastard. But that doesn’t have much to do with a particular rule of law. But it does have persuasive value. The doctor has encouraged activity that turns out to be harmful to someone else.

The ethics of predictive writing

In an office memo, when you’re trying to set out the facts and predict the outcome, you need objectivity and honesty. It wouldn’t be right to spin the memo towards your client. You don’t want to pursue a case when there’s no chance to win.

Think out of the box! Use diligence! Do research to determine if you can make a case in a certain way. Figure out if it’s worthwhile to even bring the suit: are there actual damages? There might be a wrongdoer, but if there are no damages or slim damages it might not be worthwhile to bring a suit. Is it worth suing City Hall if you’re a contractor and half your business comes from the city? Maybe not. You may not want to bite the hand that feeds you.

Plagiarism

When do you have to give credit to your sources? You need to attribute ideas that are not your own to the source of the ideas. You also need to use quote marks to show that the particular words chosen came from another source.

Next week, we’ll be required to separate into small groups. This classroom isn’t terribly conducive to doing that.

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