Introduction to Legal Writing Tuesday Oct 20 2009

Introduction to Legal Writing Tuesday, Oct. 20, 2009 Available online under: U of T Faculty of Law website Faculty List and Directory Full-Time Faculty Stern, Simon Legal Writing. ppt

Overview 1. A few general points in legal writing 2. Memo structure / paragraph structure 3. Remember the audience: objective vs. persuasive writing; analogies & distinctions 4. Strategies for revising

Basic points 1. 2. 3. 4. Keep It Simple Be Precise Support Your Arguments Front-load your conclusions

1. keep it clear and simple. “In order to effectuate the attainment of a more substantive and comprehensive equality jurisprudence, legal theorists and civil rights advocates must engage in a sober reading of Lawrence, Gratz, and Grutter. ” – A recent law journal article (emphasis added)

Legal writing is supposed be complicated, right? Wrong. Words to Avoid • “said, ” as in “said vehicle” • “hereinafter” • “heretofore” • “aforesaid” • “furthermore” • In general, multisyllabic words that were appealing because of their multisyllabicity

2. be precise “The basis for Judge Fletcher's opinion is that . . . unwelcome physical conduct of a sexual nature is sufficient to establish a cause of action under Title VII of the Civil Rights Act, regardless of whether that harassment constitutes discrimination because of race, color, religion, gender, or national origin. I disagree because this completely eliminates an essential element of that statute, that the harassment be because of discrimination against one of the five specified categories of persons named in the statute. ” Rene v. MGM Grand Hotel, Inc. , 305 F. 3 d 1061, 1070 (9 th Cir. 2002) (Hug, J. , dissenting)

3. Support your arguments Why legal writing is different Most forms of writing are designed to entertain or inform, in a context in which the reader trusts the writer. Most forms of legal writing assume a skeptical audience, an audience prepared to challenge every argument. This is true even for in-house memos. Your goal is to support every argument, with analysis and with authority.

Analysis and authority Analysis: avoid conclusory arguments. Every major step of the argument must be explained and justified. Authority: every doctrinal argument must be supported by legal authority. Rely primarily on cases, statutes, and regulations (if applicable). You may also use treatises and journal articles, but not as a first resort. If you can do without treatises and journal articles, so much the better.

Memo Structure The first lesson: keep it boring.

Suspense Curiosity (detective) 1. Butler poisons 4. Lord H dies wine (Legal memo) 1. Butler poisons wine 2. Butler brings wine to Lord H. 2. Butler brings 4. Lord H dies wine 3. Lord H. drinks wine 3. Lord H drinks 2. Butler brings wine 4. Lord H dies 1. Butler poisons 3. Lord H drinks wine

Memo Structure • 1. Problem Posed & Short Answer • 2. Facts • 3. Discussion - Umbrella, CRAC / TRAC / IRAC • 4. Conclusion

Our case Madame Sosostris gives palm readings for $10 on Bloor Street. She is charged under s. 365(b) of the Code, which provides that “everyone who fraudulently … undertakes, for a consideration, to tell fortunes … is guilty of an offence punishable on summary conviction. ” Witnesses are prepared to testify that Madame Sosostris refers to her clients as “delightful ignoramuses. ”

A Short Discursus on Facts • Separate facts from other things • Focus on the determinative facts; separate them from other kinds of facts • Purge analysis of hidden and unsupportable assumptions

How to Frame the Question x Will Madame S. be convicted under s. 365(b)? x Is Madame S. guilty of fraudulently telling fortunes? Can Madame S. be convicted for “fraudulently” telling fortunes “for a consideration” under s. 365, given that she has a commercial palmreading business and has been known to call her clients “delightful ignoramuses”?

A Possible Short Answer • Madame S will likely be convicted if the finder of fact concludes that in calling her clients “ignoramuses, ” she meant that she duped them into believing in her powers. But Madame S. may be able to avoid conviction if she can show that by “ignoramuses, ” she meant that her clients lack her special talents. While the law is unclear, it appears that a fortune-teller who honestly believes that she can predict the future can avoid liability for “fraudulently” telling fortunes, because her honest belief negates the required mens rea for this offence.

The Discussion Section • Umbrella paragraph or section – Summarize the legal rule for each issue – Any other info about the rule? (i. e. , burden of proof? presumptions? ) – Identify elements not in dispute & why – Roadmap to rest of memo • Element 1: CRAC • Element 2: CRAC • And so on….

CRAC • State your Conclusion (i. e. , a one sentence prediction about how a court would rule on the factor you are discussing) • State the governing Rule of law • Apply the rule to your facts, using analogies and counteranalogies • State your Conclusion again • Rinse, wash, and repeat

Umbrella Paragraphs Whether Madame Sosostris will be convicted depends on whether conduct is deemed to be fraudulent. The mere telling of a fortune is not per se illegal, as the Crown must prove an intent to delude or defraud. R. v. Dazenbrook (2004), 64 O. R. (3 d) 27 (Ont. C. A. ). The offence in s. 365(b) does not require proof that the predictions were false or that the accused expressly claimed to have the power to predict the future. R. v. Labrosse (2006), 82 O. R. (3 d) 522 (Ont. C. A. ). In Labrosse, the Supreme Court of Canada held that an accused may be convicted if she did not honestly believe she could predict the future, but the court left open the question of whether conviction is appropriate if she had an honest belief about this ability. Because blameworthy conduct is an essential requirement for criminal liability in Canadian law, Madame S. will likely be acquitted if she show that she had an honest belief about her abilities.

How Not To Do It There are many considerations that bear on the possibility of conviction for fraudulently telling fortunes. In Dazenbrook he was charged with defrauding but he lacked the proper mens rea. In Labrosse she did not honestly believe what she was saying so she was convicted. But the most important thing is that without the proper mens rea a person accused of a crime cannot be convicted.

CRAC for Madame S. can probably escape liability here if she can show that she honestly believed she could tell the future. In general, a party can be charged with fraud only if she sought to deceive another party, to the financial detriment of the latter. For example, in [case], the accused was held liable for fraud because. . . [more examples] Courts have been reluctant to hold parties liable for fraud unless the party knew that she was making false representations. Therefore, if Madame S can show that she believed in her ability to tell the future by reading palms, she will likely escape liability for fraud.

CRAC for Madame S, cont’d • In this case, whether Madame S’s conduct is deemed fraudulent depends in large part on whether the Crown can show that she thought she was duping her clients. … [similar caselaw, if available]

Topic v. Thesis Sentences Topic sentences: favoured by teachers of composition; excellent for writing essays. Terrible for writing legal memos. A thesis sentence prepares the reader for the remainder of the paragraph, and deliberately avoids giving away the argument that is to follow. This is a bad idea in legal writing.

Topic v. Thesis sentences: disfavoured by teachers of composition, but loved by teachers of legal writing. Remember the lesson: keep it boring. Begin the paragraph by explaining, as concisely and directly as possible, the concepts to be discussed and the conclusion they will point to.

Topic v. Thesis Sentences Topic sentence [avoid]: – Wapner v. Denton dealt with when a choice is sufficiently voluntary to constitute assumption of the risk. Thesis sentence [better]: – A choice is not voluntary if the person is forced to choose between the threatened harm and another equal or greater harm.

Topic v. Thesis Sentences Topic sentence [avoid]: – In evaluating liability for fraud, courts have considered a wide variety of factors including materiality. Thesis sentence [better]: – An accused cannot be convicted for fraud if her allegedly false representations were not material to the transaction.

Bill Brand is charged with criminal assault on his wife forcibly entering his estranged wife’s house at nighttime. Questions: Did Brand’s acts constitute burglary? Did Brand’s acts constitute assault?

Rule for Burglary To establish a burglary, the state must prove that the accused broke and entered the dwelling of another with the intent to commit a felony therein.

Breakdown of Rule: For a burglary conviction, the Crown must prove all of the following elements: a. Breaking b. Entering c. Dwelling house d. Of another e. Intent to commit a felony therein.

Do the Richardson facts establish the elements of burglary? For a burglary conviction, the Crown must prove that Brand’s conduct constituted a breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony therein. The state must prove each of these elements beyond a reasonable doubt. [Cite to applicable authority. ] [Proceed to discuss each element] a. Breaking b. Entering c. Dwelling house d. Of another e. Intent to commit a felony therein.

Potential questions • How did Mr. Brand get into the house? Did his method of entry constitute “breaking”? • Is his wife’s house considered the dwelling “of another”? • Did his conduct inside the house constitute a felony? And if so (or not), what can be inferred about his intent upon entry?

Highlight the most important questions, in your explanation and in your structure, for example: Here, the most difficult question is whether Mr. Brand broke into the dwelling house “of another, ” and accordingly this memo will address that issue first.

What if you need more information? • It is always appropriate, when writing a memo, to devote space to factual questions that need to be ascertained. • Normally, when writing a memo for a supervisor, it is best to return with the factual questions that you know need to be answered, because your supervisor may know or be able to get the relevant details, and may simply have failed to realize they were significant.

Structuring the Discussion Section: Issues with Several Elements • Here we are discussing burglary and assault. • I. Mr. Brand Cannot Be Charged with Burglary – A, B, C. . . Elements of Burglary A. 1, A. 2, etc. • II. Mr. Brand Can Be Charged with Assault – A, B. C, . . . Elements of Assault

Objective versus Persuasive Writing Remember the audience. In objective writing (such as a memo), we assess the landscape as a “reasonable person” would, and include all relevant objects that complicate the landscape. There is nothing wrong with advancing a particular position in a memo, but it is crucial that you give due regard to all sides of the issues. You are not helping your supervisor (or the client) if you ignore the counterarguments.

Objective versus Persuasive Writing In persuasive writing (such as a factum), we describe the landscape as we want others to see it, focusing on key objects that support this perspective. Who is the audience? The court. Your goal is to get the court to adopt your position.

The Writer’s Job in a Memo is. . . to guide the reader through a forest of saplings

The Writer’s Job in a Factum is to guide the reader to the base of the sequoia

Analogies and Distinctions Again, remember the audience. What is your reader looking for? Beddoes held that no cause of action arises under s. 3 of the Ontario Human Rights Code against an owner of commercial real estate, because that kind of property is not a “dwelling. ”

A bad example: the point is buried at the end In Beddoes v. Tulkinghorn (1982) 344 O. R. (2 d) 319 (Ont. C. A. ), the court held that where the owner of Tulkinghorn’s Properties, Inc. refused to sell rent space for a law office to an Indian-Canadian attorney, the landlord was not liable under s. 3 of the Ontario Human Rights Code, because even though (1) the neighborhood was zoned for residential housing; (2) the office space was in the same building as an apartment complex, and (3) the office space included a kitchen, the office itself was not a “dwelling” and residential use of the space was specifically prohibited in the lease.

A better example: the point appears at the outset Courts have consistently held that a refusal to rent office space does not violate s. 3 of the Ontario Human Rights Code. For example, the Ontario Court of Appeal has held that where a landlord refused to rent space in an office building to an Indian-Canadian attorney who wanted to open a law office, the landlord’s refusal did not “make unavailable [to the attorney]. . . a dwelling, ” but the plaintiff might have a cause of action under various other civil rights statutes. Canard v. Petts (1998), 22 O. R. (3 d) 817 (Ont. C. A. ).

Analogies must be explicit and obvious OK but not great: • Here, the rental property was a video rental shop. Better: • As in Canard, the rental property here was not a “dwelling” but instead was available only for commercial, non-residential use.

Distinctions must also be explicit and obvious Not great: Here, Ms. Murphy advertised her garage in the newspaper as a “charming and spacious junior efficiency. ” Better: Unlike Canard, which involved an office space for which residential use was impermissible, here Ms. Murphy sought to rent her garage for residential use.

Canard involved a commercial office space that was not equipped for residential use and for which residential use was prohibited. Here, by contrast, Ms. Murphy installed a stove and bathroom in her garage, and she advertised it for rent as a residential unit.

Revising Goals of Revision: 1 Clarify the Facts 2 Clarify the Argument 3 Streamline Your Sentences 4 Make Your Citations Easy to Understand

Clarify the facts a. Don’t leave implicit any details that need to be explained, but don’t burden the reader with unnecessary details. b. Review for any relevant facts that are missing. c. Make sure you didn’t leave out relevant facts just because they don’t support your position. d. Create short forms for names of parties and statutes.

Clarify the argument A. The order of your arguments should reflect a deliberate choice about how to present them effectively. Front-load your most important ideas and arguments; put the secondary ones later. Consider relegating minor points to the footnotes. This applies to the argument as a whole, and to each section and paragraph.

Clarify the argument, cont’d B. Keep in mind your basic theories and the result you are seeking. Look out for sections, paragraphs, and sentences that might distract the reader. If you need to address minor points that interfere with the flow of your argument, consider putting them in a footnote.

Clarify the argument, cont’d C. Use topic sentences. One way to check for effective use of topic sentences is to read only the topic sentence of each paragraph. That should allow you to track the development of the argument. D. When dealing with a multi-part legal test, or setting out various alternatives, use numerals and then deal with each point in the enumerated order. Even if the court didn’t use this approach when explaining a test, it may be a helpful way to present the issues.

Streamline Your Sentences A. When possible, use verbs instead of nouns. E. g. , “administered a test” “tested” “raised the argument” “argued” “presented a claim” “claimed” B. Be sparing of adverbs, but be aware that a well-chosen adverb can be your friend. E. g. : The defendant states that the test for “good faith” includes motive, but that is incorrect. The defendant incorrectly treats motive as a factor in the test for “good faith. ”

Streamline Your Sentences, cont’d C. Keep subjects and verbs close together. S … V. . . DO S – V- DO (bad) “The Crown, despite failing to point to any proof that Ms. Barr was even aware of the relevant regulations, proposes to saddle her with liability for ‘knowing’ violation of the Metropolitan Public Carriage Act. ” “The Crown charges Ms. Barr with ‘knowingly’ violating the Metropolitan Public Carriage Act even though there is no evidence that she had ever heard of the relevant regulations. ”

Streamline Your Sentences, cont’d D. Keep verbs close their complements, and if possible, build the complement into the verb. (bad) “The court held that the statute, which required all persons wishing to post handbills to register in advance, was unconstitutional. ” (better) “The court held unconstitutional the statute, which required preregistration for all persons wishing to post handbills. ” (even better) “The court rejected [struck down, invalidated] the statute requiring preregistration for all persons wishing to post handbills. ”

Make it easy to understand the authorities you cite Review your quotations to make sure they are effective and concise. Quote only as much as you need. If you are quoting a fact-intensive decision in which the court explained the details at length, consider replacing that part of the quotation with your own, shorter description, outside of the quotation. Use ellipses to shorten the quotation.