Legal Writing Professor Gary Chodorow Beijing Foreign Studies

Legal Writing Professor Gary Chodorow Beijing Foreign Studies University 2006 -07 Semester II 1

Sources of Law & Their Hierarchy 2

Overview of Ct Systems 3

Stare Decisis 4

Is Stare Decisis a Good Doctrine? Strengths: 1. Stability & certainty in the law 2. Certainty in the law 3. Promote fairness 4. Judicial efficiency and credibility Weaknesses: 1. Bad precedent is binding. 2. Common law evolves too slowly. 3. Law is not neatly stated. 5

Exercise: Hierarchy of Authority 6

II. TYPES OF LEGAL REASONING • See LW Mindmap 7

Class 4: n n BRIEFING CASES OFFICE MEMORANDA

I. BRIEFING CASES Why? 1. Improve comprehension. 2. Helpful for analogizing or distinguishing cases 3. Cheat sheet for Qs in class. 4. Helps study for exams in common law class. 9

Process of Writing a Case Brief 1. 2. 3. 4. Read case once for “big picture” Make margin notes (e. g. , “F” for facts). Facts (or other parts) may be scattered in various places throughout opinion. Write brief. Be concise. Paraphrase. Revise your brief based on class discussion. 10

Parts of a case brief: 1. Caption 2. Parties 3. Procedural History 4. Facts 5. Issue 6. Holding 7. Reasoning 8. Judgment 9. Separate Opinion 10. Analysis 11

Writing the Case Brief Caption Costanza v. Seinfeld (N. Y. Sup. Ct. 1999) Parties Court Date Decided 12

Writing the Case Brief Parties E. g. : guy (pl) v comedian allegedly using his likeness in sitcom (def) 13

Writing the Case Brief Procedural History E. g. : Motion to dismiss claim for damages under NY common law & NY Civil Rights Law sec. 50 & 51. 14

Writing the Case Brief Facts • • Pl alleges character George in Seinfeld sitcom is based on him w/out his permission (same last name; short, bald, fat; friend of Seinfeld from college; from Queens) Pl alleges this portrayal is humiliating (George is a self-centered loser) 15

Writing the Case Brief Issue I 1. Format: Under [specific law], is [specific legal issue] where [important facts]? 16

Writing the Case Brief Issue I (cont’d) I. Under NY common law, does a person have a valid claim for breach of the right of privacy, where his name and likeness are used in a sitcom without his written consent? 17

Writing the Brief Holding I Format: [Decision]. [Rule Application]. 18

Writing the Brief Holding I (cont’d) Issue: Under NY common law, does a person have a valid claim for breach of the right of privacy, where his name and likeness are televised without his written consent? Holding: No. NY doesn’t recognize a common law right to privacy. [RA obvious]. 19

Writing the Brief Reasoning I 1. Rule: NY doesn’t recognize common law right to privacy. 2. Rule Proof: – Roberson held so (rejecting Harvard L. Rev. article theory) – In reaction, NY Civil Rights Law sec. 50 & 51 enacted. 3. [RA obvious] 20

Writing the Brief Issue II II. Under NY Civil Rights Law sec 50 & 51, does a person have a valid claim, where his name and likeness are used in a sitcom without his written consent? 21

Writing the Brief Holding II Issue: Under NY Civil Rights Law sec 50 & 51, does a person have a valid claim, where his name and likeness are used in a sitcom without his written consent? Holding: No. The statute only covers use of a living person’s name or likeness for “advertising” or “trade. ” In contrast, this is a fictional comedic presentation. 22

Writing the Brief Reasoning II 1. Rule: Statute only covers use of a living person’s name or likeness for “advertising” or “trade. ” 2. Rule Proof: – – “Advertising” and “trade” are limited to solicitation for patronage. Delan. Works of fiction and satire outside bounds. Hampton. 3. Rule Application: Sitcom is fictional comedic presentation so analogous to Hampton. 23

Writing the Brief Judgment: Dismissed. 24

Writing the Brief Analysis Your questions and critical evaluation, such as: – ID argument type (Rule-Based, Case. Based, Normative, Institutional, Narrative)-consider counterarguments. 25

Writing the Brief Analysis (cont’d) ASK QUESTIONS: 1. How is problem identified? (Bias? Over-simplified? Are there other ways to characterize the problem? Are terms defined fairly? ) 2. Are the facts presented accurately? 3. Is authority characterized properly? 4. Is reasoning clear & logical? (False dichotomy? Are there unstated reasons for the decision, perhaps related to the identity of the parties? Could other arguments be made? Are questionable assumptions made? Are counteranalyses made? ) 5. Are the conclusions justified? What other conclusions could be reached? 6. What are the likely consequences of this decision to parties? As precedent? 7. Has the majority answered all the dissent’s arguments? 26

Writing the Brief Analysis (cont’d) READ FOR JURISPRUDENCE--imagine how different approaches would affect the outcome: 1. Formalism 2. Legal Realism 3. Legal Process 4. Fundamental Rights 5. Law and Economics 6. Critical Legal Studies 7. Feminist Jurisprudence 27

Writing the Brief Analysis (cont’d) READ FOR RHETORIC & STYLE: • Tone (assertive, objective, humorous, angry) • Word choice (bias) 28

Writing the Brief Analysis (cont’d) • Examine the Legal Context: – Legislative: • Look at purpose of statute. • Look at predecessor statute. • Look at other legislative activity on subject. – Court decisions: • Look at lower court decisions. • Compare your case to cases raising analogous issues in related areas. • Probe the Broader Context: Do history, sociology, economics, psychology, etc. illuminate the subject? 29

OFFICE MEMOS 30

Format: Discussion Tidbits: 1. Order elements discussed (see discussion below). 31

Is your memo written in an appropriate style? § Avoid referring to yourself: Don’t say, “according to my research” or “in my analysis” or “according to my research” because the reader knows the memo is based on your research and analysis. Avoid words like “obviously, ” “clearly, ” and “definitely, ” especially where the point you are making is not. Keep a neutral and objective tone. Avoid informal style in the text of your memo: § § § 1. 2. Edit out inappropriate abbreviations. For example, don’t refer to the state as “Ill. ” and don’t refer to the plaintiff as “pl. ” Write out numbers requiring just one or two words (e. g. , “thirty-three apples” but “ 183 students”). Edit out contractions such as “couldn’t” or “isn’t. ” Refer to parties in case law by role not name. Do not use proper names when discussing case law. Refer to the parties in a published case generically; characterize them in terms of their real-life roles (father/son; landlord/tenant; purchaser/seller; plaintiff/defendant). § Sinclair discussion (p. 444) 3. Discuss case law in past tense. E. g. , “The Court held. . ” (same Sinclair discussion). 4. “Here” refers to client’s case. “There” refers to precedent. (top p. 446). 32

Class 5: I. Structuring Proof of a Conclusion of Law 33

CRu. PAC Structure C: Conclusion. Ru: Main rule. P: Prove & explain rule by (a) citing authority, (b) describing how authority stands for rule, (c) discussing subsidiary rules, (d) analyzing policy, (e) counter-analyses. A: Apply rule’s elements to facts with aid of (a) subsidiary rules, (b) supporting authority, (c) policy, (d) counter-analyses. C: Restate conclusion if discussion complicated. 34

Conclusion • “Conclusion of law” = a determination of how law treats certain facts. – In predictive writing, it can be expressed as a prediction (e. g. , “Washburn is not likely to be convicted of robbery”). – In persuasive writing, it can be expressed as a recommendation (e. g. , “Washburn should not be convicted of robbery”). 35

Rule • Rule = The main rule on which you rely in reaching your conclusion. 36

Rule Proof • Rule Proof = Explanation of the rule and reasons given by the court for why this rule is the law in the jurisdiction. 37

Tools for Rule Proof A. Citation to Authority B. Describe How Authority Stands for Rule. C. Discuss Subsidiary Rules. – Subsidiary rule = Rule that guides application of main rule or works with it in some way. 38

Tools for Rule Proof (cont’d) D. Policy (normative & institutional arguments): Use policy discussion to justify or clarify rule. D. Counter-Analysis = Evaluation of reasonable contrary arguments that different rule is the really the law in the jurisdiction. 39

Rule Application • Rule Application = Demonstrate how rule applies to facts of this case. 40

Tools for Rule Application A. Subsidiary Rules: Apply them to facts (rulebased reasoning). B. Authorities: Analogize or distinguish facts of authorities (case-based reasoning). 41

Tools for Rule Application (cont’d) C. Counter-analysis: Evaluate reasonable contrary arguments that the rule should be applied to the facts in a different way. 42

Tools for Rule Application (cont’d) D. Policy (Normative and Instrumental Analysis): Explain how your suggested rule application is best because it advances the policies the rule is designed to advance. 43

Relationship between RP & RA Always complete the rule proof before beginning the rule application. 44

Relationship between RP & RA (cont’d) For each point you make about the rule in the RP, show that point applies to the facts in the RA. 45

Relationship between RP & RA (cont’d) Exercise: • Re-read Buckley sub-issue A (Buckley’s unintentional misrepresentation of her age probably is insufficient to establish fraudulent misrepresentation) (pp. 2 -3). • List each point made in the RP. Does the RA apply that point to the facts? 46

My Eyes Only Minor estopped from disaffiriming k only if (a) affirmatively misreps age (b) nttly & (c) ntt to mislead seller. Buckley’s case dif than precedents where minor estopped: (a) she didn’t affirmatively state age, esp not in writing; (b) she had no ntt to misrep or (c) mislead. Neg or unnttl misrep insufficient. Buckley misunderstood dealer’s Q, so misrep was unnttl. Similar to precedent where minor not estopped where signed form w/out reading it—in both cases, no ntt to deceive. Policy behind misrep xpn (allow minors to escape mistaken reps) consistent w/policy behind infancy doc (allow minors to escape mistakes of j’t). 47

How Organize Analysis of Issue with Multiple Elements? Give an Overall Conclusion & CRu. PAC Each Element Issue: Will ct likely impose constructive trust? Conclusion: Yes (No) … Element 1: Confidential or Fiduciary Relationship [CRu. PAC] Element 2: Promise by the Transferee [CRu. PAC] Element 3: Transfer in Reliance on Promise [CRu. PAC] Element 4: Unjust Enrichment [CRu. PAC] 48

What order should the elements be discussed in? • If not all elements are satisfied, discuss the most dispositive first. • If all elements are satisfied, follow order mentioned in rule, unless confusing or one element vastly more complex. 49

How Organize Analysis of Multiple Issues? Give Overall Conclusion for Each Issue & CRu. PAC Each Element Issue I: Will a ct likely impose constructive trust? Conclusion: Yes (No) … CRu. PAC each sub-issue II: Will a ct likely find a b/k by nephew? Conclusion: Yes (No)… 50 CRu. PAC each sub-issue

How Organize Analysis if There Are Both Procedural & Substantive Issues? Make one rule outline integrating both. See Nansen & Byrd exercise. 51

Class 6 I. Formulating the Rule from a Judicial Opinion II. Selecting Authority III. When is Stare Decisis Inapplicable?

I. Formulating a Rule from a Judicial Opinion • • • Why Is it Difficult? Inherited Rule v. Processed Rule Finding the Processed Rule Decide the Breadth of the Processed Rule Holding v. Dictum 53

Why Is it Difficult? 1. May be complex. 2. Even best legal writers sometimes write unclearly. 3. Judge’s primary job to resolve dispute between parties. 4. Prose not legislative format. 5. Hard to tell whether multiple opinions describe same rule with different words or describe slightly different rules. 54

Inherited Rule v. Processed Rule • “Inherited Rule” = Rule ct finds in prior authorities. • “Processed Rule” = After ct goes thru process of applying rule to facts, the ct changes or amplifies the inherited rule. E. g. , overrule, create exception, or just create a new example of how the rule is applied. 55

Finding the Processed Rule 1. 2. 3. 4. Identify inherited rule. Consider significant facts. Consider how rule explained in RP. Consider RA. 56

Example: Inherited rule: Effective offer must include all essential k terms. Significant Pl’s communication didn’t include price. No facts: prior party dealings or other standard to determine price. New info about rule (RP) RA Processed rule: Price an essential term. Must be stated expressly or be discernible from parties’ prior dealings or some other accepted standard. Plaintiff didn’t make an effective offer. Effective offer must include all essential k terms, including price. Price must be stated expressly, or must be implied from parties prior 57 dealings or other accepted standard.

Decide the Breadth of the Processed Rules can be formulated broadly or narrowly. Predictive writing should decide which is most accurate. See Handout for Exercise. 58

Holding v. Dictum Under stare decisis, only prior “holding” must be followed. a. “Holding” means statement of law necessary to decide a case. b. “Obiter dictum” is Latin for “a remark made in passing, ” meaning a statement of law unnecessary to decide a case. 59

Holding v. Dictum (cont’d) Dictum may be used as background or as analogy/distinction. E. g. Dobrin: • Facts: Pl salesman entered def’s property to sell magazines. Path from sidewalk to def’s door. Chained dog on property obscured from pl’s view by bushes. • Holding: Pl lawfully present because path implicitly indicated he was welcome onto property and no indications to the contrary. There was no keep out sign or visible guard dog. • Dicta for Distinction: Presence of “a dog chained to guard its owner’s property where it can be seen, is 60 notice that entry on the land is forbidden. ”

II. Selecting Authority 1. Types of Authority 2. Hierarchy of Mandatory Authority within a Jurisdiction 3. How Cts Use “Foreign” Precedent 4. How to Fill Gaps with Persuasive Precedent 5. How Persuasive is Persuasive Precedent? 61

Types of Authority Primary Authority Mandatory Secondary Authority Persuasive 62

Primary Authority: Mandatory v. Persuasive 1. Mandatory Authority: – Enactments of the jurisdiction – Decisions of appellate cts to which an appeal could be made on an issue. 2. Persuasive Authority: – Enactments from other jurisdictions – Decisions of other courts (including any trial court decision) 63

Issues of State Law: Mandatory v. Persuasive Authority • Decision of highest ct mandatory authority for all other cts in state and all federal cts applying state law. • Decision of intermediate appellate ct mandatory on trial cts within its geographic jurisdiction. • Decision of ct from other state or of federal ct merely persuasive. 64

Issues of Federal Law: Mandatory v. Persuasive Authority • Decision of US SCt mandatory for all federal & state cts in US. • Decision of Ct of Appeal mandatory on all federal Dist Cts in its geographic jurisdiction. • Decision of Ct of Appeal or Dist Ct merely persuasive for state cts (very persuasive for state cts within the federal ct’s geographic jurisdiction). 65

Hierarchy of Authority within a Jurisdiction 1. 2. 3. 4. Constitution Statute Regulation Judicial decision on common law 66

Hierarchy of Authority within a Jurisdiction (cont’d) Among judicial decisions or enactments of same type: • • Higher trumps lower At same level, later trumps earlier 67

68

How Courts Use “Foreign” Precedent 1. Never mandatory, only persuasive. 2. Consulted only where a gap appears in local law. 3. Argument is stronger if majority of other states have adopted a rule, or if there is a trend (not just single foreign precedent). 4. Opinion interpreting foreign statute persuasive only if similar to local statute. 69

How to Fill Gaps with Persuasive Precedent • Step 1: Lay a Foundation: (a) Explain the extent of mandatory precedent; (b) define the gap that remains to be filled by persuasive precedent. • Step 2: Fill the gap – Synthesize the persuasive precedents into groups. If possible, identify majority or plurality or recent trend. – Foreign precedent most persuasive when its underlying policy same as local policy. 70

How Persuasive Is Persuasive Precedent? 1. How persuasive is the reasoning? 2. What is the identity of the court and judge? 3. How has the precedent been treated subsequently by other courts and commentators? 4. Is the precedent recent but not untested? 71

Class 7 I. Formulating a Rule from Multiple Precedents II. Analogizing and Distinguishing Precedents in the Rule Application

I. FORMULATING A RULE FROM MULTIPLE PRECEDENTS A. Formulate single rule through synthesis. B. Follow binding authority (stare decisis); reject conflicting authority. C. If no authority is binding, choose the most persuasive authority; reject conflicting authority. 73

B. Reconciling? 74

B. When Is Stare Decisis Inapplicable? The rule: – Court must follow holding from mandatory precedent that involved same issue & determinative facts as the present case. – Court should ordinarily follow own prior holding. 75

When Is Stare Decisis Inapplicable? Scenario #1: Determinative facts distinguishable 76

When is Stare Decisis Inapplicable? Scenario #2: Issues Distinguishable 77

When is Stare Decisis Inapplicable? Scenario #3: The statement of law in the prior case is obiter dictum not a “holding. ” 78

When is Stare Decisis Inapplicable? Scenario #4: Precedent is not mandatory because it was not decided by a court to which an appeal could be made on this issue. 79

When is Stare Decisis Inapplicable? Scenario #5: The precedent is no longer valid because it has been effectively overruled by a court decision or by the introduction of a new statute. 80

When is Stare Decisis Inapplicable? Scenario #6: There are two conflicting mandatory precedents. Choose the one of greater weight. 81

When is Stare Decisis Inapplicable? Scenario #7: Court may decide not to follow (“overrule”) its own precedent: – Overruling is proper where subsequent developments indicate the earlier decision was unsound or has become ripe for reconsideration. 82

II. ANALOGIZING (DISTINGUISHING) PRECEDENTS IN THE RULE APPLICATION Steps: 1. Show authority is mandatory (not). 2. Show issue same (different). 3. Explain precedent’s significant facts & result. 4. Compare (contrast) the cases’ significant facts. 5. Show authority’s reasoning applicable (not applicable) in current case. 83

Which Analogy Is Better? 1. Like the unattached garage in Picaroni, which was separated from the house by a walkway, here the trailer was separate from Ms. Peluso’s main house. 2. Like Picaroni, here the trailer was separate from Ms. Peluso’s main house. 3. Here, the trailer was separate from Ms. Peluso’s main house. 84

Which Distinction Is Better? 1. Unlike the attached garage and enclosed patio in Cook, which qualified as integral parts of the main house because they were akin to additional rooms, here Ms. Murray’s trailer does not share any door with the main residence, even when the trailer is parked in the driveway. 2. Unlike Cook, here Ms. Murray’s trailer does not share any door with the main residence, even when the trailer is parked in the driveway. 3. Here, Ms. Murray’s trailer does not share any door with the main residence, even when the trailer is parked in the driveway. 85

Class 8 Working with Statutes

Class 9 Working with Facts—see mindmap

Class 10 Paragraphing and Effective Style

Week 11 I. III. CITATIONS QUOTATIONS MOVED TO “Legal Writing Resources” Links on lawandobrder. com

Class 12: I. II. The Shift to Persuasion Developing a Persuasive Theory 90

I. The Shift to Persuasion Additional skills needed: 1. Develop persuasive theory. 2. Develop persuasive arguments, including formulating persuasive rule. 3. Ethical responsibilities of brief writer. 4. Work within procedural posture. 5. Formatting a motion memorandum, including point headings and statement of the case. 6. Persuasive style. 91

II. Developing a Persuasive Theory 1. Theory of case (motion, appeal) = view of the facts & law that provides legal justification & psychological motivation for decision in C’s favor. 2. Js are professional buyers of theories. 92

Examples of a Persuasive Theory 93

Characteristics of a Persuasive Theory (Neumann 276 -278) 1. Account for or explain undeniable facts? 2. Explain away in a plausible manner as many unfavorable facts as possible? 3. Explain why people acted they way they did? 4. Supported by the details? 5. Solid basis in law? 6. Common sensical & plausible? 7. Makes result seem fair? 94

Judges as Readers 1. Generalist Teach J substantive law. 2. Engrossed by the facts Focus on facts. 3. Busy KISS. 4. Skeptical. 5. Common sensical. 6. Need to write an opinion Help. 7. Want to make right decision Be credible. 95

Judges as Readers (cont’d) 8. Never forget what authority is mandatory You shouldn’t. 9. Offended by heavy-handed persuasive techniques Use calm, logical style. 10. Expect to find strongest argument 1 st Do it. 96

Process of Developing a Persuasive Theory 1. Read the assignment and the facts. 2. Identify the issues. 3. Outline the statutes and brief the precedents. 4. For each issue & sub-issue, formulate the possible rules (supporting each party). 97

Process of Developing a Persuasive Theory (cont’d) 5. Under the rules for each sub-issue, list the relevant facts, including emotionally compelling facts (supporting each party). 6. Develop multiple possible theories for both parties. 7. Check persuasiveness of each theory. 8. Decide which theory is most persuasive. 98

Escape from Prison Exercise 99

Class 13: Motion Memo Format II. Develop Motivating & Justifying Arguments Supporting Your Theory III. Organize to Persuade IV. Edit for Persuasion V. Argumentation Ethics I. 100

Motion Memo Format 1. 2. 3. 4. Cover page Table of contents Introduction = Preliminary Statement of the Case = Statement of the Facts 5. Argument, broken up by point headings 6. Conclusion 7. Indorsement 101

Cover Page 1. Caption: – IDs court, parties (and procedural designation) – Case # 2. Title 3. Atty contact info 102

Table of Contents 103

Introduction 1. Identifies the parties 2. Explains the nature of the litigation 3. Describes the motion before the court and the relief sought through the motion. 104

Statement of the Case • Similar to Statement of the Facts in predictive memorandum, but designed to persuade. 105

Argument 1. Corresponds to the Discussion section of predictive memorandum but designed to persuade. 2. Organized into points, each of which is a single, complete, and independent ground for relief. 3. Points may have sub-headings. 106

Conclusion • Very brief summary of argument. • Remind reader of what you seek. 107

Indorsement • • • “Respectfully submitted” Signature L’s name Indication of who L represents Atty’s contact info 108

Miscellaneous • Notice page #s: – none on cover page; – roman numerals for Table of Contents; – arabic numerals for rest. • Line Spacing: Double space except: – Cover page – Point headings & sub-headings – Block quotes – Indorsement 109

I. Steps in Writing a Persuasive Memorandum A. Formulate the most persuasive rule for each sub-issue. B. Develop a theory of the case and anticipate your adversary’s. C. Develop persuasive arguments supporting your theory. D. Organize to persuade. E. Edit for persuasion. 110

1. Develop Justifying and Motivating Arguments Supporting Your Theory • Argument = contention designed to persuade. • Arguments can be expressed: – “Defendant committed negligence by running a red light and hitting my client’s car. ” • Arguments can be implied: – “My client entered the intersection with a green light and was hit sideways by the defendant, whose light was red. ” 111

• Justifying argument = Appeals to the mind. Focuses on showing whether the legal test is met or not. • Motivating argument = Appeals to the heart (justice, sympathy). Focuses on facts and policy. 112

Counter-Analysis Don’t ignore adverse authority or facts. – Ethical reasons. – Strategic reasons: • J may see you as untrustworthy. • Don’t give up opportunity for counteranalysis. 113

Counter-Analysis (cont’d) 1. Should you bring up an opposing argument that the adversary hasn’t mentioned yet? 2. How to attack precedent? See the 7 ways to argue that stare decisis not applicable. 114

Counter-Analysis (cont’d) 3. Avoid a defensive tone. Where anticipate opponent’s arguments, say: – Section 401(d)(1) provides for X and not for Y. – Not: Opposing counsel may argue that 401(d)(1) provides for Y, but… 115

Counter-Analysis (cont’d) 4. Place of counter-analysis in your overall argument: a. Make a point in your RP or RA. b. Give evidence that supports it. c. Counter-analysis: Cite the important evidence against it, and refute as much of it as you can. d. Weigh the evidence in favor & against the contrary evidence that you were unable to refute. e. Draw conclusion. 116

Tell Judge the Real-world Consequences of Ruling for You Or Opponent • • • How the parties have been affected by the dispute; How they would be affected by the relief sought; or How in some other way the ruling sought is fair. 117

Using Policy • Prove policy with authority. – May be openly announced in decisions or statutes. – May be implied. • Common policies: – Promote clarity in the law – Do not allow wrongdoers to profit from illegal acts. • How to introduce policy argument (see p. 299) 118

II. Organize to Persuade LIMIT YOUR CONTENTIONS TO THOSE THAT HAVE A REASONABLE CHANCE OF PERSUADING THE COURT 1. “Strike for the jugular and let the rest go. ” – Oliver Wendell Holmes 2. If possible, make your case seem like routine application of well-known rules rather than asking for an earth-shaking decision. 119

JUSTIFYING ARGUMENTS—ORGANIZE TO EMPHASIZE THE IDEAS MOST LIKELY TO PERSUADE • Generally, the best sequence is to present the most persuasive material first: – – Issue Sub-issue Points within RP & RA Authority supporting a point. • Exception: Avoid confusing reader. 120

MOTIVATING ARGUMENTS—WHERE TO THEY GO? 1. 2. 3. 4. Introduction § (option) Statement of the Case Opening ¶s of Argument (option) Sprinkled throughout Argument 121

MAKE YOUR ORGANIZATION OBVIOUS • Use a roadmap at the beginning of the Argument. • Remember the C in CRu. PAC. 1. ¶s need strong thesis sentences. 2. Use appropriate transition words. 122

III. Edit for Persuasion USE VIVID NOUNS AND VERBS TO FOR EMPHASIS • Simple and concrete words. • Words that paint a picture or describe a scene like in a movie. 123

KEEP A CALM, NEUTRAL TONE • • You want to sound neutral even though you are making a partisan argument. Avoid emotion-laden words. 124

HUMANIZE YOUR CLIENT; DEHUMANIZE THE ADVERSARY • Refer to your client in a sympathetic way (e. g. , Mr. Skeffington). • Option to refer to the adversary in an unsympathetic way (e. g. , the insurance company, the defendant). 125

IV. Argumentation Ethics 1. L forbidden to knowingly make a false statement of law or fact to a court. MRPC 3. 3(a)(1). 2. Must inform court of directly adverse authority in controlling jurisdiction not disclosed by opposing counsel. MRPC 3. 3(a)(3). 3. L can’t advance a theory that is “frivolous” or “unwarranted under existing law, ” except that can argue to modify judge-made law. 126

Class 14: I. Handling the Procedural Posture II. Point Headings & Sub. Headings III. Statement of the Case 127

I. Handling the Procedural Posture • Procedural posture = The procedural event that places the issue before the court. E. g. : – Motion to dismiss – Motion for summary judgment – Trial 128

Review: Procedural Rule Determines What Is a Fact In litigation, “fact” is not ultimate truth but something established in court by a party carrying her burden of pleading, production, or persuasion. 129

3 kinds of burden of proof: 1. Burden of pleading: Are factual allegations sufficient to allow case to go forward? 2. Burden of production: Has party produced sufficient evidence to allow case to go forward? 3. Burden of persuasion: Has party sufficiently persuaded the fact finder? 130

Examples E. g. : Motion to Dismiss To avoid dismissal, pl must meet burden of pleading in complaint facts that, if proven, would constitute each element of a cause of action. Only “facts” are the allegations in pl’s complaint. 131

E. g. : Motion for Summary Judgment Def wins SJ if pl fails to meet burden of producing some evidence on each element of c/a. Pl wins SJ if she meets the burden of producing some evidence on every element of c/a & def fails to meet burden of producing some opposing evidence on at least one element. Only “facts” are those presented to the court in the form of affidavits or other documents. (See Neumann pp. 454 -456). 132

E. g. : Trial 1. The party with the burden of persuasion wins only by meeting that burden. 2 a. In bench trial, “facts” are those that judge specifically includes in her written decision. b. In jury trial, facts usually not specifically enumerated. 133

MTD Rule in More Detail To avoid dismissal, pl must meet burden of pleading in complaint facts that, if proven, would constitute each element of a cause of action. 1. Ct won’t consider facts beyond complaint. 2. Ct will assume truth of all well-pled facts. 3. Ct will draw all reasonable inferences in pl’s favor. 4. Conclusions of law or conclusions of fact unsupported by allegations of specific facts are not considered well-pled. 134

Write the Procedural Rule into the Argument 1. Beginning of Argument must mention procedural rule & substantive rule. 2. Decide organization of the Argument section by integrating the two rules. 135

Write the Procedural Rule into the Argument (cont’d) Example of Integrated Rule: • Dog bite c/a: (a) dog owned by def injures pl; (b) pl did not provoke dog; (c) pl is lawfully present; and (d) pl is peaceably conducting himself. • To avoid dismissal: complaint must allege facts that, if proven, would constitute each element of c/a. • Integrated rule ? 136

• Integrated rule: Complaint under Dog Bite Stat will be dismissed unless it alleges facts that, if proven, would constitute each of the following elements: (a) dog owned by def injures pl; (b) pl did not provoke dog; (c) pl is lawfully present; and (d) pl is peaceably conducting himself. 137

Write the Procedural Rule into the Argument (cont’d) 3. In your CRu. PAC on each issue, make sure the C reflects the integrated rule on that issue. 4. In your Rule Application, apply the procedural rule. E. g. , for MTD, consider only facts in complaint & draw all reasonable inferences favorable to pl. 138

II. Point Headings & Sub-Headings 1. Purpose: summarize your argument forcefully & clearly. 2. Each point heading should be independent & free-standing ground for ruling for your C on a c/a. 139

Example—Number of Point Headings: • Integrated rule: A complaint under the Dog Bite Statute should be dismissed unless it alleges facts that, if proven, would constitute each of the following elements: (a) dog owned by def injures pl; (b) pl did not provoke dog; (c) pl is lawfully present; & (d) pl is peaceably conducting himself. • Def files MTD contending pl provoked dog & not legally present. • How many point headings will def use in brief? Pl? 140

Content of Point Headings 1. Identify the ruling you seek and assert its correctness. 2. Assert your conclusion for why the Integrated Rule entitles your client to the ruling. 3. “Because” often used to link 1 & 2. 141

Content of Sub-Headings 1. For each sub-issue, write a sub-heading with your Rule Application, including 1 -3 determinative facts. 2. If the rule on a sub-issue is hotly contested, you can include sub-headings on the Rule Proof. 3. Except: It’s awkward to have just 1 subheading; to avoid that, put the contents of the sub-heading into the heading. 142

Edit for Readability & Persuasiveness 1. Don’t assume any prior knowledge by judge (e. g. , don’t cite cases; don’t give a statutory cite without stating subject of statute) 2. Keep subject & verb close together 3. Avoid nominalizations 4. Avoid unnecessary passive voice. 5. Avoid vague words. 6. Avoid multiple negatives. 7. Avoid wordiness. 143

Format 1. 2. 3. 4. 5. Full sentences Proper outline numbers Single space Indent left & right All caps for heading; title caps for subheading 144

Capitalization in Titles (Bluebook rule 8) • Capitalize the initial word • Capitalize the word immediately following a colon • Capitalize all other words except – Articles (a, an, the) – Conjunctions (connect words, clauses, or sentences) of 4 or fewer letters (so that, as long as, as if, and, but, or, for, of, both/and, who, Although, that…) – Prepositions (link verb/noun with another) of 4 or fewer letters (at, by, from, into, of, on, to, with, Within…) 145

Statement of the Case • SOC is critical: J intensely interested in facts. • Purposes: – Set forth every fact used in your Argument. – Imply your theory and justifying arguments. 146

Limit SOC to Facts in the Record 1. Use only facts in record. 2. Cite to record for each fact. 3. Citation style: Mr. Pickett alleges that the Guard aimed a gun at him (Compl. ¶ 7) and told him to “shut up” (id. ¶ 8). 147

Review: What’s a Fact? 1. Nonexistence of a fact is a fact. The complaint does not allege that Mr. Jones experienced withdrawal symptoms after he stopped smoking. 2. Not facts: – Conclusion of Law – Inference – Characterization 148

Contents of the SOC 1. Organization: chronological or topic or combination (same as predictive memo) 2. Use sub-headings that reflect your organization (not argumentative) 3. Start with a punch: 1 or 2 ¶s of facts summarizing your theory. 149

Edit SOC for Persuasion Neumann 344 -349 150

§ Exercises from Edwards 335 -339? § Post cklist of procedures to website? 151