Transcript Legal Writing - PEOPLE.SINCLAIR.EDU

Legal
Memo
Writing
Legal Research & Writing II
Mike Brigner, J.D.
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Different Purposes of Memos
Trial Brief
= “Post-trial Memo”
= “Persuasive Memo”
=“Advocacy Memo”
Information Memo
= “Interoffice Memo”
= “Long Memo”
Argument
Objectivity
50 points (Writing only)
100 pts (Research and
Writing required)
Rough Drafts & Memos
Due end of Quarter
(see Master Calendar)
Rough Draft Due
2nd Week of Quarter
Final Draft Due 4th Week
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Trial Brief
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Use your advocacy (argument) skills
Trial’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 & 6
Use all the tips your learned in R & W I
Use the caption you received in assignment
Use citation style you received in assignment
Use ONLY the 6 cases you received
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Interoffice Memorandum
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Back to objectivity skills
Re-Read Text, Chap 16
Read fact scenario (coming mid-term)
Identify issue(s) and key words to research
Start research with A.L.R. article.
This will lead you to cases to find and read
Format: Interoffice Memo
Correct citations required: from ALWD
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Getting Started
• Read each case
• Outline relevant part
of each case
• Put outline in order
you want to discuss
• Prep heading in
proper Memo Format
• Write
• Re-write, edit
• Re-write
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Advocacy Memo Format
• Use exactly the
format given you in
the assignment
• This is how court
pleadings start
• The advocacy memo
is a court pleading, a
memorandum to the
court on an issue of
law
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Info Memo Format
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To: Mike Brigner, Supervising Attorney
From: Perceptive L. Paralegal
Date: December 6, 2003
Re: Potential liability of our client Clyde
Crankcase for driving a golf cart into his
neighbor’s swimming pool
• ISSUE: Do DUI laws apply when. . . .
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Q-S-F-A-C
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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 client
Conclusion -- Briefly stated, why should
the court decide in our client’s favor?
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Q-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 & unfavorable
• Analysis -- Analyze EACH case: facts,
ruling & how it helps/hurts our client’s
position
• Conclusion -- Briefly stated, what advice
can firm give client, per your research?
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Try This Order of Writing
• Question 1st: What is Q?
(Do this before any reading,
research, or writing!!!)
• Facts 2nd: Easiest
• Analysis/Argument is 3rd:
Do 1-2-page outline of each
case
• Conclusion 4th: Sums up all
of A in 1 or 2 paragraphs
• Short Answer 5th: Boils C
down to 1 or 2 sentences
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Q–S–F–A–C
• Q = Question (Issue) Presented
• Write 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?”
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Q–S–F–A–C
• Q = Question (Issue) Presented
• Make question a readable length
• Use short concrete subject and active verb
• Avoid 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…” 12
Q–S–F–A–C
• S = Short Answer to “Question”
• Give a brief summary of how the law you
have found answers the question raised
• Not just “Yes” or “No.” Give a summary of
the law, in a few sentences
• Be conclusory. Give answer and reason w/o
the pros & cons or strengths & weaknesses
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Q–S–F–A–C
• S = 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
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the state, not just on public roads.”
Q–S –F –A–C
• F = Facts
• Purpose of Facts section is to briefly state
the facts of our case and tell what happened
• Omit irrelevant facts, conclusions, citations
of law, procedural matters
• If 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
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Q–S –F –A–C
• F = Facts
• Use only relevant facts: those that are used
to prove or disprove the legal conclusion
• Every fact that is mentioned in other
sections, or gives necessary background
information should be included
• Do not omit unfavorable facts. Those are as
important to a legal evaluation as favorable
facts are.
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Q–S –F –A–C
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• F = Facts
Start with who the client is, what the client
wants, and what the problem is about
Then explain who the other parties are
Give necessary descriptions
Often chronologically is best approach
Sometimes topically is best
Group like facts. Don’t be random.
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Q–S–F–A–C
• A = Argument or Analysis
• Briefly give facts of FOUND case
• Then tell what that court did and WHY
– The 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
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Q–S–F–A–C
• A = Argument or Analysis
• Also examine the facts of the FOUND case:
– to compare those facts with your facts, &
– to examine the logic for that court’s ruling
• The 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 case
– OR sufficiently different to make the FOUND
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case “distinguishable” from our case
Q–S–F–A–C
• A = Argument or Analysis
• For 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 case
• EXAMPLE: “The court’s ruling that a golf
cart is a motor vehicle under the DUI statute
is significant to the Crankcase situation, 20
because. . .”
Q–S–F–A–C
• A = Argument or Analysis
• Within the ‘A’ Section, try the FRA
approach:
– F Facts – Briefly state facts of found case
– R Rule of Law – What the court did
concerning the issue we seek,
• and WHY, WHY, WHY
– A Apply – How is our case decided if our
judge relies exclusively on this Rule of Law?
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Q–S–F–A–C
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• C = Conclusion
Summarize here the Analysis & “apply the
law” sections from all of your cases
Apply the controlling law to your problem
Reach an overall conclusion about the
controlling legal principles from all your
research, and predict how they will affect
the outcome of our case
Clearly and accurately answer the Question
Presented
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Q–S–F–A–C
• C = Conclusion
• Again, reach a conclusion. DON’T SAY:
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“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 Q
• Give your conclusion. What do you think
the court should do? (Adv) Will do? (Info) 23
Rough Drafts
• TRIAL BRIEF: Turn in Draft Sept 18
– I grade & return Sept 20
– Final Draft due Sept 27
• Purpose is partly evaluation (to give you a
grade – 20%), and partly assessment (to
give you direction & guidance)
• I’ll suggest strengths, areas for improvement
• With my advice, you will need to reorganize
& rewrite the draft into final memo
• INFO MEMO: Bring two (2) copies of your
completed memorandum to Rough Draft
Meeting Nov 13
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Take a Break
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Rough Draft Meeting Rules
• “Completed” means completed & typed
• Do not turn in or bring a stack of notes,
index cards, copies of cases, partial memo
• An outline does NOT = a rough draft
• Number all pages
• No 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
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Strategies for Effective Writing
• Techniques to achieve the five hallmarks of
effective legal writing:
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Precision
Clarity
Readability
Brevity
Order
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Plain 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; and
• Documents should be visually appealing.
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Guidelines 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
Guidelines for Plain English
• Avoid multiple negatives.
• Avoid weak verbs, abstract terms, and
superfluous words.
• Enhance readability through attractive
design and layout.
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Ten 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
Ten Pointers for Effective Brief
Writing
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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.
Reviewing 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.
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Reviewing and Revising:
Stage Two
• Focus on these four specific areas:
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Sentence length
Needless words and phrases
Legalese
Passive voice
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Techniques 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.
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Check 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?
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Cases Fit Where?
• You cases fit into your overall Q-S-F-A-C
outline at where? Analysis/Argument
MEMO:
– Question
– Short Answer
– Facts
– Analysis – Cases go here
– Conclusion
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Outlining Each Case for A
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Narrative paragraphs. Don’t label these sections.
1. Start with Transition (more on this later)
2. FACTS: Facts in FOUND case, briefly
3. RULE: Question/Issue in FOUND case
– The 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 outline
• 4. 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.
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What is Correct Order of Cases?
Insert each 1-2 page outline in the “A” section
• May choose
chronological
• Maybe group Ohio &
Other States
• Maybe group federal
& state cases
• Maybe group positive
cases & negative
• Recall & Use:
Mandatory &
Persuasive
• Mandatory: U.S. Sup
Court; 6th Cir App; So Dist
of Ohio Fed Trial Courts
• Persuasive: Other Circuits;
Other Fed Trial Cts
• Mandatory: Oh Sup Ct;
2nd Dist Ct of Apps; Montg
Co Trial Cts
• Persuasive: Other State Sup
Cts; Other Ohio App Dists;
Other State App Cts; Ohio
Trial Cts; Other State Tr Cts 39
Memorandum Requirements
• Final memo must be printed, doublespaced, & follow Quality Standards
• Correct spelling & grammar required
• Number the pages
• Use past tense for all but latest cases
• Citations must be in proper format
– For Advocacy Memo: Use format style
attached to assignment
– For Information Memo: Use ALWD Manual
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Writing Techniques
• A legal memorandum is a professional
piece of writing, so:
• Avoid slang
• Avoid contractions & informal speech
– NO: “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”
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Avoid Legalese
• Don’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.”
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Avoid 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. . .”
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But,
• 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 way
– Theft: “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!
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Effective Paragraphs
• A paragraph is a group of sentences
developing a dominant idea, usually
beginning with a topic sentence that
summarizes that paragraph’s basic idea
• A ¶ should have unity and coherence
• Unity = Every sentence relates to topic
• Coherence = Smooth and logical flow
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Paragraphs Transitions
• See Text, page 507
• Transitions are the glue that holds your
argument/discussion together
• They help reader move from one paragraph
to another, one idea to another
• Shows reader how you are building your
ideas
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Transitions: Can be 1 word
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And
Also
Moreover
In other words
Furthermore
In addition
Equally important
However
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Next
Finally
Besides
Similarly
Another reason
Likewise
Although
Because
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Transitions: Careful!
• But DON’T just stick a transition word at
beginning of each paragraph!
• Think about what you are saying
• One word may be OK, but a transition
phrase/sentence is probably much better
• The most important transitions are the ones
that connect your cases.
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Transition Purposes
• Raise a new point
– “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.”
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Legal
Memo
Writing
Concluded
Thank you
Mike 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.
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