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Legal Rhetoric Handbook

Washington College of Law

Fall 2013

Table of Contents

On line version of this Handbook is available on TWEN Legal Rhetoric Main Page: reading assignments are hyperlinked.

Syllabus

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Course Requirements and Policies

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Introduction to Legal Rhetoric

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Legal Rhetoric Style Sheet

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Planning Strategies

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The Basic Principles

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Revision Checklist

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The Legal Process

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Using CREAC

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Umbrellas

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Who Teaches the Course?

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Clumsy Words and Phrases

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Syllabus

Fall 2013

Overview of the Semester

Weeks 1-7: Writing a closed office memorandum: (Client 1). Students write a mini-memo (which serves as an “umbrella” for the full memo) and three drafts of the closed memo for Client 1 (final version due Week 7).

Learning Goals: memo format and purpose, basic writing strategies (Basic Principles), knowledge of (but not doing) basic research (statutes and cases), basic citation form, analyzing a statute, writing legal analysis (CREAC; using strong topic sentences; organizing around topics), synthesizing rules from cases, professionalism.

Weeks 7-12: Writing an office memorandum: (Client 2). Students research and write three drafts of an office memorandum for Client 2 (final version due Week 12); they also prepare a basic research plan (due Week 8) and an annotated outline (due Week 9) and an advice letter to Client 2 (due Week 13).

Learning Goals: preparing a research plan, researching, preparing an annotated outline, and reinforcing skills from Weeks 1-7.

Weeks 12-13: Introduction to advocacy writing. Students write one draft of the facts and argument for a Trial Court Memorandum (opposing or supporting a Motion to Dismiss) for Client 1 (due Week 13).

Learning Goals: learning format and purpose of a Trial Court Memorandum, writing strategies for persuasive writing (characterizing facts and law, analogizing and distinguishing cases, etc.).

Research Workshops in Weeks 2, 4, and 6.

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Syllabus

Legal Rhetoric Orientation August 22, 23

Overview of the Legal System The Legal Discourse Community What Lawyers Write and What Makes It Good Writing Overview of the Legal Rhetoric Course Using the Online Course Materials

Read for Week 1:

Legal Rhetoric Handbook (TWEN Main page);

Evans Sample Memo (TWEN Main page);

Teaching Law:

Legal Documents:

Writing Process:

Editing and Citation:

Teaching Law abbreviations: RS-Research Sources; RSt-Research Strategies; LD-Legal Documents; LA-Legal Analysis; WP-Writing and Rewriting; EC-Editing and Citation

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Week 1: August 26

In class: Introductions; review of course requirements and policies; using Planning Strategies; overview of a Legal Memorandum (Office Memo).

DF presentation: Writing Professional Emails; Overview of Bluebook.

Read for Class 2:

Reread in Legal Rhetoric Handbook, “Basic Principles,” “Legal Rhetoric Style Sheet,” “Using CREAC,” and “Umbrellas.”

Teaching Law:

Legal Documents:

Legal Analysis:

Editing and Citation:

Write for Week 2:

Draft of fact section for office memo.

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Research in Week 2: Research Workshop: Statutory Research Read for Workshop 1:

Teaching Law:

Research Sources:

Research Strategies:

Assignment:

Research Assignment 1 (will be assigned in Workshop 1; due at beginning of regular class, Week 4). In library: DF-arranged library tour.

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Week 2: September 2 (Labor Day classes will be rescheduled for later in the week.)

In class: Basic Principles and Revision Checklist; the legal system; writing an office memorandum; structured peer review of fact section; analyzing a statute; introduction to CREAC; umbrella sections.

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DF presentation: Statutory Citation; Active v. Passive; Subject-Verb-Direct Object Order; Controlling Sentence Length; Five-minute editing quiz.

Read for Class 3:

Bluebook, Rule 10.

Teaching Law:

Editing and Citation:

Legal Analysis:

Write for Week 3:

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Mini-Memo (due week 3).

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Week 3: September 9

Mini-Memo due at beginning of class; bring two copies (or submit one electronically and bring one copy for use in class—follow instructor’s directions).

In class: Discussion and peer review of Mini-Memo; discussion of predictive writing and research strategies; learning to write rule-based reasoning; synthesizing Rules from cases; relationship of statutory and case law; organizing the Discussion; CREAC structure using cases.

DF presentation: Case Citation I: Rule 10: Case Names; Five-minute editing quiz.

Read for Class 4:

Teaching Law:

Writing Process:

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Write for Week 4 :

synthesized Rules) and using full office memorandum format; complete draft due week 4.

Expand and revise Mini-Memo into full memo adding cases (and

Research in Week 4: Workshop 2: Case Research Read for Workshop 2:

Teaching Law:

Research Sources:

Research Strategies:

Assignment: Research Assignment 2 (will be assigned in Workshop 2; due in regular Rhetoric class in Week 6).

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Week 4: September 16

Draft 1 of Memo 1 due at beginning of class. Research Assignment 1 due at beginning of class.

In class: Peer review of drafts using Revision Checklist and self-grading guidelines; discussion of strengths and weaknesses of drafts; more work on reading and synthesizing cases/rules; focus on Synthesized Rules from cases; umbrella section; CREAC structure; topic sentences.

DF presentation: Case Citation II: Reporters, Date Parentheticals, Court Information; Common Writing Errors (Legal Rhetoric Style Sheet); Five-minute editing quiz.

Write for Week 5:

Second draft of Memo 1 (due in conference Week 5.)

Learning Goals for Memo 1: memo format and purpose, basic writing strategies (Basic Principles), knowledge of (but not doing) basic research (statutes and cases), basic citation form,

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analyzing a statute, writing legal analysis (CREAC; topic sentences; organizing around topics), synthesizing rules from cases, professionalism.

Sign up for conferences (review preparation for conferences; see Week 5).

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Week 5: September 23: No regular classes—mandatory conferences.

Individual conferences: prepare for your conference by writing a complete revised second draft of Memo 1, writing a list of questions (see “Using Drafts” in Course Requirements and Policies for kinds of questions) for your instructor, and highlighting portions of the draft that you want to discuss. Follow your professor’s instructions for submitting these materials. Conferences should last about twenty minutes. Failure to write and deliver a complete draft or to show up for the conference will result in the lowering of your grade in the course.

Blackout Period: There is a 24-hour blackout period before your final version of Memo 1 is due, during which you may not consult with instructors, the DFs, or the Writing Fellows.

Write for Week 6:

Third draft of Memo 1 (due at beginning of class Week 7).

Research in Week 6: Workshop 3: Secondary Sources Read for Workshop 3:

Teaching Law:

Research Sources:

Assignment: Research Assignment 3 (will be assigned in Workshop 3; due Week 8).

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Week 6: September 30:

Draft 3 of Memo 1 due at beginning of class; Research Assignment 2 due at beginning of class.

DF presentation: Alterations, Omissions, Block Quotations, Context Paragraphs.

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In class: Structured in-class peer review of drafts—come to class with specific questions: focus on umbrella sections, synthesized Rules (R of CREAC), Explanation (E of CREAC) sections organized by topics (rather than by cases) with strong topic sentences, specific analogizing and distinguishing in Application (A of CREAC) sections; deeper reading of cases.

Write:

Final version of Memo 1; due at beginning of Class 7.

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Week 7: October 7

Final version of Memo 1 due at beginning of class.

In class: Self-evaluation of performance on Memo 1—set goals for improvement; meeting with Client 1 to report results and give advice; write in-class email response to client email; Client 2 interview; review of memo format and requirements; CREAC structure.

DF presentation: Signals and Explanatory Parentheticals; Review of Revision Checklist.

Write for Week 8:

Basic Research Plan and preliminary results that must include any statute(s) and at least two case briefs (due in writing in class week 8).

Draft of Fact Section for Memo 2.

Read for Class 8:

Teaching Law:

Writing Process:

DF Workshop on Research offered this week (DF will announce time and place). Research Plan (Week 8):

Read for Research Plan:

Teaching Law:

Research Strategies:

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Week 8: October 14

Basic Research Plan and case briefs for Memo 2 due at beginning of class; submit two copies (or per instructor).

Research Assignment 3 due at beginning of class.

In class: Discuss draft of facts and preliminary research; refine basic research plan; revise basic research plan into annotated outline; draft issues; discuss law–strengths and weaknesses of client’s case; in small groups, work on Discussion (CREAC) and counter-analysis.

DF presentation: Secondary Sources; Avoiding Clumsy Words and Phrases.

Research for Week 9: Complete research for Client 2’s problem.

Write for Week 9:

Annotated Outline of Memo 2 (it must include all research for memo) due

at the beginning of class week 9. Bring two copies.

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Week 9: October 21

Annotated Outline due at beginning of class. Bring two copies (or per instructor).

In class: Role-playing: meeting with supervisor to discuss research (research must be complete at this point); discuss forms of reasoning and how to use them; reading cases thoroughly; recognizing forms of reasoning; review rule synthesis.

DF presentation: Review of Short Citation Forms; Bluebook Problem Areas.

Write for Week 10:

Draft 1 of Memo 2.

Learning Goals for Memo 2: Reinforcing all Learning Goals from Memo 1, finding and using research materials, using research plans and annotated outlines to prepare drafts, using drafts effectively.

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Week 10: October 28

Memo 1 returned. Draft 1 of Memo 2 due at beginning of class; bring two copies (or per instructor).

In class: Structured self-revision in class and peer review; working on Question Presented and Brief Answer; rule synthesis; CREAC structure.

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Write for Week 11:

Draft 2 of Memo 2; turn in with focused questions.

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Week 11: November 4

Draft 2 of Memo 2 due at beginning of class.

In class: Instructor and peer review of Draft 2.

Write for Week 12:

Final version of Memo 2 (due at beginning of class week 12).

DF Workshop on Citation offered this week (DF will announce time and place). Review for Exam:

Teaching Law:

Research Sources – Quizzes:

Blackout Period: There is a 48-hour blackout period before your final version of Memo 2 is due, during which you may not consult with instructors, the DFs, or the Writing Fellows.

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Week 12: November 11

Final version of Office Memo 2 due at beginning of class.

In class: Advice letter format; introduction to advocacy writing: reconsidering audience and purpose; characterizing facts and law; introduction to a Trial Court Memorandum; reflect on personal use of strategies for improvement from week 6.

Read for Week 13:

Evans Annotated Advice Letter (on TWEN) Evans Trial Court Memos Supporting and Opposing a Motion

Teaching Law:

Legal Documents:

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Writing Process:

Write for Week 13:

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Advice Letter to Client 2 (with a partner); Statement of Facts for Trial Court Memorandum on Closed Memo case; (both due in class week 13).

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Week 13: November 18

Advice Letter and Statement of Facts due at beginning of class.

In class: More advocacy writing: reading cases to make an argument; characterizing the law; writing persuasive topic sentences; arguing a motion.

Write in class: Argument section of Trial Court Memorandum in Client 1’s case (working in groups with a sample Office Memo 1 selected by professor).

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Research, Citation, and Writing Exam–November 22 (day students); November 23 (evening students).

Monday, November 18

Legal Rhetoric professors argue the motion for the parties in Memo 1.

Graded Memo 2 will be returned at the end of the first class next semester. If you would like the memo returned sooner, you may give your instructor a stamped self-addressed large envelope by December 12. No memos will be mailed or returned in any way until after the last 1L final exam.

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Monday, November 25

 

Showcase Argument for Motion in Closed Memo case.

 

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Course Requirements and Policies

Attendance

Students must attend all classes. Absences will adversely affect the grade and can result in failing the course. Any absence from a research workshop will require the completion of an extra make- up assignment in order to pass the course.

Class Preparation

Students are expected to do all the reading assigned for class and to come to class prepared to discuss it. The on-line syllabus has hyperlinks to many of the reading assignments.

Assignments

Timeliness Students must turn in all assignments, including drafts, on time. Failure to turn in an assignment will result in failure in the course. The due dates for the assignments are listed in the syllabus, and assignments are due at the beginning of class or they will be considered late. All late assignments that are not turned in during class must be turned in at the Legal Rhetoric Office. Late assignments that are turned in within 24 hours are penalized 10 percent. Late assignments that are turned in after 24 hours receive no credit, but must be turned in to pass the course.

Proofreading Students must thoroughly proofread all assignments, including drafts, before handing them in. Any assignment that contains more than four proofreading errors will be returned without further assessment and will not be counted as handed in until it is corrected (students are responsible for checking their email after an assignment is turned in to be sure that it is not returned for proofreading errors). The paper must be resubmitted within 24 hours to receive credit for the course. You may not make substantive changes if your paper is returned for proofreading errors. The paper will be penalized 15 points each time it is returned for proofreading.

Drafts A “draft” that you submit is not a “rough draft”—it is your best effort, including on citation forms, at that point in time. It should not, in fact, be your very first draft, but rather the first draft that you are showing to someone else. All drafts must be complete or they will not be counted as turned in and will be returned for completion and counted as late. Drafts will be checked for sufficiency immediately during the class. Students must turn in all assignments to pass the course.

Texts

The reading materials for the course are found at teachinglaw.bna.com. You need to log on to the site and purchase the program. You also need to purchase The Bluebook: A Uniform System of Citation, 19th edition (2010).

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The following books are recommended if you want a style manual that helps with usage, grammar, and punctuation beyond that available on Teaching Law (the books are available on Amazon; also you may find a few copies in the small Rhetoric library in the Rhetoric conference room that you may consult):

Richard C. Wydick, Plain English for Lawyers, 5th ed. (2005). Ian Gallacher, A Form and Style Manual for Lawyers (2005). Strunk and White, The Elements of Style (paper, 2008). Anne Enquist and Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer, 3d ed. (2009).

Research Curriculum

The research portion of the class has several different facets. First, we will assign readings in teachinglaw.com to present concepts and search strategies. These are mandatory and essential to your developing understanding of legal research and completion of the required exercises. Second, we will have three mandatory Research Workshops in Weeks 2, 4, and 6. The specific room, date, and time information is on TWEN; the Workshops are arranged according to doctrinal sections. At the Research Workshops, we will guide you in small groups as you work on a set of exercises designed to practice strategies learned in the readings. Bring your laptop and passwords (teachinglaw/Lexis/Westlaw) to each Research Workshop. Third, after each Workshop you will get a problem set. The problem sets are designed to reinforce your understanding of research strategies. You will have two weeks to complete each problem set and must work independently on the assignments. Fourth, you must complete mandatory Lexis and Westlaw training before October 18, 2013. Lexis and Westlaw representatives will set up several different live and webinar training options so that you can attend the training at your convenience. Finally, the exam in November will have a significant research component in order to ensure that you have mastered the material. Our approach – present, practice, reinforce, and test – is designed to equip you both for Rhetoric assignments in the months ahead and for the actual practice of law.

Using Drafts

The Legal Rhetoric course is designed to teach students how to use drafts on their own. To that end, students are introduced to a variety of tools: Planning Strategies, Revision Checklist, Basic Principles, checklists in the texts, handouts, etc. Peer review and in-class global comments about drafts in general can also be fruitfully used in the revision process. In law practice, drafts are used by the writers themselves to improve the final product. One, but only one, source of input (in the class, but obviously not in practice) is the instructor’s comments. These comments come on some drafts, after students have redrafted at least once, on the grading sheets that accompany graded papers, and in conferences. It is never the instructor’s job to read line-by-line and revise and edit a student’s work, just as it would not be the job of a supervising attorney in a legal job. That responsibility resides with the student, including the responsibility to transfer comments from one section of a draft to another. Instructors respond to drafts on a macro level and respond to specific questions and uncertainties that a student may have. The Dean’s Fellow, as well, can respond in a macro fashion to drafts.

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In any case, the quality of the draft and the questions a student poses about it will greatly determine the quality of the feedback. No one can do much with a hastily written, incomplete draft or vague questions, such as “is this okay?” Good questions are along the lines of these: “I am struggling with how many facts I should put in the Question Presented. Have I struck the right balance?” “I’d like to discuss the difference between the Brief Answer and the Conclusion. Mine seem repetitive.” “I know from class exercises that I’m struggling with the active/passive voice. Can we work through a few examples?” Notice that these questions demonstrate that the student-writer has thought about drafting choices. Self-editing and conscious selection of writing strategies are the hallmarks of good legal writing.

Grading

The course grade is determined by grades on the individual assignments, the overall quality of the other assignments, the grade on the research and writing final, and class participation: Memo 1 (closed), 20%; Memo 2 (open), 35%; Research, Citation, and Writing Strategy Exam, 15%; Advice Letter, 10%; Class Participation and Professionalism, 10%; Other Assignments, 10%. Failure to complete both the Lexis and Westlaw training units will result in a 5% deduction from the student’s cumulative score (e.g., a score of 92.3 will be reduced to 87.3). Grading criteria forms that all instructors use for the graded assignments–the two memos and the second advice letter--are available on TWEN Main Page.

TWEN

TWEN is our on-line classroom support system and is one of the principal ways we communicate with students and distribute assignments. Students will receive a password at orientation and should immediately register on Westlaw’s TWEN so that they do not miss information. All students should check TWEN (both the Main Course page and their own small class page) and email regularly for class information. Material on TWEN Main page: Handbook (including syllabus and course requirements and policies); Evans sample office memo, advice letter, and memos supporting and opposing a motion; research materials for Closed Office Memo 1; schedule for mandatory Research and optional Supplementary Workshops; Writing Fellow hours and policies; Material on Class page: Classroom DF power points; any individual instructor materials

How to get Extra Help

Aside from one mandatory conference with the instructor that will occur during the semester, we encourage students to meet with instructors and Dean’s Fellows whenever they feel they need additional guidance or instruction. All instructors and Dean’s Fellows have office hours that they will announce at the first class. All students may also meet with Professor Phelps, the Director of the Legal Rhetoric Program, or any of the full-time Rhetoric professors, even if these are not your classroom teachers. Call or e-mail for an appointment or drop in during posted office hours (posted in the Legal Rhetoric Office and on TWEN). Additionally, there are several Dean’s Fellows whose full-time job is to provide Rhetoric students with additional assistance, including some Fellows who specialize in ESL. These Writing Fellows have regular hours that are posted in the Legal Rhetoric Office and on TWEN. The sign-up procedure is also posted on TWEN.

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Students may not meet with Rhetoric Writing Fellows during the blackout periods.

In addition to this crucial one-on-one work, the Legal Rhetoric Program puts on a series of supplemental workshops during each semester. The workshops complement the classroom lessons by addressing the material in a light-hearted way and from a slightly different perspective.

Fall Semester Workshops

Understanding CREAC Workshop (Professor Figley) Shows how to use CREAC to analyze a different problem.

Writing Strategy Workshop (Professor Spratt) Demonstrates the “do’s and don’ts” of effective writing.

Understanding Rule Synthesis Workshop (Professor Figley) Examines how Rule Synthesis works.

Citation Workshop (Professor Spratt) Reviews citation rules needed in every day practice.

Exam Review Session (Professor Spratt & Professor Beske) Provides a supplemental review for the Research, Citation, and Writing Strategy Exam.

Students will receive a schedule of the supplemental workshops early in the semester; the schedule is also posted in the Legal Rhetoric Office and on TWEN. Some students may be required to attend some of the workshops; all are welcome to attend them.

In short, we see our job as helping students become the best legal writers and researchers possible and are willing to provide whatever it takes to accomplish that end. USE the resources!

WCL Honor Code

Like an exam or any other law school assignment, all work you do in the Legal Rhetoric course must be your own and you must have observed the WCL Honor Code and Legal Rhetoric course requirements in preparing it. Any course-specific requirements outlined in the course materials come under the Honor Code.

You may not work with other people, students, or resources, including peer review, proofreading, and research, outside of class unless your instructor explicitly permits you to do so. Although we discuss the assignments extensively in class and work together on them, such discussions and work are not permitted outside of class and violate the WCL Honor Code. You may not review or consult any other student’s actual written work (including outlines, drafts, and results of research), give or solicit advice as to how a document should be written (its substance and writing), or discuss the facts of an assignment or how the law applies to those facts. If, in exceptional circumstances, you request and receive permission to use the assistance of a typist, the typist may not correct spelling, grammar, citation form, or any other aspect of the assignment.

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Any material taken from another source must be acknowledged with quotation marks (if directly quoted) and a citation.

You may work on any Legal Rhetoric matter with your instructor, your Legal Rhetoric Dean’s Fellow, other Legal Rhetoric instructors, other Legal Rhetoric Dean’s Fellows, Legal Rhetoric Writing Fellows, and WCL reference librarians. Do not discuss assignments outside of class.

Professionalism

Legal Rhetoric, like many other law school classes, not only teaches the substance of the course, it also helps to shape students as professionals. Therefore, in Legal Rhetoric students are expected to practice the traits of professional responsibility, including civility; attention to detail in work products on which clients, other lawyers, and judges rely; effective time management; promptness and timeliness in completing and submitting work; honoring all commitments and attending all scheduled meetings and conferences; honesty and candor in the use of legal materials and in writing; truthfulness; respect; and a sense of responsibility to peers and to the profession.

A Word About Next

Although the semesters are graded independently, the second semester of Legal Rhetoric continues the first. Your first assignment in the Spring semester will be based on Memo 2 from the Fall semester.

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Introduction to Legal Rhetoric

The Legal Discourse Community

Welcome to Washington College of Law and to the Legal Discourse Community (LDC). By entering law school, you have become a fledgling member of the LDC, and you may have already noticed that language is sometimes used in ways that are unfamiliar to you: meanings and language conventions that are different and, consequently, confusing. The LDC is the world of language that lawyers inhabit. Many, many discourse communities exist. If you came to law school directly from undergraduate school, you were a member of the academic discourse community. You learned to read, write, and speak using the conventions that are successful there. If you came from the business world, you were a member of the business discourse community, from the military, the military discourse community, and so forth. Discourse communities are everywhere and you may, in a single day, move from one to the other without even noticing. Think about the ways that these words are used in the overlapping discourse communities portrayed below: battery, briefs, ERA.

Baseball Military Law You?
Baseball
Military
Law
You?

Each discourse community has its own conventions and rules. Some words have particular and specific meanings; arguments are made using certain things as proof; specific kinds of documents are used. Members of it read, write, and speak in a particular way that is

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“acceptable.” Entry into a new discourse community requires some initiation, some guidance, and much, much practice.

That’s the purpose of the Legal Rhetoric course: to introduce you to the rules and conventions of the LDC and to provide an environment in which you can become a full-fledged member of that community by reading and writing as a lawyer. This initiation also occurs in your other courses, of course, as you learn to “brief” cases, to answer “hypotheticals” from a professor who is using the “Socratic method,” and to introduce yourself as a “1L.” In the Legal Rhetoric course you will practice reading and writing in the LDC, making the mistakes that are always inevitable in the learning process, without risking your job or your client’s welfare. Our contract with you is that if you give us your best effort, we will work just as hard to guide you, and by the end of the semester, you will be reading and writing confidently and competently in the Legal Discourse Community.

What is “Good” Legal Writing?

The Communication Triangle helps us to hone in on what kinds of writing lawyers do and to begin to develop ways by which we can judge whether writing is “good” or not.

Reality (Objective writing) Language (Literature) Reader Writer
Reality (Objective writing)
Language
(Literature)
Reader
Writer

(Expressive writing )

(Persuasive writing)

Every act of writing involves the four elements portrayed on the triangle: the writer, the reader, the “reality” (the things being written about), and the language in which it is embedded. A

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particular act of writing and the document that is produced may be classified according to which of these four receives primary attention; that is, which of the four is the primary goal or purpose of the writing. For example, if you are taking notes or keeping a diary, you are writing for yourself; the document, such as it is, is written for you, the writer. We call this kind of writing “expressive” writing (the lower, left point of the triangle). If the reality, the thing about which you are writing, is most important, we call that “objective” writing (the upper point of the triangle); if the primary purpose of the document is to bring about a change in the reader, we call that “persuasive” writing; if the primary purpose of the document is to create beautiful language, we call that “literature.” All four elements are present and receive attention in any act of writing, but one of them takes preeminence in a particular document.

You can probably begin to see that any “rule” for writing falls apart under this analysis. Take one of the first writing rules you learned: “spell words correctly.” Does that rule apply to all four kinds of writing described above? Perhaps not all of them all the time. If we can’t use rules to judge whether writing is “good” or not, what can we do? We can judge whether a document is good by whether the writing strategies (not rules) used in it achieve the desired goal of the document for the designated audience. In other words, you have to ask yourself before and while writing any document, “who is this for and what do I want it to achieve?” That’s the approach taken in the Legal Rhetoric course: strategies, not rules, and strategies based on analyzing audience and purpose for any document. The “Planning Strategies” form on page 20 will assist you in doing this analysis. Also “The Basic Principles” on pages 21-23 give you some strategies that have proven effective in the Legal Discourse Community.

What Kinds of Writing Do Lawyers Do?

The Communication Triangle also helps to clarify what kinds of writing lawyers do and the kinds of writing that you will be learning and practicing in the Legal Rhetoric course. The first semester of the course focuses on written legal discourse; in the second semester, you will begin also to use spoken legal discourse (of course, you are learning to “talk like a lawyer” every day in law school, in classes, and elsewhere). So what is it that lawyers write and what special characteristics does legal discourse have?

Legal discourse functions in distinctive ways and has some special qualities. First, legal writing tends to be either objective or persuasive (the top and bottom right angles of the triangle); it is rarely creative or expressive (at least not in the workplace). Second, legal discourse occurs in different kinds of documents. Lawyers write in various forms and with various voices: analyst, strategist, counselor, advocate, for example. They also write to different audiences and for different purposes: to inform another lawyer, to counsel a client, to persuade a judge, to name some of the most frequent purposes and audiences. “The Legal Process” chart on page 26 delineates some of the documents that lawyers write and shows when these documents arise in the legal process. Third, legal documents often give rise to other legal documents. Finally, legal discourse has a significant impact beyond the confines of the legal discourse community. The way lawyers use language matters. Legal discourse not only interprets the law; it also creates the law. Lawyers’ writing affects people’s lives.

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Writing as a Process

The Legal Rhetoric course will treat writing as a process, rather than as a product. For a long time, writing was taught using the product approach: teachers gave students a writing

assignment, the student wrote it (the product), and the teacher graded it, perhaps with comments

in the margins. Then there would be another assignment, and so on. The student’s writing might

improve, or not; it was all rather serendipitous. It wasn’t clear that writing could be taught at all.

A few decades ago, composition theorists at some major universities (Carnegie Mellon, Purdue,

and Southern Cal, among others) began to investigate what good writers did in the process of producing good documents. By taking protocols (taped monologues) from “expert” and “novice” (good and bad) writers as they worked on a document, the researchers were able to detect some patterns: good writers did certain things in the process of writing. Now there was something to

teach novice writers.

One broad pattern that emerged from the protocols looked something like this:

Planning←→

DraftingRevisingFinal Editing

Expert writers engaged in more planning activities in the writing process than did novice writers; they asked themselves some specific questions before, during, and after drafting (notice that some of the arrows go in both directions; the process is not linear, but recursive). These questions included information about the reader and the purpose of writing. The questions are adapted for legal documents in “Planning Strategies” on page 20 of this Handbook. In addition,

the expert writers engaged in substantial revision (re-vision = re-seeing) of the document, writing context paragraphs, topic sentences, changing sentence structure, etc. Many of the revising techniques are included in the “Revision Checklist" on pages 24-25. Then they did a final edit– fixing spelling, etc. Some expert writers planned a great deal before drafting; others planned loosely, but always moved back into planning after an initial “zero” draft (getting ideas down). As a novice legal writer, you will more easily become expert by being attentive to the process of producing legal documents. We will work on various aspects of the process in class, sometimes

in small groups, as you become familiar with it.

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Legal Rhetoric Style Sheet

Common Writing Errors

Pronoun referents: Pronouns must match in number and gender the noun to which they refer; the referent noun must also be clear and not ambiguous.

Wrong: Neither Susan nor Jane felt that they had been treated fairly.

Right:

Neither Susan nor Jane felt that she had been treated fairly.

Wrong: JMart frequently changed their security guards’ routines.

Right:

JMart frequently changed its security guards’ routines.

Wrong: Each student must hand in their assignment on time.

Right:

Each student must hand in his or her assignment on time.

Right:

All students must hand in their assignments on time.

Wrong: The testator and the Defendant were in a confidential relationship because he received financial advice. Right: The testator and the Defendant were in a confidential relationship because the testator received financial advice.

Subject/verb agreement when verb is separated from subject.

Wrong: The profits earned by the pharmaceutical industry is too high.

Right:

The profits earned by the pharmaceutical industry are too high.

Comma splices: Independent clauses may not be joined together by a comma (“however” is not a conjunction and may not be used to join independent clauses).

Wrong: The explosion was loud, it could be heard a mile away from the construction site. Wrong: The explosion was loud, however it could not be heard a mile away.

Right:

The explosion was loud; it could be heard a mile away from the construction site.

Right:

The explosion was loud, and it could be heard a mile away from the construction site.

Even Better: The loud explosion could be heard a mile away from the construction site.

Semi-colon use: Semi-colons have two uses—to join independent clauses instead of starting a new sentence (see above) and to join items in a series if the items have internal commas.

Right: The court considered whether the defendant, who was a minor at the time of the contract, could be held responsible for his actions; whether the plaintiff, who knowingly sold to a minor, could be seen as negligent; and whether the defendant’s parents, who knew nothing of the transaction, could be held liable.

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Colons: A colon is only properly used when the syntax comes to a full stop; a colon should not interrupt the natural flow of a sentence.

Wrong: The factors that the court considered are: whether the testator suffered from an insane delusion, and whether the will was a product of that insane delusion.

Right:

and whether the will was a product of that insane delusion.

The court considered two factors: whether the testator suffered from an insane delusion,

Commas: Commas are properly used to indicate grammatically separate parts of a sentence: (1) two independent clauses, (2) an introductory clause, (3) items in a list, and (4) extra explanatory words, such as appositives and some transition words. Commas should not separate a subject and a verb, even when the verb is the second in a compound verb.

Right:

the spectator agreed to do so.

Right:

permitted to sue the baseball club for his injuries. Right: (3) The plaintiff had seen others dance with the mascot at previous games, saw the warning sign at the entrance, and willingly agreed to dance.

(1) The mascot asked the spectator if she would like to dance on the dugout roof, and

(2) If the defendant knowingly consented to dancing with the mascot, he should not be

Right:

(4) The plaintiff, however, did not expect a hip bump.

Right:

(4) The plaintiff, Terry Mason, did not expect to be injured while at a baseball game.

Wrong: Terry Mason attended the game, and danced on the dugout.

Its/it’s: “Its” is a possessive pronoun; “it’s” is a contraction for “it is”; they are not interchangeable.

Right: A leopard cannot change its spots. Right: It’s probably going to rain today. (Note: contractions should not be used in formal writing—that is, most of the kind of legal writing you will encounter.)

The floating “this”: “this” should nearly always have a noun following it.

Wrong: Lavelle suffered the insane delusion that he had a magical guitar pick, and Allenby suffered the consequences of that delusion when he accused her of stealing the guitar pick. This

is similar to the situation in Benjamin in which the testator’s wife was drawn into and suffered the consequences of her husband’s delusion.

Right: This effect on making a will is similar to what the writer means)

(or some other noun or phrase that sums up

Comparing like to like: in comparing facts in cases, compare people to people, situations to situations, not to case names:

Wrong: Unlike Moore, Lavelle did not depend financially on Jellico.

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Right: Unlike the testator in Moore, Lavelle did not depend financially on Jellico.

Bluebook rules: The Bluebook has particular rules for things like spelling out numbers and capitalization. For example, sometimes “court” is capitalized and sometimes not, but the capitalization is not random: it follows particular rules. Always look up the rules and do not assume or copy from cases you are reading.

Format

For memoranda and briefs:

Use Times New Roman, 12-point font, regular typeface only;

Use 1-inch margins on all sides; justify left only;

Number all pages (unless specific rules say otherwise) in the bottom center;

Double-space except for headings, subheadings, footnotes, and block quotes;

Underline and use all caps for major section (not substantive) headings: i.e. INTRODUCTION;

Observe all page limits: office memoranda do not have page limits, but most documents submitted to a court do; page limits do not include the Certificate of Service;

Do not orphan a heading or subheading at the bottom of a page;

Check and follow Bluebook capitalization rules; don’t assume or copy from cases;

Number and block all headings and subheadings with the numerals and letters indicated in the samples (see below):

Example below of how headings should be blocked:

I. Students should format all memoranda submitted for Legal Rhetoric according to the Style Sheet because professionalism and attention to detail are essential for effective legal writing.

A. Effective writing requires attention to detail so that the reader is not distracted.

1.

Overlooking even small details, such as correct spacing, undermines the final product.

2.

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Planning Strategies

Before you begin any writing assignment, answer the following questions as well as you can. Return to the questions as you draft the document and refine your answers. The answers will help you decide what to write about and how to write it. They also will help you decide what language to use, what to include, and what to omit.

1. What question(s) should this document answer?

2. What is my answer to each question (no more than a few words)?

3. Who is my reader?

4. What is my reader's relationship to me?

5. How much does my reader know about the subject and my answer?

6. What is my reader's attitude about the subject and about my answer?

7. What does my reader need to know to understand my answer? List in "need to know" order.

8. Why am I writing this (to inform, to persuade, to accomplish some other end)?

9. What constraints do I have?

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The Basic Principles

What makes a “good” document? Why do some documents succeed and others fail?

and a “bad” one is more than spelling, punctuation, and grammar (although these certainly count in the equation). If we can pin down the qualities of successful documents, we are well on our way to producing them and to helping others produce them.

The difference between a “good” document

A. A good document achieves its designated purpose for its specific audience.

To achieve this quality, a writer should ask certain questions before and during drafting and revising:

1. For whom is this document written (audience)?

2. What will that person do with it (purpose)?

3. What question(s) is the document supposed to answer?

4. What is the answer?

In the world of legal discourse, documents are “working documents,” not academic exercises. Real people need and use the documents you write to answer significant questions. However perfectly it may be written, a legal document fails if it does not achieve its designated purpose for its designated audience.

B. A good document immediately gives its reader an overall picture of what the document

is about, including the question it is answering and the answer. It also leaves the reader with a clear answer.

5. Does the document immediately (i.e. on page one) and clearly present the question or

questions it addresses, the answer(s), and a brief explanation of the answer(s)?

6. Does the final sentence or paragraph (conclusion) make the answer crystal clear?

Documents are more useful to readers if they supply context–that is, if they tell the reader what the document is about right away and give the reader an overall picture of what the document will do. Legal documents, in particular, should not be “mystery stories.” Give both the question and the answer in the first paragraph.

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C.

A good document is easy to follow; a reader can tell immediately what a paragraph is

about and how paragraphs fit together.

7. Does the first sentence in each paragraph contain the topic of that paragraph?

8. Are all the sentences in that paragraph related to that topic?

9. Is the relationship between paragraphs shown by the effective use of transitions?

10. If appropriate, are subtitles used to guide the reader through the document?

Paragraphs and “white space” in a document are useful organizational tools for a reader, as a reader struggles to understand the meaning. Well-organized paragraphs in which the topic is quickly identified makes the struggle for meaning easier. Effective transitions create “flow” and act as signposts through the document. Subtitles also act as signposts. (Picture the reader on a hike through unfamiliar terrain.)

D.

A good document is easy to read.

11.

Do sentences rarely exceed twenty-five words (2 ½ typed lines)?

12.

Are long sentences controlled with parallel structure?

13.

Is sentence length and type varied?

14.

Are the first and last words in each sentence the most important?

15.

Are important ideas in main clauses and less central information in subordinate clauses or

phrases?

Many studies have shown that readers comprehend shorter sentences more easily. At the same time, a document comprised entirely of short sentences is tedious and droning, and sometimes long sentences are useful, as long as they are controlled and not sprawling. Other studies show that readers pay the most attention to the last and first words in sentences (“impact” positions). Also, grammatical structures carry meaning: if information is in the main or independent clause, it is read as important information; if it is in a subordinate or dependent clause, it is seen as less important–dependent or contingent on the important information.

16. Are verbs in the active voice unless you have a specific reason for using another structure?

17. Are “to be” verbs with nominalizations kept to a minimum?

18. Are sentences generally in subject-verb-direct object order?

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The clearest, shortest and most direct sentence structure is subject-active verb-direct object. Readers comprehend this structure most easily. Active verbs give your writing clarity and crispness. Nominalizations in the place of active verbs make the writing sound stiff, abstract, and bureaucratic.

19. Are all pronoun referents clear and accurate?

20. Are modifiers kept to a minimum?

21. Are modifying phrases next to the nouns they modify?

22. Is “legalese” eliminated, unless critical to the meaning?

23. Are “clumsy words and phrases” revised?

In legal documents, ambiguity can be deadly. To avoid any chance that the meaning is not clear, use pronouns only when there can be no doubt as to the referent. When in doubt, repeat the noun. Inaccurate use of modifying phrases can also change the meaning. Strong nouns and verbs should carry the writing without the use of many modifiers. Moreover, legal documents are difficult enough to read without the use of unnecessary legalese and four words instead of one (see list of “clumsy words and phrases” on pages 35-37).

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Revision Checklist

After you have completed a draft of your document, review it with these questions in front of you. Use this checklist to revise the document. This checklist focuses on strategies that have proven most effective for clarity and economy of language and should be used in writing objective documents.

Verbs

 

1.

Are the verbs in the active voice unless I have a specific reason for using another structure?

2.

Are verbs generally next to subjects and sentences in subject, verb, and direct object order?

3.

Have I eliminated “there is” (was, are, were) and “it is” from the beginning of sentences?

Nouns

 

4.

Are my nouns precise?

5.

If I use synonyms, is my meaning clear?

Pronouns 6. Are all pronoun referents clear and accurate?

Modifiers

7.

Have I kept adverbs and adjectives to a minimum, allowing strong nouns and verbs to carry my prose?

8.

Are modifying phrases next to the nouns they describe?

Generally

9.

Is every word necessary?

10.

Is every legal term necessary and defined (if required)?

Sentences

7.

Are most sentences in subject, verb, direct object order?

8.

Do sentences rarely exceed twenty-five words?

9.

Are long sentences controlled with parallel structure?

10.

Do I vary sentence length and type?

11.

Are the first and last words in each sentence the most important?

12.

Are important ideas in main clauses and less central information in subordinate clauses or phrases?

Paragraphs

13. Have I written a context paragraph telling the reader what the document is about and

providing a road map?

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14. Does the first sentence of each paragraph contain not only the topic but also the paragraph’s major assertion (if I read only the first sentence of each paragraph, can I understand the point of the document?)?

15. Does information in each paragraph move from familiar (to the reader) to unfamiliar?

16. Are paragraphs linked with transitions or echoing words and phrases?

Organization

17. Have I provided my reader with signs along the way by effectively using titles, subtitles, etc?

18. Have I avoided the mystery story syndrome by telling my reader what the document is about in the first paragraph?

Overall

19. Have I proofread several times?

20. Am I proud of the finished product? Knowing that my written work gives an irrevocable impression of me, can I sign it without reservation?

*You may also use “The Basic Principles” as a checklist.

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The Legal Process

Client with a problem

Office memorandum Facts Issues Law Legal analysis Conclusion Recommendation (Audience: Lawyer)

Answer Facts B LawB (Audience: Judge, Opposing Counsel)Legal analysis Conclusion Recommendation (Audience: Lawyer) Opinion letter Facts Issues Law Legal analysis Conclusion

Opinion letter Facts Issues Law Legal analysis Conclusion Recommendation (Audience: Client)Answer Facts B LawB (Audience: Judge, Opposing Counsel) Pretrial motions and supporting memoranda Facts Law

Pretrial motions and supporting memoranda Facts Law Argument (Audience: Judge)Legal analysis Conclusion Recommendation (Audience: Client) Complaint Facts A LawA (Audience: Judge, Opposing Counsel)

supporting memoranda Facts Law Argument (Audience: Judge) Complaint Facts A LawA (Audience: Judge, Opposing Counsel)

Complaint Facts A LawA (Audience: Judge, Opposing Counsel)

Judge’s decisions on pretrial motions Facts Law Analysis Conclusion (Audience: Parties, Attorneys, Higher Courts, Public)

Trial*
Trial*

Decision (Audience: Parties, Attorneys, Higher Court, Public, Law Students)

Appellate opinions Facts Law Reasoning Decision (Audience: Parties, Attorneys, Higher Court, Public, Law Students)

Appellate briefs Facts (including trial procedure) Law

Argument Conclusions (Audience: Judges, Opposing Counsel, Public)

Conclusions (Audience: Judges, Opposing Counsel, Public) Appeal = Legal Discourse * Although the trial is enacted,

Appeal

(Audience: Judges, Opposing Counsel, Public) Appeal = Legal Discourse * Although the trial is enacted,

= Legal Discourse

* Although the trial is enacted, everything that occurs is transcribed and becomes the trial record.

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Using CREAC

Written legal analysis has a structure that reflects the structure of legal reasoning itself. The acronym that we use for the written structure is CREAC, which stands for Context/Conclusion, Rule, Explanation of the Rule, Application of the Case Facts, and Conclusion. 1 CREAC provides a frame on which we can hang legal analysis, which proceeds by finding and articulating the rules on which a case turns, applying those rules to the facts at hand, and concluding a likely outcome (sound familiar from the hypotheticals in your other classes?). This piece alone would be RAC (Rule, Application, Conclusion). CREAC fills in the gaps to make the basic structure both thorough and readable. So, for the reader, we give some Context for the Rule and we say up front what we will conclude. Then, after we have articulated the Rule, we also give an Explanation of why that is the Rule and how it is synthesized from and played out in significant cases (if appropriate). A caveat: legal reasoning is not simple and CREAC (the acronym itself) is deceptively so. Remember it’s a framework.

Here’s an example from the Discussion section of the Evans Sample Office Memorandum. The big, overall question that this memo is designed to answer is whether Tom Evans, the client, will be liable for Daniel Jones’ injuries. The first six paragraphs under I—“Under the Washington recreational use statute, Evans is likely immune from liability for Jones’ injuries”-- and before the subheading A create the umbrella section (an introductory section that introduces the reader to the whole problem). The umbrella section sets up the problem, gives some background legal standards, focuses on the big overall Rule that will govern the case, lays out the elements of the Rule, and finally gives the reader a roadmap of the organization that follows. Then the basic CREAC structure begins. The umbrella itself also uses the elements of CREAC in that the first paragraph provides Context for the statute and gives the Conclusion; the second paragraph gives the Rule; the third paragraph provides a clear Explanation of the Rule and pulls out the required elements; the final three paragraphs Apply the facts to the Rule, Conclude on the issues that will not be in contention, and lay out a roadmap for the issues that are in contention and will be discussed in depth in the subsections.

Context/Conclusion Heading A gives the Conclusion for the first sub-Rule (first element of the overall Rule that is in contention) that will be discussed: “The loose railing was not latent because it was readily apparent to the general class of recreational users in that Evans marked it with duct tape.”

Rule “A condition is latent if it is not readily apparent to the general class of recreational users; what a particular user who examines the condition as a whole sees or does not see is immaterial” (first sentence after subheading A). The writer has synthesized this Rule from relevant cases:

Ravenscroft, Widman, and Tennyson. The writer has researched in the relevant jurisdiction

1 Different legal writing programs and different legal writing textbooks may use slightly different acronyms; they all refer to the same structure.

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(here, Washington state), read the cases and holdings carefully, and synthesized from those cases what the writer believes will be the Rule that a Washington court will apply in Tom Evans’ case. Put an R in the margins next to this single sentence.

Explanation of the Rule The next two paragraphs are all the Explanation of the Rule (E of CREAC). In other words, the writer is laying out for the reader the relevant facts, holdings and reasonings from the applicable cases so the reader can see and understand why the writer thinks the articulated Rule is what the court will use. Put an E in the margins next to of paragraphs 3 and 4.

Application of the Case Facts

“In Evans case

hand and the Rule. The writer is using the foundation established in the E section and comparing Tom Evans’ facts to the facts in the relevant cases so the reader can see how the writer reaches the Conclusion (that the railing is probably not latent) articulated initially in Heading A and again at the beginning of this Application section and in the final paragraph of this subsection. Put an A in the margin next to paragraphs 4-6.

” Every case turns not on Rules alone, but on the specific facts of the case at

Conclusion “As a result, the loose railing was not latent, and a court will likely find that Evans is immune from liability because Jones cannot prove every element of the exception to the recreational use statute.” That sentence in the last paragraph of subsection A is the final C in CREAC. It’s quite short because the CREAC structure is like a syllogism with the Rule the major premise, the application of the case facts the minor premise. Then, as with a syllogism, the Conclusion follows naturally and does not require additional defense. Put a C in the margin next to the referenced sentence.

Subsection B of the sample memo is similarly organized. See if you can identify the parts. Notice that the Rules that section A and B discuss (latency and conspicuous sign) were set up (given a roadmap) in the umbrella section. Also notice that some of the same cases are revisited, but discussed differently because they are now being used for the Explanation of different Rules.

The tricky parts of CREAC are synthesizing and articulating the Rule and its Explanation. Learning to do that is what “thinking like a lawyer” means. The Legal Rhetoric course will help you in learning to write down the Rule and its Explanation in a way clear to a reader who must use the information.

Rules sometimes come from a case or series of cases as they did in the subsections of the Evans memo. They can also come from a statute or constitution if the language is crystal clear. If there’s some ambiguity in the statute (as is typical), the Rule then comes from the statute and cases that clarify or interpret the language of the statute: the situation in the Evans case. Or, clarification can come from legislative history or another source (these possibilities will be discussed in your research readings and workshops).

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Umbrellas

An “umbrella” or introductory section of a document such as an office memorandum or a brief makes reading the document much easier. Ideally, it provides the basic underlying law on which the case turns, such as a statute, a constitutional provision, or a common law definition; it pulls out the elements required for a cause of action; it applies the specific case facts to the requisite uncontested elements; it shows the reader which of the elements will not be in contention; it focuses in on the elements that are at issue and shows the order in which they will be discussed in the document; and it may provide the conclusion to those contested elements with a brief reason why. Thus, it has the basic CREAC structure, while at the same time giving the reader an overall view of the case (a kind of executive summary) and a roadmap for the rest of the document.

The Evans sample memo also provides an example of the umbrella section; see the section in the Discussion that precedes the A. subheading. In this umbrella, several elements (in possession of land, etc.) are obvious from the facts; three elements (known, dangerous, and artificial) are obviously present and are being conceded, but require a brief legal explanation, so the reader/partner can see why the writer has conceded them; and, finally, two elements (latent and conspicuous sign) need in-depth analysis that will be taken up in the subsections.

All of this section constitutes an initial overall CREAC for the case that is sometimes called an “umbrella section.” The writer then proceeds to demonstrate in sections A and B how the facts fit the elements. Some are clear (he owned the land) and need no development; some are not (latent) and need a full explanation because those will be the points that the parties are likely to dispute. In the middle are necessary parts of the statute that won’t be in dispute (known, dangerous, artificial), but the partner (reader) will want some law so she or he can understand why the writer doesn’t think they will be in dispute. Remember that an office memo prepares the reader to handle the case in an informed and intelligent way.

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Who Teaches the Course?

Unlike the other first semester first year courses, Legal Rhetoric is taught in small sections by many different teachers. Some students will be taught by full-time faculty, others by adjuncts. Both full-time faculty and adjuncts bring experience, training, skill, and dedication to the course and to the students. Here’s a look at some of them:

Full-time Legal Rhetoric Teachers The full-time faculty of the WCL Legal Rhetoric Program ranks among the best in the country with a combined over sixty years teaching legal writing and research and over forty years practicing law. They publish widely in the discipline of legal writing, give presentations nationally, and give writing workshops to government agencies, law firms, and courts. They are active participants in the national legal writing community and serve on prestigious boards and committees.

Professor Teresa Godwin Phelps, Director Professor Phelps joined the WCL faculty in 2006 after 26 years teaching legal writing and directing the program at the University of Notre Dame Law School. She has three degrees from the University of Notre Dame and one from Yale Law School. She is considered a pioneer in the field of teaching legal writing: she was a founding member of the Legal Writing Institute; she published a seminal article, “The New Legal Rhetoric” that helped to shape the way that legal writing is taught across the country; she is on the Editorial Board of Legal Communication & Rhetoric; she serves on the Board of Directors of the Association of Legal Writing Directors; she has lectured and consulted nationally on legal writing for over 30 years; and she has taught as a distinguished visitor at other U.S. and international law schools. In addition, she has published three books and over thirty articles: on legal writing, women and the law, law and literature, and international human rights, including the recent well-reviewed Shattered Voices: Language, Violence, and the Work of Truth Commissions. She is the recipient of the Legal Writing Institute’s 2010 Courage Award.

Professor Paul Figley Prior to coming to WCL in 2006, Professor Figley was a U.S. Department of Justice litigator for thirty-two years. During his last fifteen years he served as Deputy Director in the Torts Branch of the Civil Division. At Justice, Professor Figley represented the United States and its agencies in appellate and district court litigation involving torts, national security, and information law. His expertise is in motions practice. His success in that practice is reflected in his more than seventy- five reported decisions. Professor Figley is a graduate of Southern Methodist University School of Law, where he was Leading Articles Editor for the Journal of Air Law & Commerce, and Franklin & Marshall College. Since joining the WCL faculty, Professor Figley has given writing workshops to government agencies and national organizations and written for national legal writing publications. He has also published articles in scholarly journals and a book, A Guide to the Federal Tort Claims Act (ABA, 2012). He was named Washington College of Law Professor of the Year for academic year 2012-13.

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Professor David H. Spratt Professor Spratt received a B.A. degree in Government and Psychology from The College of William and Mary and graduated summa cum laude from American University, Washington College of Law. In 2001, Professor Spratt was a founding partner of Schwartz & Spratt, PLC, a family law firm in Fairfax, Virginia. Previously, Professor Spratt worked as an associate at the Law Office of Betty A. Thompson, Ltd., and at The Lewis Law Firm, both in the area of family law. Prior to joining the WCL faculty in 2006, Professor Spratt taught Legal Writing and Research at the George Washington University School of Law, Legal Analysis and Writing at Concord School of Law, and Legal Methods at the Washington College of Law. He is a past chair of the Virginia Bar Association, Domestic Relations Section and the Northern Virginia Regional Advisory Committee. Professor Spratt regularly writes a column, “Writer’s Block,” in the Virginia Bar Association News Journal.

Professor Elizabeth Keith Professor Keith joined the WCL faculty in 2008. Prior to joining WCL, she taught both first- year and upper-level courses in Legal Research, Writing, and Analysis program (“LRWA”) at the George Mason University School of Law, where she later served as Assistant Director and Acting Director of the LRWA program. Prior to becoming a law professor, she practiced law with Odin, Feldman & Pittleman, P.C. in Fairfax, Virginia, specializing in civil litigation. She has a B.A. with distinction from the University of North Carolina at Chapel Hill and a J.D. cum laude from George Mason School of Law, where she was Editor-in-Chief of the George Mason Law Review and a member of the Moot Court Board and Inns of Court. She is a member of the Legal Writing Institute, the Virginia State Bar, and the American Bar Association.

Professor Heather Ridenour Professor Ridenour joined the WCL faculty in 2008 as Director of the Legal Analysis Program and Legal Rhetoric professor. Prior to joining the WCL faculty, she worked with the Academic Support Program at Texas Wesleyan Law School where she was Instructor of Academic Support and Legal Writing Specialist. Before taking that position, she had a probate and guardianship practice. From 2005 to 2007, she was the guardianship auditor at the Tarrant County Probate Court, working under Judge Patrick Ferchill. She graduated cum laude from the Texas Wesleyan University School of Law in 2004, where she was Associate Editor and Articles Editor on the Texas Wesleyan Law Review. She remains active in taking pro bono guardianship cases. She is a member of the Legal Writing Institute.

Professor Elizabeth Beske Professor Beske joined the WCL Legal Rhetoric faculty as a full-time instructor in 2010, after serving two years as an adjunct instructor in the Program. Professor Beske graduated from Princeton University and from Columbia University Law School, where she was Editor-in-Chief of the Columbia Law Review and received the Ordronaux Prize on graduation for highest academic achievement in her class. After law school, she clerked at the United States Court of Appeals for the D.C. Circuit for Judge Patricia Wald and at the United States Supreme Court for Justice Sandra Day O’Connor. She was an associate in litigation at Munger, Tolles & Olson LLP in San Francisco, with particular emphasis on appellate work, First Amendment, and

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copyright/trademark. Professor Beske administers the ABA Media Alert Project for the D.C. Circuit and recently was appointed to the Board of Directors of the D.C. Circuit Historical Society.

Professor Bianca Garcia Professor Garcia joins the Legal Rhetoric faculty as a 2013-2014 Graduate Teaching Fellow. She graduated cum laude from the Washington College of Law in 2013. During her time at WCL, she served as a Note & Comment Editor for the American University Journal of Gender, Social Policy & the Law and as a Legal Rhetoric Classroom Dean's Fellow. Professor Garcia also interned at the Superior Court of the District of Columbia with Magistrate Judge Seoane López, the Disability Rights Section of the U.S. Department of Justice, the Washington Lawyers' Committee for Civil Rights and Urban Affairs, the law firm of DLA Piper, and the Congressional Coalition on Adoption Institute. She received her undergraduate degree in art history from the University of Illinois at Chicago.

Adjunct Legal Rhetoric Faculty The adjunct faculty brings a wealth and variety of practice experience to the Legal Rhetoric Program. Some have taught Legal Rhetoric at WCL for many years; all are experienced teachers and practitioners. Because Washington College of Law is located in the nation’s capital, it is able to draw on a particularly deep pool of legal talent to supplement its full-time faculty. The Adjunct Professors who teach in the Legal Rhetoric Program bring to their students practical experience from a wide range of practice areas. One is the Legal Editor of BNA's Privacy and Security Law Report. Another is an associate general counsel for one of the nation’s largest and fastest growing labor unions. Several are in private practice in partnerships ranging from specialized boutiques to the largest, most prestigious firms in the country. Many served in clerkships, including at the Supreme Court of the United States.

The Adjunct Professors are also recruited from all three branches of government. In the legislative branch one works for the Committee on Education and the Workforce in the U.S. House of Representatives. Those in the judicial branch include clerks and staff attorneys for the United States Court of Appeals for the Armed Forces, the District of Columbia Court of Appeals, and the United States District Court for the District of Columbia. Others work in federal agencies ranging from the Office of the Legal Adviser in the Department of State, to the Office of Inspector General of the Department of the Interior, to the Litigation Division of the Office of the Comptroller of the Currency. Many practice in the Department of Justice in places such as the U.S. Attorney’s Office for the District of Columbia, the Counterespionage Section of the National Security Division, the Civil Frauds Section of the Civil Division, and the Executive Office for Immigration Review of the Board of Immigration Appeals. One long-time adjunct professor was recently appointed to the bench.

The Adjunct Professors meet as a group with the Program’s Director and full-time instructors several times throughout the year, including Orientations before the start of both semesters. Each also belongs to one of four smaller Instructor Teams headed by a full-time instructor. The Program provides the Adjunct Professors with bench memos to give background on each

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problem and weekly teaching notes to insure that key material is covered in each classroom during the same week. These materials are supplemented with a weekly Adjunct Message email. The Adjunct Professors are encouraged to communicate with each other, the Director, and the full time instructors, and they do so regularly in person, on the phone, and through a Program website.

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Clumsy Words and Phrases

*From Academic Legal Writing by Eugene Volokh

1. Generally

a bad thing

bad

a good thing

good

a large number of

many

a number of

some

or several or many or something more precise

at present

now

at the place that

where

at the present time

now

at this point in time

now

now

or currently or at this point (rarely) or some such

at this time

or currently or some such about

concerning the matter of does not operate to

does

during

while

too

many

during

because

omit

not

during the course of

during the time that

excessive number of

for the duration of

or while

for the reason that

had occasion to

I

would argue that

omit

in a case in which

when

or where

by

or under

in accordance with

Xly,

e.g. “hastily” instead of “in a hasty manner”

in an X manner in circumstances in which

when or where

in

close

proximity near

in point of fact

in

fact (or omit all together)

in reference to

about

in regard to

about

in the course of

during

in the event that

if

is able to

can

is cognizent of

knows

or is aware of

is lacking in

lacks

is unable to

cannot

it

could be argued that

replace

with an argument for why the argument is sound (if

that's what you mean)

 

it

has been determined that

omit

it

is apparent that

clearly

or omit

it

is arguable that

replace

with an argument for why the argument is sound (if

that's what you mean)

it

is clear that

clearly

or omit

 

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it should be noted that

omit

most of the time

usually

negatively affect

hurt

or harm or decrease or some such

on a number of occasions on the part of piece of legislation referred to as

serves to X

opposition” to “this only strengthens the opposition”)

often or sometimes

by

law or statute or bill

called

Xs

(e.g. exchange “this only serves to strengthen the

sufficient number of

enough

the case at bar

this

case

the manner in which

how

this case is distinguishable

all

cases are distinguishable; you probably mean “this

case is different” to the effect that

that

under circumstances in which…

when

or where

with regard to

about

2. Verbs turned into nouns or adjectives accord respect to

respect

during the pendency of X

while

X was pending

for the purpose of doing

to

do

has a deleterious effect on

hurts

or harms

has a negative impact on

hurts

or harms

is aware that

knows

is binding on

binds

is desirious of

wants

is dispositive of

disposes

made negative reference to

of or disagreed with

criticized

render assistance

help

was aware that

knew

with regard to

about

3. “The Fact That”

The phrase “the fact that” adds an extra conceptual level; you’re not just talking about an event or condition (“John sold the land to Mary”), but rather about the fact that the event or condition occured (“the fact that John sold the land to Mary”). Sometimes this extra complexity is necessary--but rarely. The phrase can usually be omited entirely (perhaps with some grammatical adjustment of the following clause, e.g. “John’s selling the land to Mary”), or replaced with “that.”

because of the fact that despite the fact that due to the fact that

because

despite or though

because

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in light of the fact that

because

or since

the fact that

that

4. Redundancies These are phrases in which one word simply repeats what is already embodied in another; this is sometimes worth doing for emphasis, but only rarely. If you replace the phrases with their simpler equivelants, you'll find that the result is usually clearer, and no less emphatic.

any and all

all

cease and desist

stop

(except in “cease and desist order” or “cease and desist

letter”) consensus of opinion

consensus

each and every

every

null and void

void

period in time

time

or period

point in time provision of law rate of speed still remains until such time as

time or point law speed remains until

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