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Table of Contents
On line version of this Handbook is available on TWEN Legal Rhetoric Main Page: reading assignments are hyperlinked.
Syllabus ................................................................................................................................1 Course Requirements and Policies.....................................................................................12 Introduction to Legal Rhetoric........................................................................................... 17 Legal Rhetoric Style Sheet..................................................................................................21 Planning Strategies.............................................................................................................24 The Basic Principles ..........................................................................................................25 Revision Checklist .............................................................................................................28 The Legal Process ..............................................................................................................30 Using CREAC ....................................................................................................................31 Umbrellas ...........................................................................................................................33 Who Teaches the Course?...................................................................................................34 Clumsy Words and Phrases.................................................................................................38
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.
Teaching Law abbreviations: RS-Research Sources; RSt-Research Strategies; LD-Legal Documents; LA-Legal Analysis; WP-Writing and Rewriting; EC-Editing and Citation
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: LD4: Memos--Headings LD5: MemosQuestions Presented LD6: MemosBrief Answer LD7: MemosStatement of Facts LD8: MemosDiscussion LD9: Memos--Conclusion Legal Analysis: LA2: Legal AnalysisIntroduction LA3: Understanding Legal Rules LA6: Statutory Language LA7: Statutory Interpretation Editing and Citation: EC4: Active v. Passive Voice EC22: Nominalizations EC28: Sentence Fragments EC30: Short Sentences EC32: Strong Subject-Verb Combinations Write for Week 2: Draft of fact section for office memo.
Research in Week 2: Research Workshop: Statutory Research Read for Workshop 1: Teaching Law: Research Sources: RS2: Importance of Legal Research RS3: Overview of Types of Legal Authority - Primary Law RS4: Overview of Types of Legal Authority - Secondary Sources RS6: Overview of Process and Strategy RS9: Federal Congress and Federal Statutes RS16: State Legislatures and Statutes RS45: Quick Reference - Statutes Research Strategies: RSt6: Primary Law v. Secondary Sources RSt7: Stare Decisis RSt8: Binding Law vs. Persuasive Law RSt44: Quick Reference - Binding vs. Persuasive Law RSt22: How a Bill Becomes a Law RSt11: Book Research vs. Online Research - Strategies for Book Research RSt12: Book Research vs. Online Research - Strategies for Online Research RSt19: Finding Constitutions and Statutes RSt49: Quick Reference - Finding Statutes RSt49a: Checklist - Strategies for Researching Statutes Assignment: Research Assignment 1 (will be assigned in Workshop 1; due at beginning of regular class, Week 4). In library: DF-arranged library tour.
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.
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: EC7: Apostrophes EC11: Colons and Semi-Colons EC12: Commas Legal Analysis: LA8: Understanding Common Law LA9: Case Analysis Write for Week 3: Mini-Memo (due week 3).
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 classfollow instructors 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: WP8: Managing Your Time WP9: Overcoming Writers Block WP15: Rewriting WP16: RewritingContent WP17: Large-Scale Organization WP18: Paragraph Organization and Legal Analysis WP19: Sentence Structure WP20: Conciseness
Write for Week 4 : Expand and revise Mini-Memo into full memo adding cases (and synthesized Rules) and using full office memorandum format; complete draft due week 4. Research in Week 4: Workshop 2: Case Research Read for Workshop 2: Teaching Law: Research Sources: RS10: Primary Law Federal Law Federal Courts and Cases RS11: United States Supreme Court RS12: Federal Courts of Appeals Circuit Court Map RS13: Federal District Courts District Court Map RS17: Primary Law State Law State Courts and Cases RS42: Quick Reference Courts and Cases Research Strategies: RSt20: Finding Cases RSt10: Book Research vs. Online Research Topic and Key Number Searches RSt25: Updating the Law RSt45: Quick Reference West Key Number System RSt51: Quick Reference Finding Cases RSt46: Quick Reference Updating the Law RSt51a: Checklist Strategies for Researching Cases Assignment: Research Assignment 2 (will be assigned in Workshop 2; due in regular Rhetoric class in Week 6).
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,
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).
Research in Week 6: Workshop 3: Secondary Sources Read for Workshop 3: Teaching Law: Research Sources: RS19: Secondary Sources RS20: Secondary Sources - Legal Encyclopedias RS21: Secondary Sources - American Law Reports RS22: Secondary Sources - Hornbooks and Treatises RS23: Secondary Sources - Law Reviews RS24: Secondary Sources - Restatements RS44: Quick Reference Secondary Sources Assignment: Research Assignment 3 (will be assigned in Workshop 3; due Week 8).
In class: Structured in-class peer review of draftscome 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.
Week 7: October 7
Final version of Memo 1 due at beginning of class. In class: Self-evaluation of performance on Memo 1set 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: WP12: Organizing Before You Write 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: RSt42: Checklist Initial Research RSt43: Checklist Continuing Research RSt16: Research Strategies Taking Notes RSt17: Research Strategies Deciding When to Stop
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 lawstrengths and weaknesses of clients 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 2s 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.
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.
Write for Week 11: Draft 2 of Memo 2; turn in with focused questions.
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Writing Process: WP21: Persuasive Writing WP22: Moving from Objective to Persuasive Writing WP23: Designing the Theory of the Case WP24: Crafting the Fact Section WP25: Drafting the Argument Section WP26: Using Effective Sentence Structure and Word Choice
Write for Week 13: 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).
Research, Citation, and Writing ExamNovember 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.
Monday, November 25
Showcase Argument for Motion in Closed Memo case.
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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 draftit 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 instructors 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 instructors job to read line-by-line and revise and edit a students 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 Deans Fellow, as well, can respond in a macro fashion to drafts. 13
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? Id like to discuss the difference between the Brief Answer and the Conclusion. Mine seem repetitive. I know from class exercises that Im 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 students 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 assignmentsthe 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 Westlaws 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
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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 dos and donts 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!
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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 Deans Fellow, other Legal Rhetoric instructors, other Legal Rhetoric Deans 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.
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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. Thats 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 clients 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.
Language (Literature)
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 cant 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? Thats 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.
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 students writing might improve, or not; it was all rather serendipitous. It wasnt 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
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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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: The court considered two factors: whether the testator suffered from an insane delusion, and whether the will was a product of that 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: (1) The mascot asked the spectator if she would like to dance on the dugout roof, and the spectator agreed to do so. Right: (2) If the defendant knowingly consented to dancing with the mascot, he should not be 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. 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/its: Its is a possessive pronoun; its is a contraction for it is; they are not interchangeable. Right: A leopard cannot change its spots. Right: Its probably going to rain today. (Note: contractions should not be used in formal writingthat 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 testators wife was drawn into and suffered the consequences of her husbands delusion. Right: This effect on making a will is similar to . . . (or some other noun or phrase that sums up what the writer means) 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; dont 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. 2. 3. 4. 5. 6. 7. What question(s) should this document answer? What is my answer to each question (no more than a few words)? Who is my reader? What is my reader's relationship to me? How much does my reader know about the subject and my answer? What is my reader's attitude about the subject and about my answer? What does my reader need to know to understand my answer? List in "need to know" order. Why am I writing this (to inform, to persuade, to accomplish some other end)? What constraints do I have?
8. 9.
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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 contextthat 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 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 importantdependent 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. 8. 9. 10. 11. 12.
Are most sentences in subject, verb, direct object order? Do sentences rarely exceed twenty-five words? Are long sentences controlled with parallel structure? Do I vary sentence length and type? Are the first and last words in each sentence the most important? 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 paragraphs 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?
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Judges decisions on pretrial motions Facts Law Analysis Conclusion (Audience: Parties, A ttorneys, Higher Courts, Public)
Trial*
Appeal
Appellate briefs Facts (including trial procedure) Law Argument Conclusions (A udience: J udges, Opposing Counsel, Public)
Appellate opinions Facts Law Reasoning Decision (Audience: Parties, Attorneys, Higher Court, Public, Law Students)
= 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 its a framework. Heres 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 IUnder 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 Different legal writing programs and different legal writing textbooks may use slightly different acronyms; they all refer to the same structure. 31
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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 . . . Every case turns not on Rules alone, but on the specific facts of the case at 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. 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. Its 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 theres 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 wont be in dispute (known, dangerous, artificial), but the partner (reader) will want some law so she or he can understand why the writer doesnt 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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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, Writers 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 firstyear 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 OConnor. 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 Lpez, 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 nations 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 nations 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. Attorneys 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 Programs 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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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.............often or sometimes on the part of ................................by piece of legislation........................law or statute or bill referred to as.................................called serves to X....................................Xs (e.g. exchange this only serves to strengthen the opposition to this only strengthens the opposition) 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 of made negative reference to.........criticized or disagreed with 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; youre 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. Johns selling the land to Mary), or replaced with that. because of the fact that..............because despite the fact that...................despite or though due to the fact that.....................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........................... time or point provision of law......................law rate of speed...........................speed still remains............................remains until such time as...................until
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