Professional Documents
Culture Documents
5th Ed Legal-Writing-And-Analysis-Aspen-Coursebook-Series
5th Ed Legal-Writing-And-Analysis-Aspen-Coursebook-Series
and Analysis
EDITORIAL ADVISORS
Rachel E. Barkow
Segal Family Professor of Regulatory Law and Policy
Faculty Director, Center on the Administration of Criminal Law
New York University School of Law
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law
Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago
Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School
James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School
Tracey L. Meares
Walton Hale Hamilton Professor of Law
Director, The Justice Collaboratory
Yale Law School
Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School
Legal Writing
and Analysis
Fifth Edition
Linda H. Edwards
E. L. Cord Foundation Professor of Law
William S. Boyd School of Law
University of Nevada, Las Vegas
Copyright © 2019 Linda H. Edwards.
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Appendices
Index
Contents
Preface
Acknowledgments
Appendices
Appendix A Sample Office Memorandum
Appendix B Sample Trial-Level Brief
Appendix C Sample Appellate Brief
Appendix D Sample Letters
Appendix E Cases
Index
Preface
This book is a concise text that tracks the traditional legal writing course
syllabus. It groups relevant material together instead of scattering it in
different stages of the writing process. It includes numerous examples and
uses frequent short exercises to encourage students to apply new material. It
provides students with the necessary structure for organizing a legal
discussion. Finally, it includes discrete materials that offer students the
opportunity to explore a deeper level of understanding than its small size
would imply.
The Book’s Organization: Part One explains the legal system and
introduces lawyers’ roles within that system. Part Two explains how to work
with the raw material for analysis. It covers briefing and synthesizing cases,
analogizing and distinguishing case law, and interpreting statutes. Part Three
presents the traditional organizational formats for communicating the analysis
of a legal question (the basic IRAC or CRAC structures). Parts Four and Five
cover the components of office memos, letters, trial-level briefs, and
appellate briefs. Part Six presents material on citation and style, and Part
Seven introduces oral argument.
How This Book Differs: The primary difference between this book and
my earlier text, Legal Writing: Process, Analysis, and Organization, is the
way the material is grouped. This book is not so unrelenting in its process
approach, although it still recognizes writing as a process. The first book
presents its material in stages defined entirely by a writer’s progress toward
completing a particular assignment. Although that approach offers real
advantages, course time and resources do not always permit its use and
Process, Analysis, and Organization is less flexible pedagogically. In
contrast, this book groups relevant material together in a more efficient
manner while still providing guidance about the writing process. That
Linda H. Edwards
November 2018
Acknowledgments
This book has benefited immeasurably from the assistance and support of
many people. First and foremost, I am grateful to all of my Mercer
colleagues. Their belief in the importance of legal writing has been
manifested again and again through the years and has been the foundation on
which this project, among many others, is built. Special thanks go to Susan
Bay, Ted Blumoff, Jim Hunt, Mark Jones, Hal Lewis, Adam Milani, Jack
Sammons, and Michael Smith for reading and commenting on parts of the
book. Two Mercer Deans, Larry Dessem and Mike Sabbath, have assisted in
innumerable ways. Billie Blaine and Carrie Murray provided careful research
assistance, and Sandy Studdard provided ready administrative support.
Finally, I am grateful to my students, whose hard work and probing questions
have kept me learning.
I am privileged to be part of a remarkable national legal writing
community. Space does not permit listing all of the colleagues who have
shared generously of their vision, enthusiasm, wisdom, and experience. I
hope they each know how thankful I am for their friendship and for their
many contributions to our discipline. Two names cannot be omitted,
however: Mary Lawrence, who has mentored generations of legal writing
colleagues, and Tom Blackwell, whose memory will continue to guide us for
years to come.
The chapters of this book dealing with the grounding of analysis and
argument in underlying theories of jurisprudence would not have been
possible without the friendship, advice, and encouragement of doctrinal law
colleagues, especially Scott Brewer, Martha Minow, and Joseph Singer.
Errors, of course, are my own. I owe a debt of gratitude to Darby Dickerson
for her invaluable assistance with Chapter 20. Thanks are due also to the
wonderful people at Aspen Publishers, especially Carol McGeehan, Melody
Davies, Richard Mixter, Betsy Kenny, and Peggy Rehberger. I am especially
grateful to the anonymous Aspen reviewers whose comments contributed so
significantly to the book.
I would also like to thank the following copyright holder for permission
to reprint the map of the federal judicial circuits:
2009 Judicial Staff Directory 963 (C.Q. Press 2009). Copyright © 2009 by
Congressional Quarterly, Inc. Phone (202) 729–1817.
And finally, my deepest thanks to Dan Edwards. Yet again, words fail.
PART ONE
Most students entering law school would not call themselves writers; nor
would they expect that in three years they will be professional writers,
earning a significant part of their income by writing for publication. Yet that
is precisely what lawyers do. Most lawyers write and publish more pages
than do novelists, and with greater consequences hanging in the balance.
This book introduces the critical skill of legal writing. We begin by
exploring the kinds of writing lawyers do, both in litigation and in other kinds
of law practice.
EXERCISE 1-1
Identify the primary lawyering role called for in each of the following
situations:
1. A client (a widower) has been diagnosed with a fatal form of cancer.
a. The client asks a lawyer to draft a trust to protect his assets for his
children.
b. The client asks whether there is a procedure by which he can
designate a foster family to care for his children after his death and
whether it would be wise for him to do so.
c. The client asks the lawyer to file a lawsuit seeking recovery against
his employer for exposure to carcinogens in the workplace.
2. A client has located a piece of real property she wishes to buy and lease
to a commercial tenant. The title registry lists an easement allowing the
owner of the property next door to use the driveway along the back of
the property. The client wishes to expand the existing structure on the
property and eliminate the driveway.
a. The client asks the lawyer whether the easement can be challenged
legally.
b. The client asks the lawyer to approach the owner of the property next
door and seek the release of the easement.
c. The client asks the lawyer to draft the release of the easement and
also to draft a lease for the new commercial tenant to sign.
Filing a Lawsuit and Resolving Initial Defenses. If the case does not
settle, the plaintiff’s lawyer chooses the appropriate court and files a
complaint, a document that sets out the facts of the case and the legal basis
for the claim. Once the defendant’s lawyer receives the complaint, he has
only a few weeks to draft and file a response. His research might have shown
that the defendant has one or more defenses that can be raised immediately. If
so, the lawyer will raise these defenses in documents called motions, which
state the defense and ask the court for some kind of action, such as dismissal
of the case. Each motion will be supported by a brief (also called a
memorandum of law), explaining the legal and factual basis for the defense.
The motions may also be accompanied by other supporting documents, such
as affidavits from witnesses and copies of documents bearing on the defense.
Each time one party files a motion asking the court to take some action,
the other party files a responsive brief, usually explaining the legal and
factual basis for the argument that the court should deny the motion. The
responsive brief may be accompanied by other supporting documents such as
affidavits. The party who filed the motion (the moving party) will file a reply
brief addressing the arguments raised in the responsive brief, and there might
be a hearing on the motion. The court then decides that issue.
If the court declines to dismiss the case, the defendant’s lawyer must file
an answer, a document that admits or denies all the facts alleged in the
complaint and may raise additional defenses as well. The defendant’s lawyer
also may file a counterclaim, a document that alleges some wrongful conduct
on the part of the plaintiff. The plaintiff will then file an answer to the
defendant’s counterclaim. The answer admits or denies all the facts alleged in
the counterclaim and raises possible remaining defenses against the
counterclaim.
Factual Discovery. Now the case is ready for the discovery phase. In this
phase, the parties gather all the available evidence in an effort to prepare for
trial. During discovery, both parties draft and file interrogatories (questions
directed to each other) and responses to interrogatories (answers to the
questions). They draft and file requests for production of documents, requests
for admissions, and notices of depositions (occasions for oral questioning of
witnesses under oath). Parties can file requests for entry on land (to inspect
the premises) or requests for medical examination (to subject a person to a
physical or psychiatric examination). During the discovery phase, disputes
might arise over how much or what kind of information can be sought. These
disputes can become the subject of motions to compel (filed by the party
seeking discovery) or motions for a protective order (filed by the party
seeking to prevent discovery). Like other motions, discovery motions and
responses to them are accompanied by supporting briefs and affidavits.
Motions for Summary Judgment. After the discovery phase, the parties
often draft and file motions for summary judgment. A party seeking summary
judgment is asking the court to rule on some or all of the claims or defenses
without the need for a trial. Summary judgment motions are supported by
briefs, by statements of uncontested facts, and by affidavits, excerpts from
depositions, evidentiary documents, and excerpts from written discovery. The
opposing party files a responsive brief, affidavits, and other supporting
documents resisting the motion, to which the moving party files a reply brief.
Oral argument is often held. The court might resolve the entire case at the
summary judgment stage, or it might resolve some of the claims or defenses,
thus narrowing the issues remaining for trial.
Trial. If the case is not resolved, the parties and their lawyers prepare for
trial. If the case will be tried to a jury, both parties draft and file a set of
proposed jury instructions. Jury instructions are statements to be read to the
jury to help them understand the law governing the case and their role in the
process. Each party also drafts and files a trial brief, a document that
summarizes the evidence expected to be introduced, raises and argues any
evidentiary issues the party anticipates, and argues for the adoption of that
party’s version of the jury instructions.
Trial begins with jury selection (if the case will be tried to a jury) and
opening statements by each party’s lawyer. Then the parties call their
witnesses and offer their evidence. The trial concludes with closing
statements from each lawyer, the reading of the jury instructions (if the case
is tried to a jury), and a decision by the judge or the jury. Some post-trial
motions may be decided, and then a final judgment will be entered.
Appeal(s). A party who is dissatisfied with the result at trial usually can
file a notice of appeal to a higher court. This party is called the appellant. The
other party (the appellee) may file a notice of appeal as well, raising other
objections to the trial court result. A series of documents identify the issues to
be argued in the appeal and designate the record of the trial court proceedings
that will be sent to the appellate court.
After the record has been prepared and filed, the parties each file briefs,
responsive briefs, and reply briefs arguing the issues raised in the appeal.
Oral argument is often held, after which the appellate court issues an opinion.
In some circumstances, either or both parties may seek to appeal the appellate
court’s decision to an even higher court. If so, the appellate process is
repeated there. When all appeals are completed, the losing party either
complies with the judgment (if applicable) or enforcement proceedings begin.
After the judgment has been paid, a satisfaction of judgment is filed, and the
case is closed.
B. When to Cite
Citation to authority has twin purposes. First, citations provide your reader
with the authority that supports your assertions about the law. Providing your
reader with supporting authority is essential. Your citations should prove that
the law is what you say it is and that it means what you say it means.
Second, citations attribute the words and ideas of another author to that
author. Because a reader will attribute uncited material to you, a citation is
your way of disclaiming credit for the words and ideas you did not create.
Therefore, you should cite when you quote and when you paraphrase (that is,
when you use your own words to express the authority’s idea).
EXERCISE 1-2
Recognizing Ideas That Need Citations
Read the following passage20 and identify the statements for which a
citation is either necessary or desirable. Be prepared to explain your answers.
A lawyer has a fiduciary relationship with his or her client. The fiduciary
aspect of the relationship is said to arise after the formation of the attorney-
client relationship, and it applies to a fee agreement reached after the
attorney-client relationship has been entered.
At least three reasons support the imposition of fiduciary obligations on a
lawyer. First, once the relationship is established, the client likely will have
begun to depend on the attorney’s integrity, fairness, and judgment. Second,
the attorney may have acquired information about the client that gives the
attorney an unfair advantage in negotiations between them. Finally, the client
generally will not be able to change attorneys easily, but rather will be
economically or personally dependent on the attorney’s continued
representation.
Several cases illustrate the contours of the attorney’s fiduciary duty. In
Benson v. State Bar, the attorney borrowed money from a current client. The
attorney “was heavily in debt, and insolvent, at the time he approached [the
client] for these loans.” In return for the loans, the attorney gave the client
unsecured promissory notes. In disbarring the lawyer, the court described the
client’s trust in the lawyer’s judgment and wrote:
The gravamen of the charge is abuse of that trust, and regardless of petitioner’s contention
that he never specifically recommended the unsecured loans to [the client], it is undisputed
that in soliciting them he failed to reveal the extent of his preexisting indebtedness and
financial distress.
In People v. Smith, an attorney was under investigation for drug use, and
he offered to cooperate with Colorado police as an undercover informant. He
secretly recorded a telephone conversation with a former client in which he
asked the former client to sell him cocaine. He then met with the former
client wearing a body microphone. The recorded conversations ultimately
were used to convict the former client of three felony charges. The Colorado
Supreme Court held that although the attorney
no longer represented the [former client], the conduct in all probability would not have
occurred had [the attorney] not relied upon the trust and confidence placed in him by the
[former client] as a result of the recently completed attorney-client relationship between the
two. The undisclosed use of a recording device necessarily involves elements of deception
and trickery which do not comport with the high standards of candor and fairness to which
all attorneys are bound.
For these and other offenses, Smith was suspended from the practice of law.
The two most important sources of law other than constitutional provisions
are case law (common law) and statutes. In this chapter, we begin our study
of case law, including the structures and functions of courts and the concepts
of precedent, stare decisis, and case holdings. Chapter 3 covers case briefing,
the basic analytical tool for reading and understanding cases. Chapter 3 also
explores the ways in which individual cases relate to each other. Then in
Chapter 4, we turn our attention specifically to statutes, exploring methods of
interpretation and application of these increasingly important sources of law.
Figure 2-1
The federal judicial circuits as shown in 2009 Judicial Staff Directory 963 (C.Q. Press 2009)
Finally, all states have an appellate court of last resort, the highest
appellate court in the state. In most states, this court is called the Supreme
Court.7 Most cases are decided by all justices sitting together. This court is
the last and highest forum for deciding matters of state law.
II. THE FUNCTIONS OF TRIAL AND
APPELLATE COURTS
The functions of trial courts and appellate courts differ in important ways.
Understanding these differences will help you understand the cases you read
and the arguments you can make.
EXERCISE 2-1
Decide whether an appellate court would have to give any deference to the
following statements from a trial court’s decision.
1. “The defendant cultivated a garden on the property each year between
1994 and 2002.”
2. “To establish a claim to property by adverse possession, a party must
prove that his or her use of the property was open and notorious for the
entire statutory period.”
3. “Abandonment occurs when a person in possession of real property
leaves the property with no intention to return.”
4. “When the defendant left the property to attend school in another state,
her improvements and her household furnishings remained on the
property.”
A. Stare Decisis
At the heart of the common law system is the doctrine of stare decisis.
According to this doctrine, when a court has decided a case in a particular
way, future similar cases should be decided the same way. Although the
doctrine sounds simple and straightforward, in operation it is more complex
than it might appear.
First, the doctrine applies only when the pending case is similar enough to
the prior case to justify the application. Because all pending cases differ
somewhat from prior cases, the question of whether the cases are similar
enough will almost always be subject to argument. Second, if there is good
reason, a lower court can decline to follow the precedent of a higher court.
Conceptually, the justification for such a decision is the belief that the higher
court probably would not adhere to the prior decision if the question were
now before it. Finally, a court can overrule its own prior decision when the
court decides that the law should change. A court might decide that the prior
decision was ill-reasoned originally, or that its application has produced
unanticipated and undesirable results, or that modern conditions now call for
a different approach.
A court usually overrules its own decision explicitly, by identifying in its
new opinion the case to be overruled and directly stating the intention not to
rely on it in the future. A court also can overrule a case implicitly, not
mentioning the case at all but applying a different legal standard to the
pending case.
B. Holdings
In the common law process, the part of the precedent case that binds a future
court is the holding. A case holding is a statement of the court’s decision
about the issues actually before it. No doubt you have already heard the term
“holding.” You might have seen the term defined in materials about how to
brief cases, and your professors are probably asking you to state the holdings
of the cases you read. A word of clarification is appropriate here.
The term “holding” is used in a number of different ways, varying
according to the context, the task at hand, and one’s particular legal
philosophy. For instance, your contracts professor might want you to state the
holding in terms specific to the parties in the case, whereas your torts
professor might want you to state the holding as a general principle ready to
be applied to future cases. Your civil procedure professor might not care
particularly about whether you personalize the statement but might want you
to include a rule statement in the holding. Your property professor might not
want you to include a rule statement but might want instead a fairly complete
statement of the important facts leading to the case’s outcome.
Rest assured that each of these professors has a pedagogical purpose in
mind, and you should follow each professor’s preference in his or her class.
None of these preferences are wrong, even if some seem inconsistent with
others. The purpose of stating holdings in a law school class is to teach you
the basics of case reading, and each professor’s approach emphasizes
particular parts of that important skill.
In your legal writing class and in law practice, however, you will be
identifying holdings for a different purpose — to decide whether and how
that precedent case might apply to your client’s situation. When you write
statements of holdings for a contracts or torts class, you have only the
precedent case before you. You rarely have a set of new facts to which the
precedent might apply. In your legal writing class and in law practice, you
will be reading the case for the purpose of relating it to a particular new set of
facts. You will find that when you state holdings for this purpose, you will
not need to worry about most of the differences you might have noticed
among professors and among books and other materials discussing the term.
For our purposes, you can think of the holding as the court’s decision on
the particular legal issue plus the important facts — the facts that seemed to
make a difference to the result. For instance, consider Cantwell v. Denton, a
hypothetical case about assumption of the risk in a torts case. In Cantwell,
faulty wiring in an apartment house caused a fire. A resident of one of the
apartments arrived at the scene, observed the fire, entered the building
anyway, and sustained injuries in the process. The resident sued the building
owner to recover for those injuries, and the defendant raised the defense of
assumption of the risk, a doctrine that, in various forms, prevents or limits
recovery for damages caused in part by a voluntary assumption of the risk of
injury.
Assume that the court in Cantwell decided that the doctrine of voluntary
assumption of the risk did not apply to this plaintiff because he had entered
the building believing his young daughter to be inside. You might state the
holding as follows:
Holding Assumption of the risk applies only to voluntary conduct,
and a father’s choice to enter a burning building is not
voluntary if he must choose between entering the building
and failing to save his child’s life.
No doubt you have already observed great variety in holding statements,
even without regard for different preferences among professors. Differences
are normal. The next sections explain more about why you should not be
surprised to find these differences and how you can use them in representing
your clients.
EXERCISE 2-2
Write a statement of the holding for a case your professor has assigned. If
your professor has not assigned a case for this exercise, use the well-known
contracts case, Lucy v. Zehmer, found in Appendix E.
D. Holdings Versus Dicta
We are now ready to explore the last important topic explaining the common
law process — the distinction between holdings and dicta.11 This distinction
is important because only an opinion’s holding is binding on future courts.
The doctrine of stare decisis does not apply to dicta. A judge in a future case
may choose to follow dicta but is not bound to do so.
The holding of an opinion is limited to the court’s statements resolving
the question(s) actually at issue in that case, that is, statements on issues
necessary to the result reached. The court might make many other statements
about the law, statements other than those necessary to explain the decision.
Such statements of law not essential to the outcome of that particular case are
dicta. They are not part of the holding.
An example may help. Assume that you are reading a contracts opinion
dealing with whether a communication without a price would constitute a
valid offer. In that opinion, the court might have made some statements about
other legal issues. In the course of the opinion, the judge might have stated
that a valid contract requires acceptance and consideration. However, the
judge did not decide that particular case by considering whether there had
been a valid acceptance or sufficient consideration. Those were not the issues
the parties raised. Instead, the question before the court and the basis for the
result was whether there had been a valid offer. Therefore, any statements the
judge might have made about acceptance or consideration would be dicta.
Remember that the primary purpose of distinguishing holding from dicta
is to decide whether a future court is bound by the language. Although
statements of dicta are not binding, a lower court will often give the dicta of a
higher court great deference. Many trial and intermediate appellate court
judges consider it their role to apply the law as the higher court would, and
dicta can be a strong indication of what the higher court would hold. Take
care, however, not to mislead the court or another lawyer by presenting dicta
as if they were part of the holding.
Although the distinction between holding and dicta is sometimes clear, as
in the contracts example above, it is often debatable. You will not always
know for sure whether a certain statement of law was necessary to the court’s
decision. For instance, consider again the Cantwell language in the prior
section. If you are trying to persuade the judge that the Gregorys did not
assume the risk of injury to their engine, you probably will draw the holding
from the third paragraph. However, if you represent Jerico, no doubt you will
argue that the statements in the third paragraph are dicta. You will argue that
only the narrower statements in the first and second paragraphs were
necessary to decide Cantwell and therefore that the broad statements in the
third paragraph are “mere dicta.”
Once again we see that case analysis is inherently an interpretive project.
If you are looking for certainty in the law, you are bound to feel frustrated,
for no language can capture completely the whole of human experience. It is
this very flexibility of interpretation, however, that provides the opportunity
for advocacy.
EXERCISE 2-3
Read the following hypothetical opinion. For each statement that follows it,
decide whether the statement is part of the holding or dictum. Be prepared to
explain your answers.
This is an action to decide the rightful owner of a painting, which was allegedly given by
Harrison Crenshaw to his daughter Alecia Green on her 25th birthday. According to the
record below, on the date of Green’s birthday, Crenshaw hosted a party for his daughter in
his condominium. He told her in the presence of the guests at the party that the painting was
hers. Crenshaw said that she could have the painting as soon as he found another to replace
it. One month later, before the painting was delivered, Crenshaw died. The trial court held
that Crenshaw had made a valid gift to Green. We disagree.
To constitute a valid gift of personal property, the donor must manifest his intention to
make the gift and the item must be physically delivered unless physical delivery is not
practicable. Physical delivery is not practicable if, for instance, the item is in another city,
or locked in a safe deposit box in a bank closed for the weekend, or too heavy to move
without arranging moving assistance. This painting, however, was hanging on the wall not
ten feet away. It is small and light, and it was hanging freely on a hook. Physical delivery is
required when the item can be so easily removed and handed over. Therefore, there was no
valid gift of the painting.
EXERCISE 2-4
For each question below, which authority carries more precedential value?
Assume that the authorities listed in each question address precisely the same
issue, that all are in the same jurisdiction, and that each is valid in all
respects. Be prepared to explain your answers.
1. A state statute or an opinion of that state’s highest court?
2. An agency regulation or a state statute?
3. A state constitutional provision or a state statute?
4. An opinion of the state’s highest court or a ruling by a state agency?
5. A state constitutional provision or an opinion of that state’s highest
court?
The relative level of the issuing court. The more prestigious the court,
the more persuasive its opinions. For instance, a decision of the United States
Supreme Court is powerful persuasive authority, even when it is not
mandatory.
The date of the opinion. All other things being equal, more recent
opinions carry more persuasive value.
Whether the court’s statements about the issue are part of the holding
or dicta. As Section III in this chapter explained, statements that are dicta are
not as persuasive as statements that are part of the holding.
How factually similar the opinion is to the facts of the present situation.
The more similar the facts, the surer the judge can be that the authority was
meant to apply to situations like the pending case.
The reputation of the particular judge writing the case opinion. Some
judges have earned significant respect personally, separate from the position
they hold. The opinions of those judges might have added persuasive value.
Trends in the law. If you can discern a trend among other courts in the
nation or in your state, opinions consistent with that trend could have greater
precedential value than inconsistent opinions. For instance, if, over the past
several years your state’s highest court has been extending the liability of
manufacturers in various situations, a case opinion consistent with that trend
might have more precedential weight than an opinion that questions that
trend.
To understand case law, a lawyer must read and interpret the written
decisions of judges. The lawyer looks for cues from the language of the
opinion, evaluating the meaning and significance of each cue and
synthesizing the results. Thus, the lawyer creates an interpretation that
synthesizes the facts, the result, and the judge’s explanation of that result.
One can even say that a lawyer “constructs” the law through this interpretive
process. The starting point for learning this interpretive process is the case
brief.1
CASE BRIEF
1. Case Name, Court, Citation, Date
2. Facts
3. Procedural History
4. Issue(s)
5. Applicable Rule(s) of Law
6. Holding(s)
7. The Court’s Order
8. Reasoning
9. New Information
10. Questions, Comments, and Speculations
Case Name, Court, Citation, Date. You will need to know the name of
the court and the date so you can examine how this case fits with other cases
and gauge its precedential value for your assignment. Also, correctly
recording these pieces of information during your research stage will save
you time and frustration when you start to write.
Facts. Describe in your own words the facts of the case. You need
include only the facts that pertain to the legal issues relevant to your
assignment. For example, if the case concerns a dispute over whether a
person revoked her will before she died, normally you will not need to
include facts about what property she owned or about the cause of her death.
You would include those facts only if they might pertain to the question of
whether she had revoked her will.
Issue(s). The issue is the legal question the opinion resolves. Usually, the
opinion tells you how the court thought the governing rule of law applied to
the facts of that case, so you can state the issue in those terms. You can use
either a question or a phrase beginning with “whether.” Here is an example of
an issue statement:
Can a testator effectively revoke a will by marking a large “X” across only
the first page of a five-page will and not signing or initialing the “X”?
Focus on the part of the governing rule that actually was at issue in the
case. For instance, assume the case concerns a dispute over whether a testator
had revoked her will before she died, as in the issue statement above. The
parties were before the court to find out whether there is a valid will, but an
issue statement that broad would not help you isolate the precise point on
which this larger question turned: whether the existing will had been revoked.
Some opinions decide only pure questions of law3 and do not apply law to
facts. In such a case, the issue statement simply poses the legal question the
court answered, for example:
Whether Illinois law allows recovery for the wrongful death of a fetus.
To revoke a will, a testator must have the intention to revoke and must take
some action that demonstrates that intent.
The court may state some other legal rules to provide context for the issue
it actually will decide. Feel free to note these also. That legal context will
help you understand the law governing your assignment, and when you begin
to write your memo or brief, you might need to provide the same kind of
context for your reader. If so, that information will be readily available in
your case briefs.
A testator can effectively revoke a will by marking a large “X” across only
the first page of a five-page will and not signing or initialing the “X” if the
other evidence of the testator’s intent is sufficiently strong.
Notice the difference between a holding and the governing rule of law.
The rule sets out the legal test the court will use to decide the case. The
holding states the court’s conclusion about whether the facts of the case meet
that legal test.
If the issue is a pure question of law, you need not include the facts unless
the answer to the question depends on a certain set of facts. For instance, if
the issue is “Does State X allow recovery for the wrongful death of a fetus?”
(a pure question of law), the answer (holding) might include facts: “Recovery
for the wrongful death of a fetus is permitted if the fetus was medically viable
at the time of the injury.”
The Court’s Order. After deciding the legal issue, the court either will
take some action itself or will order that a person or another court take some
action. For instance, a trial court might grant or deny a motion or might order
the clerk to enter a judgment. An appellate court might affirm or reverse the
lower court’s ruling and might remand the case to the lower court for further
proceedings. Note the legal result of the court’s decision under this category
of your brief.
Reasoning. Usually, a court uses its written opinion to explain the reasons
for its decision. These reasons will give you important clues about how the
court might decide future cases, and they can provide you with effective
arguments. Chapter 5 identifies the major forms of legal reasoning, but
whether you use those names or not, note in your case brief the court’s
reasons for its decision.
Pay particular attention to the court’s policy rationales. Policy rationales
justify a decision based on what result will be best for society at large. Courts
realize that their rulings will affect the way people act in the future. They
want to apply the law in ways that will encourage desirable societal results.
For instance, a court might adopt a certain legal rule because that rule will
reduce litigation or because it will encourage people to think more carefully
before entering into a contract. Including policy statements in your brief will
help you understand whether and how the court’s decision might apply to
future cases.
EXERCISE 3-1
Prepare a case brief for a case your professor has selected. Bring your brief to
class, and be prepared to discuss it. If your professor has not assigned a case,
brief Lucy v. Zehmer, found in Appendix E.
To revoke a will, a testator must have the intention to revoke and must take
some action that demonstrates that intent.
Your written analysis would discuss each element (intention and action)
separately. For each element you would identify several cases that best
explain that element and discuss them in your description of that element.
Similarly, if jurisdictions are split between two different approaches, your
written analysis would discuss each approach separately. For each approach,
you would identify several cases that best explain that approach and discuss
them in your description of that element. For instance, assume you are
writing an office memo on the question of whether parents can recover for
the wrongful death of a fetus. You might find that some jurisdictions do not
permit recovery at all, whereas others permit recovery if the fetus was
medically viable at the time of the injury. You would explain to your reader
that jurisdictions disagree and then discuss separately each of the two
approaches. For each approach, you would select and discuss the several
cases that best illustrate that approach.
If Fox were the only authority, the lawyer would use this rule to analyze
Watson’s question. He would analyze the reasonableness of each of the
identified characteristics of the Watson covenant. But Fox is not the only
authority. The lawyer also found Clein, and there the court seems to articulate
the governing rule differently. In Clein, the court stated:
Fox and Clein seem to lay out different rules. There seem to be two
different legal standards governing the enforceability of covenants not to
compete. Novice legal writers might be tempted to analyze the Watson issue
by describing and applying, one at a time, the “rules” set out in Fox and in
Clein. The discussion would first give a sort of “case brief” of Fox,
describing the facts, the “rule” language that court used, and the result. The
discussion would then apply the “rule” from Fox to the Watson facts. Then
the discussion would do the same thing with Clein, setting out the “rule”
language from that case and applying that “rule” to the Watson facts. The
organizational structure would look something like this:
Inconsistencies in Results. You might find cases that seem to apply the
same governing rule to seemingly similar sets of facts but reach puzzlingly
different results. To reconcile them, search for factual differences that might
explain these results.
Consider this example: To establish adverse possession of land, a
claimant must prove several things, one of which is “possession.” The kind of
possession that will ripen into title is gauged by the kind and degree of the
claimant’s use of the land. Here are summaries of two hypothetical cases
dealing with the issue of whether the kind and degree of use was sufficient.
Do they seem inconsistent? If so, can you reconcile them?
Allen v. Baxter: Fifteen years ago, Anne Allen bought Lot A in a suburban neighborhood.
Lot B, the vacant and overgrown lot next door, was owned by Jacob Baxter. Allen built a
house on lot A and moved in. In 1981, Allen began gardening on Lot B. During the eight-
month growing season, she worked in the garden nearly every day, growing vegetables for
herself and her neighbors. During the four remaining months, she seldom went on the lot.
The court held that this use did not establish a sufficient degree of “possession” for the
purposes of adverse possession.
Clay v. Davidson: Fifteen years ago, Charles Clay bought a lakeside lot in a resort area. The
lot already contained a cabin, and Clay built a dock. Every year since then, he has spent
about six weekends a year and two weeks during the summer at the cabin. He has now
discovered that the legal description of the lot was incorrect in that it actually describes the
lot next door. Darlene Davidson is the actual record title-holder of the lot Clay thought to be
his. The court held that Clay’s facts established a sufficient degree of “possession” for the
purposes of adverse possession.
The results in these two cases seem inconsistent. The degree of possession in
Allen seems much greater than the degree of possession in Clay. Allen was
physically present on the land for many more days of the year than was Clay,
and Allen did more to the land than did Clay. Yet the court held that Clay
possessed the land to a sufficient degree, and Allen did not. Reconciling these
cases requires you to search for differences that could explain this seeming
inconsistency. Perhaps the court will be satisfied with a lesser degree of
possession in the case of vacation property, where an owner would not be
expected to be in possession year round. Perhaps the court counted the
continuous presence of Clay’s improvements as part of Clay’s possession. Or
perhaps the court will require a greater degree of possession in the case of a
possessor who knows she does not have record title. Any of these
explanations could reconcile Allen and Clay.6
EXERCISE 3-2
Synthesizing and Reconciling Rule Statements
Synthesize (and reconcile where necessary) the following four summaries of
case opinions setting out the requirements for recovery under the attractive
nuisance doctrine. Use the cases to formulate one rule of law. For each part of
the rule you formulate, identify the case(s) you would cite for support of that
part of the rule. Remember that often you can formulate different rules from
the same set of authorities.
However, here the condition that caused the injury was a naturally occurring condition
rather than an artificial condition. While landowners have a duty to protect trespassing
children from artificially created conditions on their property, they do not have the duty to
protect trespassing children from naturally occurring conditions. Such a duty would often
require landowners to take unreasonable or impossible actions such as fencing off huge
tracts of land. Thus, the owner is not liable for the injuries to the trespassing child.
EXERCISE 3-3
Reconciling Facts
You are researching an issue dealing with the requirements for making a
valid gift. The cases explain that to make a gift, the donor must physically
deliver possession of the item to the donee if possible. All of the cases you
first find are similar to Elder v. Fisher below. Then, you find Galloway v.
Harris. Does Galloway seem inconsistent with Elder and the cases like it? If
so, how? Can you imagine how you might reconcile Elder and Galloway?
Elder v. Fisher. Janice Elder had a ruby ring, which she kept in her safe
deposit box at a local bank. She wanted to give it to her sister, Darlene, for
her birthday. Janice took Darlene to lunch and gave her a birthday card. The
card read, “You’re the best sister anyone could have. From this moment on,
my ruby ring is yours. Meet me at the bank Wednesday at noon, and I’ll get it
out of the safe deposit box.” Janice died on Tuesday, and her executor,
Fisher, refused to turn over the ring to Darlene, claiming that no valid gift
had been made because the ring was in the same town as the donor and donee
but had not been physically handed over. The court held that actual physical
delivery was required and that no valid gift had been made.
Galloway v. Harris. Chester Galloway wanted to give his daughter Jane
an oil painting that was hanging over his mantel. He gave Jane a birthday
party, and in the presence of the guests, he gave Jane a birthday card. Inside
the card was a note declaring that the painting was her gift. Chester said that
he wanted to keep the painting in place until his house sold and then he
would bring it to her. Before Chester’s house sold, he died. Jane claimed that
the painting was hers, and Chester’s executor (Harris) claimed that no valid
gift had been made because the painting was in the same room with the donor
and donee and had not been physically handed over. The court held that
actual physical delivery was not required and that the painting was Jane’s.
1. The term “brief” is also used to refer to a formal court document a lawyer submits to a judge to
advocate for a favorable ruling in a case. A case brief often is called simply a “brief,” so some
confusion of terminology is possible. Usually, though, the context will clarify the meaning.
2. See Chapter 1, Section IV.
3. See Chapter 2, Section II.
4. 176 S.E.2d 71 (Ga. 1970).
5. 98 S.E.2d 897 (Ga. 1957).
6. If you study adverse possession in your property class, you might learn more about how to
reconcile these two cases. The purpose of this exercise is simply to give you some practice in imagining
possible reconciliations.
CHAPTER 4
Interpreting Statutes
While the roots of the American legal system remain in the common law, the
1930s saw the beginning of “an orgy of statute-making.”1 Today, most legal
issues are controlled or significantly affected by statutes. Thus, your skills of
statutory analysis will be crucial to your success as a lawyer. The skills basic
to statutory analysis are (1) reading the statute, (2) identifying the issues, and
(3) interpreting the statute’s language.
I. READING STATUTES
The starting point for reading a statute is understanding the legislature’s
relationship to the courts. As we saw in Chapter 2, an applicable statute binds
the courts of that jurisdiction, but a court has the authority to interpret the
statute’s language. Once a court has interpreted the statute, the doctrine of
stare decisis applies, and the court’s interpretation binds all other courts for
whom the opinion is mandatory authority. If the legislature disagrees with the
court’s interpretation, the legislature is free to amend the statute to clarify its
intended meaning. The court is then bound once again, this time by the newly
amended statute.
Also, as we saw in Chapter 2, a court has the authority to rule on the
constitutionality of the statute. On the question of constitutionality, the court
has the last word. The legislature can amend the statute to cure the
constitutional infirmity the court identified, but the legislature cannot enact
another statute declaring the original statute constitutional. A statute that has
been held unconstitutional will not be enforced within the jurisdiction of the
court that issued the opinion.
Within the boundaries set by these interlocking roles, courts must read
statutory language and tell litigants whether the statute applies to their
situation, and if so, what that language means. To advise clients and represent
litigants, therefore, lawyers must read statutes precisely, accurately, and
sometimes creatively. You can think of the questions critical to this inquiry as
similar to the famous five Ws that guide a journalist:2
Often, the scope of the material you must read closely is larger than the
specific statutory provision you first identify. If you are dealing with an act
containing individual separately numbered provisions, you must read
carefully at least the following parts of the act:
Read each of these parts of the statute word by word and phrase by
phrase, paying attention to every detail. Reading a statute is more like reading
an algebraic formula than it is like reading standard prose. Each word and
punctuation mark is important. Even the internal tabulation (numbering or
lettering) can be significant. Pay particular attention to words that signal
structural information.
Also, notice whether any list set out in the statute is meant to be
exclusive. The statute might tell you expressly that the list is not exclusive,
using such language as the phrase “and any other factors relevant to the
child’s best interests.” Or the statute might merely imply whether the list is
exclusive, for instance, by introducing the list with a word like “including.”
EXERCISE 4-1
Read this statute, and answer the questions that follow it. If you would need
more information to answer the question, identify the information you would
need.
A lawyer’s fee shall be reasonable. The factors to be considered in determining the
reasonableness of a fee include the following: the time and labor required; the novelty and
difficulty of the questions involved; and the skill requisite to perform the legal service
properly; the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer; the fee customarily charged in
the locality for similar legal services; the amount involved and the results obtained; the time
limitations imposed by the client or by the circumstances; the nature and length of the
professional relationship with the client; the experience, reputation, and ability of the
lawyer or lawyers performing the services; and whether the fee is fixed or contingent.3
1. Client A asks a lawyer to handle a car accident case. The opposing party
is insured by Security Insurance. The lawyer has been hoping to be
placed on the list of lawyers approved to represent Security Insurance
clients. In setting her fee, can the lawyer consider the fact that
acceptance of the client’s case might prevent Security Insurance from
approving her to represent Security Insurance clients?
2. Client B has come to a lawyer to handle a car accident case. In setting her
fee, can the lawyer consider the fact that she is certified as a Family Law
Mediator?
3. In setting her fee, can the lawyer consider the fact that she is leaving for
her vacation at the end of the week and therefore must finish the client’s
work in only two days?
The statute:
No cemetery shall be hereafter established within the corporate limits
of any city or town; nor shall any cemetery be established within two
hundred and fifty yards of any residence without the consent of the
owner of the legal and equitable title of such residence.4
Key terms:
cemetery hereafter established corporate limits
city town 250 yards residence
consent owner legal title equitable title
Relational terms:
or nor and
Notice that each of the key terms raises an issue. Something other than a
cemetery would not be covered by this statute, so to know whether this
statute would apply to your client’s facts, you must find out what the term
“cemetery” means in this context. There might be a definition section in this
same act, or there might be cases in which prior courts have defined the term.
Either way, the term “cemetery” raises an issue you must resolve.
The same is true with the word “hereafter.” The statute does not prohibit
all cemeteries; it prohibits only those established “hereafter.” After what?
The date of the statute’s passage? Or the date on which the statute became
effective? What are those dates? Another issue to resolve. And what does the
term “established” mean? Is a cemetery “established” when construction
begins? Ends? When the cemetery first opens for business? Each key term
identified above raises an issue the lawyer must resolve before the lawyer can
know whether and how the statute might apply to her client’s facts.
Are you surprised to find so many issues raised in one statutory sentence?
Statutes are packed tightly with key terms, each of which raises a potential
issue. If you were analyzing whether and how this statute applies to your
client’s facts, you would have at least twelve issues to consider.
One word of caution about identifying key terms: You might be tempted
to treat a phrase as a single key term. For example, consider a statute
providing that, for a gift to be effective, a donor must transfer possession of
the gifted item with “a manifested intent” to part with ownership. You might
first think of the words “manifested intent” as a single key term. However,
that phrase would require proof of two things, not one: (1) that the donor
actually intended to part with ownership and (2) that this intent was
sufficiently “manifested” to others. This phrase raises two issues, not one.
Your list of key terms should treat these words separately.
One more strategy is helpful for reading statutes and identifying issues:
rewriting the statute in your own words. Restating the rule in your own words
is an effective tool of analysis, and you often can state the rule more simply
and clearly than its original writer did. Do not, however, rephrase the key
terms of the statute. Those terms will be defined and explained by the
authorities; thus, they will have developed their own meaning, and as we saw
above, that meaning is the critical question of the analysis.
EXERCISE 4-2
The Text Itself. The most important inquiry is the “plain meaning” of the
text itself. When the plain meaning is unambiguous, a court generally will
give effect to the plain meaning unless the result would be absurd. Look first
at the plain meaning of the statute’s text. Also look for other parts of the
statute or act that might tell you more about the language you are concerned
with, such as the section explaining the act’s purpose. Many acts contain
separate definition sections. Even when your term is not defined, other parts
of the statute could give you clues about what the term means.
The Legislature’s Intent. If the text of the statute is unclear, many courts
will try to decide what the legislature intended. This search for the
legislature’s intent is problematic at best. The statute was probably enacted
by a large group of elected officials who were serving in that office some
years ago. The particular language you are concerned with could have been
the result of political compromise, and various factions of the legislature
might have had vastly different intentions surrounding that language. Quite
possibly, your question never occurred to them at all. How can we decide the
intent of the legislature as if the legislature were an entity with one mind?
Yet, when a statute’s language is unclear, a court applying the statute will
have to have some basis for a decision. In such a circumstance, the court
often will try to discern the legislature’s intent.
Many courts are willing to consider the legislative history of the statute as
evidence of legislative intent. Legislative history consists primarily of the
documents or other records generated by the legislative body during its
deliberations about the bill that ultimately became the statute. Legislative
history comes in many forms, such as committee reports, speeches, witness
testimony, or studies introduced into the record. Your research text will tell
you more about legislative history and how to find it.
Finally, courts are guided by the general policy that, if possible, the
meaning of a statute should be construed in a way that will render the statute
constitutional.
Lawyers and judges use a number of kinds of reasoning to argue and decide
cases. They reason by relying on a statement of the law, like a statute or a
common law rule articulated in a case (rule-based reasoning). They reason by
comparing the facts of earlier cases to the facts of the present case (analogical
reasoning). They reason by pointing to a desirable social or economic result,
like promoting economic efficiency (policy-based reasoning). They reason by
alluding to norms of conduct and customary expectations common in our
society, such as how we expect people to act in certain circumstances
(custom-based reasoning). They reason by appealing to a moral principle
such as honesty or fairness or a political principle such as equality or
democracy (principle-based reasoning). They reason by deciding whether a
particular factual conclusion would explain the available evidence (inferential
reasoning).
In practice, these forms often overlap, but it is helpful to identify them
separately in this chapter so that you can learn to recognize them and to use
them in your own analyses. Mastering their use is one of the most important
goals of a law school education.
This chapter will also cover one more important way lawyers advocate for
a result: narrative. Today, we usually use the term “reasoning” to describe
only logical processes like those described above, but an earlier
understanding of “reasoning” was much broader. It included processes that
transcend logical arguments and may even resemble intuition. For lawyers
and judges, the most powerful of these nonlogical processes is narrative. No
matter what understanding of the term “reasoning” one prefers, lawyers and
judges know that narrative functions just as the logical forms do, to justify
and persuade. Therefore, this chapter includes narrative along with the logical
forms of reasoning. Together, these forms will provide you with a powerful
set of tools for analyzing legal issues and for advocating for a particular legal
outcome.
I. RULE-BASED REASONING
Rule-based reasoning is the starting point for legal analysis. It justifies a
result by establishing and applying a rule of law. It asserts, “X is the answer
because the principle of law articulated by the governing authorities
mandates it.”1
RULE-BASED REASONING
Harold Collier should not be bound by the contract he signed because he is
a minor, and A v. B establishes that minors do not have the capacity to
execute binding contracts.
EXERCISE 5-1
Rule-Based Reasoning
Your client owns rental property. She wants to know whether she can refuse
to rent to men. Read the following statute and write one paragraph that uses
rule-based reasoning to answer her question.
It shall be unlawful to refuse to sell or rent after the making of a bona fide offer, or to refuse
to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to
any person because of race, color, religion, sex, familial status, or national origin. 42 U.S.C.
§ 3604(a) (2000).
ANALOGICAL REASONING
(Similarities)
The defendant in A. v. B was not bound by his contract because he was
only sixteen. Harold Collier is also only sixteen, so, like that defendant,
Collier should not be bound by the contract he signed.
A comparison that points out differences asserts, “Even though X was the
answer in A v. B, that is not the appropriate answer here because the facts in
this case are different from the facts in A v. B.” Comparing cases to point out
differences is often called “distinguishing” cases.
ANALOGICAL REASONING
(Differences)
In C v. D, the minor was bound by his contract. However, Harold Collier’s
situation is unlike the situation in C v. D because there the defendant had
signed a statement asserting that he was nineteen, thus deliberately
misrepresenting his age. Harold Collier, however, never made any
statement about his age. Therefore, the result in C v. D does not control
Collier’s case.
EXERCISE 5-2
Analogical Reasoning
Your client’s mother has just died, and a dispute has arisen over who owns
the mother’s dining room table and matching chairs. Your client, James, has
told you this story: His mother was eighty years old when she died, and her
neighbor, Martha, had often taken her to the store or the doctor. Martha has
now produced a thank you note from the mother, dated six months before her
death, in which the mother wrote, “Dear Martha, I can’t thank you enough for
all your help through the years. I want you to have my dining room table and
chairs. You can come get them anytime you want.” You have found a
relevant case, Elder v. Fisher, which is summarized below. Write a paragraph
using analogical reasoning to argue that the attempted gift is not valid. Then
switch sides and write a paragraph pointing out differences between Elder
and Martha’s claim, to demonstrate that Elder does not mean that Martha
should lose.
Elder v. Fisher: Janice Elder had a ruby ring, which she kept in her safe deposit box at a
local bank. She wanted to give it to her sister, Darlene, for her birthday. Janice met Darlene
and several friends for lunch. In the presence of the friends, Janice said to Darlene, “You’re
the best sister anyone could have. From this moment on, my ruby ring is yours. Meet me at
the bank Wednesday at noon, and I’ll get it out of the safe deposit box.” Janice died in a car
accident on Tuesday, and her executor, Fisher, refused to turn over the ring to Darlene,
claiming that no valid gift had been made because the donor had not physically handed over
the ring. The court held that actual physical delivery was required where possible and that
therefore no valid gift had been made.
POLICY-BASED REASONING
Harold Collier should not be bound by the contract he signed because he is
only sixteen, and people that young should be protected from the harmful
consequences of making important decisions before they are mature
enough to consider all the options. Further, contract defaults are likely
when minors undertake contractual obligations, and contract defaults
dampen economic growth and decrease productivity levels.
EXERCISE 5-3
Policy-Based Reasoning
Your client signed a one-year lease for an apartment, but before he moved in,
he lost his job. Without the job, he was unable to afford the rent, so he
notified his landlord that he would not be able to take the apartment after all.
The landlord has refused to rent the apartment to any other tenant and is
holding your client responsible for the entire year’s rent. Write a paragraph
setting out a policy-based argument in favor of your client. Then switch sides
and write a paragraph setting out a policy-based argument in favor of the
landlord. For both paragraphs, you can consider both the economic effects
and the social effects of a rule that allows landlords to do what this landlord
is doing.
PRINCIPLE-BASED REASONING
Harold Collier should not be bound by the contract he signed because
enforcing contracts like his would encourage sales agents to lie and would
reward unfair and dishonest sales practices.
EXERCISE 5-4
Principle-Based Reasoning
Your client bought a house and soon discovered that the roof leaked. The
seller had not made any statement to your client about the roof, but your
client believes the seller knew about the problem. Up until now, your
jurisdiction has not required a seller to tell a buyer about problems like this
roof, so long as the seller makes no affirmative statement about the quality of
the roof. You want to argue that your jurisdiction should impose a duty on
sellers to disclose significant defects of which they are aware. Write a
paragraph using principle-based reasoning to argue in favor of this change in
the law. You can consider principles like honesty and fairness.
V. CUSTOM-BASED REASONING
Custom-based reasoning justifies a result by reliance on cultural and societal
norms of behavior. It asserts, “X is the answer because that result is
consistent with what we expect of people in this society.” Custom-based
arguments often are phrased as statements about what is and is not
“reasonable.” Some legal rules directly incorporate custom-based reasoning
as the operative legal standard, such as the negligence standard (“the
reasonable person”) or the constitutional standard for judging pornography
(“falls outside contemporary community standards”) or rules that protect
people from “undue” influence.
CUSTOM-BASED REASONING
Harold Collier should not be bound by the contract he signed because it is
unreasonable to expect a minor to be able to match wits with an
experienced and overreaching sales agent. In our society, people do not
make contracts with minors; they deal with the minor’s parent or guardian.
EXERCISE 5-5
Custom-Based Reasoning
Your client has signed a contract to buy a house. The contract requires the
seller to deliver “marketable title,” which is a title a reasonable person would
accept and pay fair value for. Your client has now discovered that the house
extends over the lot line by one foot. The house was built in 1892, and the
seller claims that he owns the extra twelve inches under the doctrine of
adverse possession. Assume that you have researched the doctrine and the
applicable facts, and as far as you can tell, the seller’s claim appears true. Can
you use custom-based reasoning to argue that, even if the seller’s claim
appears likely, title partially based on adverse possession instead of actual
record title does not satisfy the definition of marketable title?
INFERENTIAL REASONING
(used to establish whether the sales agent knew or should have known
that Collier was a minor)
Collier is a short, smooth-faced boy who looks and acts like the sixteen-
year-old he is. He told the agent about his hopes to be selected next year
for the high school cheerleading squad. That hope would make no sense if
he were already a senior, the year when most students turn eighteen. He
said that he should probably call his parents to ask their advice. He said
that he had never dreamed that he would have a car sooner than any of his
friends, a puzzling comment for an eighteen-year-old to make because
many high school students have a car shortly after turning sixteen. Most
telling of all, the sales agent asked to see Collier’s driver’s license to make
a copy of it for the dealership’s files. Under these circumstances, the sales
agent surely either knew or suspected that Harold Collier was a minor.
Read the facts set out in Exercise 8-2 in Chapter 8. Write a paragraph
identifying and explaining all the factual inferences that would support a
conclusion that a reasonable person in Virginia’s position would have
thought that Stewart was making a serious offer. Then write a second
paragraph identifying and explaining all the factual inferences that would
support a conclusion that a reasonable person in Virginia’s position would
have thought that Stewart’s offer was only in jest.
VII. NARRATIVE
Narrative justifies a result by telling a story whose theme implicitly calls for
that result. Narrative uses the components of a story (characterization,
context, description, dialogue, theme, and perspective) to appeal to
commonly shared notions of justice, mercy, fairness, reasonableness, and
empathy. In this sense, narrative is closely related both to principle-based
reasoning and to custom-based reasoning, but narrative is far more
contextual, placing these other forms of reasoning in a specific situation.
Narrative tells the client’s story in a way that encodes but does not directly
articulate the commonly held principles and values on which these two
logical forms rely.
The governing rule might directly adopt a legal standard easily
communicated as a narrative theme. For instance, assume that the applicable
rule about the enforcement of contracts made by minors allowed enforcement
only if the other party to the contract did not use “undue” influence to
convince the minor to enter into the contract. Narrative would use storytelling
techniques such as description, dialogue, characterization, perspective, and
context to establish that the other party’s conduct was or was not “undue.”
NARRATIVE
(where the use of undue influence is an issue in the governing rule)
Harold Collier should not be bound by the contract he signed because
Jenkins, a car dealer for twenty-two years, discouraged Harold from calling
his parents to ask advice and told him that another purchaser was looking
at the car at that very moment. Jenkins lowered his voice and said, “Tell
you what I’ll do. I’ll knock off $1,000 just for you — just because this is
your first car. But you can’t tell anyone how low I went. This will have to
be our secret.”
Even if the applicable rule does not articulate a legal standard based on a
narrative theme, narrative can still persuade. A narrative demonstrating the
fairness of a particular result can convince a judge to exercise any available
discretion in favor of the client, to create an exception to the general rule of
law, or to reinterpret or overturn the rule. The law is not insensitive to justice,
mercy, fairness, reasonableness, and empathy, even when those commonly
shared values are not directly incorporated in the legal rule. As a matter of
fact, those notions underlie much of the more abstract rationales in policy-
based or principle-based reasoning. Narrative can serve as a powerful partner
with policies or principles, providing a real-life example of the policy or
principle that justifies the desired result.
For example, recall that the rule prohibiting enforcement of contracts
made by minors is supported by the policy rationale that minors should be
protected from the harmful consequences of making important decisions
before they are mature enough to consider all the options. Narrative
reasoning can bolster that policy point:
NARRATIVE
(consequences to minor not part of rule, but part of policy behind rule)
Harold Collier should not be bound by the contract he signed because he is
only sixteen; he has never before shopped for a car; he was pressured by a
sophisticated sales agent; he did not have the benefit of advice from any
advisor; and the car purchase will exhaust the funds he has saved for
college.
Each form of reasoning has persuasive power, and each has particular
functions in written legal analysis. As we shall see in Part III of this book,
rule-based reasoning establishes the structure of the analysis and organizes
the written discussion. Within that structure, a complete analysis includes
reasoning based on applicable rules, analogies, policies, principles, norms,
factual inferences, and narrative. In addition to its role in the written legal
analysis, narrative is paramount in the written fact statement.
Begin to notice the kinds of reasoning you find in the cases you read, the
arguments you hear your classmates and your professors make, and your own
analysis of hypothetical questions. By next year at this time, your skills in
using all of the logical forms of reasoning will have increased dramatically.
EXERCISE 5-7
1. In some discussions of jurisprudence, you may notice scholars distinguishing between “rules”
and “standards” or “principles.” See, e.g., Ronald M. Dworkin, The Model of Rules, 35 U. Chi. L. Rev.
14, 22–29 (1967). We need not be troubled here about that jurisprudential distinction. We will use the
term “rule” to refer to all applicable statements of the governing law.
2. Comparisons that show differences are often called “disanalogical” or “counteranalogi-cal”
reasoning. For simplicity, however, we use “analogical” reasoning to refer both to pointing out
similarities and pointing out differences.
PART THREE
Now that you understand the legal authorities and the kinds of legal
reasoning you will be working with, it is time to turn your attention to the
document you will write and to the reader for whom you will write it.
This section will describe each stage, and writing process hints will be
included at appropriate points throughout the rest of the book. For easy
identification, this margin symbol will mark those process hints in future
chapters. Two caveats about this description of the writing process are in
order, however. First, writing processes are as personal as signatures and
fingerprints. The stages presented here represent a common way of
approaching a writing task, but your own process will be unique to you. What
is important is that you find places in your own writing process for the
activities described here.
Second, the writing process is recursive. While you are working on the
tasks of one stage, you often will find yourself returning to the tasks of an
earlier stage and anticipating those of a later stage. Writing requires you to
circle back again and again as you come to understand more about your legal
issue, your client’s facts and goals, and the available legal strategies. Your
willingness to construct, dismantle, and reconstruct your document will be
crucial to achieving a good written product.
Make a note about each thought or question that occurs to you, whether or
not you think it might be important. There will be time later for sorting and
discarding. This is the time for wide, creative perception.
Once you have the main categories in place, select one of your authorities
and ask yourself what it tells you about the first category (the intention to
revoke). Does it help you answer any of the five questions we identified in
the box labeled “Key Information About Legal Authorities”? If so, write that
information on your case brief or other notes for that authority. Note the page
number on which you find the noted information. You will have to cite to it
when you begin to write, and you will save valuable time if you do not have
to look for it again. Then move to the second category (an action
demonstrating that intent), and go through the same process. Does this legal
authority tell you any of the five kinds of information about the second
category? Go through this process with each authority, keeping in mind that
some authorities will give you information about more than one category.
After examining each authority, gather all relevant information under the
appropriate categories. Use a separate sheet of paper for each category. For
each point you have learned, write a complete sentence expressing that
information. For instance, under the “intent” category, you might write: “The
testator must intend to revoke the will now, not in the future.” Under the
“action” element, you might write: “The action must not be consistent with
any interpretation other than the intent to revoke.” These sentences will be
the bases for the thesis sentences of your paragraphs. And as we shall see in
Chapter 20, good thesis sentences are crucial.
Now you are ready for the last step in the outlining stage: selecting the
authorities you actually will discuss in your analysis. For each piece of
information, select the sources that give you the best support or the most
important information for that point. Notice that you do not select the
authorities you will discuss until you have identified the points you plan to
make. This writing strategy will help you organize according to the relevant
substantive points and not simply list and describe cases.
One more point about outlining your analysis: Outlining comes easily for
some people; others find it difficult. If you are in the latter group, there is
good news and bad news. The bad news is that a tight, linear structure is
essential for a good office memo or brief. The good news is that you do not
have to create that structure first. Many people find that they must write a
very rough draft before they are ready to create an outline. Writing before
you outline usually takes longer, but often the resulting outline is more
reliable. The key is finding the method that works best for your own writing
process.
Your working draft is where you “grasp the case.” It guides, deepens, and
tests your analysis, and it forms your ideas into the kind of structured, linear
reasoning that lawyers must master. Write out your analysis, putting flesh on
the outline’s bones. Chapters 7-10 will explain how to organize the material.
In the working draft stage, focus your attention on the substance and structure
of your analysis. Each time you write a statement about what the law is or
what an opinion said, note a source and page number. While you are writing
your working draft, you need not stop to look up the rules explaining how to
cite correctly. The revision stage will give you the chance to correct citation
form, spelling, punctuation, and legal usage. In the working draft stage, do
the best you can on those matters, but do not let them distract you from your
primary task at this stage: creating a solid analysis of your issue.
Try to arrive at the end of Stage 3 with enough time to put down the
document for a while. Then return to your draft and revise it, based on what
you see when you read with fresh eyes.
Stage 5: Editing for Style and Technical Correctness. In this last stage,
turn your attention to the fine points of writing. Edit to achieve clarity and
correct citation form, punctuation, and grammar. These technical matters are
the most easily visible criteria for judging writing. Readers will notice these
matters first and draw from them conclusions about the skill and care of the
writer. A sloppy document causes a reader to doubt the document’s
substantive accuracy.
B. Attention Levels
Before a speaker can communicate, the audience must be listening. Here is
some information about the attention levels of law-trained readers:
1. A reader’s attention is finite. Even the most diligent reader will
eventually run low or run out.
2. A reader’s investment in the nuances of the topic might not be as
great as the writer’s. Although the law-trained reader will have a
particular need to understand the material, these readers are
extraordinarily busy. The judge has many other cases and does not
have a personal investment in this one. The senior partner has many
other obligations and depends on the memo writer to analyze
thoroughly but communicate succinctly.
3. A reader’s attention is not evenly distributed. It is greatest in the first
several pages, and it decreases rapidly from then on.
4. Readers generally save some attention for the conclusion. They are
willing to invest attention there, but only if they can locate the
conclusion easily and if the conclusion is clear and compelling
enough to warrant the investment.
5. Although readers spend more attention on the document’s first few
pages and on a compelling conclusion, attention levels revive a bit at
internal beginnings and endings, like the start of a new issue or the
last few paragraphs of a statement of facts. This revival is more likely
if the new issue is marked by a heading or subheading.
6. Stories, especially real-life stories, are engrossing. Many readers pay
more attention to facts than to abstract legal concepts. This means,
for instance, that attention levels are higher in the middle of an
effective Statement of Facts than in the middle of the Argument or
Discussion section. It also means that, even in the middle of a
Discussion or Argument section, a reader’s attention level will rise a
bit when the material begins to apply law to fact.
7. A reader’s attention level is lowest about three-fourths of the way
through the Discussion section of an office memo or the Argument
section of a brief.
These observations about readers underlie an important writing principle:
Placement of material is one of the important decisions a writer must make. A
good writer places the most important parts of the analysis where the reader
can find them quickly and give them first priority for her attention.
Figure 6-1
Attention Levels
C. Road Maps
Most readers want a road map — some sense of where they are and where
they are headed. But law-trained readers have an even greater need for an
organizational structure. Here’s why:
1. A reader’s first priority is to understand the law. A law-trained
reader’s first step in the process of understanding the law is an
outline. This process of learning and applying law set out in outline
form is how most lawyers and judges studied law. It is basic to the
way law-trained readers think. In the first few semesters of law
school, this learning style and thinking process probably came more
naturally to some than to others, but by the end of law school
virtually all lawyers approach legal analysis by some variation of this
method. This process is one of the primary components of “thinking
like a lawyer.”
2. Lawyers and judges do not read the law out of intellectual curiosity
but because they have a problem to solve. They are looking to your
memo or brief to help them solve it. This means that your discussion
of the law must be clearly and closely tied to the facts and issues of
the case. Your organizational structure serves as the continuing
reminder of how your legal discussion relates to the problem to be
solved.
3. A law-trained reader constantly assesses the strength and accuracy of
the analysis and the credibility of the writer. The most visible part of
the analysis, the part the reader first evaluates, is its organization.
Here the law-trained reader expects to find the outline of the law. If a
reader doubts the organization of the analysis, the reader wonders
whether the content of the analysis is reliable.
4. At some point in their legal education or practice, law-trained readers
have studied many of the more common rules of law. Such readers
will be used to thinking of those rules in a familiar order or structure.
Even if a reader is not already familiar with a particular rule of law, a
statute or a leading case might set out the rule in a particular
structure. A law-trained reader will be expecting to analyze the issue
in this familiar order or structure. Many law-trained readers are not
comfortable with organizational surprises, and an uncomfortable
reader is an unreceptive reader.
D. Readers as Commentators
It is easy to assume that writing is a one-way street, with the discourse all
flowing in one direction. We tend to think that we, as writers, are the only
speakers. We think this because we cannot hear anyone else talking. In
reality, the most important party to the conversation, the reader, is talking,
but we can’t hear her. Each of us has a voice in his or her mind — an
opinionated, talkative “Commentator.” We’ve already observed this character
at work because when a writer mistakenly begins writing to herself, she is
writing to her own internal Commentator.
The reader has such a Commentator too, and that little voice will chatter
at every opportunity. The Commentator will be saying things like “No, that’s
not right, because . . . ” or “What in the world do you mean by that?” or “But
wait, where is the discussion about . . . ?” Think of yourself as a reader.
Haven’t you been reading this chapter listening to both the written word and
to your own Commentator?2
The reader’s Commentator will not remain completely silent, and there is
nothing the writer can do to change that. The Commentator’s participation
can even be helpful. Yet each time the Commentator speaks, the reader must
listen to two voices at once; the writer must compete with the Commentator
for the reader’s attention.
The writer, then, has two objectives: (1) The writer wants to keep the
reader’s Commentator relatively quiet, resolving its concerns at the points
where they arise, and (2) when the Commentator does speak, the writer wants
it to be saying “OK,” “right,” or “yes,” or perhaps even arriving at the
writer’s conclusions moments before the writer states them. As a writer, you
must anticipate the Commentator’s chatter before the conversation occurs and
try to preempt that chatter. Your goal is to craft your side of the conversation
to keep the Commentator as quiet and agreeable as possible.
E. Judges as Readers
Judges share the characteristics of other law-trained readers. Their attention is
finite. They are busy and may become impatient with delay in getting to the
bottom line. They generally focus more attention on the beginning and end of
a document or a section than on the middle. They find facts engrossing. They
want a road map. They value clear organization that sets out the rule of law.
But judges tend to have some additional characteristics as well. Here are
some other observations about how judges read.
1. Although any law-trained reader tests the analysis at each step, a
judge is particularly apt to do so. This skeptical testing is the heart
of a judge’s job. Girvan Peck explained it by describing judges as
“professional buyers of ideas.”3 However, even a skeptical judge
will be less skeptical of the analysis of a lawyer known for careful
and honest work than of the analysis of a lawyer with a poor
reputation for either competence or candor.
2. Because judges are human, a judge who is already convinced of the
equities of your position will be more receptive to your legal
arguments. This judge will want you to be right on the law. This
human desire can help to overcome a little of the judge’s natural
caution.
3. Most of us are more willing to accept the analysis of someone we
like and someone who has been considerate of our needs. This is
true of judges as well. This does not mean that judges decide cases
on the basis of social and political connections. But a lawyer who
treats the judge professionally, with respect and consideration, will
be a more effective advocate than the lawyer who does not.
4. As public servants with public responsibilities, judges are concerned
about the policy implications of their decisions. However, trial
judges and judges serving on intermediate appellate courts often see
their role as requiring them to apply the law the way the
jurisdiction’s highest court would. Not only do judges prefer
hearing that they were right, but reversals often mean having to deal
with the case again. A judge’s goal is to resolve cases, not prolong
them.
Therefore, trial judges and judges serving on intermediate
appellate courts are most persuaded by authorities that help them
predict how the higher court would decide the question. For judges
at these levels, policy arguments are less persuasive than clear
mandatory authority. Judges serving on the highest appellate court
in the jurisdiction are much more amenable to policy arguments than
are their colleagues on lower courts.
5. Because most judges plan to spend many years on the bench, they
take a long-term view of each legal issue. Judges are concerned
about how an individual ruling could constrain or empower them in
future cases.
6. Judges as a group tend to be personally conservative (although not
necessarily politically so). Because of the public nature of their job
and the fact that they are seen as safeguarders of public morality,
lawyers who become judges tend to be conservative in their
personal lifestyle.
7. People tend to cling more tenaciously to conclusions they think they
have reached by themselves than to those asserted by others. Judges
are no different. Thus, when a judge notices that the writer is using
a particular technique for persuasion, the technique loses its
effectiveness. Heavy-handed use of a persuasive technique usually
hurts more than it helps. The most effective persuasive techniques
are invisible to the reader.
8. A reader who feels pushed will resist. An effective legal argument
will not push an unwilling reader down a path. Rather, an effective
legal argument will place the reader at a vantage point that allows
the reader to see and choose the best path. Thus, as a brief writer,
you must decide how far you can take the judge without losing the
judge’s cooperation in the process. The consequences of pushing a
judge to accept an unreasonable argument go beyond the judge’s
rejection of the unreasonable parts of the argument. The judge will
tend to reject the reasonable parts of the argument as well.
9. Judges read briefs to decide between legal positions. When such
readers are presented with categories, particularly categories
identified with point headings, they tend to keep score. They might
not even realize they are doing it, and they often will not observe
that the rhetorical effect of keeping score is to weight each category
equally. Knowing this tendency can help a writer select an
organizational plan and decide how to subdivide the argument.
10. As decision-makers encounter arguments one by one, they tend to
label each argument as “weak” or “strong” before going on to the
next argument. Decision-makers are more likely to be convinced by
one strong argument than by a series of weaker ones. Also, a strong
argument will lose some of its force if it follows or is followed by
weak arguments on the same point.
11. The reader’s perception of the strength of the first argument affects
the reader’s perception of the strength of the arguments that follow.
As law-trained readers, judges expect to find the strongest argument
first. Unless the judge knows of a reason the weak argument had to
be discussed first, the judge will presume that the strongest
argument is first and thus that subsequent arguments are even
weaker.
12. Judges often relate to the lawyers who practice in their courts in
much the way that parents relate to children. If you are a parent, you
know that there is nothing quite as tiresome and irritating as
constant fighting and bickering among children. Most judges have
little tolerance for bickering and blustering lawyers. Judges prefer to
focus on legal issues rather than personalities.
13. One final observation about judges: The judge may skim the briefs
and then ask a law clerk to read and summarize them. The impact of
a law clerk on the brief-reading process is a bit of a wild card, but
there are two general observations that you should keep in mind.
First is the relative inexperience of most law clerks as compared to
most judges. Remembering this inexperience will help you to take
care not to leave out steps in the analysis on the assumption that
your reader is an expert on your issue. Second, although these
readers are often inexperienced, they also tend to be bright. Many
judicial clerks served on their school’s law review and received
much of their formative training in that context. Thus, they expect
the details of a brief to be right. They tend to draw conclusions
about the reliability of the analysis based on the lawyer’s attention
to these details. They may well scrutinize every aspect of your brief
more thoroughly than a busy judge could.
Large-Scale Organization:
Creating an Annotated Outline
An annotated outline is the most reliable method for making your legal
analysis complete and coherent. Without it or its equivalent, you may miss
issues or wander off track as you write. But if you have an annotated outline,
writing the memorandum will flow easily. Your topic headings, thesis
sentences, and case citations will already be laid out. This chapter explains
how to identify the structure of a legal rule and how to use that structure to
create an annotated outline for your writing assignment.
I. RULE STRUCTURES
Rules of law adopt particular structures. Recognizing a rule structure is a
method for quickly deepening your understanding of the rule. This study tool
will work well for virtually all of your law school classes. If you are
preparing a course outline for contracts, for instance, your outline will be
more effective if you consciously outline the legal rules you are studying.
Also, the rule’s structure will become the basis for the large-scale
organization (the outline) of your memo or brief, or even the relevant part of
your contracts final exam.
Therefore, when you formulate a legal rule from a case opinion, try to
express it in an outline format. Use any version of traditional outline form,
with roman numerals, large case letters, Arabic numerals, and small case
letters, as necessary. This outline of the relevant rule will focus your analysis
on each element in an orderly way.
As you gain experience in outlining legal rules you will notice certain
common rule structures.1
A Conjunctive Test. This kind of rule sets out a test with a list of
mandatory elements. For example, consider this rule: To revoke a will, a
testator must have the intention to revoke the will and must take some action
that demonstrates that intent. The outline for this rule would set out each of
the required elements like this:
A lawyer shall not collect a contingent fee in either of the following kinds
of cases:
1. a criminal matter or
2. a divorce.
Notice that the difference between the first two rule structures lies in the
introductory language specifying whether all subparts are required or whether
any single subpart is sufficient.
Child custody shall be decided in accordance with the best interests of the
child. Factors to consider in deciding the best interests of the child are:
1. the fitness of each possible custodian
2. the appropriateness for parenting of the lifestyle of each possible
custodian
3. the relationship between the child and each possible custodian
4. the placement of the child’s siblings, if any
5. living accommodations
6. the district lines of the child’s school
7. the proximity of extended family and friends
8. religious issues
9. any other factors relevant to the child’s best interests
Notice the critical difference between this rule structure and a conjunctive
test (a rule with mandatory elements). In a conjunctive test, all of the subparts
must be met, but here the subparts are just factors to consider rather than
separate individual requirements. One or more can be absent from a particular
case without necessarily changing the result. The decision-maker has the
discretion to gauge the relative importance of each factor.
A lawyer shall not prepare any document giving the lawyer a gift from a
client except where the gift is insubstantial or where the client is related to
the lawyer.
A lawyer shall not prepare any document giving the lawyer a gift from a
client except
A. where the gift is insubstantial or
B. where the client is related to the lawyer.
Again, notice that the critical distinction between this structure and the
others lies in the introductory language defining the subparts as exceptions to
a general principle. Notice also that you can accurately articulate some rules
using different structures. For instance, do you see how you could easily
articulate this rule using a disjunctive rule structure?
If you have looked carefully and found no subparts, factors, or other criteria
for applying the rule, you can assume that your rule is a simple declarative
rule. In such a case, your structure will be a simple one-point structure.
However, take care to assure yourself that your rule has no lurking elements
or other subparts. Overlooking elements or other subparts is a common
mistake for beginning legal writers.
EXERCISE 7-1
Outlining a Rule
For each of the following excerpts from case opinions, formulate a rule and
write it out in outline form using one or more of the rule structures described
above.
1. Issue: When can an otherwise legally insufficient contract still be
enforced?
“[W]here one party has by his words or conduct made to the other
a promise or assurance which was intended to . . . be acted on
accordingly, then, once the other party has taken him at his word
and acted on it, the party who gave the promise cannot afterward
be allowed to revert to the previous relationship as if no such
promise had been made.” Wheeler v. While, 398 S.W.2d 93, 96
(Tex. 1965).
2. Co-owners of property can ask the court to partition their property if
they no longer wish to own it jointly and if they cannot agree on a
manner of division. Normally, the court partitions the property by
dividing it and awarding part to one co-owner and part to the other
(“partition in kind”). Issue: When can a court order the sale of the
property (and the division of the proceeds) rather than dividing the
property itself?
“[P]artition by sale should be ordered only when two conditions
are satisfied: (1) the physical attributes of the land are such that a
partition in kind is impracticable or inequitable; and (2) the
interests of the owners would better be promoted by a partition by
sale . . . . [In considering the practicability of partition in kind, the
court can consider such matters as] the situation and location of
the parcel of land, the size and area of the property, the physical
structure and appurtenances on the property, and other factors.”
Delfino v. Vealencis, 436 A.2d 27, 30–31 (Conn. 1980) (citations
omitted).
Rules Combining Several Structures. Some rules use more than one rule
structure. Such a rule will use a larger structure like one of the examples set
out above. However, the rule’s subparts might use another rule structure. For
instance, consider this rule governing attacks on the credibility of criminal
defendants who testify at trial:3
This rule uses the disjunctive (either/or) structure for its larger structure,
like so:
If you have been asked only one question, use a roman numeral “I” for
that question, and do not be concerned that you will not have more than one
roman numeral. Let the use of the roman numeral assure you and your reader
that this is the issue you were given and, therefore, that this is the point of
connection between that question and your own analysis.
To be sure you do not forget the element, you can leave it in its
place on your working draft outline and simply skip it when you start to
write. After you have written out the other parts of your analysis, you will use
your working draft to create the document designed for your reader. At that
point, you will be doing some rearranging of the sections anyway, so revising
the outline then would be convenient. For example, as Chapter 10 will
explain, it probably will be appropriate to place the most dispositive element
first in your discussion, and you might not know which element will be most
dispositive until you have written out your analysis.
Leaving the category in its place temporarily can be a good idea for
another reason. Legal conclusions often turn out to be less obvious than they
first appeared. Only after you have researched both law and facts will you be
ready to predict how the rule will apply to your client. Only then will you
know for certain whether you can treat any parts of the rule as undisputed.
In section C, in an office memo, you will need to compare the two rules to
predict which rule the court is likely to adopt. In a persuasive brief to the
court, you will be arguing which rule the court should adopt. In either case,
you will need to address the relative strength of the authority supporting each
rule.
EXERCISE 7-2
Draft an outline for a discussion of this legal issue. Assume that the rules
set out below are the rules you have formulated from the applicable
authorities.
1. Some rules use more than one rule structure. Such a rule will use a larger structure like one of
the examples set out in this section. However, the rule’s subparts might use another rule structure. An
example of such a rule is found at www.wklegaledu.com/Edwards-LWAnalysis5.
2. Some scholars use the term “rule” to refer only to fairly objective, concrete legal tests and use
the word “standard” to refer to more flexible tests like a factors test or a balancing test. To avoid
confusion, however, we will use the term “rule” to refer to both kinds of legal tests.
3. At a trial, the judge decides what testimony or documents can be admitted into evidence by
applying the rules of evidence in effect for that court. If the judge refuses to admit a document into
evidence, that information cannot be considered when deciding the case.
4. See Fed. R. Evid. 609(a) (paraphrased).
5. Statutes of limitation prescribe the time limits within which a claim can be brought.
CHAPTER 8
Small-Scale Organization:
Explaining the Law
After you have a large-scale structure for your discussion, the next step is to
write out the analysis, putting flesh on the bones of this structure. Chapters 8
and 9 will explain how to discuss a single legal issue. Chapter 10 will explain
how to put the discussions of multiple issues together into one cohesive
analysis.
What do we mean by a “single issue”? You will find that phrase used
differently in many contexts, but for our purposes, we mean the analysis of a
single element of a rule. For instance, in the burglary example, each of the
elements of the crime of burglary would raise a separate issue.
Separating the halves of the paradigm also will help you accurately
evaluate your own writing. Often a writer states the rule and then proceeds to
write several pages about the rule and how it applies to the facts. The
discussion seems thorough, but how can the writer tell? An accurate self-
evaluation requires checking the depth and breadth of both halves of the
reasoning process, and that is difficult to do when the two halves are
intermixed. As a discipline, you might want to draw a line on your working
draft between the rule explanation and the rule application. The line will
remind you to keep your discussion of your client’s facts below the line.
Keeping the halves distinct does not mean that while you are
engaged in the process of writing the paradigm you must complete rule
explanation before you attempt to write any rule application. For early
versions of the working draft, you can write more freely. Many writers find
this unstructured prewriting helpful. Using the paradigm means simply that at
the conclusion of your writing process, the document should reflect distinct
sections for rule explanation and rule application.
EXERCISE 8-1
Identifying and Labeling the Parts of the Paradigm
After reading the “Facts” section of the office memo in Appendix A, read
section A (a single-issue discussion). Identify each part of the paradigm.
I. Linda Pyle has a strong claim for legal malpractice against Howard
Gavin.
Howard Gavin committed legal malpractice in his representation of
Linda Pyle because he did not meet the required standard of professional
skill and diligence. The representation called for a basic task common to
general practitioners, and the problem could have been prevented simply
by doing thorough research.
If you are writing a brief to the court, probably you will already
know what your conclusion will be. If you are writing an office memo,
however, and if the issue is a close one, you might not be sure what your
conclusion will be until you have progressed further in the writing process. If
you are not yet sure, you can state the issue here rather than the conclusion,
and proceed with writing your analysis. Once you have a solid draft, rewrite
the heading and the first paragraph to provide your reader with the
information above.
I. Linda Pyle has a strong claim for legal malpractice against Howard
Gavin.
Howard Gavin committed legal malpractice in his representation of
Linda Pyle because he did not meet the required standard of professional
skill and diligence. The representation called for a basic task common to
general practitioners, and the problem could have been prevented simply
by doing thorough research.
A lawyer has a duty to provide a client with representation that meets
or exceeds the standard of professional skill and diligence commonly
possessed and exercised by a reasonably prudent lawyer in this
jurisdiction. Jacobson v. Kamerinsky [citation].
Usually, the rule statement should be the first sentence in the first
paragraph after the introductory (thesis) paragraph. Occasionally, however,
an issue is complex enough to require a little context or clarification before
stating the rule. If so, briefly set out the necessary context or clarification, but
get to the rule statement as quickly as you can. Not only will your reader be
looking for the rule, but the discipline of concisely stating the rule
immediately after the conclusion is an important part of your analytical
process. It forces you to articulate the focal point of the first half of the
analysis, and it focuses your attention on the rule you are about to explain.
After you have typed your statement of the rule, look for the key
term or legal standard. The primary task of your rule explanation is to define
that term or standard. Just for the working draft, you might want to use italics
for these key words so you can easily refocus your attention on them.
1. Show that the rule is what you say it is. You can think of this as “rule
proof.” Set out the relevant content of the authorities (facts and holdings of
cases or key provisions of statutes). Sometimes, if you have had to formulate
the rule by synthesizing or reconciling authorities, as Chapter 3 described,
you might have to explain your synthesis or reconciliation. The point is to
show your reader that your rule statement is accurate.
2. Explain the rule’s purpose or the policies it serves. The way the rule
will apply to your client’s facts will be influenced by the rule’s purpose and
the policies it serves, so your reader will need to understand these underlying
rationales. Chapter 11 explains this part of rule explanation in greater detail.
3. Explain how the rule has been applied in the past. Interpreting the
language of a rule requires attention to how courts have and have not applied
it in the past. What are some examples of cases in which the rule’s
requirements have been met? Have not been met? The purpose here continues
to be explaining the rule and how it functions. If you are using cases to do
this, you can think of this as “case illustration.” You are using the cases to
illustrate the rule. Don’t mention your client’s facts here. You’ll compare the
precedent cases to your client’s facts later, in the application section, covered
in Chapter 9.
4. Explain any additional characteristics that will affect how the rule
may be applied. Is this rule to be liberally or strictly construed? Are there
burdens of proof or presumptions that might affect how the rule will apply to
future cases? Does the rule require an elevated level of proof, like clear and
convincing evidence? Will expert testimony be required?
Use only very short quotes of key language. If you force yourself to use
your own words for the information you find in the sources, you will
understand that information better, and you might be able to state it more
clearly than the original writer did. Remember that your analysis must do
more than simply retype material from the sources. Analysis begins only
when you draw theses from the material in the sources and explain the
reasoning that supports your theses.
Articulate factors or guidelines. When you discuss the cases that are
similar factually, try to discern and articulate any factors or guidelines that
seem to be operating when the courts apply the rule to these kinds of
situations. Sometimes such information will be described explicitly by the
courts; sometimes you will have to infer it from other comments the courts
have made or from the way the courts have applied the rule. Either way, you
are identifying factors or guidelines about how the rule works.
Do not use authorities just to fill up space or to prove that you have read
them. Rather, demonstrate that you have the lawyerly skill of identifying the
key authorities and analyzing them thoroughly.
Choose an appropriate option for using cases. You have three options
for using cases to illustrate the rule: (1) using only a citation, (2) using a
citation with a parenthetical summary, and (3) using a case with an in-text
illustration.1 Choose among them according to your assessment of the
importance of the point you are making. Here are examples of each:
Citation only:
One who is a minor at the time of making a contract can disaffirm the contract within a
reasonable time after reaching the age of majority. Woodall v. Grant, 9 S.E.2d 95 (Ga. Ct.
App. 1940).
How court’s
statement
supports
thesis
Another gauge of the prudent lawyer standard is
whether the error could have been prevented by Thesis
research. In Jacobson, the court observed that an “error sentence
in judgment” does not constitute malpractice. [citation] (another
While Jacobson did not expressly define the difference significant
between an error in judgment and a breach of the characteristic)
prudent lawyer standard, the court distinguished the
Jacobson facts from an “error in judgment” by pointing Disclosure
out that in Jacobson the correct answer would have been that thesis is
apparent had the lawyer done the necessary research. an inference
[citation] Therefore, although a prudent lawyer can
make an error in judgment, a prudent lawyer does not Reasoning
make errors preventable by proper research. from the
court’s
observation
about the
facts
The “prudent lawyer” standard is not reduced for Thesis
lawyers operating outside their area of special sentence (how
knowledge. In Jacobson, the lawyer-defendant had been rule applies to
in practice only ten weeks when he accepted the medical a particular
malpractice case. The court held that the lawyer’s lack situation)
of experience did not excuse his failure. [citation]
Clients should be entitled to at least the minimum Relevant facts
standard of skill and diligence, according to the court.
[citation] Also, a contrary rule would offer no incentive Holding on
to lawyers to gain necessary knowledge or experience. this point
[citation]
The standard probably would not be affected by facts Court’s two
indicating that the lawyer intended to be particularly policy
careful, that he was otherwise skilled and diligent, or that reasons
he was a well-respected partner of a well-respected firm.
Although no facts like these were present in Jacobson, the Thesis
court’s language and policy statement explained in the sentence
previous paragraph would seem to apply to this question as anticipating
well. an issue
It is unclear whether the court would rely on expert
testimony or would make its own judgment about what a Disclosure
prudent lawyer would do in a particular set of of lack of
circumstances. This question was not at issue in Jacobson. similar
However, the opinion does not mention the testimony of facts
any expert witness, and the court’s statements that a
prudent lawyer would research the requirements for Reasoning
bringing a claim seemed to be statements of the court’s (policy)
own opinion rather than statements based on someone’s
testimony. The court’s repeated references to the standard Thesis
as “the minimum” that “any client should be entitled to sentence
expect” [citations] seem to indicate that the court (evidence
considered itself competent to decide the standard. required)
Disclosure
of no
express
authority
Inferring a
point from
the court’s
language
Thus, the question of whether certain conduct falls
short of the “prudent lawyer” standard appears to be Summary
determined on a case-by-case basis, by what the judge of points
thinks a prudent lawyer would do. However, two ways to made in
gauge whether the failure falls below the standard are: (1) rule
whether the task is something general practitioners are explanation
familiar with doing; and (2) whether the problem could
have been prevented by doing proper research.
EXERCISE 8-2
Writing the Rule Explanation
Write out the rule explanation section for the following memo assignment,
using Lucy v. Zehmer2 as your only authority. One of the most common
errors in legal writing is rushing into rule application before writing a
sufficiently thorough rule explanation. Thus, this exercise, which requires
you to write the rule explanation section only, is good practice.
Facts. Virginia Ryan is the owner of an antique shop. She has come to
your firm, relating the following story and asking your firm to advise her.
Ryan is acquainted with Stewart Kaplan and his older sister, Julia Kaplan.
Stewart and Julia are not on good terms. Their mother recently died,
bequeathing to Stewart an old quilt and to Julia their deceased father’s World
War II medals. During the settling of the estate, relations between Stewart
and Julia became even more strained when Julia gave the medals to a local
historical organization without offering them first to Stewart. Stewart had a
strong sentimental attachment to the medals because his father used to let him
play “war” with them as a child, and he believes that Julia gave them away
on purpose to spite him.
Ryan knew the facts of the dispute about the war medals, and she knew
that the relationship between Stewart and Julia was strained. Ryan did not get
along well with Julia either, and she and Stewart felt a common bond in this
respect.
Several weeks after learning of Julia’s disposition of the medals, both
Stewart and Julia happened to attend a community carnival. Stewart saw
Ryan there, and said to her, “Let’s have a little fun.” Ryan said, “OK. What
do you have in mind?” Stewart said, “Follow me. We’ll give my dear sister a
scare.” He took Ryan by the arm and led her to within earshot of Julia.
Stewart winked at Ryan and, in a stage voice, offered to sell her the old quilt.
Ryan said she was interested and asked what price Stewart had in mind.
Stewart said, “How about $150?” Ryan said, “That’s pretty steep for an old
quilt. How about $25?”
Both Stewart and Ryan could tell that Julia had heard the conversation
from the beginning. However, Ryan believed that Stewart was serious about
selling the quilt. Stewart and Ryan continued negotiating the price, through
several offers and counter-offers, finally settling on a price of $75. “Done!”
said Stewart, winking at Ryan. He said, “Let’s do this right. Here, let me
write out the terms.” He wrote, “Stewart Kaplan hereby sells to Virginia
Ryan the old quilt he inherited from his mother for the price of $75.” They
both signed it. Still enjoying the game, Stewart said, “Wait, we need today’s
date and the date I’ll deliver the quilt to you.” He inserted the date and added,
“Delivery to occur next Wednesday.” He also wrote, “Thanks for playing
along. This was fun.” Both parties initialed the additional writing, and Ryan
put it in her pocket. She told Stewart that it was great doing business with
him, that she had to get home to make supper, and she left.
The following Wednesday Ryan called Stewart to tell him that she had
the check ready and to ask when he planned to deliver her quilt. Stewart
stuttered that he had never actually intended to sell the quilt. Ryan said, “I
thought that you wanted to get revenge on Julia.” “Yes,” said Stewart, “but
just by letting her know how it feels to be ignored.” “Well, that’s not what I
thought. I thought you wanted to get revenge by selling the quilt. I want that
quilt, Stewart. It is an antique, and $75 is a fair price. Besides I already
promised it to one of my customers.”
Ryan wants to know whether she can enforce what she thought was
Stewart’s agreement to sell the quilt. An attorney in the firm has asked you to
analyze Ryan’s question. The attorney has instructed you to assume that a
judge would find that Ryan genuinely believed that Kaplan was serious.
Issue. Can Ryan enforce a contract for the sale of the quilt?
1. Michael R. Smith, 1991 Course Handouts, “Techniques for Using Authority in a Memo,” on file
with the author.
2. 84 S.E.2d 516 (Va. 1954). Opinion reprinted in Appendix E.
CHAPTER 9
Small-Scale Organization:
Applying the Law
Now that you have explained the rule, you are ready to apply it to your
client’s facts. Remember that this half of the paradigm uses the deductive
format of syllogistic reasoning — that is, applying a general, often abstract
principle to a particular situation and arriving at a conclusion.
General principle Covenants not to compete are
(from rule explanation enforceable if the duration, the
section) geographical scope, and the nature of
the activity restrained are reasonable.
The second common weakness may result from believing that the
application is so obvious that no explanation of the supporting reasoning is
necessary. This belief is rarely true. Even in cases where the application
seems obvious, some factual analysis is necessary.
The third common weakness is failing to realize the diverse possible
interpretations of the facts. Think independently and realistically about the
facts. Don’t assume the inferences that someone else — like the client or the
requesting attorney — has drawn from the facts. Most facts support diverse
inferences and interpretations.
Perhaps an analogy will show how hard this can be. Look at Figure 9-1.
You might have seen a graphic like this before. Do you see the old woman in
this graphic? Do you see a young woman as well? Your brain can organize
the black and white shapes of the graphic into a picture of either, but most of
us can see only one image at a time. More pointed for our purposes, once
your brain has organized the sections to display one figure, it is difficult to
find the other figure at all. If your assignment permits, ask others to help you.
Present a friend or colleague with a simple chronology or other sanitized
version of the facts rather than with your written description of them.2 Your
goal is to learn what story someone else might see in the facts, especially
someone who has not first seen the story through your or your client’s eyes.
Figure 9-1
How old is this woman?
If you must work alone, you must think both critically and creatively
about the facts. Try to imagine how the various other parties to the situation
would describe it. How would you describe it if you were representing those
parties? How might the facts appear to someone who disliked your client and
was therefore looking for a negative interpretation? This task will never be
easy, but each year of law practice will improve your ability to see diverse
interpretations of a set of facts.
Here is an example of rule application for the Pyle/Gavin issue.
EXERCISE 9-1
Recognizing Analogical Reasoning
In the sample office memo in Appendix A, identify each instance of
analogical reasoning (analogizing and distinguishing cases).
EXERCISE 9-2
Writing the Rule Application
Write a working draft of your analysis of the issue set out in Exercise 8-2. If
you already wrote out a rule explanation section, simply complete the
working draft by adding the rule application. Pay special attention to using
analogical reasoning (analogizing and distinguishing cases) in your rule
application.
1. In a law office setting, if you realize that facts are missing, it is best to inform the assigning
attorney immediately in case the facts can be obtained readily and therefore included in the memo’s
analysis.
2. Take care not to breach client confidentiality. See Model R. Prof. Conduct 1.6 (2013).
3. See the end of Chapter 8 for checklist for the rule explanation half of the paradigm.
CHAPTER 10
Chapter 7 explained how to use the question(s) you have been asked and the
relevant governing rules to create the outline for your analysis. Chapters 8
and 9 explained how to write the analysis of each single issue identified on
your outline. This chapter explains how to finish writing the analysis,
connecting these single-issue discussions and putting them in the order your
reader will prefer. With very little revision, this completed analysis will
become the “Discussion” section of your office memo or the “Argument”
section of your brief to the court. Here is an overview of an analysis of
multiple issues:
Notice that this umbrella section does not attempt to state the warranty
rules. Both rules are complex, and each will be the subject of its own
subsection. What the reader needs in this umbrella section is a road map of
the organization to follow. With this map, the reader will know exactly where
to look for the rule statements.
An effective umbrella section provides the reader with the context for the
analysis, and it clears away the underbrush — the issues that the reader need
not consider. It provides a road map for the remaining issues and explains the
organizational choice to follow. In other words, the introduction meets the
reader where she is, deals with her immediate needs, and leads her to the
starting point of the analysis.
I. Conclusion statement
[Umbrella section]
A. Rule statements and explanations
1. First element
2. Second element
B. Rule applications
1. First element
2. Second element
Conclusion
In some situations, you can explain all elements before applying any of
them, as this outline does. The rules and rule explanations for each element
may be particularly interrelated in the authorities. The distinctions among
them might be minor, and separating the rule explanation sections might
require you to repeat material. If the courts seem to take a more unified view
of the elements, separating the rule explanation sections could even sacrifice
some precision in the analysis. If your careful evaluation of the rule
convinces you that these descriptions apply to your assignment, you can opt
for this variation of the multi-issue paradigm. Remember, though, that the
key virtue of the basic paradigm is that its structure forces you to think
precisely about each element. Do not discard the advantages of that structure
lightly.
EXERCISE 10-1
Identifying the Parts of a Multi-Issue Discussion
Read the Discussion section of the office memo in Appendix A (a multi-issue
discussion). Make a photocopy of the memo. On the photocopy, identify and
label each part of the multi-issue discussion. Include the parts of the basic
paradigm within each subsection of the discussion.
EXERCISE 10-2
Writing a Multi-Issue Discussion
Write a working draft of an answer to the question presented below, using as
your only authority the case summaries in Exercise 3-2.
Facts. Mr. and Mrs. Carillo, each 64 years old, live in a neighborhood
that includes older people, middle-aged people who have teenaged or young-
adult children, and people with young children. The elementary school is
about two blocks away, although most children walk to school down the next
street over. The closest neighbors who have children living at home are the
Lupinos, three houses away from the Carillos.
About a year ago, the Carillos bought a trampoline for the use of their
four grandchildren, who visit from time to time. The trampoline is located in
the Carillos’ backyard. The yard is not fenced, but it is surrounded by a hedge
and other shrubbery that effectively shield the backyard from view.
Nonetheless, the neighborhood children know that the trampoline is there
because they sometimes play with the Carillos’ grandchildren. All of the
children know that they are not permitted to jump on the trampoline unless an
adult is present.
One day last spring, nine-year-old Jimmy Lupino was playing outside
with a group of friends. One of the friends remembered the trampoline and
suggested to the group that they ask the Carillos if they could play on the
trampoline. They knocked, but the Carillos were not home. They huddled
about what to do and decided they would each take just one turn on the
trampoline. They went around the back and began to take their turns. When
Jimmy Lupino’s turn came, he climbed on. On his fourth jump he got too
close to the edge, hit the metal side of the trampoline, and broke his spine. He
is now partially paralyzed.
The Lupinos have asked if your firm will represent them on a contingency
basis in a lawsuit against the Carillos. To decide whether to accept the case
on this basis, you need an idea of what claims the Lupinos might be able to
bring. One of the possible claims you need to evaluate is an attractive
nuisance claim.
1. The importance to the reader and the importance to the analysis should be the same unless the
writer and the reader have differing views of the analysis. If the writer suspects a difference, the writer
should either (1) use the introductory paragraphs to convert the reader to the writer’s view of the
analysis or (2) order the subpoints by their importance to the reader’s analysis.
2. The most common standard for a burden of proof in a civil case is proof by the preponderance of
the evidence. That means that the party bearing the burden need only present stronger evidence than
that of the opposing party to win. However, in a criminal trial, the prosecution must meet a higher
standard of proof — proof beyond a reasonable doubt. In some circumstances, a party might be
required to prove certain facts by a higher standard than a mere preponderance, but not beyond a
reasonable doubt. Courts often refer to this intermediate standard as “clear and convincing evidence.”
3. In the determination of most legal and factual issues, the decision-maker starts from a neutral
posture. However sometimes, as a matter of policy, the law will impose a “presumption” supporting a
certain result. For instance, the law imposes a presumption that service of process in a judicial
proceeding has been accomplished lawfully. In such a case, the decision-maker presumes the truth of
the presumption until sufficient evidence to the contrary has been offered.
CHAPTER 11
Now that you have an overview of the basic structure and content of rule
explanation and application, we will explore some ways to deepen and
strengthen your analysis.
Similarities
Buckley’s statement is much closer to the situation in Woodall, in which the minor
made the representation “unknowingly.” In Woodall, the minor did not realize that he was
making a representation of majority because he did not read the form contract he was
signing. Id. at 97. Similarly, Buckley did not realize that she might be making a
representation of majority because she misunderstood the agent’s question. In both cases,
the requisite intent to deceive is absent. Therefore, the result in Buckley’s situation should
be the same as the result in Woodall — an order permitting disaffirmance.
Similarities
The Fahmie case is remarkably similar to Frimberger’s situation. Like the plaintiff in
Fahmie, Frimberger is also alleging a breach of the covenant against encumbrances based
on the necessity of bringing the property into compliance with a state environmental land
use regulation. Just as in Fahmie, neither the current owner nor his immediate predecessor
knew of the violation of the regulation. In both cases, the violation was created by a remote
owner. In both cases, this remote owner knew or should have known that he was creating a
violation of the regulation. In neither case did the current owner’s deed contain an
exception for violations of land use statutes. In both cases, the current owner discovered the
violation upon filing an application with the relevant regulatory agency to make further
improvements to the property.
Difference
The only relevant difference between the two situations results in an even weaker case
for Frimberger. In Fahmie, the state agency actually required the plaintiff to replace the
inadequate culvert with the larger culvert, thus causing the plaintiff significant expense. In
Frimberger’s situation, however, the state agency has taken no action to require abatement
of the violation. As a matter of fact, the agency has invited Frimberger to apply for an
exception to the relevant requirement, a procedure which Frimberger has thus far declined
to pursue. Therefore, it is even less likely that Frimberger’s facts establish a breach of the
covenant than did the facts in Fahmie.
This example has three key characteristics: Notice how specific is the
discussion of the facts from each case. Notice how many factual similarities
and differences are identified (find them and count them). And notice how
the theses sentences provide the structure and explain the points of the
comparisons they introduce. (Find the theses sentences and underline them.)
Emulate these three characteristics in your own case comparisons.
EXERCISE 11-1
Analogical Reasoning
Formulate the rule of law from Goldman v. Kane, reprinted in Appendix E.
Then read Karen Berry’s facts set out in Exercise 12-3. Make a list of the
similarities between Berry’s facts and the facts in Goldman v. Kane. Make a
list of the differences. Identify the similarities and differences that are legally
significant for Berry’s case and explain why.
EXERCISE 11-2
Policy Analogies
Assume that several months after closing, a buyer of real property discovered
a major structural defect on the premises. The buyer has sued the seller,
alleging that the seller knew of the defect and failed to disclose it to the
buyer. You represent the seller. Assume that your jurisdiction has historically
followed the older rule on this issue (a seller has no duty to disclose defects),
but the state’s highest court has signaled a willingness to consider imposing
such a duty. The buyer’s attorney will argue, among other things, that in
recent years the law has imposed such a duty on sellers of personal property
(goods) and that the law governing the sale of real property should be the
same. What analogies can you expect the buyer’s lawyer to make between the
sale of personal property and the sale of real property? What arguments will
the buyer’s lawyer make based on those analogies? What differences might
you point out, and what arguments might you make based on those
differences?
EXERCISE 11-3
Factual Inferences
Read the case of Lucy v. Zehmer in Appendix E. You’ll notice at least three
factual issues there. The court wants to show (1) that Zehmer was not too
drunk to make a valid contract; (2) that Zehmer was serious about selling his
farm; and (3) that irrespective of Zehmer’s actual intention, it was reasonable
for Lucy to believe that Zehmer was serious about selling the farm. How did
the court use the facts to “show” (not just “tell”) these three conclusions?
1. Ellie Margolis, Closing the Floodgates: Making Persuasive Policy Arguments in Appellate
Briefs, 62 Mont. L. Rev. 59 (2001).
2. Id. at 72.
3. See also Carol M. Rose, Crystals and Mud in Property Law, 40 Stan. L. Rev. 577 (1988).
4. Ellie Margolis, Closing the Floodgates at 74. This category is closely related to principle-based
reasoning as described in Chapter 5.
5. Id. at 77.
6. Id. at 78–79.
7. Michael R. Smith, 1992-1994 Class Handouts, “Techniques for Using Case Authority to Discuss
‘Points’ in a Memo,” on file with the author.
8. Adapted from Frimberger v. Anzellotti, 594 A.2d 1029 (Conn. App. Ct. 1991).
PART FOUR
Predictive Writing
CHAPTER 12
Brief Answer. The Brief Answer provides your answer quickly and up
front. The reader then can decide how much attention to invest in the
explanation that follows.
Fact Statement. This section sets out the facts on which your answer is
based. You probably obtained the facts from your reader (the requesting
attorney) in the first place, but your memo must repeat them. Your reader will
want to be sure you have not misunderstood any important facts. Also, your
reader, who has been busy working on other cases, might need a review of
the facts, and other attorneys working on this case or future cases might need
access to your analysis. Finally, reading your fact statement in conjunction
with your legal analysis could cause your reader to realize that she has
neglected to give you a critical fact.
As the writer, you have an interest in reciting the facts as well. Your legal
analysis will be based on the facts as you understand them. If the facts were
to change, the result might change. If you memorialize the facts you have
been given — the facts on which your answer is based — you ensure that
your work will be evaluated with reference to those facts. No future reader
will think you had access to other, different facts and therefore expect you to
have reached a different answer.
Since the law is subject to change, the memo’s date tells future readers
whether and for what period of time your analysis must be updated. The “Re”
section identifies the client, the file number of the legal matter you are
working on, and the particular issue you have been asked to analyze. Your
firm might be handling a number of matters for this particular client and your
reader will want to know at a glance which issue your memo analyzes.
Under what circumstances does Iowa law allow recovery on a claim for the
wrongful death of a fetus?
If you have been asked to apply a rule to a set of facts and predict a result —
the more common scenario — drafting a readable Question Presented can be
more of a challenge. The Question Presented should include the question, the
most important facts, and perhaps the governing rule as well. Here are several
format options.
Format Option 1
Organize the content of the Question Presented in two sections: a statement of the legal
question and a concise statement of the major relevant fact(s).
Can . . . [state the legal question] . . . when . . . [state the major facts]?
This format does not state the rule of law as part of the Question. Here is an
example:
Common verbs for beginning a Question Presented in this format are: “Can . .
. ?” “Did . . . ?” “Was . . . ?” “May . . . ?” and “Is . . . ?” Common transitions
into the factual description are: “when . . . ” and “where . . . . ”
Format Option 2
An even simpler version of a Question Presented is the format beginning with “whether”
and constituting a clause rather than a complete sentence. This format still begins with the
legal question and ends with the significant facts:
When the Question Presented uses the “whether” format, the clause can be
followed by a period and treated as a complete sentence although it is not.
Format Option 3
A third format option is the “under/does/when” format. This format usually results in the
longest and most complex Question Presented, although it allows for a shorter Brief Answer
(the succeeding section). The Question Presented is longer and the Brief Answer shorter
because this format puts the statement of the law in the Question rather than in the Answer.
Here is an example:
The middle verb can vary, using the same common verbs identified
above: “can,” “did,” “was,” “may,” or “is.”
Format Option 4
Any of these formats can be expanded to include the key facts on both sides of the question.
Because a memo’s analysis should be as objective as possible, an explicitly balanced
description of the key facts can be helpful both to your reader and to you. It gives the reader
a quick overview of the most important facts on both sides of the question, and it can
remind you to recognize what is compelling about each side’s arguments. This format is
particularly appropriate when each side would want to emphasize different facts rather than
simply construct legal arguments about the same facts. For instance, assume that the
question is whether an airline passenger attempted to intimidate a flight crew member. Here
is an example of a Question Presented that identifies key facts on both sides of the question:
Under [statute], did Mitchell Sheffield attempt to intimidate the flight crew
when he left his seat, approached the door to the control cabin, and shouted
at the co-pilot but never articulated any threat or attempted any violent act?
Notice that the key facts tending to show intimidation are grouped together,
followed by the key contrasting facts. This structure provides an immediate
overview of the facts and points toward the key factual arguments on both
sides.
You will find proponents of both the generic and the specific Question
Presented. The specific Question Presented directly states the question the
requesting attorney wants to know. The senior attorney who requested the
memo is not asking an academic legal question; rather he wants to know the
fate of a particular client — Sharon Watson. Although this memo might
someday be placed in the firm’s memo file and be examined by a future
reader for purposes of another case, the primary function of this memo is to
answer a question about the present client.
The abstract version of the Question Presented refers to the parties
involved by characterizing them rather than by naming them. When the
requesting attorney reads this characterization, he probably will have to stop
as he reads it to substitute in his mind the names of the parties in place of the
characterizations. He also will have to ask himself whether the
characterizations accurately refer to the parties in this particular case because
if they do not, then the answer set out in the memo might not apply to these
parties. But the question of whether the law set out in the memo applies to
these parties is part of what the senior attorney wants you to analyze for him.
Finally, as a practical matter, a Question Presented that uses the parties’
names generally uses fewer words and is easier to read. Notice how this is
true for the examples above. Because some Questions Presented must include
a great deal of information, finding ways to reduce the number of words and
simplify the sentences can be helpful.
On the other hand, a busy attorney with a heavy caseload might not
remember the names of the parties as easily as the characterizations (the
landlord, the contractor, the lender). If you suspect that your reader is not
familiar enough with the case to remember the names, either use generic
references or use names with characterizations in parentheses, like this:
Again, use the phrasing you think your teacher or requesting attorney will
prefer. As with most other writing decisions, your assessment of your
reader’s starting point should be the most important factor.
EXERCISE 12-1
For each of the following Questions Presented, use a different format. Use
specific references for one and generic references for the other.
a. Draft a Question Presented for an office memo addressing Ms.
Ryan’s question in Exercise 8-2.
b. Draft a Question Presented for an office memo addressing Ms. Pyle’s
question introduced in the hypothetical on page 87 and continuing
with the working draft of the analysis on pages 91-93 and 101-102.
QUESTION PRESENTED
Can Carrolton enforce the Watson covenant-not-to-compete where the
covenant prohibits Watson from making sales contacts for three years and
applies to the three counties closest to Carrolton’s headquarters?
BRIEF ANSWER
Probably yes. Carrolton should be able to enforce the Watson covenant.
A covenant-not-to-compete is enforceable under Georgia law if the activity
restrained, the geographic area of the restraint, and the duration of the
restraint are all reasonable. Several Georgia courts have held that
covenants restraining sales contacts are nearly always reasonable as to the
activity restrained. Georgia courts have also held covenants reasonable
when the duration of the restraint was up to three years and when the area
restrained included up to ten counties.
EXERCISE 12-2
For each of the Questions Presented you drafted for Exercise 12-1, draft a
corresponding Brief Answer.
A. Fact Selection
Often you will know many facts about a particular client’s situation.
However, your busy reader will want to know only two kinds of facts: (1)
facts relevant to the question presented and (2) background facts necessary to
provide context for these legally relevant facts. Contextual facts will come to
you naturally as you write, so we will focus on identifying the legally
relevant facts.
Relevant facts are those that help you decide how the rule of law will
apply to your client’s situation. Writing your working draft already has given
you a good sense of the facts that will be relevant to the issues. Especially as
you wrote the “rule application” section of your analysis, you considered how
the legal rule would apply to your client’s situation. Review your Discussion
section to make a list of these relevant facts. Your list certainly should
include all facts you discussed in your analysis, but do not limit your list to
those facts. Let the process of reexamining each part of your legal discussion
be an occasion for double-checking your fact application. You might be
surprised at how often you will see a fact in a significant new way when you
are working on the fact statement.
Also, include any facts that could have a powerful emotional impact on
the decision-maker, even if those facts are not technically relevant to the legal
issues. Remember that judges and other decision-makers are human. Few of
us can separate completely our objective legal analysis from our reaction to
compelling parts of a story. Although legally irrelevant facts theoretically
should not affect a result, judges might be more swayed by these inevitable
responses than theory contemplates. For instance, in a divorce case, the judge
deciding property issues might be influenced by knowing that one spouse has
assaulted the other spouse, even if the applicable law does not make fault
relevant to property division. If your case includes an emotionally powerful
fact, do not ignore it, especially if the legal rule you are working with gives
the decision-maker some discretion.
Finally, include facts only. Save the coverage of legal authorities and
arguments until the Discussion section. For cases already in litigation,
include the current procedural posture of the case and, if relevant, a summary
of the procedural history.
Topical. When the facts are complex and cover a number of topics, or
when they include more description than plot, a topical organization might
work best. For example, consider these facts:
Janet Harbin represented Marcel Myers in a divorce proceeding. Myers
made some statements to Harbin that caused Harbin to fear that Myers might
physically injure his estranged wife. Harbin disclosed these statements to a
police officer. Subsequently, Myers filed a disciplinary complaint against
Harbin. Assume that under the applicable ethical rule, a lawyer may reveal
information if the lawyer reasonably believes that disclosure is necessary to
prevent the client from committing a criminal act that is likely to result in
imminent death or substantial bodily harm.
Here, chronology might not be important. The facts might simply
describe topics: Myers’ statement, the circumstances surrounding it, the
possible consequences of it, and Harbin’s reaction to it. If we had more
detailed facts about each of those topics, perhaps each topic might become
one or more paragraphs. This would be an example of a topical organization.
EXERCISE 12-3
Critique the following Fact Statement, using the criteria described above and
any others you choose. Then write an improved version.
I understand that you’ll be meeting with Ms. Pyle next week. Let me know
if you would like me to summarize my analysis in an office memo for the
file.
Matt
I. GENERAL CHARACTERISTICS OF
PROFESSIONAL LETTER WRITING
Readers. Because letters are more personal than office memos or briefs, it
is especially important to consider the needs and characteristics of a reader.
Lawyers write letters to diverse people in diverse circumstances. These
circumstances often are highly charged emotionally, and the lawyer might
have a number of delicate purposes for the communication. Therefore, a letter
writer must fine-tune her understanding of her reader.
The writer must consider three kinds of facts about her reader. First, what
does this reader already know and understand? This question includes both
general knowledge and legal knowledge. The reader could be a well-educated
and experienced business person who knows nearly as much about the legal
environment of her business as does the lawyer. The reader might be another
lawyer or a judge. The reader might be uneducated or developmentally
disabled or not fluent in English. The writer would communicate the same
information to all of these readers in very different ways.
Second, what is this reader’s current mental and emotional status? All
emotions, especially anxiety, fear, grief, and anger, affect the way people
receive and process information. A writer must be sensitive not only to which
emotions the reader might be feeling, but also to the causes of those
emotions. The content of the letter might touch on some of those causes, and
the writer will need to decide how to handle those subjects appropriately.
Third, what is this reader’s personality? If the reader is a client, does this
client prefer to be treated formally or informally? Does he want a calm, wise
counselor or an impassioned advocate? Does he want an empathetic lawyer
or one who is businesslike and efficient? The purpose of asking these
questions is not to enable the writer to be someone she is not. Every good
lawyer possesses all of these traits and more. Nor will the writer always
choose to present a persona consistent with the reader’s preferences. The
lawyer must decide which traits will serve the client best in the present
situation, and knowledge of the reader is the first step toward making that
decision.
Relational Purposes. Every letter also has at least one relational purpose.
Relationally, letters are used primarily (1) to establish and maintain a good
relationship; (2) to communicate the writer’s competence; and (3) to establish
professional boundaries. For these relational purposes, you will need the
analytical skills set out above plus one more important writing skill — the
careful use of tone.
Tone. The letter’s tone is the primary way the writer communicates two
important kinds of information: the writer’s personality and character traits
and the writer’s opinion of the reader. A letter’s tone usually reflects
particular character and personality traits of the writer. Some traits are
appropriate in nearly all situations, traits like trustworthiness, knowledge,
skill, experience, reliability, and diligence. Other traits are appropriate in
some but not all situations, traits like warmth, empathy, passionate advocacy,
detachment, coolness, efficiency, and measured rationality. A lawyer should
never appear sarcastic or contemptuous and should never appear to act out of
anger.
Tone is created primarily by content choices, attention to detail, word
choices, placement choices, and sentence formats. Content choices and
attention to detail help establish many of the most important traits of the
lawyer: trustworthiness, knowledge, experience, skill, reliability, and
diligence. Traits relating to more personal aspects of the relationship often are
more subtle. Here are some examples of methods for creating a warm tone
(friendly, kind, empathetic, encouraging) or a cool tone (detached, efficient,
rational, stern).
Advice. You might have been asked simply to provide a legal conclusion,
such as whether certain conduct would be legal. If so, your analysis in the
prior section will have answered the question adequately. However, you
might have been asked a broader question, such as “Should I sue my
employer for salary discrimination?” The answer to that question certainly
includes one or more legal questions aimed at learning whether the client has
a legally viable claim. But the question also asks you to help the client think
about the personal and professional consequences of bringing a claim against
a current employer. If the answer to the broader question is complex or
sensitive, you might prefer to discuss it in a personal meeting with your
client, perhaps summarizing your advice after the meeting. If the answer to
the broader question is more straightforward, however, you can communicate
it here, at the end of your legal analysis. Feel free to organize the components
of your advice according to simple topics, such as advantages, disadvantages,
likelihood of success, and time frame.
III. EMAILS
Emails have revolutionized professional communication. Used well, emails
are a boon both to efficiency and relationship-building. Used poorly or
carelessly, emails can damage critical relationships and significantly limit
careers. Part of the difficulty with learning to use email skillfully is that it is a
hybrid form of communication — occupying relatively uncharted terrain
between writing and speaking. What’s more, learning a good email style can
be tricky because most of us are accustomed to using email primarily for
personal and social purposes. This section will introduce you to the practice
of professional emailing, starting first, as always, with readers.
Readers. In the practice of law, email readers largely fall into three
groups: clients, lawyers inside your firm, and lawyers representing other
clients. To some degree, however, all of these readers are likely to share some
characteristic responses to email.
First, many email readers are overwhelmed with incoming email of
various kinds. Much of that email flood is of little value or relevance to the
reader, and some of it can be downright harmful. In the face of this email
onslaught, readers may tend to skim their inboxes and hit the delete button
quickly. They also may be annoyed by the sheer volume of what feels like an
assault, so your email may find them in a grumpy mood, less likely to give
you the benefit of any doubt about either competency or attitude.
Second and speaking of attitude, email is a cold medium. A short, concise
email can seem abrupt and hostile when the writer intended simply to get to
the point efficiently and take up as little of the reader’s time as possible. An
email cannot rely on vocal inflection or facial expression to warm its tone or
assure the reader of a friendly or respectful attitude. That deficiency is why so
many email writers resort to emoticons, but emoticons are inconsistent with
professional style. They make the email and its writer seem juvenile or
frivolous, and most readers react negatively to their use in a professional
setting. Deprived of that easy solution to the problem, a professional email
writer must take special care to monitor an email’s tone and to find other
ways to prevent a misinterpretation of the writer’s attitude.
Third, readers of a long email string are unlikely to remember with much
clarity what was said earlier in the string. Since the direction of the thread can
get lost and the context can shift, current additions to the string often need to
summarize prior emails rather than assuming either that the reader will
remember or will reread the string. Summarizing can be tricky, though,
because a reader may become impatient to get to the new point and because
the summary may refocus the string in unintended ways.
Content.2 Clarity, concision, and organization are important for any kind
of writing, but especially critical when emailing. Here are some tips:
1. Use the subject line to catch your reader’s attention. Clearly state the
email’s subject and purpose in terms that will be specific enough to
communicate well but not too detailed to be read at a quick glance
(“Re: Research on scope of Watson covenant not to compete”).
2. In the body of the email, consider using the first sentence to
summarize the situation. If your email is a response to a partner’s
request for research or factual investigation, use the first sentence to
identify the question (“You asked me to research the enforceability of
Watson’s covenant not to compete with Carrolton.”). If the email
thread has gotten long or complicated, use the first sentence or two to
summarize the status of the discussion.
3. Then move quickly to the email’s main message. Don’t test the
reader’s patience by taking too long to get to the point. Your reader is
expecting to see the email’s point within the first two or three
sentences. See the example in Section VIII of Chapter 12.
4. Usually an email shouldn’t be longer than one screen on a traditional
computer monitor. Keep in mind that many email recipients read
their emails on smartphones or tablets, so an email longer than one
computer monitor screen is especially difficult to manage on these
smaller devices. If you need more space, consider sending only a
manageable summary by email, accompanied by a longer hard-copy
memo. Tell your email readers that they will receive more detailed
information by hard-copy. If you make that promise, however, be
sure to keep it, providing the hard-copy memo promptly.
5. After stating the email’s main point or the answer to the question
you’ve been asked, add a succinct summary of your supporting
analysis. The analysis you provide in an email will necessarily be
shorter and more concise than the analysis you would provide in a
traditional office memo, though you may choose to follow up with a
more formal and complete memo. In the email, give your reader only
the main points with a very brief summary of your sources, if
appropriate.
6. Tabulate multiple points. Emails are often read in places like
restaurants and elevators. Readers may have a harder time that usual
organizing the material in their minds. Also, they often reply to the
last point and forget to reply to earlier points. If you are making more
than one point or asking more than one question, use numbers
enclosed in parentheses to identify the points. Since formatting will
differ on various devices, don’t rely on formatting the points as a list.
Either keep them all in the same paragraph or begin a new paragraph
for each item.
Dear Ann,
Today we received discovery documents from the defendants. They
have requested information from three sources: (1) your office files; (2)
your medical files; and (3) your contractor’s files. . . .
Voice and Style. Emails usually should be slightly less formal than
traditional professional writing but more formal than a social message.
Striking that professional middle ground can be an adjustment. Here are some
tips:
1. Remember that an email is a professional communication, just like a
hard-copy letter, a pleading, or a brief. Maintain a professional voice
and tone. Don’t use pop culture’s casual language (“Are you down
with that idea?”). Maintain the sort of professional tone you would
use in any other context, using the kind of language a client would
expect to hear from her lawyer or another lawyer would expect to
hear from a competent professional.
2. Use normal punctuation and capitalization. Emails don’t give
permission for sloppy writing. Don’t use all-caps, the electronic
version of shouting. Find other ways to emphasize a point or to
format your message, but keep in mind that italics or bolded type
may not appear on your reader’s screen.
3. Don’t use “e-speak” phrases like “btw,” “omg,” or “ur.” Instead use
normal English words.
4. Use contractions. Contractions often make the message easier to
read, and email’s slightly reduced formality allows contractions
where more formal writing might not. In fact, avoiding contractions
in an email can make the message seem stilted, awkward, or arrogant.
5. Use a salutation rather than abruptly plunging into the message.
Choose between a first name (“Amy”) or a last name (“Ms.
Diemling”) according to the situation.
6. Use an appropriate closing, such as “Best,” “Cordially,” “Regards,”
“Yours,” or “Sincerely yours.” Use a casual version of your first
name (“Ben”) if your relationship with the recipient calls for that
kind of informality, but then follow with a standardized closing that
includes your full name, your firm’s name, and all of your contact
information.
7. Be alert to the need to use a slightly warmer tone than you otherwise
might. Emails can sound hostile or cold when the writer did not
intend to project that attitude. Preventing misunderstanding is a much
better choice than repairing relationship damage after the fact.
8. Emails don’t give you permission to say things you wouldn’t
normally say or to say them more rudely than you would ever say in
person. Some writers seem to turn into different people when they are
operating behind email’s electronic curtain. Never ever type
something in an email that you wouldn’t say face to face.
9. If the email string turns into a confrontation, stop the email cycle and
switch to another medium. Schedule an in-person meeting. Pick up
the telephone. Worst case scenario, switch to hard-copy
correspondence. The immediacy and abstractness of email makes it a
problematic form of communication for tense, emotional, or hostile
situations. Do not reply when you are in the heat of anger.
Introduction to Brief-Writing
The briefs you write will be vital to your clients. The outcome of most cases
depends on the judge’s rulings on numerous legal questions arising during the
litigation. Most of those questions will be decided after you have filed a brief,
and the judge usually will be influenced more by your brief than by any other
form of argument you make. Therefore, for your client’s sake, your brief
must be thorough, well written, accurate, honest, free of technical errors, and
in compliance with the court’s rules.
Your brief-writing will be important to you as well. Your reputation as a
lawyer will be built, in significant part, by the care you take in brief-writing.
And reputation is more than just a personal matter; it is an integral part of
your professional effectiveness. Over the course of her career, a lawyer with a
reputation for honest and careful work will be able to accomplish much more
for her clients than a lawyer with a reputation for dishonesty or slipshod
work. Thus, every brief you write is a document with persuasive impact, for
good or for ill, not only for your current client but for all your future clients.
So write as if your practice depends on it, because it does.
We begin our study of briefs with some important general principles.
First, we examine more closely the ethics of brief-writing. Then the chapter
identifies the most common kinds of writing assignments and provides
suggestions for how to handle each. Then we consider the characteristics of
judges as readers. Finally, the chapter describes the common components of
trial-level and appellate briefs and how to format these documents.
The ABA Model Rule expressly requires disclosure only if the authority
is in the controlling jurisdiction, but some jurisdictions broaden the
requirement. For instance, the New Jersey Supreme Court has required, on
federal questions, disclosure of adverse decisions of any federal court.5
Tabulating not only helps your reader navigate through the substance of
your text; it also demonstrates to your reader that you are in control of the
material. Your reader will be more willing to follow you along your line of
reasoning if the reader finds you an effective leader.
Don’t tell a court what it “must” do or what it “cannot” do. Use less
confrontational language when referring to limits on the court’s authority or
power. For instance, avoid:
The Court must reverse the trial court’s order . . .
The Court cannot grant the defendant’s motion . . .
The Court is not permitted to consider subsequent negotiations . . . Here
are some better options:
Focus on the judge rather than on the opposing party or the opposing
lawyer. A brief-writer’s focus can be distracted by seeing the litigation as a
battle. Do not let your day-to-day contact with the parties and their lawyers
cause you to forget that the primary focus of your brief must be the reader
(the judge).
INTRODUCTION
This is a sexual harassment action brought against Ellis Pest Control, Inc.,
and its President, Forrest Michie, by Caroline MacDonnell and Barbara
James, former employees of the corporate defendant. The action alleges
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)
et seq. (1988), and related contract claims.
Plaintiffs file this brief in support of their motion to compel defendants’
response to plaintiffs’ Requests for Production of Documents, properly
filed and served on May 14, 2003. The requests seek production of
plaintiffs’ employment files and all documents referring to any evaluations
of the plaintiffs’ job performance. Defendants refuse to provide any of
these documents, despite the reasonableness and clearly permissible scope
of the requests.
Statement of Facts. This section sets out the facts relevant to the legal
issues addressed by the brief, as well as the context necessary for
understanding those facts. The Statement of Facts is an important opportunity
for advocacy, requiring skillful and careful drafting. Chapter 18 explains how
to draft a Statement of Facts.
Conclusion. The Conclusion refers to the arguments set out in the body of
the brief and states that the requested relief should be granted. It is followed
with a courtesy closing like “Respectfully submitted,” a signature line, and
the typed name, address, and telephone number of the signing attorney. Two
schools of thought exist on the content of conclusions. The more traditional
approach is a pro forma statement of the precise relief sought:
For the foregoing reasons, the Court should grant the Defendant’s Motion
to Dismiss.
Table of Authorities. Here, provide the titles and citations for all
authorities on which you rely in the brief as well as the page number(s) on
which they appear in the Argument. If an authority appears on numerous
pages, use the term “passim” in place of a page number. Organize the
authorities according to categories with labels, such as Cases, Constitutional
Provisions, Statutes, Administrative Regulations, Law Review Articles, and
Miscellaneous. Beneath each category, the authorities should appear in
alphabetical order.
Statement of the Case. The Statement of the Case is the customary title
for the fact statement of an appellate brief. Chapter 18 will explain how to
draft a fact statement.
Argument. The Argument section sets out your argument in its complete
form. Draw on the analytical material from Chapters 3-5, the organizational
and writing process material from Chapters 6-11, and the brief-writing
material in Chapters 14-19. Most court rules require an appellate brief to
identify the appropriate standard of review for each legal issue. Chapter 16
will provide some important suggestions and reminders about writing this
section.
Two of the potentially most persuasive parts of a brief are the Questions
Presented (Issue Statement) and the Point Headings. This chapter explains
their function and tells you how to draft them effectively.
QUESTION PRESENTED
Is a covenant-not-to-compete enforceable where the covenant was a
bargained-for term of the sale of a business, where the term was negotiated
as part of the agreement to allow the seller to continue working for the
business, and where the sale specifically included the company’s customer
lists and good will?
QUESTION PRESENTED
May an established business enforce a covenant-not-to-compete where the
covenant would eliminate all competition within the market area and where
the prohibited activity would affect only four percent of the covenant-
holder’s profits?
Notice how each accurately recites the legal issue and several key facts
while suggesting an answer favorable to the client for whom the brief is
written.
Drafting a Question Presented is like creating a haiku. Each of these
literary forms requires meticulous attention to word selection and placement,
sentence structure, and theme. Unlike poetry, however, no one would argue
that obscurity of message is desirable for a Question Presented. Rather, a
Question Presented should be a powerful sentence that is easily
understandable on first reading.
Keep reworking the Question Presented for readability and subtle
persuasiveness. Use the techniques presented in Chapter 20. Try to achieve a
concise, clear, and direct style, and a persuasive framing of the Question.
Here are some particular suggestions:
Both of the examples on the preceding page use this format. Common
verbs beginning the Question Presented are: “May . . . ?” “Does . . . ?” “Is . . .
?” and “Did . . . ?” Common words used for the transition to the second part
of the Question, referring to facts, are “when” and “where.”
A Question Presented also can be phrased as a clause beginning with
“whether” and ending with a period:
QUESTION PRESENTED
Whether a large, established business can enforce a covenant-not-to-
compete where the covenant would eliminate all competition within the
market area and where the prohibited activity would affect only four
percent of the covenant-holder’s profits.
In other cases, the better choices are generic descriptions or the parties’
names. Choose the clearest and most persuasive alternative. Sometimes,
using the parties’ names can serve the strategic function of humanizing the
parties and the legal issues in dispute. Using names can serve a practical
function as well, allowing the drafter to use fewer words. For instance, in the
third example above, the generic description “an established business” is
longer than the name “Carrolton” would have been.
On the other hand, using generic descriptions could allow the writer to
give additional helpful information about the party. For instance, in the
Carrolton example, the generic description allowed Watson’s lawyer the
chance to convey some helpful information about Carrolton — that it is an
established business. In such a situation, the additional information might be
worth the added length. Experiment with both alternatives and select the one
that works best for your particular case.
Do not avoid the actual question the judge must decide. Some writers
are tempted to assume the answer to the question the judge must decide, like
so:
Neither party argues that Carrolton can enforce a covenant with unreasonable
terms. The governing case law clearly states that Carrolton cannot, and
neither party is asking the court to change that rule. Rather, the question the
judge must decide is whether the terms are reasonable. Perhaps the drafter of
this Question Presented was hoping that the assumption would slip past the
judge, but it will not. Write a Question Presented that addresses the actual
legal issue.
Don’t overdo the advocacy. Some court rules require that Questions
Presented not be argumentative, but even in the absence of court rules,
overzealous advocacy is counterproductive. It causes the skeptical reader to
discount the material because the writer’s agenda is too obvious. The goal is
to state the question in a way that allows the facts to speak for themselves.
Facts persuade more effectively than bluster and puffery ever can. Here is a
Question Presented that has crossed the line into argumentativeness:
Can legal guardians recover for the wrongful death of a child when the
guardians had raised the child as their own for four years, had instituted
adoption proceedings two years prior to the child’s death, and had
believed, reasonably and in good faith, that a final adoption decree had
been issued?
Drafting more than one question. A brief can raise several questions and
thus have several Questions Presented. In such a case, draft a separately
numbered Question Presented for each legal question. Place these Questions
Presented in the order in which the issues will appear in the Argument
section.
Using a “deep issue”2 format. If court rules permit some variation, you
might not be limited to the traditional one-sentence or one-phrase format. If
so, consider using two or even three sentences so you can add context while
maintaining clarity. The Question Presented should still be short — usually
no more than about seventy to eighty words — but the multiple-sentence
structure will allow you to tell a tiny story, to clarify the legal standard, or to
frame the issue more effectively. Here is an example of a “deep” issue:
This issue statement uses three sentences. The first clarifies the applicable
legal standard, providing the legal context. The second presents the key facts.
With both the legal standard and the applicable facts clearly stated, the third
sentence asks the question.
A “deep” issue format can state the facts first, essentially telling a mini-
story. Here is an example of that strategy:
At 7:30 one morning last spring, Father Michael Prynne, a Roman Catholic
priest, was on his way to buy food for himself at the grocery store when his
car collided with Ed Grimley’s truck. The Catholic Church neither owned
Michael Prynne’s car nor required its priests to buy groceries as part of
their priestly functions. Was Michael Prynne acting as an agent for the
Church at the time of the accident? [seventy-one words]4
Once in a while you might even use more sentences while keeping them
short enough to remain within the seventy to eighty word range. Here is such
an example:
Notice how all of these examples are both easily readable and narrative in
form. If you are having trouble drafting an effective Question Presented using
the traditional format and if court rules or your professor will allow, consider
using this less stylized format.
EXERCISE 15-1
Critiquing Questions Presented
Review the Carillo facts in Exercise 10-2. Assume that the matter is now in
litigation. Critique these two versions of the Question Presented drafted by
the lawyer for the Lupinos. Then write a better version.
Version 1 Can the Carillos maintain an attractive nuisance in their backyard?
Version 2 Does a trampoline constitute an attractive nuisance?
Arguing Two Major Issues. Occasionally you will have to win on two
weighty issues, and the analysis of each of those weighty issues will be quite
different in nature. For instance, you might have to argue that a particular
statute is constitutional and also that your opponent breached its terms.
Although you will have to win on both of those issues, you might find that
each is a very large issue, that you have a great deal to say about each, and
that the nature of your argument for one is quite different from the other
(constitutional principles in one case and statutory construction principles in
the other). In such a case, you might want to give each of those weighty
issues its own point heading. However, do not rush into the decision to
separate them. Quite often, your argument on each will be strengthened by a
closer association with the other, an association you can emphasize by
positioning them as subpoints under a common point heading.
because
[Identify the part of the rule justifying the result and the key facts.]
Here is an example of a burglary point heading. Notice how the second half
of the point heading implicitly identifies the part of the rule that determines
the desired result and asserts a conclusion about it:
When the point heading must cover more than one element, placing the key
facts for all those elements in one sentence could result in an unwieldy
heading. In that situation, move the facts for each element into the
subheading dealing with that element. For example, here are the prosecutor’s
headings for a brief responding to the defendant’s challenge of three
elements. Because the prosecutor must win on all three challenged elements
to prevail, the point heading must cover all three elements, but there are
separate subheadings for each. Notice that the subheadings expressly identify
the components of the rule to be addressed in that subsection and add the key
facts.
As you write out the body of the Argument, you will develop even
more clarity about which facts are compelling. Revise your point headings to
reflect these new insights.
One last point: This section began by stating that point headings “ideally”
should include key facts. A situation is less than ideal, however, when the
key facts, stated in isolation from other facts and from your explanation of
them, are not persuasive. Sometimes the facts of a particular case are
persuasive only in a particular context. Or perhaps they require some
explanation before their significance will be apparent to the judge. In either
case, including the key facts in the point heading probably will hurt rather
than help. In either case, then, leave the facts out of your point heading.
Similarly, a point heading for a pure question of law9 usually would not
include your client’s facts. For a question of law, the court will only be
deciding what the law is, not how that law applies to your client’s facts. In
place of facts, however, the point heading should assert the key argument(s)
supporting your position on the question of law before the court. Here is an
example of a point heading for a pure question of law:
I. THE STATUTORY PROCEDURE FOR DECIDING ZONING AMENDMENT
APPLICATIONS COMPLIES WITH DUE PROCESS REQUIREMENTS BECAUSE IT
PROVIDES FOR A PETITION FOR RECONSIDERATION AND A SUBSEQUENT
APPEAL TO DISTRICT COURT.
EXERCISE 15-2
Evaluating the Content of Point Headings
Facts. Several years ago Clifford Foodman defended Carson on hit-and-
run charges. Now Foodman is defending a new client, Janoff, on a contract
dispute. Carson is the plaintiff in this new case. Before accepting Janoff’s
case, Foodman wrote to Carson explaining that there appeared to be no
relationship between the two representations and inviting Carson to raise any
concerns he had about Foodman’s acceptance of Janoff’s case. Carson did
not respond. Carson has now filed a motion to disqualify Foodman from
representing Janoff. One of the issues raised by this motion is whether
Carson’s failure to respond to Foodman’s letter constituted consent to
Foodman’s representation of Janoff.
Read the following versions of the “consent” point heading for
Foodman’s brief. Identify the point heading that best includes the information
a point heading should contain. For the others, identify which part is missing.
a. Carson consented to Foodman’s representation of Janoff when he did not
respond to Foodman’s letter.
b. The motion to disqualify should be denied because Carson did not
respond to Foodman’s letter.
c. The motion to disqualify should be denied because Carson consented to
the representation.
d. The motion to disqualify should be denied because Carson’s failure to
respond to Foodman’s letter constituted consent to the representation of
Janoff.
If you have tried all available editing techniques and still cannot produce
a readable point heading, the best solution is to remove one of the items of
information. Decide which one, based on persuasiveness and on your
assessment of your reader’s needs. If the key facts are particularly persuasive,
remove the relief requested or the part of the rule at issue. The facts might
sufficiently imply the part of the rule at issue, or perhaps the judge is already
well aware of the nature of the relief you seek. Regardless, an easily readable
point heading that asserts the party’s legal argument but lacks supporting
facts is more persuasive than a point heading that includes the facts but
cannot be understood.
EXERCISE 15-3
Editing Headings for Readability
Edit the following headings to make them more easily readable. Use the
techniques identified in the prior section and in Chapter 20.
1. It is clear that Crawford’s actions of sitting peacefully in the parking
lot of an open store, entering the store and leaving therefrom without
incident, and driving lawfully out of the parking lot do not give rise
to a reasonable, articulable suspicion of criminal activity to make a
valid stop of said defendant.
2. The Defendant’s Motion to Dismiss should be granted in as much as
the contract involved provided that the escrow account under
consideration could be closed by the escrow agent at the point in time
when at least three days have passed from the date the notice of
default was issued by the lender.
3. The Motion to Attach Assets should be denied because the Court
should take into consideration the defendant’s reduced line of credit
and the unavailability of other sources for cash for the purpose of
operating the business during the litigation in this matter.
4. The Motion for Summary Judgment filed by the Defendants, Mr. and
Mrs. Carillo, should not be denied due to the fact that the evidence
will show that the injured child understood the danger involved in a
trampoline.
5. There is no reasonable, articulable suspicion to justify a stop of
Salavar where the testimony of the officer is contradicted on virtually
every point, where the officer has no facts to support a claim of
criminal activity, and where the officer only witnessed Salavar’s car
in an area of criminal activity and therefore the Defendant’s Motion
to Dismiss should be granted.
6. The leased premises, which are subject to the constant threat of very
disruptive demonstrations, are not suitable with regard to the purpose
for which they were leased, and therefore the lessees have been
constructively evicted.
7. A minor who induces another to enter into a contract with him by
making a false representation of his age is estopped from a
disaffirmance of the contract if the other party demonstrated
reasonable and justifiable reliance on the minor’s representation.
2. Editing for Persuasion
Editing for persuasion is the final step in the process of drafting point
headings. Here are three rhetorical strategies particularly applicable to point
headings.
Tinker with the structure of the point heading until you are satisfied that it
is as persuasive as it can be.
D. Identifying Subheadings
Use the rule’s structure and your annotated outline11 to create any additional
subheadings you desire. Look at the rule’s structure first. For example, if the
rule is a factors test such as the child custody rule on page 77, you can
allocate subheadings to each of the factors your brief will discuss.
If the rule does not identify subheadings like factors, you can create your
own subheadings based on your major arguments on the point. For instance,
if your point heading is a question of statutory interpretation, you can allocate
subheadings to the major canons of construction you use or the major policy
rationales you assert. Here is an example:
EXERCISE 16-1
Labeling the Components of the Paradigm
Make a photocopy of the Argument section of the brief in Appendix B.
Locate and label the parts of the umbrella paragraph and, for each issue, the
sections of the standard paradigm.
Know exactly why you are making the comparison. Don’t discuss the
case simply to show that you have read it. Here are the most common reasons
for making a case comparison: (1) If the cited case’s outcome supports your
position, you want to show that your client’s case is similar, or better yet, that
your client’s case is different in a way that makes the desired result even
clearer in your case. (2) If the cited case’s outcome was different from your
position, you want to show that your client’s case is different in a way that
really matters.
State your point in a clear thesis sentence right up front. Now that you
know exactly why you are making the comparison, lead with it. Don’t make
the judge read a long description of the cited case without knowing what your
point will be. For instance, in the Buckley short-form example in Chapter 11,
the case comparison began like this: “Buckley’s representation that she was
old enough to buy a car is significantly different from the representations in
Carney.” Now the judge knows exactly what to be looking as you begin to
explain what happened in Carney.
Use parallel structure to make the similarities and differences clear. The
parallel structure will let you put the key facts right up beside each other so
the judge can compare them up close. For instance, in the Frimberger
example in Chapter 11, the comparison begins with the key thesis (that the
Fahmie case is remarkably similar to Frimberger’s situation) and then lays
out the comparisons like this:
Use as many key similarities (but only key similarities) as the opportunity
presents. You can make a list or you can present one single point of
comparison as being the crucial one. Either way, you can persuade the judge
of your point.
Use mostly your own words. If there is key language in the cited case,
quote only those key words. If the judge wanted to read long passages from
the cited case, the judge would read that case (and probably will). Your
purpose in the brief is to write primarily about your own case and make the
comparison easy to read. The best way to do that is to minimize quoting. That
way, when you do quote a word or a phrase, it takes on added importance.
For instance, notice how the Buckley example in Chapter 11 uses a single
quoted word to bring the key comparison into focus:
Don’t be afraid to say your case is different from a cited case with a
result you like. What you are looking for is a key difference that makes your
client’s case even more compelling than the cited case. For instance, in the
Frimberger example in Chapter 11, after pointing out a number of relevant
similarities, the comparison points out a key difference:
The only relevant difference between the two situations results in an even
weaker case for Frimberger. In Fahmie, the state agency actually required
the plaintiff to replace the inadequate culvert . . . . In Frimberger’s
situation, however, the state agency has taken no action to require
abatement of the violation. As a matter of fact, the agency has invited
Frimberger to apply for an exception to the relevant requirement, a
procedure which Frimberger has thus far declined to pursue. Therefore, it
is even less likely that Frimberger’s facts establish a breach of the covenant
than did the facts in Fahmie.
Consider other effective formats. If you have mastered the basic formats
explained in Chapter 11 and if your professor agrees, you can adapt the basic
formats to suit your particular purpose and situation. Remember, though, that
effective comparisons nearly always begin with a clear thesis sentence stating
the point you want to make and nearly always put the points to be compared
up close to each other.
1. The appellee’s lawyer can cross appeal, identifying additional issues for review. For easier
reference here, we will refer only to the role of the appellant’s lawyer.
2. There are some exceptions to this rule, but none that need concern us here.
3. Ellie Margolis, Beyond Brandeis, 34 U.S.F. L. Rev. 197 (2000).
4. Chapter 10, Section II, explains umbrella sections in more detail.
5. See Chapter 10.
6. Mary Barnard Ray & Barbara J. Cox, Beyond the Basics: A Text for Advanced Legal Writing
183 (West 2d ed. 2003).
7. See Chapter 6, Section IIE.
8. See Chapter 6, Section IID.
9. See Chapter 18.
10. This concern applies to adverse arguments, but not to directly adverse authorities. As you
know, the lawyer has a duty to disclose directly adverse authorities in the controlling jurisdiction.
11. Mary Barnard Ray & Barbara J. Cox, Beyond the Basics: A Text for Advanced Legal Writing
176 (West 1991).
12. Irwin Alterman, Plain and Accurate Style in Court Papers 125–126 (student ed. ALIABA
1994).
CHAPTER 17
Standards of Review
Having decided both the facts and the relevant law, the trial court now
decides how that law applies to those facts.
Now, assume that the defendant appeals. She does not disagree with the
trial court’s answers deciding the speed limit, her speed at the time of the
accident, whether it was raining, and whether she signaled. Assume also that
she does not disagree with the trial court’s answer defining the duty of care
owed to other drivers. Rather, she disagrees with the trial court’s decision
that driving at that speed under those conditions and changing lanes without
signaling was inconsistent with the way a reasonable person would drive. In
other words, she disagrees with the way the trial court applied the law to the
facts. This is a disagreement about a mixed question of law and fact.
For a mixed question of law and fact, the reviewing court must decide
whether to use a de novo standard (the standard for questions of law) or a
“clearly erroneous” standard (the standard for questions of fact). Usually the
court chooses the standard on a case-by-case determination of whether factual
questions or legal questions predominate in the particular issue before the
court. The majority of mixed questions are subjected to de novo review, and
mixed questions of constitutional law are nearly always subject to de novo
review.8 Questions of negligence generally are subjected to “clearly
erroneous” review.9
EXERCISE 17-1
Identifying Categories of Trial Court Decisions
You are a staff attorney in the local legal aid office, which represents people
who do not have sufficient income to pay an attorney. One of your clients is
Sophia Guzman. Guzman has five children. Her husband died three years
ago, and she had to resort to public assistance to support her family. She and
her children rent a two-bedroom apartment in a dilapidated building owned
by A-1 Realty Co. She lives there because she cannot afford to pay higher
rent elsewhere, nor can she afford the costs of moving. The building is in
terrible shape. The water and sewer system work sporadically, the power
surges and wanes, and the rat population is increasing. After many
complaints to the landlord, Guzman has sued the landlord, alleging
constructive eviction. You are her lawyer.
Believing that the facts about the property’s condition are compelling,
you decided to move for summary judgment. For each of the following issues
on appeal, decide whether the issue is a question of law, a question of fact, a
mixed question, or a question of the trial court’s exercise of discretion.
1. Assume that the trial court ruled against Guzman. The trial court held
that, to prevail on a claim for constructive eviction, the plaintiff must
prove that the property was unsuitable for occupancy for the purposes
for which the occupancy was intended. The court decided that the
apartment had been leased as a residence and that the condition of the
apartment was suitable for occupancy as a residence. You have
appealed the court’s decision that the apartment was suitable for
occupancy as a residence.
2. Assume that the trial court ruled against Guzman and in favor of A-1
Realty. The trial court held that, to prevail on a claim for constructive
eviction, the plaintiff must prove that the property was unsuitable for
occupancy for the purposes for which the occupancy was intended. The
court’s opinion stated that a dwelling with rats would be unsuitable for
occupancy but that this building does not contain rats. You have
appealed the court’s finding that the building does not contain rats.
3. Assume that the trial court ruled against Guzman and in favor of A-1
Realty. The trial court decided that, to prevail on a claim for
constructive eviction, the landlord must have intended to force the
tenant to move. You have appealed the trial court’s decision that a
successful claim for constructive eviction must prove intent to evict.
4. In pretrial discovery, A-1 Realty refused to answer ten of Guzman’s
interrogatories. Guzman moved for an order requiring A-1 to answer
the ten interrogatories. The trial court decided that five of the
interrogatories were proper and five were objectionable. The court
ordered A-1 to answer the five proper interrogatories and refused to
order A-1 to answer the other five. You have appealed the trial court’s
order.
5. The applicable rule of procedure provides that when a motion to compel
discovery is granted in part and denied in part, the court “may”
apportion the expenses of bringing and resisting the motion among the
parties “in a just manner.”15 In the Guzman case, the trial court ordered
that each party bear its own expenses on the motion. Both parties
appealed the court’s order apportioning expenses, each arguing that the
court should have required the other party to reimburse that party’s
expenses. Your research on this question will yield case opinions that
tell you the applicable standard of review on this issue, but what is your
best guess about what standard these opinions will identify?
1. See, e.g., Watzek v. Walker, 485 P.2d 3 (Ariz. Ct. App. 1971).
2. Whether that change in the law will apply to the case then before the court is a separate legal
issue that is the subject of a separate body of law.
3. See Fed. R. Civ. P. 52(a) (2014).
4. Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985).
5. Id. at 573–574.
6. See, e.g., I.M.A. v. Rocky Mountain Airways, Inc., 713 P.2d 882 (Colo. 1986).
7. Robert J. Martineau, Fundamentals of Modern Appellate Advocacy 133–134 (Lawyer’s Co-op
1985).
8. See, e.g., United States v. McConney, 728 F.2d 1195 (9th Cir. 1984) (en banc).
9. Id.
10. See, e.g., Fed. R. Civ. P. 15(a) (2014).
11. See, e.g., Napolitano v. Compania Sud Americana De Vapores, 421 F.2d 382 (2d Cir. 1970);
Kern v. TXO Production Corp., 738 F.2d 968 (8th Cir. 1984).
12. If the standard of review is unfavorable, you might not wish to reiterate it in each point
heading. A simple acknowledgment of the standard early in the brief might be sufficient.
13. Ruggero J. Aldisert, Opinion Writing 53 (West 1990).
14. Id.
15. See, e.g., Fed. R. Civ. P. 37(a)(5)(C) (2014).
CHAPTER 18
There is an adage among trial lawyers: If you have to choose between the law
and the facts, take the facts. The adage reflects the experience of many
lawyers that a judge or jury convinced of the justice of your cause will find a
way around unfavorable law. Conversely, if the judge or jury perceives that
justice is on the other side, favorable law might not be enough.
The Statement of Facts (sometimes called the “Statement of the Case”) is
the primary place where your reader’s sense of justice about the case will be
formed. As a general rule, narrative is more effective at creating attitudes
than is intellectual analysis. The Jungle persuaded countless readers of the
inhumanity of the meat-packing industry. Cry, the Beloved Country
convinced people around the world of the injustice of apartheid.
Consider your own reactions. Imagine reading a well-reasoned analysis
arguing that Hitler should not have imprisoned and killed European Jews.
The analysis explains and applies certain abstract moral principles. Imagine
your response. Now compare it to your response to The Diary of Anne Frank
or Schindler’s List or Sophie’s Choice. Which would you find more
powerful: the rational analysis or the stories of the people who lived the
facts? Which would you remember longer? Which would persuade you
more?
Stories grab us, persuade us, motivate us. Your client’s story can persuade
a judge, just as a movie or book can persuade you. But to be persuasive, your
client’s story must be told skillfully. Many lawyers believe that the brief that
tells the most effective story is the most likely to prevail. But writing this key
part of the brief is more challenging than writing a short story or novel. It is
harder because you cannot make up desirable facts or imagine away
undesirable facts, and because you must use the facts to persuade without
appearing to do so. You must recite the facts objectively enough to be fair
and yet persuasively enough to be compelling. As Professors Ray and Cox
put it:
If briefs to the court were gymnastics events, their statements of facts would be performed
on the balance beam. Writing a persuasive statement is accomplished not by following one
set of rules, but by balancing your use of various techniques to maintain credibility while
achieving the stance needed to highlight favorable facts. It does not require the brute force
of emphatic language so much as a subtle blend of strength and control of structure and
detail. It involves much thought, consideration of alternatives, and monitoring the
interactions of various techniques. Yet an excellent statement of facts looks natural and
effortless, just like a complex routine looks easy when performed by a skilled gymnast.1
Pointing out a fact’s absence can allow the writer to make a point about
the evidence while remaining within the legitimate bounds of fact-reporting.
One of the most common and most unfortunate errors lawyers make is
neglecting to notice important absent facts.
A good theory of the case should be consistent with the facts and with a
common sense notion of fairness. It should explain as many of the
unfavorable facts as possible, and it should cast your client in a sympathetic
light.
III. ORGANIZATION
A. Formats
The most common organizational formats for fact statements are organizing
chronologically, by topics, or by theories of the case.
Topical. For more complex facts, the topical format might work best. Set
out the facts according to relevant topics. For example, in an employment
discrimination case, the plaintiff’s facts might be organized according to
these topics: the nature of the defendant’s business, the defendant’s usual
hiring process, the defendant’s usual employee evaluation procedure, the
procedures used in selecting employees for layoffs, the hiring process for the
plaintiff’s position, the terms of the plaintiff’s employment, the plaintiff’s
employee evaluations, the business conditions that necessitated layoffs, the
selection of plaintiff for layoff, and the defendant’s efforts to assist laid-off
employees to find other jobs. The topics should be ordered logically, perhaps
chronologically. For lengthy Fact Statements, consider using subheadings to
help your reader follow the topics.
Theory of the Case. This format might be effective when the opposing
party has some powerful facts that seem to support her position, but you have
some key facts or a compelling theory of the case that will explain away
those opposing facts. The format first sets out the powerful facts that seem to
support your opponent’s theory of the case, and then neutralizes them by
setting out the facts that explain or justify the opposition’s facts.
Organizing by theory of the case is a more daring choice for several
reasons. First, the odds are good that the reader will be paying close attention
at the beginning of the fact statement. Second, a busy judge might be
interrupted and not finish reading the Fact Statement. Third, the writer who
selects this organization is betting a large stake that the supporting facts will
defeat the opposing facts. Because the format sets up such a direct and
express juxtaposition of these facts, the writer had better be right.
When this organizational format works, however, it is extraordinarily
effective. Having heard the worst facts and having decided that they do not
necessarily mean what they first seemed to mean, the reader is far less likely
to be impressed on reading them in the opposing brief or on hearing them at
oral argument or at trial. So be aware that this organizational format is an
option, but choose it only after careful evaluation.
B. Procedural History
No matter which format you choose, you will need to decide where to place
the procedural history. Court rules or the instructions for your assignment
might make this decision for you.8 Or the rules or instructions might require a
Preliminary Statement or Introduction, in which case the procedural history
goes there, in its own section.
If court rules or your instructions have not identified the location for the
procedural history, the two most common places for it are at the beginning or
the end of the Fact Statement. At the beginning, it can help to establish the
context for the facts that follow. At the end, it can serve as a natural segue
into the Argument section. Either way, consider using subheadings to divide
the Statement of the Case into at least two subsections: the “Factual History”
and the “Procedural History.” Because the procedural history will seldom
comprise a compelling part of the theory of the case, using subheadings can
put the dull procedural facts out of the way of the theme you hope to deliver
with the facts.
B. Large-Scale Organization
The Beginning
6. Unless you know differently, assume that the judge is not already
familiar with the case. The beginning of the Statement of Facts should
establish the context for the facts that follow. Otherwise, the judge might find
herself reading a chronological account of a series of events without knowing
why these events are important. Context can be provided by a procedural
history or by a short summary of what the case is about, written to be
consistent with your theory of the case. Here is an example written on behalf
of Carrolton:
This is an action to enforce the terms of a covenant-not-to-compete. As part of the sale of
her business to Carrolton Company, the defendant promised that for the three years
immediately following the sale she would not compete with Carrolton in the three counties
closest to Carrolton’s headquarters. Eighteen months after the sale was completed, the
defendant opened a competing business just one mile from Carrolton’s office. She has been
competing directly with Carrolton in the three prohibited counties ever since. This action
seeks to enjoin her continued breach of the covenant-not-to-compete.
7. The reader’s attention level is high in the first few paragraphs. When
you can find a way to do so logically, capitalize on this increased attention
level by selecting an organization that allows you to place in the first few
paragraphs the material you want to emphasize. This strategy can be
consistent with a summary of the case drafted from your client’s perspective,
like the one above.
8. Aim for a beginning that will spark the reader’s interest. Journalists call
this “the lead.” The conventions of a legal document do not allow for some of
the more dramatic forms of grabbing attention, but you do want the reader to
be drawn into the story and want to read on. For example, a prosecutor’s brief
might begin with the facts of the crime rather than with the procedural history
of the appeal.
The Middle
9. Here is the place for the facts you want to deemphasize. Normally, a
reader’s attention level is at its lowest about three-fourths of the way through
the section.10
The End
10. Readers might pay more attention to the material at the beginning, but
they remember longest the material at the end. Readers tend to take a mental
break to let the story sink in, and when they do, the last sentence lingers in
their minds. Try to select an organization that allows you to place at the end
material you most want the reader to remember.
11. The last paragraph should have the “feel” of a concluding paragraph.
One way to accomplish this is to close with a transition into the legal
argument to follow by identifying the legal positions staked out by the
parties. Be careful not to include overt legal argument. Limit yourself to
identifying the positions each side will take on the legal dispute. Avoid
stating the opposing position any more favorably than you have to. Keeping
in mind that the last sentence lingers in the reader’s mind, end with your legal
position rather than your opponent’s. Here is an example of such a transition:
The bank has admitted that it did not disclose the effective interest rate to the Turners.
However, it claims that disclosure was not required, arguing that the transaction was not a
“consumer loan” under the Consumer Protection Act. This brief will show that the
transaction was, indeed, a “consumer loan” and that the bank’s failure to disclose to the
Turners the effective interest rate was a violation of the Act.
C. Paragraph Organization
12. A reader devotes more attention to the beginning and the end of a
paragraph than to the middle. Put facts you want to emphasize in the first
sentence or in the last clause or phrase of the last sentence. Deemphasize
unfavorable facts by placing them in the middle.
13. Be conscious of paragraph length. In sections where you want to
emphasize the facts, keep paragraphs relatively short. Where you want to
deemphasize facts, let the paragraphs get longer, and put the facts you
particularly want to deemphasize deep in the paragraph.
For the last sentence of the paragraph, try putting the dependent clause at
the beginning:
[The paragraph has set out the facts establishing the competition.] Thus, while the
competition extends only to three product lines [dependent clause], Acme directly and
openly competes presently with Carrolton in the three prohibited counties [main clause].
18. Occasionally, when you want the reader to slow down and take in the
significance of the material in all parts of the sentence, place a phrase or
dependent clause in the middle of the sentence, interrupting the reader’s usual
path from the subject directly to the verb.
Watson, who admits that she is intentionally violating the terms of her covenant, asks this
Court to use its equitable powers to relieve her of the consequences of her own actions.
Do not just repeat particular facts, seemingly for no reason, however. It will
bore and irritate your reader. Remember that the Argument section gives you
a natural opportunity to repeat the key facts.
25. Place unfavorable facts in a favorable or mitigating context. You can
juxtapose the unfavorable fact with favorable facts or you can place the
unfavorable fact in a context that negates some of the unfavorable inferences
the fact might otherwise invite.
Juxtaposing an Unfavorable Fact with Favorable Facts
Although Acme’s business does compete with Carrolton, the competition only extends to
three small product lines and could only impact, at the most, four percent of Carrolton’s
profits.
Placing the Unfavorable Fact in a More Favorable Context
While the demonstrations against the abortion clinic are disruptive to the other tenants, the
landlords cannot prevent the demonstrations; nor can they force the clinic to move until the
clinic’s lease term expires.
26. Humanize your client. The most important way to do this is by telling
the story from the client’s perspective, as your theory of the case will already
accomplish. Include, where possible, a description of the client’s feelings,
responses, and motivations. It is also helpful to refer to your client by name
and use titles that communicate respect, like “Mr.,” “Ms.,” “Dr.,” or
“Officer.”
It is especially important to humanize corporate clients. Remember that
every story involving a corporation is really a story about people. Identify the
people who took the actions, and humanize those people. Portray them in a
sympathetic light by setting out the context for their actions.
27. Generally, do not humanize opposing parties. Where there is no need
to use the names of opposing individuals, consider using generic descriptions
instead (“the officer,” “the insurance agent,” “the electrician”). Generic
descriptions can be especially helpful where the description has
unsympathetic connotations, such as “the finance company,” “the insurance
company,” or “the corporation.” However, humanize when your theory of the
case depends on showing the judge not only the sympathetic facts about your
client but also the outrageously bad behavior of one or more of the opposing
parties. In such a case, you might need to humanize the opposing party so
you can show the outrageousness of his or her behavior.
28. Use graphic words, especially verbs, for facts you want to emphasize.
The van crashed into [instead of “hit”] the taxi, and the force of the impact shattered
[instead of “broke”] the driver’s spine.
29. Refrain from name-calling. Name-calling tells your reader that you do
not have good facts, so you are compelled to resort to derogatory
characterizations.
30. Where possible, delete adverbs in favor of additional facts and more
vivid verbs. Vivid verbs, alone, are much more powerful than a ho-hum verb
with an adverb. Avoid such artificial intensifiers as “very” or “extremely.”
31. Pay careful attention to common connotations of words. Choose
words with helpful connotations and avoid those with unhelpful connotations.
A Word with Potentially Troubling Connotations
Mr. and Mrs. McMann were anxiously awaiting the birth of their first child.
[“Anxiously” carries the connotation of worry. Use it if the connotation helps your
theory, but avoid it if the connotation either impedes the theory or might distract the
reader into wondering what they were worried about.]
32. Finally, put the draft down for a few hours and then read it afresh. Try
not to look for the techniques you used, but rather read openly, as you hope
your reader will. Notice your reactions and fix anything that troubles you.
EXERCISE 18-1
Critiquing a Statement of Facts
Here are two fact statements for the Watson covenant-not-to-compete issue.
Each fact statement has strengths. Neither is perfect. Evaluate each,
identifying what works well and what could be improved. One formulation of
the governing rule of law is:
A covenant-not-to-compete is enforceable if all of the following elements
are reasonable:
A. the kind of activity restrained;
B. the geographic area of the restraint; and
C. the time period of the restraint.
Another possible formulation of the rule is:
To be enforceable, a covenant-not-to-compete must be reasonable.
Factors for deciding reasonableness are:
A. the needs of the restraining party;
B. the needs of the public;
C. the needs of the restrained party; and
D. any other relevant circumstances.
Which rule formulation does the drafter of each fact statement seem to have
in mind?
1. Mary Barnard Ray & Barbara J. Cox, Beyond the Basics: A Text for Advanced Legal Writing
167 (West 2d ed. 2003).
2. Model R. Prof. Conduct 3.3(a)(1) and (3)(b) (2013).
3. There are rare exceptions to this rule, but none that we need to worry about here.
4. Fed. R. App. P. 28(a)(6) (2013).
5. See Section IIIB.
6. See Louis J. Sirico & Nancy Schultz, Persuasive Writing for Lawyers and the Legal Profession
81 (Lexis Nexis 2d ed. 2001).
7. Brian Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction
Writing Techniques to Write Persuasive Fact Sections, 32 Rutgers L.J. 459 (2001) (citing Josip
Novakovich, Fiction Writer’s Workshop 74–75 (1995)).
8. See, e.g., Fed. R. App. P. 28(a)(6) (2013).
9. See Chapter 6, Section IID.
10. Mary Barnard Ray & Barbara J. Cox, Beyond the Basics: A Text for Advanced Legal Writing
171 (West 2d ed. 2003).
PART SIX
After you have a completed draft, it’s time to edit cites and quotes.
Use Citations
1. When you state a legal principle.
“Intent is a required element of a plaintiff’s claim. Peterson v. Taylor,
[citation.]”
2. When you refer to or describe the content of an authority.
“In an earlier opinion, the court had held that intent was irrelevant.
Crenshaw v. Baldwin, [citation.]”
3. When you quote.
“The court reasoned that “the state of mind of the defendant had no impact
on the extent of damages suffered.” Crenshaw v. Baldwin, [citation.]”
EXERCISE 19-1
Recognizing Ideas That Need Citations
Read the following passage.1 Identify the statements for which a citation is
either necessary or desirable. Be prepared to explain your answers.
The lawyer has a fiduciary relationship with his or her client. The
fiduciary aspect of the relationship is said to arise after the formation of the
attorney-client relationship, and it applies to a fee agreement reached after the
attorney-client relationship has been entered.
There are at least three reasons for imposing fiduciary obligations on a
lawyer. Once the relationship is established, the client will likely have begun
to depend on the attorney’s integrity, fairness, and judgment. Second, the
attorney might have acquired information about the client that gives the
attorney an unfair advantage in negotiations between them. Finally, the client
will generally not be in a position where he or she is free to change attorneys,
but will rather be economically or personally dependent on the attorney’s
continued representation.
Several cases illustrate the contours of the attorney’s fiduciary duty. In
Benson v. State Bar, the attorney borrowed money from a current client. He
“was heavily in debt, and insolvent, at the time he approached [the client] for
these loans.” In return for the loans, he gave the client unsecured promissory
notes. In disbarring the lawyer, the court described the client’s trust in the
lawyer’s judgment and wrote:
The gravamen of the charge is abuse of that trust, and regardless of petitioner’s contention
that he never specifically recommended the unsecured loans to [the client], it is undisputed
that in soliciting them he failed to reveal the extent of his preexisting indebtedness and
financial distress.
For these and other offenses, Smith was suspended from the practice of law.
If the writer has authority for one part of the sentence but no authority for
the other part, the cite still goes immediately after the proposition it supports,
like this:
Though a plaintiff can prove a claim by showing that the harassment created a “hostile or
abusive work environment,” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986),
Willingham has made no such showing in this case.
Sometimes a writer points out an aspect of an authority and then uses that
aspect of the authority to reason her way to another point about that authority.
The first point came from the authority but the second point didn’t, so the cite
goes immediately after the point that came from the authority, like this:
The court has allowed recovery on an attractive nuisance claim by a child who came into
the defendants’ yard to hide from her friends and fell into a swimming pool while there.
[The citation to Newcomb v. Roberts goes here.] Though Newcomb made no mention of the
issue, the court’s allowance of recovery on these facts shows that recovery no longer
requires that the child be drawn to the property by the artificial condition. [The citation to
Newcomb does not go here because Newcomb doesn’t say that actual attraction is no longer
required.]
EXERCISE 19-2
Identifying the Text the Citation Supports
Identify the proposition each citation supports.
A malpractice action can be based on conduct other than a failure to
exercise the proper standard of care. It also can be based on violation of a
duty the lawyer owes the client as a fiduciary. For example, a fiduciary’s duty
of loyalty requires her to avoid conflicts of interest. Simpson v. James, 903
F.2d 372 (5th Cir. 1990). Ethics rules require the same, ABA Model R. Prof.
Conduct 1.7-1.9 (1998), and a violation of a rule of ethics is considered
evidence of malpractice, Beattie v. Firnschild, 394 N.W.2d 107, 109 (Mich.
1986). If a client suffers a loss as a result of a lawyer’s conflict of interest, the
client will be able to recover in malpractice. Simpson, 903 F.2d at 377; Miami
Int’l Realty Co. v. Paynter, 841 F.2d 348, 353 (10th Cir. 1988).
Similarly, except in limited circumstances, a fiduciary may not reveal a
client’s confidential information to the client’s disadvantage. Not only is this
an ethical rule, ABA Model R. Prof. Conduct 1.6 (1998), but if a lawyer
improperly reveals confidential information, a malpractice action will lie. Tri-
Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg, 216
Cal. App. 3d 1139, 265 Cal. Rptr. 330 (Div. 1, 4th Dist. 1990).
Breach of fiduciary duty also can occur if a lawyer helps another agent of
a client violate the agent’s fiduciary duties to the client. Avianca, Inc. v.
Corriea, 705 F. Supp. 666 (D.D.C. 1989).
1. Move the cite out of the middle of the sentence. Cites in the middle of
the sentence make it hard to find the key parts of the sentence and combine
them into a coherent thought. For example, notice how you have to hop
through this sentence:
A majority of the Court in General Electric Company v. Gilbert, 429 U.S. 125, 136 (1976),
followed Geduldig v. Aiello, 417 U.S. 484 (1974), and held that pregnancy classifications
were not gender classifications.
These techniques can help clear the reader’s path from subject to verb to
object:
a. Move the cite outside the sentence and into its own citation sentence.
b. Move the cite to the beginning of the sentence, in an introductory
phrase.
c. When the sentence contains two propositions, each requiring its own
authority, consider dividing the sentence into two sentences. Then
each citation can be moved outside the textual sentences.
d. Consider moving less important material into a parenthetical in the
citation.
Notice how techniques a and d have made the sentence more readable:
In 1974, a majority of the Court held that pregnancy classifications were not gender
classifications. General Electric Company v. Gilbert, 429 U.S. 125, 136 (1976) (following
Geduldig v. Aiello, 417 U.S. 484 (1974)).
EXERCISE 19-3
Editing the Placement of Citations
Use the techniques described in Section D to make the following passage
more readable and to be sure that the placement of the citation accurately
identifies the textual material it supports:
42 U.S.C. § 2000e-2(a) prohibits employers from discriminating against applicants or
employees based on the individual’s race or sex. The act, titled the “Civil Rights Act of
1964,” protects individuals of all races and both genders, not just minorities and women.
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976); Hannon v. Chater, 887
F. Supp. 1303, 1312 (N.D. Cal. 1995); Hall v. City of Brawley, 887 F. Supp. 1333, 1342
(S.D. Cal. 1995); Curler v. City of Fort Wayne, 591 F. Supp. 327, 333 (N.D. Ind. 1984).
However, the Court has never been comfortable with the issues raised by the
application of Title VII to the racial majority or to men. In United Steelworkers of America
v. Weber, 443 U.S. 193, 215 (1979), the Supreme Court upheld a voluntary race-conscious
affirmative action plan, but several years later the Court held that, to be permissible, a
voluntary affirmative action plan had to benefit only “actual victims of the discriminatory
practice.” Firefighters Local 1784 v. Stotts, 467 U.S. 561, 579 (1984).
Just three years later, the Court, in Johnson v. Transportation Agency of Santa Clara
County, 480 U.S. 616 (1987), seemed to reaffirm its holding in Weber when it expressly
followed the Weber holding. The Court wrote that the Johnson issues “must be guided by
our decision in Weber.” Id. at 627. Johnson dealt with a voluntary affirmative action plan
designed to improve the representation of racial minorities and of women in traditionally
male jobs. Johnson v. Transp. Agency of Santa Clara County. Id. at 627.
III. QUOTATIONS
The most common quotation problems are (1) not using quotation marks for
borrowed language; (2) using too many quotes; (3) not editing a quote down
to its nub; and (4) making errors in quotation mechanics. The rest of this
chapter deals with these common quotation problems.
Quotation marks wouldn’t be required for these words, but you should
use them anyway to let the reader know that these are the key words at issue
in the analysis.
C. Overquoting
Chapter 7 warned against using too many quotations.10 There, in the working
draft stage, the danger was confusing quoting the authorities with analyzing
them. The editing stage raises two more reasons to minimize quotes. First,
busy readers are tempted to skip quoted material entirely. Maybe they assume
that the quoted material simply supports the points the writer has already
stated. Maybe busy readers are discouraged by the single-spacing of a block
quote. Whatever the reason, readers do tend to skim or skip quoted material.
Second, a quotation seldom communicates your point as clearly, directly,
and succinctly as you could. After all, the original writer wasn’t writing about
your case. Your paraphrase can do what quotations can’t, that is, tie the
substance of the precedential source directly to the issues of your case.
Generally, quote only in these circumstances:
1. Quote when the issue will turn on the interpretation of key words of a
statute, rule, or case, as described above. Limit the quotation to those
words so your reader will understand the issue and your analysis of
it. Here is an example:
A lawyer must use great care in deciding whether to undertake
representation of a new client when that representation might be
directly adverse to an existing client. The existing client must
consent to the lawyer’s representation of the new client. ABA
Model R. Prof. Conduct 1.7(a)(2) (1998). However, even if the
client consents, the lawyer must not undertake the new
representation unless the lawyer “reasonably believes” that the
new representation will not “adversely affect the relationship”
with the existing client. Id. at § 1.7(a)(1).
2. Quote key language from an authority with a great deal of
precedential value. This could be mandatory authority or highly
respected persuasive authority such as an opinion of the United States
Supreme Court, a provision of a Restatement of Law, or an opinion
written by a respected judge, for example:
To prevail, the plaintiff must prove that the injuries would not
have happened but for the defendant’s unlawful actions. That
causation standard requires the court to imagine a scenario that
did not, in fact, occur. As Justice Brennan has observed,
But-for causation is a hypothetical construct. In determining
whether a particular factor was a but-for cause of a given
event, we begin by assuming that that factor was present at the
time of the event and then ask whether, even if that factor had
been absent, the event nevertheless would have transpired in
the same way.
Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989).
3. Quote key language when the author has found a particularly
effective way to express the idea you want to convey, for example:
Under Rule 60(b) the court possesses “a grand reservoir of
equitable power” to accomplish justice. Thompson v. Kerr-
McGee Ref. Corp., 660 F.2d 1380, 1385 (10th Cir. 1981).
E. Editing Quotations
Edit quotations down to their key words so your reader doesn’t have to sift
through unnecessary material to find your point. Editing must not change the
meaning, but within that constraint you have great latitude to clear away the
underbrush. Often the most effective quotation has been edited down to a
short phrase or even a single word. Restrained use of italics and underlining
in quoted material can encourage busy readers not to skim or skip quotations.
For example, assume that you represent the defendant in a sexual
harassment claim. The plaintiff alleges that her supervisor pressured her into
going to dinner with him and kissing him. You are writing a brief to the trial
court on the issue of what the plaintiff must prove. Compare the following
examples:
Example 1:
The Supreme Court has held that “the District Court in this case
erroneously focused on the ‘voluntariness’ of respondent’s
participation in the claimed sexual episodes. The correct inquiry is
whether respondent by her conduct indicated that the alleged
sexual advances were unwelcome, not whether her actual
participation in sexual intercourse was involuntary.” Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 68 (1986).
Example 2:
The Supreme Court has held that a plaintiff cannot prove a sexual
harassment claim merely by showing that she participated in the
sexual conduct involuntarily. She must prove that “by her conduct
[she] indicated that the alleged sexual advances were unwelcome.”
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986) (emphasis
added).
Which manner of quoting distills the key distinction and highlights it for
your reader? Which states the legal principle as it would apply to the
procedural posture of your case? Which states the legal principle in language
that would apply to the facts of your case? Which is more readable?
Now that your citations and quotations are in good shape, we’re ready for
the last step: editing the rest of the document.
1. Modified from Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 61–62 (4th
ed., Aspen 1995).
2. ALWD & Coleen Barger, ALWD Guide to Legal Citation (6th ed., 2017).
3. The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al., eds., 20th ed.,
2016).
4. ALWD R. 1.3(a); Bluebook B2.
5. String cites can be helpful when your reader needs every relevant authority or in the unusual
situation when you want to demonstrate, graphically on the page, the overwhelming strength of support
for the point. If you do cite to multiple authorities, place them in the order set out by ALWD Rule 36 or
Bluebook Rules 1.3 and 1.4.
6. Ideas that come from another author must always be attributed to the other author. This section
assumes that you’re already attributing the ideas to their source. Here we’re dealing only with deciding
when to attribute the words, too.
7. 401 U.S. 424, 432 (1971).
8. 487 U.S. 977, 989 (1988).
9. 490 U.S. 642, 662 n.4 (1989).
10. ALWD Rule 38.1 contains the same caution.
CHAPTER 20
The final step in the writing process is editing. Good editing requires reading
the document as if you have never seen it before. Try to arrive at the editing
stage with enough time to put the document down for a day or at least for
several hours. Then read as if you were a complete stranger to the document.
Use the following suggestions as part of your editing process.
I. PARAGRAPHING
Each paragraph should have a topic or a thesis sentence, which generally
appears as the first sentence of the paragraph.1 The paragraph should be
limited to information about that topic or thesis, and it should fit smoothly
and logically between its neighbors.
As you clarify for yourself the point of the paragraph, you may
realize that the topic contains several different theses, each deserving its own
supporting material. Thus, using a thesis sentence leads to a more thorough
and complete analysis.
TRANSITIONS2
Addition
also in addition not only
and in fact then
furthermore moreover
Sequence
first next finally
second
Comparison
both likewise in comparison
Contrast
but despite nevertheless
while still however
instead even though notwithstanding
on the other hand even so
in contrast though
Concession
although even though though
Illustration
for instance in particular specifically
to illustrate for example
Result
accordingly consequently as a result
therefore for since
because thus
Summary
accordingly thus therefore
in summary
Emphasis
above all more important chiefly
A. Active Voice
Much legal writing is filled with unnecessary passive verbs. Learn to spot
them, evaluate whether they serve a purpose, and get rid of them if they do
not. You can recognize passive verbs by checking the subject of the sentence.
Ask yourself whether the subject performed the action described by the verb.
If it did, then you have used a verb in the active voice. If it did not, but
instead was acted upon, you have found a passive-voiced verb.
Active Ms. Watson signed a covenant-not-to-compete.
Passive A covenant-not-to-compete was signed by Ms. Watson.
The subject of the first sentence is Ms. Watson. Did she do what the verb
describes? Did she “sign”? Yes she did, so the sentence uses the active voice.
However, the subject of the second sentence is the covenant. Did the
covenant sign? Of course not. The covenant was acted upon; the signing
happened to the covenant. Therefore, that sentence uses the passive voice.
Why are sentences overloaded with passive verbs undesirable? First,
writing in the passive voice requires more words. You can see this on a small
scale in the example above, and the effect can compound in a sentence with
more than one passive verb.
Passive It was insisted by Carrolton that the covenant had been breached by
Ms. Watson.
Active Carrolton insisted that Ms. Watson had breached the covenant.
Locate the passive verbs in the first sentence, which contains fourteen
words. Notice that the second sentence contains only nine words, a reduction
of 36 percent.
Second, writing in the passive voice causes lack of clarity. Sentences in
the passive voice often omit altogether the identity of the actor, for example:
A covenant-not-to-compete was signed. [Who signed?]
It was insisted that the covenant had been [Who insisted? Who
breached. breached?]
Finally, writing in the passive voice is less forceful. A sentence in the
active voice drives forward in a straight line; the subject “does” the action to
the object. But a sentence in the passive voice moves in reverse, backing in
stops and starts toward the subject. Like a car, a sentence driving ahead
moves more smoothly and forcefully than a sentence in reverse.
Although writing in the active voice is generally preferable, an occasional
passive-voiced verb can serve a particular function. For instance, a passive
verb may eliminate the need for using a masculine noun or pronoun, as
Section V explains. In persuasive writing, a strategic consideration might call
for a passive verb. Also, sometimes the identity of the actor is not important,
and a passive verb can appropriately focus the attention on the object of the
action. In court documents, a passive verb can allow you to avoid references
to yourself or your firm. And sometimes using a passive verb can allow you
to begin the sentence with a smooth transition from earlier material.
However, most legal writing, including the case law you spend so much
time reading, relies far too much on verbs in the passive voice. Because so
much of what you are reading every day is infected with passivitis, you will
have to struggle against developing the habit yourself.
EXERCISE 20-1
Active Voice
Underline each passive-voiced verb and edit the sentence to eliminate
those verbs. If editing would require knowing the name of a person or
organization, simply create a name.
1. After a notice of appeal was filed by the defendant, the assessment of
attorneys’ fees was entered and payment was made a condition of
probation.
2. The appropriate time to decide a motion for defense fees and costs is not
set out by the statute.
3. The motion to dismiss was made by the defendant and was heard by the
court on May 15.
4. Disparaging reports about Carter’s performance had been made by the
hospital’s Credentials Committee.
5. The initial discussions by the Executive Committee of Green’s abilities
were prompted by Carter’s testimony against Green.
B. Nominalizations
The second technique for focusing on strong subjects and verbs is avoiding
nominalizations. Nominalizations are nouns that began life as a verb and
should have been content with their lot in life. When such a verb aspires to
upward social mobility, it finds that it needs a crowd around it. Suddenly,
your sentence has several more words than it used to.
No nominalization The sellers decided to accept the buyer’s offer.
One nominalization The sellers made a decision to accept the buyer’s offer.
If your sentence contains several nominalizations, the party can get really
out of hand.
No unnecessary The sellers decided to accept the buyer’s offer, so they
nominalizations authorized their broker to announce their decision.
Three added The sellers made a decision to accept the buyer’s offer, so
nominalizations they issued an authorization to their broker to make an
announcement of their decision.
Wordiness is not the only problem. Sentences using nominalizations lose
force and clarity. Because nominalizations are still verbs at heart, they do a
poor job of being nouns; they are by nature more vague than “real” nouns.
Worse yet, when the hole left by the departed verb is filled, the substitute
verb is usually weaker than the departed verb.3 Here are examples of
common nominalizations and the verb forms to which they should return.
Change To
enter into an agreement agree
contains a provision provides
have a collision collide
file a motion move
C. Throat-Clearing
Another major obstacle to focusing on strong subjects and verbs is the habit
of “throat-clearing” — using introductory phrases that communicate little
more than “I’m getting ready to say something.” Here are examples:
It is interesting to note that . . .
It is important to remember that . . .
It seems that . . .
It is clear (or obvious) that . . .
It is widely understood that . . .
As noted above . . .
As to . . .
With respect (or regard) to . . .
Other examples introduce an assertion by claiming responsibility for it,
such as “The defendant submits (or believes, argues, or contends) that . . . . ”
We might speculate about why these phrases slip into our writing. They
might reflect a natural human insecurity; they could be an attempt to elevate
the tone or convey an objective perspective; or they might simply be habits
born of reading poor legal writing. Whatever the reason, edit them out in
revision. Let your sentences proceed directly to your point.
EXERCISE 20-3
Throat-Clearing
Edit each sentence to eliminate the throat-clearing structures.
1. The Court should note that the Harmon case was decided prior to the
statute’s adoption.
2. It could be argued that the plaintiff was not injured as a result of the
other car’s excessive speed but rather as a result of the plaintiff’s
malfunctioning breaks.
3. It appears that the defendant left the jurisdiction to avoid testifying,
so it should be clear that the sanctions would apply.
4. The court’s language makes it clear that the court considered whether
to make the payment of fees a condition of probation.
EXERCISE 20-4
“It Is” or “There Is” Structures
Edit each sentence to eliminate the “it is” or “there is” structure.
1. The cases are distinguishable because there was no notice of appeal
filed in Finkelstein.
2. It is irrelevant in determining whether Roberts should control this
case that the underlying trial was a criminal proceeding as opposed to
a civil proceeding.
3. On September 9, 2006, Matthews filed a notice of appeal asserting
that there was insufficient evidence to show that he had the requisite
intent.
4. It is worth noting that the Second District has chosen not to follow
the Fourth District’s ruling on this issue.
5. The Florida Supreme Court recognized that there must be a line
drawn to establish a clear standard for deciding which court has
jurisdiction.
6. In Finkelstein, there was no appeal by the defendant.
7. It is irrelevant that Matthews filed a notice of appeal because the
motion for a fee assessment was independent of the appeal.
8. There is a parallel between fee assessments and restitution
requirements. Fee assessments and restitution requirements are
parallel orders.
9. It is important for the stability of the legal system to ensure consistent
decisions from the courts.
10. Furthermore, there are not enough significant differences between
restitution orders and fee awards to support different results.
11. There is no claim that may be entertained by the trial court because
the entire case falls within the jurisdiction of the appellate court.
12. Fees and costs cannot be assessed until there has been a
determination of guilt.
13. Failure to pay the assessed fees and costs would result in
incarceration even though there was no order for imprisonment as
part of the sentence.
14. The Florida cases demonstrate that there is no exception in the
criminal context to the rule that the filing of a notice of appeal divests
a trial court of jurisdiction to assess fees.
B. Avoid Legalese
For the same reasons, purge your writing of unnecessary legalese. Do not
resort to the jargon of law unless it is necessary to convey your point clearly
and concisely. Here are examples of unnecessary legalese:
assuming arguendo
the instant case
the above-captioned case
the said defendant
the aforementioned contract
the items hereinafter described
to wit
supra (except when properly used in a legal citation)
C. Avoid Redundancies
Redundancies can slip into language easily. Here are examples:
advance planning
final outcome
first and foremost
honest truth
old adage
past experience
point in time
reason is because
whether or not
D. Avoid Intensifiers
Because generations of writers have overused words like “clearly” or “very,”
these and other common intensifiers have become virtually meaningless. As a
matter of fact, they have begun to develop a connotation opposite their
original meaning. So many writers have used those labels in place of well-
reasoned analysis that some readers see these intensifiers as signaling a weak
analysis. Rid your writing of these words:
clearly
extremely
obviously
quite
very
IV. OTHER CHARACTERISTICS OF GOOD
STYLE
A. Keeping the Subject and Verb Close Together
The basic components of a sentence are the subject, the verb, and the object.
A reader tackles a sentence by searching for those components. First, a reader
looks for the subject. Once the subject is found, the reader’s urge to find the
verb is strong. The primary meaning of a sentence is communicated by the
combination of the subject and the verb. A reader who can’t find and
mentally combine them quickly will be frustrated and confused.
The primary impediment to finding and mentally combining the subject
and verb is the placement of long modifying phrases between them. Legal
writers are especially prone to this weakness. Usually the problem is caused
by trying to say too much in one sentence, for example:
In the first month of his marriage, the defendant, who was only nineteen at the time and
who had not completed high school or developed a trade and who had just lost his part-time
job, was charged with robbing a convenience store at the corner of Bayside and Tenth
Avenue.
This writer has a lot to say about the defendant — probably more than
one sentence can bear. As a result, several modifying phrases separate the
subject and the verb. Move them into sentences of their own:
In the first month of his marriage, the defendant was charged with robbing a convenience
store at the corner of Bayside and Tenth Avenue. He was only nineteen at the time. He had
not completed high school or developed a trade, and he had just lost his part-time job.
Not only is the second version easier to read, it helps the reader organize
the information as well.
Use these guidelines to manage long modifying phrases:
• Where clarity is not a problem, move the long phrase to one end of the
sentence. This placement allows the reader to read quickly. It places the
primary emphasis on the main clause, and it maximizes clarity.
• If clarity is a problem, place the modifying phrase close to the word it
modifies. If the resulting sentence separates the subject and verb by too
great a distance, separate the material into two or more sentences.
EXERCISE 20-5
Keeping the Subject and Verb Close Together
Edit to keep the subjects and verbs closer together.
1. The applicable rule the Florida courts have fashioned in relation to
this issue states that a trial court does retain jurisdiction to assess
attorney’s fees and costs during the pendency of an appeal.
2. A potential counter-argument to established Florida law that the
assessment of fees and costs is a collateral and independent issue
from the underlying trial or appeal and should be excepted from the
general rule transferring jurisdiction to the appellate court upon the
filing of an appeal can be found in the case of Woods v. State.
EXERCISE 20-6
Avoiding Long Sentences
Edit to eliminate excessively long sentences.
1. The court followed the Wyatt ruling in Lee v. State, when it affirmed
the trial court’s imposition of § 938 fees and costs upon the
defendant, who argued unsuccessfully that his notice appealing a
first-degree murder conviction divested the trial court of its
jurisdiction to assess fees and costs.
2. On September 16, 2006, after Defendant had filed the Notice of
Appeal, the Public Defender filed a Motion for Fees and Costs,
asking the trial court to assess fees and costs against Defendant,
pursuant to § 938, consisting of attorney’s fees and investigative
costs totaling $1,040.
C. Unnecessary Variations
Clear legal writing requires consistency in terms. Once you pick a term, use
the same term for each reference. Otherwise your reader will have to decide,
with each new term, whether you mean something different from the prior
term. Professor Wydick uses this example:
The first case was settled for $20,000, and the second piece of litigation was disposed of out
of court for $30,000, while the price of the amicable accord reached in the third suit was
$50,000.4
The readers are left to ponder the difference between a case, a piece of
litigation, and a suit. By the time they conclude that there is no difference,
they have no patience left for settled, disposed of out of court, and amicable
accord, much less for what the writer was trying to tell them in the first place.
In legal writing, consistency is important. Do not worry about seeming
repetitious; it is far more important to be understood.
D. Parallelism
Sentences with repeated elements should maintain a parallel structure. A
sentence has a repeated structure when it contains a list or when it contains
more than one of the same kind of element. For instance, the following
sentence has two dependent clauses:
Acme Pest Control selected the plaintiff for lay-off because she had the least seniority and
because she was consistently late to work.
Notice that the dependent clauses use a parallel structure. They each begin
with “because she” followed by a verb. Here is a version of this sentence that
does not maintain a parallel structure:
Acme Pest Control selected the plaintiff for lay-off because she had the least seniority and
because of her tardiness.
EXERCISE 20-7
Parallelism
Edit to achieve parallelism.
1. When Officers Dale and Hathaway found the victims, they were
bruised, hungry, and suffered from exhaustion.
2. To prevail in a claim for employment discrimination, the plaintiff
must prove that (1) his employer is covered by the act, (2) that he
was terminated because of his age, and (3) a causal link between his
termination and his damages.
V. GENDER-NEUTRAL WRITING
Gender-neutral language is language that avoids masculine nouns and
pronouns for general reference. Using gender-neutral language smoothly is
not always easy. Here are some helpful strategies.
1. A paragraph or even several paragraphs can refer to the thesis sentence of the prior paragraph by
using a clear relational word or phrase (for example, “similarly”) or when the context otherwise clearly
communicates that the point of the subsequent paragraph is to provide additional evidence for the prior
paragraph’s thesis.
2. Adapted from David Angell & Brent Heslop, The Elements of E-Mail Style 62–64 (Addison-
Wesley Publ. 1994).
3. Verbs like “make,” “issue,” “is,” and “had” are much weaker than action verbs like “agree,”
“announce,” “object,” “collide,” and “revise.”
4. Richard C. Wydick, Plain English for Lawyers 70 (Carolina Academic Press 5th ed. 2005).
PART SEVEN
Oral Advocacy
CHAPTER 21
Oral Argument
This chapter and your first law school oral argument provide only a glimpse
of appellate practice. Appellate lawyers must know much more than this
introduction can provide. Consider taking a course in appellate practice and
procedure. The first time you handle a case on appeal, you will be glad to
have had that important training.
These next sections present material designed for a law school oral
argument. In actual law practice, some of the details of presentation and
formality expected in a particular court might differ from those expected in a
law school setting. However, the fundamental concepts presented here will be
equally applicable.
This chapter describes an appellate argument rather than a trial-level
argument. Again, the fundamental principles are the same, and you will be
able to adapt your presentation by observing arguments by other lawyers in a
trial-court setting.
A. Preliminary Formalities
Usually you will be seated at counsel table, waiting for the judges to enter
and call your case. A bailiff will announce the entry of the judges by saying
something like this:
Oyez, oyez, oyez. All rise. The First Circuit Court of . . . is now in session. All those with
business before this Honorable Court may now draw near.
As soon as the bailiff begins this speech, stand up and remain standing
until the judges are seated and the Chief Judge tells you to be seated. The
Chief Judge will then call your case and ask if the lawyers are ready, saying
something like this:
The Court calls the case of Jones v. Brown. Is counsel for the appellant ready?
. . . Is counsel for the appellee ready?
When the judge asks you if you are ready, stand up and say “Ready, Your
Honor.” The Chief Judge will then instruct counsel for the appellant to
proceed.
Your co-counsel has already stated the facts, so you do not need to repeat
them. Simply begin your legal argument, perhaps starting with your narrative
theme. The rest of your argument should proceed just as described above for
the first advocate.
Counsel for the appellant has already provided the facts of the case, so you
need only add or clarify any important fact omitted from the appellant’s fact
statement.
Ms. Cole agrees with the facts as stated by the Appellant. However, the Court should also be
aware that . . .
If you do not need to clarify or add an important fact, simply proceed to the
rest of your argument, following the format described above.
The Chief Judge will probably say “Yes.” If so, finish your answer and
take no more than forty-five seconds to deliver your conclusion. If the Chief
Judge declines your request, simply say “Thank you, Your Honors,” and sit
down.
G. Rebuttal
After counsel for the appellee has finished arguing, one of the lawyers for the
appellant will deliver the rebuttal. If you are that lawyer, listen carefully
during the appellee’s argument to identify a weak point or a point on which
opposing counsel has damaged your case, especially if you can offer a strong,
extremely brief rebuttal. When counsel for the appellee concludes, go to the
podium and deliver your rebuttal in one to two minutes. Then say, “Thank
you, Your Honors,” and sit down. The goal is to make your point in a
compelling way and to sit down without prompting further questioning from
the bench. Have one rebuttal prepared in advance, and use this prepared
rebuttal in case you panic and cannot put together a compelling rebuttal based
on what you have heard in the appellant’s argument.
III. THE CONTENT
The following procedural facets of your case can be crucial. You must know
how they apply to your case, and you must be able to phrase your arguments
accurately in light of those effects.
D. Themes
Your case needs a theme, an overriding point to which you repeatedly return.
Your theme should be the most persuasive big-picture point you have.
Commonly, themes are based in the case’s narrative (narrative reasoning), in
the policies implicated by the case (policy-based reasoning), in the strength
of the doctrinal law (rule-based and analogical reasoning), or in the case’s
procedural posture. Select a narrative theme if the most powerful part of your
argument is based on your client’s compelling facts:
Your Honors, this is a case about a record title-holder who sat by and watched his neighbor build a
garage, knowing that the neighbor believed the garage to be properly located on his own land.
Then, just as the garage was completed, the record title-holder told his neighbor that the garage
was six inches over the property line and demanded that the neighbor tear it down.
If the most compelling part of your argument is the strength of the law on
your side, select a theme that capitalizes on this strength:
Despite the plaintiff’s admittedly sympathetic facts, the law in this jurisdiction could not be more
clear. A wrongful death action simply cannot be sustained for the death of a nonviable fetus. The
legislature of this state has expressly declared this to be the law, and no fewer than five rulings of
the Supreme Court have agreed.
IV. PREPARATION
A. The Record
Thoroughly know the facts in the Record. For the important facts, be able to
cite the page on which they appear. Do not overstate the facts, and do not
state as facts the inferences you ask the court to draw from the facts. If you
misstate facts, you will have lost credibility with the court, and if you
misstate facts intentionally, you will have acted unethically.2
E. Practice
Practice delivering your argument to friends. Have the friends question you
just as they would if they were the judges before whom you will argue.
Practice at least five or six times, and more if possible. Go through the whole
argument each time, and then ask for feedback. Use these practice benches to
improve both your knowledge of the case and the smoothness of your
delivery.
A. Anticipate Questions
Ask yourself what you would want to know if you were a judge hearing the
case. What parts of the argument would be hard to accept and why? What
will your opponent argue? What key cases or statutes will the court be most
concerned about? Also, pay close attention to the questions you receive in
your practice rounds. Prepare answers for all of these questions.
B. Attitude
The judges will ask you questions, and they will often interrupt you to do it.
This is part of the role of a judge. It is efficient and it saves you precious
time. When a judge interrupts you, stop talking immediately and listen to
what the judge is saying. Then answer the judge’s question as best you can.
Treat the question for what it is — a valuable opportunity to clarify a point
about which the judge is concerned. Do not appear to be rushing through the
answer so you can get back into your prepared argument. The judge’s
question is more important than your prepared argument.
The right to interrupt belongs only to the judge, however. Never interrupt
a judge. No matter how badly you want to speak, wait patiently until the
judge has finished speaking before you utter a sound.
Use this technique sparingly, however. Some judges might be irritated to hear
their own words used in this manner more than once or, at most, twice during
an argument.
VI. PRESENTATION
A. Dress
Wear a conservative suit.
C. Voice
Speak at a moderate pace. Do not allow your nervousness to cause you to
speak too quickly, but do speak with a degree of energy appropriate for
discussion of an important matter about which you and your client care
deeply. Speak firmly and loudly enough to be heard.
D. References
Refer to the bench as “Your Honors” or “the Court.” Refer to individual
judges as “Your Honor” or “Justice [last name].” Refer to clients by their last
name preceded by “Mr.” or “Ms.” or by other appropriate titles, such as “Dr.”
Refer to other lawyers as “counsel for Appellant/Appellee” or as “opposing
counsel.”
E. Nervousness
Oral argument will probably make you a little nervous, but remember that
judges are human beings. Like you, they are trying to do a hard job well, and
they will sometimes fall short. Although they have more experience than you
do at this point in your legal career, they probably remember when they did
not. All they ask of you, and all you need ask of yourself, is to do your best.
1. Use the same techniques you used in your brief to phrase the Questions Presented favorably. See
Chapter 15, Section I.
2. See Chapter 14, Section I.
APPENDICES
APPENDIX A
QUESTION PRESENTED
Can Buckley, a minor, disaffirm the purchase of a car when she
misunderstood the sales agent’s question and therefore accidentally
misrepresented her age as eighteen?
BRIEF ANSWER
Probably yes. A minor can disaffirm a contract unless the minor’s
fraudulent misrepresentation induced the other party to rely justifiably
on the representation. On Buckley’s facts, a court would probably rule
that an innocent misrepresentation such as Buckley’s is not fraudulent
and therefore would not prevent a minor from disaffirming a contract. A
court might also rule that the seller did not justifiably rely on Buckley’s
representation.
FACTS
Our client, Beth Buckley, is seventeen and a high school senior. She
will turn eighteen on December 15. Two months ago she bought a used
car for $3,000 from Willis Chevrolet. She paid cash, using the money
she had saved from her summer job. Buckley purchased collision
insurance for the car, but she did not insure against theft. Last week the
car was stolen, and Buckley has asked what she can do about her loss.
When Buckley first looked at cars on the lot, the sales agent asked if
she was old enough to buy a car. Buckley did not realize that she had to
be eighteen to enter into a contract, even when paying cash. She thought
the sales agent was asking whether she was old enough to drive, so she
said “Yes.” The agent did not ask to see any identification and did not
raise the subject of age again.
The next day Buckley returned to the lot, selected the car she wanted
to purchase, and completed the transaction. She recalls “signing a bunch
of papers,” but she did not read them and does not know what they said.
She says that the sales agent did not attempt to explain the documents.
He simply showed her where to sign, and she signed on those lines.
She does not know if she still has copies of the documents, but she will
look among her papers and let us know.
DISCUSSION
I. Can Beth Buckley disaffirm the contract?
A minor does not have the capacity to make a binding contract, but a
contract made by a minor is not automatically void. Hood v. Duren, 125
S.E. 787 (Ga. Ct. App. 1924). Generally, one who is a minor at the time
of making a contract can disaffirm the contract within a reasonable time
after reaching the age of majority. O.C.G.A. § 13-3-20 (1982); Merritt
v. Jowers, 193 S.E. 238 (Ga. 1937). The rationale for the rule is the
recognition that minors have not yet attained sufficient maturity to be
responsible for the decisions they make, so the rule protects them from
at least some of the consequences of bad decisions. See generally White
v. Sikes, 59 S.E. 228 (Ga. 1907).
However, a minor is estopped from disaffirming a contract if (a) the
minor made a false and fraudulent representation of his or her age; (b)
the contracting party justifiably relied on the minor’s representation; and
(c) the minor has reached the age of discretion. Carney v. Southland
Loan Co., 88 S.E.2d 805 (Ga. 1955). Because the first element is the
most problematic in Buckley’s case, the memo will discuss it first.
A. Buckley’s unintentional misrepresentation of her age probably
is insufficient to establish fraudulent misrepresentation.
The first element necessary for estoppel is a false and fraudulent
representation. A minor makes a false and fraudulent representation
when the minor affirmatively and intentionally states a false age,
intending that the seller rely on the information. For instance, in Carney
the minor told the car sales agent that he was twenty-two, the agent
recorded that information on the loan application, and the minor signed
the application and purchased the car. The court affirmed the trial
court’s holding that the minor had fraudulently misrepresented his age
and was estopped from disaffirming the contract. Id. at 807-808.
Similarly, in Clemons v. Olshine, 187 S.E. 711 (Ga. Ct. App. 1936),
the minor told the clothing sales agent that he was twenty-one and
signed a contract confirming the representation. The court held that his
fraudulent misrepresentation estopped him from disaffirming. In
Watters v. Arrington, 146 S.E. 773 (Ga. Ct. App. 1929), another car
purchase case, several agents of the seller testified that the minor had
twice affirmatively stated his age to be twenty-one. The court affirmed
the jury’s verdict for the seller, holding that a minor’s fraudulent
misrepresentation of age estops the minor from disaffirming the
contract.
The courts distinguish this kind of intentional, knowing
misrepresentation from unintentional, even negligent misrepresentations
of age. For instance, in Woodall v. Grant & Co., 9 S.E.2d 95 (Ga. Ct.
App. 1940), the minor had simply signed without reading a form
contract that contained a representation that he was of age. There the
court held that the representation in the contract did not estop the minor
because the minor had not read the contract. The court reasoned that
minors are not required to read contracts. Id. at 95. The Carney decision
distinguished Woodall by pointing out that in Woodall “the minor’s only
sin, if any, was his failure to read a contract which . . . stated that he was
of age, while in [Carney] the minor falsely gave the information put into
the contract.” Carney, 88 S.E.2d at 808.
The most recent relevant case, Siegelstein v. Fenner & Beane, 17
S.E.2d 907 (Ga. Ct. App. 1941), reaffirmed the Carney/Woodall
distinction. In Siegelstein, the jury returned a verdict for the defendant,
and the appellate court reversed on other grounds. However, the
appellate court affirmed the trial court’s jury instruction, stating that a
minor’s false representation of age “will not affect his power to
disaffirm a contract unless [the representation] was made fraudulently.”
Id. at 910 (emphasis supplied).
The rule holding minors responsible only for intentional affirmative
misrepresentations is consistent with the policy behind allowing minors
to disaffirm their contracts. Minors, by definition, are more likely than
adults to make errors and other innocent misrepresentations. Given this
symmetry of rationale, the courts are likely to continue allowing minors
to disaffirm despite innocent, even negligent, misrepresentations.
Here, the sales agent simply asked Buckley whether she was old
enough to buy a car. Buckley misunderstood the question, thinking that
the agent was asking whether she was old enough to drive. Thus she
innocently answered “Yes.” She did not affirmatively state an age at all.
This kind of misunderstanding is exactly the sort of confusion a minor is
likely to experience.
Buckley’s representation that she was old enough to buy a car is
significantly different from the representations in the cases holding that
the minor cannot disaffirm. Unlike the minors in Carney, Clemons, and
Watters, Buckley never stated her age at all. Also unlike the facts in
those cases, Buckley’s assertion, taken to mean what she intended it to
mean (that she was old enough to drive), was not even false. Further,
Buckley made only this single, ambiguous statement, in comparison to
the several oral and written assertions of a specific age, as in the facts of
the earlier cases.
Buckley’s statement is much closer to the situation in Woodall, in
which the minor made the representation unknowingly. In Woodall, the
minor did not know that he was making the representation because he
did not read the form contract he was signing. Buckley did not know
that she might be making a representation that she was eighteen because
she misunderstood the agent’s question. In both cases, the requisite
intent to deceive is absent. Because Buckley did not intend to deceive
Willis Chevrolet, a court would probably allow her to disaffirm the
contract.
However, Buckley must realize that the sales agent’s testimony
describing their conversation may differ from hers. The agent may
remember the conversation differently or may testify falsely. Others
may claim to have overheard the conversation. One way or another,
Buckley’s testimony may be controverted. Further, the documents
Buckley signed may have contained representations of age, and other
witnesses may testify that Buckley read them. If we decide to proceed
with Buckley’s case, we will need to learn what testimony Willis
Chevrolet will offer and what the documents contain. On the facts we
now have, however, a court would probably conclude that Buckley did
not fraudulently mis represent her age.
B. Willis Chevrolet’s reliance on Buckley’s representation was
probably reasonable.
The next element requires the injured party to have justifiably relied
on the representation. Carney, 88 S.E.2d at 808. The cases that describe
this element allude to the minor’s physical appearance, the minor’s life
circumstances known to the injured party, the lack of any reason to
cause the party to suspect the representation, and the lack of a ready
means of confirming the representation. Clemons, 187 S.E. at 712-713;
Hood, 125 S.E. at 788; Carney, 88 S.E.2d at 808; Watters, 146 S.E. at
773-774.
For instance, in Carney, the court points out that the minor was
married, was a father, and appeared to be of the age of majority. 88
S.E.2d at 808. In Hood, the court points to the minor’s physical
appearance and to the seller’s knowledge that the minor had been
married and living independently with his wife for about four years. 125
S.E. at 788. While the decisions sometimes articulate the standard as
whether the defendant “failed to use all ready means” to ascertain the
truth, see, e.g., Carney, 88 S.E.2d at 808, none of the reported decisions
have found circumstances requiring the defendant to go further than the
minor’s representation. In fact, Clemons specifically held that a
contracting party need not undertake an affirmative investigation
beyond the representation of age when the contracting party has no
reason to doubt the assertion. 187 S.E. at 713-714.
Buckley’s facts do not indicate whether the sales agent knew
anything about Buckley’s life circumstances that would lead the agent to
suspect that Buckley might not be eighteen. The facts also do not
include a physical description of Buckley, although we can infer that she
looks young, as the agent questioned her about her age. Although this
issue would be a question of fact at trial, the facts seem similar to the
facts in the reported cases. Contrary to the facts in Hood, Buckley is
close enough to eighteen that an agent probably would not be expected
to suspect her minority simply from her appearance. Also unlike the
Hood facts, we have no reason to believe that the agent knew anything
about Buckley’s life, nor that he had any reason other than her
appearance to suspect that she was a minor. Therefore, the facts may not
be sufficient to require the agent to go further than questioning Buckley.
However, one might argue that the agent had at least one “ready
means” to verify Buckley’s answer, namely asking to see her driver’s
license. There is no discussion of requiring this simple verification in
any of the prior cases, but at least for some of them, that may be because
driver’s licenses were not required at the time those cases were decided.
Not only would this solution have been simple, but requiring it
would facilitate an important policy rationale for the rule. The rule is
designed to discourage sellers from being too ready to contract with
minors, despite the inherent pressure to make sales. Requiring sellers to
verify the ages of buyers who appear young would counteract the
possible tendency of sellers to be too easily convinced of a buyer’s
majority.
The court’s ruling on the second element probably would be a close
one. However, based on the applicable case law, a court probably would
find the agent’s reliance reasonable.
C. Buckley had almost certainly reached the age of discretion
when she made the representation of her age.
A minor cannot be held responsible for a misrepresentation unless
the minor had reached the age of discretion when he or she made the
misrepresentation. Carney, 88 S.E.2d at 808; Clemons, 187 S.E. at 713.
A minor reaches the age of discretion when the minor has developed the
capacity to conceive a fraudulent intent. Clemons points out that most
minors have reached the age of discretion for criminal prosecution for
fraud at least by the age of fourteen, though probably not by the age of
ten. Clemons concludes that the eighteen-year-old minor in that case
was well within the age of discretion. Id. at 713.
Buckley was seventeen when she bought the car, just a few months
away from the age of majority. She is three years older than the
presumptive age of discretion for criminal prosecution, and criminal
prosecution probably requires more assurance of sufficient age than
simple estoppel in a contract action. A court almost certainly would
conclude that Buckley had reached the age of discretion.
CONCLUSION
Buckley can disaffirm unless (1) she fraudulently misrepresented her
age, (2) Willis Chevrolet justifiably relied upon the misrepresentation,
and (3) Buckley had reached the age of discretion. On the facts as we
presently understand them, a court would probably rule that Buckley did
not misrepresent her age. A court might also rule that Willis Chevrolet
was not justified in relying on Buckley’s representation. Given the
probable absence of one required element and the possible absence of
another, Buckley can probably disaffirm the contract.
APPENDIX B
INTRODUCTION
This is an action alleging a violation of Section 607(b) of the Fair
Credit Reporting Act (FCRA), 15 U.S.C.A. § 1681e(b) (West 1995). The
Complaint was filed and served upon Scott Dunn on October 27, 1995.
Default judgment was entered six days ago, on November 17, 1995, just
one day after the expiration of Mr. Dunn’s time to answer the Complaint.
Mr. Dunn now files a Motion to Set Aside this Default Judgment, along
with a supporting affidavit and a proposed Answer to the Complaint. This
brief is filed in support of Mr. Dunn’s Motion.
STATEMENT OF FACTS
In September 1995, a potential lender contacted Dunn Credit Bureau
requesting a credit report on the Plaintiff. Aff. Scott Dunn ¶ 10 (Nov. 26,
1995). The Credit Bureau prepared the report, and it contained a reference
to an unpaid department store account. Aff. Scott Dunn ¶ 11. Upon the
discovery of this item on his credit report, the Plaintiff contacted Mr. Dunn
to demand that the item be removed, arguing that the charged merchandise
had been defective and that the defect was the reason for his nonpayment.
Aff. Scott Dunn ¶ 12. Mr. Dunn asked the Plaintiff to provide this
explanation in writing and promised to include it along with the store’s
version of the account. Aff. Scott Dunn ¶ 13.
The Plaintiff refused to provide the written explanation, but again
demanded that the item be entirely removed. Aff. Scott Dunn ¶ 14. Mr.
Dunn replied by letter, declining to delete the item entirely but repeating
the offer to include the Plaintiff’s defense to the item. Aff. Scott Dunn ¶
14. The Plaintiff did not respond to Mr. Dunn’s letter, and Mr. Dunn did
not hear from the Plaintiff again. Aff. Scott Dunn ¶ 15.
On October 27, 1995, copies of the Summons and Complaint in this
action were served at Mr. Dunn’s home by leaving them with Mr. Dunn’s
sixteen-year-old son, Gregory. (Ret. of Serv. Oct. 30, 1995.) On that day,
Mr. Dunn and his wife had traveled to Denver, planning to return the next
day. Aff. Scott Dunn ¶ 3.
However, on the evening of October 27, Mrs. Dunn suffered a serious
heart attack and was hospitalized. Aff. Scott Dunn ¶ 4. Gregory left
immediately for Denver. In the midst of the crisis surrounding his mother’s
heart attack, Gregory did not think to tell his father about the delivery of
an envelope to the family home. Aff. Scott Dunn ¶ 6.
Mr. Dunn remained in Denver with his wife for two weeks until Mrs.
Dunn was released from the hospital to return home. Aff. Scott Dunn ¶ 5.
Upon his return, Mr. Dunn began going in to his office part- time, while
continuing to care for his wife. Aff. Scott Dunn ¶ 7. Mr. Dunn did not find
the envelope until November 20, 1995. On that day, Mr. Dunn moved a
stack of papers on the table in the family room and found the envelope
there. Aff. Scott Dunn ¶ 8.
Mr. Dunn immediately called his attorney and began the preparations
to file an Answer to the Complaint. Aff. Scott Dunn ¶ 9. Shortly after the
initial telephone conversation with his attorney, Mr. Dunn learned that a
default judgment had been entered three days earlier. Aff. Scott Dunn ¶ 9.
Mr. Dunn now seeks an order, pursuant to Fed. R. Civ. P. 60(b), setting
aside this default judgment.
ARGUMENT
I. THE DEFAULT JUDGMENT SHOULD BE SET ASIDE BECAUSE
IT WAS ENTERED AS A RESULT OF INADVERTENCE OR
EXCUSABLE NEGLECT AND BECAUSE THE DEFENDANT
HAS A MERITORIOUS DEFENSE TO THE PLAINTIFF’S
ALLEGATIONS.
Fed. R. Civ. P. 60(b) grants the Court the discretion to relieve a party
from a final judgment entered as a result of inadvertence or excusable
neglect. When the judgment was entered upon the moving party’s default,
the moving party must also demonstrate the existence of a potentially
meritorious defense. In re Stone, 588 F.2d 1316, 1319 (10th Cir. 1978).
Any doubts are to be resolved in favor of adjudication on the merits. In re
Roxford Foods, Inc., 12 F.3d 875, 879 (9th Cir. 1993). Mr. Dunn’s facts
easily establish both Rule 60(b) requirements.
A. The Defendant’s Default Resulted from Excusable Neglect
Because Service Was Effected upon the Defendant’s Minor Son
and the Crisis of His Mother’s Heart Attack Caused the Son to
Forget to Inform the Defendant of the Service.
Mr. Dunn meets the first requirement for Rule 60(b) relief because the
default resulted from excusable neglect.
The United States Supreme Court has defined the term “excusable
neglect,” in the context of bankruptcy filings, to include giving “little
attention or respect” or “leav[ing] undone or unattended . . . esp[ecially]
through carelessness.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
Partnership, 507 U.S. 380 (1993). Last year the Tenth Circuit adopted this
definition of excusable neglect in the context of a Rule 60(b) motion. City
of Chanute, Kansas v. Williams Nat. Gas Co., 31 F.3d 1041 (10th Cir.
1994). The Tenth Circuit specifically held that Rule 60(b) relief is not
limited to circumstances beyond the moving party’s control. Id. at 1046.
The Tenth Circuit’s analysis of excusable neglect considers four
factors: (1) the potential prejudice to the nonmoving party; (2) the length
of delay; (3) the reason for the delay; and (4) the degree of good faith of
the moving party. Id. at 1046-1047.
The first factor, the prejudice to the nonmoving party, must amount to
more than simply delaying enforcement of the judgment. Feliciano v.
Reliant Tooling Co., 691 F.2d 653, 656-657 (3d Cir. 1982). Usually
cognizable prejudice involves some change of position in reliance on the
judgment. The second factor, the length of delay, measures both the time
since the entry of judgment and the time since the party became aware of
the judgment. See Lasky v. International Union, 27 Fed. R. Serv. 2d 473,
477 (E.D. Mich. 1978), aff’d, 638 F.2d 954 (6th Cir. 1981) (more than one
year too long); City of Chanute, 31 F.3d at 1047 (thirty-one day delay is
“short”).
The third factor examines the validity of the reason for the delay and
whether the delay was willful. The Tenth Circuit has consistently affirmed
orders setting aside default judgments entered as a result of understandable
error or inadvertence as opposed to willful action by the defendant. For
example, the court affirmed a decision to set aside a default judgment
entered while the plaintiff believed that his new attorney was negotiating a
settlement that would resolve the litigation. Thompson v. Kerr-McGee Ref.
Corp., 660 F.2d 1380 (10th Cir. 1981). The Tenth Circuit also affirmed an
order granting Rule 60(b) relief from a judgment caused by confusion
about filing a notice of appeal. Romero v. Peterson, 930 F.2d 1502 (10th
Cir. 1991).
The excusable reasons for delay in these cases contrast with cases in
which the default resulted from a willful decision by the defendant. For
example, in Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc.,
715 F.2d 1442 (10th Cir. 1983), the court affirmed the trial court’s
decision denying relief to a corporate defendant whose representatives had
decided not to answer the complaint because they believed that the
corporate defendant would escape liability in bankruptcy. In United States
v. Theodorovich, 102 F.R.D. 587 (D.D.C. 1984), the court denied relief
because the default judgment had resulted from defendant’s willful
decisions not to attend his own properly scheduled depositions.
The final factor asks whether the defendant has acted in good faith.
This factor invites the court to consider the broad equitable question of
whether the moving party has dealt in good faith with the court and with
the other parties to the litigation.
Applying these four factors to the present case demonstrates that Rule
60(b) relief is certainly appropriate here. First, granting the Defendant’s
Motion would not cause the Plaintiff to suffer any cognizable prejudice.
The default judgment was entered less than one week ago. The only
cognizable prejudice that would result from setting aside the judgment
stems from the costs the Plaintiff incurred in seeking the entry of the
judgment. The Defendant has offered to pay those reasonable costs Aff.
Scott Dunn ¶ 16, and an order to that effect should sufficiently relieve the
Plaintiff of even this small prejudice.
The “length of delay” factor also weighs in favor of granting the
motion. Only three days elapsed between the entry of the default judgment
and the Defendant’s discovery of the litigation. Only three days elapsed
between the Defendant’s discovery and the filing of the Motion and
supporting documents. By comparison, the Tenth Circuit found a delay of
thirty-one days “short.” City of Chanute, 31 F.3d at 1047. A six-day delay
is well within permissible bounds.
The third factor, the validity of the reason for delay, is often the most
important factor. In the present case, this critical factor is the most
compelling of all. Here, the delay was caused by the sudden and serious
heart attack of Mr. Dunn’s wife and Gregory’s mother Aff. Scott Dunn ¶¶
4-9. That a teenager should forget to tell his father about the Summons and
Complaint under such circumstances is certainly understandable. This is
precisely the sort of omission that Rule 60(b) is designed to forgive.
Mr. Dunn’s good faith also argues for relieving the Defendant from
judgment. Mr. Dunn has dealt with both the Court and the Plaintiff entirely
in good faith. The delay was not caused by any stratagem or artifice. Mr.
Dunn was entirely unaware of the litigation. Immediately upon learning of
the Complaint, Mr. Dunn hurriedly contacted his attorney and began the
process of responding to the litigation Aff. Scott Dunn ¶ 9. Mr. Dunn’s
offer to bear the Plaintiff’s costs is further evidence of his good faith.
Thus all four factors of the Rule 60(b) analysis place the Defendant’s
situation squarely within the parameters for Rule 60(b) relief and establish
that Mr. Dunn meets the first requirement for setting aside the default
judgment.
B. The Defendant Has a Meritorious Defense to the Complaint
Because the Credit Report Accurately Reflects the Plaintiff’s
Admitted Failure to Pay the Account.
Mr. Dunn also meets the second requirement for Rule 60(b) relief, the
existence of a meritorious defense. A plaintiff alleging a violation of 15
U.S.C. § 1681e(b) must establish two elements: (1) that the credit report is
inaccurate; and (2) that the inaccuracy flows from the reporting agency’s
failure to follow reasonable procedures. Cahlin v. General Motors Corp.,
936 F.2d 1151, 1156 (11th Cir. 1991). Establishing inaccuracy is a
threshold requirement for a Section 1681e(b) claim. Id. at 1156.
The accuracy requirement of the FCRA does not require the credit
reporting agency to delete all reference to an unpaid account merely
because it is disputed. This is true even if the consumer ultimately pays the
account. Id. In Cahlin, the plaintiff’s credit report included reference to a
disputed account. Initially the account was unpaid, but after it appeared on
the credit report, the consumer settled the account for partial payment. The
consumer then demanded that the credit agency delete all reference to the
account. Id. at 1155.
The Eleventh Circuit held that Section 607(b) does not require a credit
reporting agency to report only favorable information. The court
specifically held that the agency did not have to delete the reference to the
disputed account even though the dispute was settled, explaining that such
an interpretation would gut the very purpose of a credit report. Id. at 1158.
Here the Plaintiff’s credit report accurately reflects his failure to pay
the balance owed on a department store charge account Aff. Scott Dunn
¶11. Further, unlike the account in Cahlin, the Plaintiff’s account remains
unpaid. The Credit Bureau offered to include the consumer’s written
statement describing the dispute, as required by 15 U.S.C.A. § 1681i (b)
(West 1995). The Plaintiff refused. This refusal is the only impediment to
a more complete description of the Plaintiff’s dispute with the account
holder. The Plaintiff’s demand that the item be removed entirely would
have decreased rather than increased the report’s accuracy because it
would have omitted all reference to an admittedly unpaid, though disputed,
debt. The Act simply does not require this sort of concealment of a
consumer’s true credit history.
Thus, the Plaintiff’s credit report is accurate, and the Credit Bureau did
not violate FCRA. Mr. Dunn has a meritorious defense to the Plaintiff’s
Complaint.
CONCLUSION
Mr. Dunn meets both requirements for Rule 60(b) relief. All four
factors for evaluating inadvertence or excusable neglect strongly argue in
favor of granting Mr. Dunn relief under Rule 60(b). Further, the Plaintiff’s
credit report met the accuracy requirement under FCRA, and thus Mr.
Dunn has a meritorious defense to the complaint. Mr. Dunn respectfully
requests the Court to enter an order setting aside the judgment and
allowing him to file his Answer and to otherwise defend this action.
DATED: _____________________
___________________________
Attorney for the Defendant
CERTIFICATE OF SERVICE
I, ____________________, attorney for the Defendant, do hereby
certify that I have served upon the Plaintiff a complete and accurate copy
of this Brief in Support of the Defendant’s Motion to Set Aside Default
Judgment, by placing the copy in the United States Mail, sufficient postage
affixed and addressed as follows:
[name and address of Plaintiff’s attorney]
DATED: _____________________
___________________________
Attorney for the Defendant
APPENDIX C
TABLE OF CONTENTS
Table of Authorities
Question Presented
Rule of Evidence Involved
Standard of Review
Statement of the Case
Summary of the Argument
Argument
I . THE COURT SHOULD AFFIRM THE TRIAL COURT’S
DECISION BECAUSE RULE 615 PROHIBITS ONLY
PHYSICAL PRESENCE IN THE COURTROOM AND
THEREFORE DOES NOT APPLY TO OUTSIDE
COMMUNICATIONS SUCH AS THE CONVERSATION
BETWEEN OFFICERS NELSON AND MILLER.
A . The Plain Language of Rule 615 Applies Only to a Witness’s
Physical Presence in the Courtroom.
B . The Drafters Did Not Intend Rule 615 to Apply Broadly to
Communication Outside the Courtroom.
C . Expanding Rule 615 Beyond Its Express Terms Would Disrupt
The Rule’s Balance Between Providing Truth-Testing Strategies
and Minimizing Unnecessary Litigation Costs.
D . The Casual Dinner Conversation of Officers Nelson and Miller
Did Not Violate the Rule 615 Order
Conclusion
TABLE OF AUTHORITIES
Secondary Authorities
Black’s Law Dictionary (Bryan A. Garner ed., abr. 7th ed., West 2000)
.......................................................................................... 8
Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) ................ 6
Wright, Charles Alan & Victor James Gold, 29 Federal Practice and
Procedure § 6243 (1997) ........................................................ 6, 10
QUESTION PRESENTED
Whether Rule 615 of the Federal Rules of Evidence should be
expanded to apply to communications outside the courtroom where (1)
the trial court did not intend that its routine Rule 615 order should limit
outside conversation; (2) the defendant never requested a broad
sequestration order; (3) the court did not instruct witnesses to refrain
from discussing their testimony; (4) a police officer spoke about his
testimony to his coworker; and (5) during the co-worker’s subsequent
testimony, the defendant was able to cross-examine the co-worker about
the conversation.
RULE OF EVIDENCE INVOLVED
Federal Rule of Evidence 615 provides:
At the request of a party the court shall order witnesses excluded
so that they cannot hear the testimony of other witnesses, and it
may make the order of its own motion. This rule does not
authorize exclusion of (1) a party who is a natural person, or (2)
an officer or employee of a party which is not a natural person
designated as its representative by its attorney, or (3) a person
whose presence is shown by a party to be essential to the
presentation of the party’s cause, or (4) a person authorized by
statute to be present.
STANDARD OF REVIEW
Because rulings on motions to exclude testimony raise
predominately legal questions regarding the interpretation of the Federal
Rules of Evidence, the appellate court reviews those evidentiary rulings
de novo. U.S. v. Angwin, 271 F.3d 786, 798 (9th Cir. 2001).
STATEMENT OF THE CASE
On May 8, 2004, the Defendant, Dennis Irving, sold to Nathan
Roberts more than 50 grams of methamphetamine, a Schedule II
controlled substance. (R. 1.) Officers Miller and Nelson witnessed the
transaction and immediately arrested both men. (R. 1.) Subsequently, a
grand jury indicted the Defendant for offenses involving the possession
and distribution of methamphetamine. (R. 2.)
In pretrial proceedings, the district court granted the Defendant’s
Motion to Exclude Witnesses Pursuant to Rule 615 of the Federal Rules
of Evidence and specifically ordered all prospective witnesses to leave
the courtroom. (R. 4.) The court, however, did not instruct the witnesses
or counsel that witnesses were prohibited from discussing their
testimony with each other. (R. 4.)
On September 22, 2004, the trial began. That day, during the
government’s case-in-chief, Officer Nelson testified that he had seen the
Defendant hand to Roberts the envelope containing the drugs. (R. 5.)
Later that evening, Officer Nelson had dinner with Officer Miller, who
was scheduled to testify the following day. (R. 6.) A research assistant
for the Defendant’s attorney was seated nearby. (R. 7.) According to the
research assistant, as the officers ate dinner, Officer Nelson described
the testimony he had given at trial that morning. (R. 7.) In pre-trial
statements, Officer Miller had described first seeing the two men at the
point where the envelope was already in Roberts’s hand. (R. 7.)
Allegedly, after hearing a description of Officer Nelson’s testimony,
Officer Miller stated that he now remembered seeing the Defendant
hand the envelope to Roberts. (R. 7.)
The next day, the Defendant moved to exclude Officer Miller’s
testimony, arguing that the dinner conversation between Officers Nelson
and Miller the previous evening violated the court’s Rule 615 order to
exclude witnesses from the courtroom. (R. 5.) The district court heard
argument and denied Defendant’s motion. (R. 6.) The court reasoned
that a witness’s refreshed recollection of events (1) was common when
talking to another person involved in the same incident; (2) was not
evidence that the witness planned to perjure himself; and (3) did not
violate the court’s Rule 615 order, which barred witnesses only from
being physically present in the courtroom. (R. 6.)
Later that day, Officer Miller testified at trial. (R. 7.) The
Defendant’s attorney cross-examined Officer Miller, confronting him
with his previous statements and questioning him about his conversation
with Officer Nelson the previous evening. (R. 6.) After hearing this
cross- examination and all of the other evidence in the case, the jury
convicted the Defendant on all counts. (R. 7.) The District Judge
sentenced the Defendant to serve 56 months in a federal prison (R. 7.),
and the Defendant has now filed this appeal.
SUMMARY OF THE ARGUMENT
Federal Rule of Evidence 615 provides that upon the request of a
party, the trial court “shall order witnesses excluded so that they cannot
hear the testimony of other witnesses.” Fed. R. Evid. 615. The Appellant
asks this Court to hold that a routine Rule 615 order also prohibits
witnesses from discussing their testimony with each other. Neither the
plain meaning of the Rule, the intent of its drafters, nor sound public
policy support the Appellant’s argument.
First, the plain meaning of Rule 615 is limited to physical presence
in the courtroom. The Rule provides that witnesses shall be “excluded,”
meaning “expelled” or “barred”—a reference to physical presence, not
to communication. The Rule sets out the reason for the exclusion, “so
that” they do not “hear testimony.” The word “testimony” means sworn
statements of a competent witness in a trial, affidavit, or deposition.
Therefore, by definition, witnesses cannot “hear testimony” unless they
are present when the testimony is being given. Several courts, including
the First and Eighth Circuits, have so held.
Further, the plain language of the Rule indicates the drafter’s
intention to limit only presence in the courtroom. Because a trial court
already has the power to restrict witness communication as part of its
inherent authority to manage proceedings before it, the Rule’s primary
purpose is to define the restrictions a party can impose unilaterally upon
other parties. By expressly delineating the power to exclude witnesses
from the courtroom, the Rule impliedly withholds from parties other,
broader powers. Also, the drafters did not address several key questions
that would arise regularly if Rule 615 had been intended to apply
beyond the courtroom, such as exactly what witnesses are prohibited
from saying and whether the prohibition precludes attorneys from
preparing witnesses for their testimony.
Finally, application of Rule 615 beyond its express terms would
disrupt the Rule’s carefully crafted balance of the rights of parties and
the efficient administration of trials. Broad witness sequestration is
available outside Rule 615 in those cases where restrictions on witness
communication are appropriate. Blanket restrictions, however, would be
burdensome to witnesses and unworkable for the trial court.
Enforcement proceedings would interrupt trials and squander judicial
resources. Without guidance about what sorts of communications are
prohibited, outcomes of these hearings would be unpredictable.
Witnesses unwilling to risk charges of contempt of court would be
inclined not to testify at all.
According to its express terms, the drafter’s intent, and sound policy
rationales, a routine Rule 615 order is limited to excluding witnesses
from physical presence in the courtroom and does not apply to
conversations between witnesses. Therefore, the Rule 615 order below
did not prohibit the conversation between Officers Nelson and Miller.
The Government respectfully requests this Court to affirm the trial
court’s denial of the Defendant’s motion to exclude testimony.
ARGUMENT
I. THE COURT SHOULD AFFIRM THE TRIAL COURT’S
DECISION BECAUSE RULE 615 PROHIBITS ONLY
PHYSICAL PRESENCE IN THE COURTROOM AND
THEREFORE DOES NOT APPLY TO OUTSIDE
COMMUNICATIONS SUCH AS THE DINNER
CONVERSATION BETWEEN OFFICERS NELSON AND
MILLER.
Rule 615 provides that, upon a party’s request, the trial court “shall
order witnesses excluded so that they cannot hear the testimony of other
witnesses.” Fed. R. Evid. 615 (emphasis added). According to the
Rule’s plain language, a Rule 615 order bans prospective witnesses
from the courtroom, but does not restrict communication outside the
courtroom. The Defendant seeks to extend the scope of Rule 615
beyond its plain language, in contravention of the intent of the Rule’s
drafters and in derogation of the trial court’s inherent discretionary
authority to manage its courtroom. The district court rejected such an
interpretation of the rule, and this Court should affirm the district court’s
ruling.
A. The Plain Language of Rule 615 Applies Only to a Witness’s
Physical Presence in the Courtroom.
The first step in interpreting a rule is to examine the language itself.
If the language is plain and unambiguous, a court should not look past
this plain meaning. Shotz v. City of Plantation, 344 F.3d 1161, 1167
(11th Cir. 2003); Thompson v. Goeztmann, 337 F.3d 489 (5th Cir.
2003). Dictionaries often are used to confirm the plain meaning of
statutory text.
The issue before the Court concerns only one sentence of Rule 615:
“At the request of a party the court shall order witnesses excluded so
that they cannot hear the testimony of other witnesses, and it may make
the order of its own motion.” Fed. R. Evid. 615. The phrase at issue is
“exclude[] so that they cannot hear . . . testimony.” Id. (emphasis
added). “Exclude” means to “expel or ban.” Merriam-Webster’s
Collegiate Dictionary (11th ed. 2003). “Testimony” means “evidence
that a competent witness under oath or affirmation gives at trial or in an
affidavit or deposition.” Black’s Law Dictionary 1485 (Bryan A. Garner
ed., 7th ed., West 2000). The plain, ordinary, straightforward language
of the rule, therefore, provides only that witnesses are banned from the
courtroom so they do not hear other witnesses as they testify.
The Rule goes on to identify the reason for exclusion from the
courtroom: “so that they cannot hear the testimony of other witnesses.”
This phrase does not define a broad category of situations to which the
Rule will apply. Rather, the phrase expressly uses the language of
purpose (“so that” ) to set out the reason for the exclusion from the
courtroom. The plain language of Rule 615, therefore, says nothing at
all about what a witness may say or do outside the courtroom. See U.S.
v. Scharstein, 531 F. Supp. 460, 462-63 (E.D. Ky. 1982).
Even if the word “exclude” could be redefined to refer to something
other than banning an individual from the courtroom, Rule 615, by its
own terms, would apply only to hearing testimony. A participant in a
restaurant conversation over dinner is not “hearing testimony.” In that
setting, no one is under oath, no one is being questioned by an attorney,
and no rules of evidence apply. The express language of Rule 615 does
not apply to communications of that sort. See 29 Charles Alan Wright &
Victor James Gold, Federal Practice and Procedure § 6243, at 57
(“Testimony is given only in a formal legal context such as a deposition,
hearing, or trial. Thus witness communication outside that context does
not enable witnesses to ‘hear testimony.’ “).
Several courts have held that the language of Rule 615 limits only
physical presence of witnesses in the courtroom. For instance, in
Sepulveda v. U.S., 15 F.3d 1161, 1176 (1st Cir. 1993), the First Circuit
held the Rule inapplicable to extra-courtroom communication. In that
case, the defendants had been charged with offenses relating to the
distribution of cocaine, and the trial court had issued a Rule 615 order
before trial began. Id. at 1176. Later in the trial, the defendants alleged
that extra-courtroom witness contact had violated the Rule 615 order.
The court held that a Rule 615 order does not prohibit witness
communication, stating that the Rule 615 order had “plowed a straight
furrow in line with Rule 615 itself [and therefore] did not extend beyond
the courtroom.” Id. at 1176.
The Eighth Circuit also has held Rule 615 inapplicable to extra-
courtroom communications. U.S. v. Smith, 578 F.2d 1227, 1235 (8th
Cir. 1978). In Smith, defendants were on trial for offenses associated
with the distribution of heroin. Id. at 1229. Early in the trial, the court
had issued a Rule 615 order excluding witnesses from the courtroom. As
trial progressed, a police officer took notes and relayed information to
government witnesses waiting to testify. Id. at 1234. The trial court held
that this conduct did not violate the Rule 615 order because Rule 615
only excludes witnesses from the courtroom. Id. The Eighth Circuit
affirmed the trial court’s holding, noting that the defendants had not
requested additional restrictions beyond Rule 615. Id. at 1235. The
appellate court stated that the question of whether to instruct witnesses
not to communicate with other witnesses is within a trial court’s
discretion. Id. at 1235. Such a discretionary instruction is not, therefore,
mandated by the plain language of Rule 615.
Similarly, the court in Scharstein held that the plain language of
Rule 615 limits only physical presence in the courtroom. 531 F. Supp. at
463-64. In Scharstein, defendants had been charged with illegally
manufacturing, storing, and transporting explosives. Id. at 461. The
court declined to expand the application of Rule 615 to prohibit
witnesses from conferring with each other outside the courtroom. The
court stated, “[T]his court believes that there is no reason to go beyond
the plain language of the Rule,” observing that the question of whether
to instruct witnesses not to discuss their testimony is within the court’s
discretion and not required by Rule 615. Id. at 463; see also Lapenna v.
Upjohn Co., 665 F. Supp. 412, 413 (E.D. Pa. 1987) (declining to apply
Rule 615 “beyond the literal meaning of the rule”).
B. The Drafters Did Not Intend Rule 615 to Apply Broadly to
Communication Outside the Courtroom
Not only does the plain language of Rule 615 call for affirmance
here, but indications of the drafters’ intent support that result as well. As
a trial court already has inherent power to limit witness communication
outside the courtroom, Sepulveda, 15 F.3d at 1176, the primary purpose
of Rule 615 is to identify the restrictions a party can impose unilaterally
on other trial participants. Therefore, the key inquiry is what unilateral
and unrestrained powers the Rule’s drafters intended to give to parties.
The drafters of the Rule rightly limited the unrestrained power the
Rule would give to parties. At common law, when a court ordered
sequestration, the order could include (1) preventing witnesses from
hearing other witnesses testify; and (2) preventing prospective witnesses
from consulting other witnesses. Sepulveda, 15 F.3d at 1176 (citing 6
John Wigmore, Evidence § 1840). When the drafters expressly included
in Rule 615 the power to “exclude” witnesses, they impliedly excluded
the right to impose other more intrusive limitations. According to the
canon of statutory construction expressio unius est exclusio alterius, the
expression of one thing implies the exclusion of another. Thompson, 337
F.3d at 499. Rule 615, therefore, does not give parties the unilateral
power to prohibit communication outside the courtroom. That power
remains within the discretion of the trial court.
In fact, Rule 615 does not use the term “sequester” at all. Black’s
Law Dictionary defines “sequester” to mean “to segregate or isolate [a
witness] during trial.” Black’s Law Dictionary 1370 (Bryan A. Garner,
ed., 7th ed., West 2000). Tellingly, the drafters did not use the term
“sequester” in Rule 615. Rather, they selected only the first aspect of
common law sequestration (the aspect that does not “segregate or isolate
a witness”) and refrained from using the term “sequester” to describe
the scope of Rule 615. These drafting decisions provide further
indication of an intent to withhold broad sequestration powers from the
scope of Rule 615. Scharstein, 531 F. Supp. at 464.
Further, the drafters did not define categories of communication
allegedly prohibited by the Rule—as they surely would have done had
they intended to restrict communication. Violation of a trial court’s
order constitutes contempt of court, rendering the offending person at
risk of fine or imprisonment. U.S. v. Johnston, 578 F.2d 1352 (10th Cir.
1978). A reading of Rule 615 to prohibit certain kinds of
communication outside the courtroom would mean that witnesses who
spoke outside the courtroom would be subject to contempt proceedings.
If the drafters had intended to impose such serious individual liability
for trial witnesses, they surely would have set out the prohibition clearly
and defined its parameters unambiguously. The Appellant’s proposed
construction would render trial witnesses vulnerable to contempt
proceedings without fair notice of what they must not do or what the
penalties might be. The drafters cannot have intended such a result.
If the drafters had intended the construction urged by the Appellant,
they also would have had to address the question of whether trial
attorneys could continue preparing witnesses for their testimony. To
prepare a witness to testify, any competent attorney confers with the
witness about the status of the trial proceedings and about the testimony
to come. See generally U.S. v. DeJongh, 937 F.2d 1, 3 (1st Cir. 1991) (A
lawyer “would be foolhardy to call an important witness without
attempting, first, to debrief the witness.”). Because parties adjust their
strategies as the trial progresses, these witness conferences are an
essential part of trying a case. Scharstein, 531 F. Supp. at 463. In fact,
the right to prepare a witness for his or her testimony is so fundamental
that deprivation of this right may raise Due Process concerns.
Scharstein, 531 F. Supp. at 463-64 (citing Potashnic v. Port City
Construction Company, 609 F.2d 1001 (5th Cir. 1980)).
Had the drafters intended Rule 615 to limit extra-courtroom
communication, they could have chosen either to prohibit trial attorneys
from preparing witnesses or to exempt trial attorneys. Exempting trial
attorneys would have rendered the proposed construction of Rule 615
pointless, however. Witnesses who have already testified would be
precluded from speaking to prospective witnesses, but trial counsel
could still describe prior testimony freely. In fact, because attorneys
know precisely what will be most relevant in future testimony, allowing
attorneys to describe prior testimony would be far more problematic
than allowing other witnesses to describe their own testimony. To hold
that Rule 615 prohibits witnesses from talking to each other but allows
attorneys to prepare prospective witnesses for their testimony “would be
an exercise in futility.” Scharstein, 531 F. Supp. at 464.
Prohibiting trial attorneys from preparing witnesses, on the other
hand, would have resulted in a sea change in standard trial preparation.
Again, like the question of individual witness liability, such a drastic
result would have called for express language in the Rule itself,
language clearly applying the Rule to attorney conduct and identifying
what attorneys could and could not say during witness preparation.
Because the drafters did not address the question of whether and how
Rule 615 would apply to communication with attorneys, it is most likely
that the drafters did not intend to apply Rule 615 to extra-courtroom
communication.
Finally, the intent of the Rule’s drafters is not the only intent
relevant to the question before this Court. The trial court issued its order
under the authority of Rule 615, but an order limiting outside
communication could have been issued as part of the court’s inherent
powers of trial management. Sepulveda, 15 F.3d at 1176. Therefore, the
more important inquiry may be what the trial court intended by its
order. A court’s interpretation of its own order is given great weight.
Sepulveda, 15 F.3d at 1177; U.S. v. Smith, 578 F.2d at 1235 (“holding
that it is within the discretion of the trial court to determine whether or
not a sequestration order has been violated”). If, as here, the trial court
did not intend it’s order to constrain conversation outside the courtroom,
that order should not be redefined on appeal.
Both the intent of the drafters and the intent of the trial court issuing
the order demonstrate that the conversation at issue did not violate the
court’s order. Neither the provisions of Rule 615 nor the court’s own
language reflect an intent to reach beyond the courtroom doors.
C. Expanding Rule 615 Beyond Its Express Terms Would Disrupt
the Rule’s Balance Between Providing Truth-Testing Strategies
and Minimizing Unnecessary Litigation Costs.
The purposes of the Federal Rules of Evidence are to secure fairness
in administration, eliminate unjustifiable expense and delay, ascertain
the truth, and determine proceedings fairly. Fed. R. Evid. 102. The
Rules aim to balance the need for legitimate truth-testing strategies with
the need to minimize unnecessary expense. Expanding the scope of Rule
615 would unnecessarily disrupt the delicate balance Rule 615 has
achieved.
Applying Rule 615 to out-of-court conduct is not necessary to obtain
truthful testimony. Barring witnesses from the courtroom prevents them
from hearing testimony directly, so their only knowledge of prior
testimony will be by the general recollection of others. In most cases,
this limitation will be sufficient. Sepulveda, 15 F.3d at 1176. Further, a
party suspecting that witness contact may have influenced testimony is
free to cross-examine a witness about that contact and its content, as
occurred in the case before the Court. For cases in which greater
protection is appropriate, the trial court can, sua sponte or on proper
motion, impose greater limitations, including ordering witnesses not to
disclose their testimony. In fact, this reliance on the discretion of the
trial court is fundamental to the federal trial process. Scharstein, 531 F.
Supp. at 464 (“The general approach of the Federal Rules of Evidence is
to place heavy reliance on the discretion of the trial court in conducting
a fair trial.”). Thus, the very protection the Appellant seeks is already
available without stretching Rule 615 beyond its intended application.
Not only is expansion of the Rule’s scope unnecessary, but
application to out-of-court communications would result in significant
and often unnecessary administrative costs. First, enforcement would be
extremely difficult. A court can easily enforce an order banning
witnesses from the courtroom, but violations outside the judge’s
presence are difficult to discover. 29 Charles Alan Wright & Victor
James Gold, Federal Practice and Procedure, § 6243, at 63 (West
1997). Further, enforcing routine orders prohibiting witness contact
would require the court to undertake “an undue amount of supervision”
over witnesses, distracting the court from its primary function.
Scharstein, 531 F. Supp. at 464 n.7.
Second, extension of the Rule would result in long delays during
trials. Each time two witnesses talked, there could be grounds for a
motion alleging a violation of Rule 615 and a resulting evidentiary
hearing to learn the content of the conversation. Witnesses would be
called upon to disclose publically everything they had said to each other.
These hearings would occur frequently, especially in long trials with
many witnesses. Id. at 464. Constant interruptions would impede trial
management, increase litigation costs, and absorb significant judicial
resources. Courts would be “bogged down in numerous inquiries . . .
when there is no genuine need to do so.” Id.
Third, the outcome of these hearings would be uncertain at best. The
Rule does not define what kinds of communication would be prohibited.
Neither parties nor witnesses nor the district court itself would know
whether a violation had occurred if a witness stated that she had
testified; that her testimony was over; that the cross-examination had
been brief; that she had been nervous; that she had testified about a
particular topic; or that a particular question had been asked. With no
clear standard of what could and could not be said, hearings would be
numerous and issues would be difficult to resolve. Id.; 29 Wright,
Federal Practice at § 6243.
Fourth, extension of the Rule would place unrealistic hardships on
witnesses. An order limiting out-of-court communication between
witnesses places far greater burdens on witnesses than does mere
exclusion from the courtroom. Wright, Federal Practice at § 6243.
Witnesses testifying in the same case often are spouses or co-workers.
Communication between spouses or other close associates should be
restricted only when absolutely necessary, not any time a party decides
to invoke Rule 615.
Fifth, extending the Rule to out-of-court statements would render
witnesses vulnerable to contempt proceedings. The combination of this
vulnerability and the lack of clarity about what kinds of communication
are prohibited would discourage witnesses from testifying. Discouraging
testimony would impede the goal of obtaining truthful testimony to a far
greater degree than would a decision to keep Rule 615 within its
intended bounds.
Sixth, to apply Rule 615 to out-of-court conversations would be to
give any party, as a matter of right, the ability to impose significant
limitations on all witnesses in the case, including spouses and co-
workers who must continue to have close daily contact with each other
as the trial progresses. A party could use Rule 615 as another way to
make the trial experience as unpleasant as possible for opposing parties
and witnesses. This approach to trial management does not assist in
achieving just and fair results at trial.
Only one circumstance—the reading of transcripts of actual
testimony—justifies the application of Rule 615 beyond its express
terms. In Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1367
(5th Cir. 1981), the trial court had entered an order excluding witnesses
under Rule 615. Id. at 1372. During the trial, however, the defendant’s
expert witness was provided with daily transcripts of the trial testimony.
The district court held that providing transcripts of testimony violated
the Rule 615 order, and the appellate court affirmed, explaining that the
harm of reading testimony is potentially greater than the harm of
hearing testimony. Id. Accordingly, the court held that a Rule 615 order
prohibits witnesses from reading trial transcripts prior to testifying. Id.
at 1373.
The Miller exception does not apply to conversation outside the
courtroom, however. The court in Miller compared hearing actual
testimony with reading a transcript and found the key difference to be
that a listener would have to rely on his or her memory of the testimony
while a reader would not. Id. at 1372. This key distinction does not
apply to conversation outside the courtroom. Unlike the reader of a
transcript, who can thoroughly study the actual testimony, a participant
in a conversation must rely on his or her memory of the conversation.
Perhaps more significantly, the speaker must rely on memories of the
testimony as well. By the very rationale explained in Miller, therefore,
the danger of casual conversation outside the courtroom is considerably
smaller than the danger Rule 615 is designed to prevent. Thus, the
Miller exception does not apply to extra-courtroom conversation. In
fact, Miller’s very rationale demonstrates a key reason for limiting Rule
615 to “testimony” rather than to mere recollections of testimony.
Further, the narrow Miller exception is consistent with the rationales
on which Rule 615 is based. The Miller exception does not impose the
administrative costs and personal impositions on witnesses that the
Appellant’s construction would impose. Prohibiting the reading of
transcripts creates a bright-line test, easily applied in enforcement
proceedings. Witnesses need not wonder what they may and may not
say. Parties need not wonder what conduct may violate the Rule 615
order. Also, a witness has access to trial transcripts only through trial
attorneys, who are officers of the court and therefore more easily and
effectively governed by trial court orders. Further, the prohibition on
reading transcripts does not interfere with normal daily interactions
between witnesses who live or work together or who encounter each
other in casual interactions in the hallway.
In all other circumstances, trial judges have broad discretion to limit
contact between witnesses when appropriate. Sepulveda, 15 F.3d at
1176. In those few cases in which a small nuance in testimony may
determine the outcome, a Rule 615 exclusion of witnesses may be
insufficient. Scharstein, 531 F. Supp. at 464. In such cases, the trial
court can use its broad case management powers to determine whether
“extra-courtroom prophylaxis” is necessary and what means best
accomplishes the goal in that case. Sepulveda, 15 F.3d at 1176 (citing
U.S. v. Arias-Santana, 964 F.2d 1262, 1266 (1st Cir. 1992)). Since trial
courts already have the power to restrict communication when
appropriate, the only effect of broadening Rule 615 to include such
restrictions would be to shift the power from the trial court’s discretion
and place it instead in the unrestrained hands of a party. Nothing in the
language or history of Rule 615 indicates that the drafters intended such
a result.
D. The Casual Dinner Conversation of Officers Nelson, and Miller
Did Not Violate the Rule 615 order.
On September 22, 2004, Officers Nelson and Miller had dinner
together. (R. 6.) During their meal, the conversation ranged over topics
of common interest. Officer Nelson had testified in the Irving trial that
day. (R. 7.) He related to his dinner companion his recollection of his
testimony, including his testimony of having seen Irving hand the drug-
filled envelope to Roberts. Officer Nelson’s description prompted
Officer Miller to recall that he had seen the transfer as well. (R. 7.)
This dinner conversation between the officers did not violate the
Rule 615 order. The trial court’s order made reference only to whether
and when witnesses could be in the courtroom, exactly as the plain
language of Rule 615 provides. At no time during the trial did the court
instruct witnesses not to speak to each other. This was no mere
inadvertent omission by the court. As demonstrated by the court’s denial
of defendant’s motion to exclude, the trial court did not intend that its
order should apply to communication outside the courtroom.
Nor does this case fall within the narrow Miller exception. In Miller,
the reading of daily transcripts was held to violate Rule 615. 650 F.2d at
1374. The court concluded that reading transcripts eliminated the need
to rely on memory and was thus more dangerous than actual witness
presence in the courtroom. Here, however, Officer Nelson had to rely on
his recollection of his testimony. Then, Officer Miller had to rely on his
recollection of what Officer Nelson had recalled. These key differences
render the officers’ conversation far less problematic than either
physical presence in the courtroom or the reading of trial transcripts.
In fact, this double reliance on memory is even less problematic than
the situation the Eighth Circuit permitted in U.S. v. Smith, 578 F.2d
1227, where an officer in the courtroom was taking notes and relaying
information to prospective witnesses. Here, no one was planted in the
courtroom taking notes. There was no plot to circumvent the prohibition
on access to actual testimony. Two co-workers simply had dinner
together and spoke of their day’s events, as friends and co-workers often
do.
Additionally, prohibiting these officers from speaking to each other
likely would have made no difference here. Officers Nelson and Miller
had worked together on this case for months. Together, they had
arrested the Defendant and worked with the prosecutor to prepare the
case for trial. During that process, they would have seen each other
daily. Undoubtedly, they had discussed the case on countless occasions.
They may well have discussed the case immediately before trial began.
Whether or not the officers communicated on September 22, no doubt
the prosecutor would have carefully prepared Officer Miller for his
testimony the next day. The prosecutor would have highlighted the
factual question of the drug transfer and would have told Officer Miller
about the status of the testimony on that point. Officer Miller’s
recollection would have been just as refreshed by that description as it
was by the description of his co-worker the night before. In such a
circumstance, there is little point in prohibiting a discussion on
September 22nd that normally could have happened both on September
21st and on September 23rd.
Further, whether the conversation occurred before or after trial
began, the Defendant would have been able to confront Officer Miller
with his prior statements and question him about conversations with
others—just as the Defendant did. Thus, in either case, the jury would
have been fully informed of the circumstances surrounding Officer
Miller’s testimony. In neither case would there be reason to second-
guess the jury’s ability to gauge the officer’s credibility and the
accuracy of his recollection.
Finally, reading Rule 615 beyond its express terms is not necessary
to preserve the availability of broad sequestration in appropriate cases.
As part of its inherent authority, the court below had the power to
impose, sua sponte, extra-courtroom restrictions on witnesses. The court
did not find those restrictions necessary here. If the Defendant
disagreed, the Defendant had the opportunity to request those
restrictions, but the Defendant did not make the request. Had counsel
sought such an order, and had the trial court issued it, Officers Nelson
and Miller certainly would have complied. The Defendant did not seek
the order, however, and cannot now bootstrap a routine Rule 615 order
into the order Defendant wishes he had sought.
CONCLUSION
Both the plain language of Rule 615 and all available indicators of
the drafters’ intent show that the Rule governs only physical presence in
the courtroom and not conversations such as that between Officers
Nelson and Miller. Further, application of Rule 615 according to its
express terms preserves the Rule’s carefully crafted balance of the rights
of parties and the efficient administration of trials. Therefore, the
Government respectfully requests this Court to affirm the trial court’s
denial of the Defendant’s motion to exclude testimony.
Keith Salter
Attorney at Law
APPENDIX E
Cases
LUCY V. ZEHMER
196 Va. 493, 84 S.E.2d 516 (1954)
Supreme Court of Appeals of Virginia
BUCHANAN, Justice.
This suit was instituted by W.O. Lucy and J.C. Lucy, complainants,
against A.H. Zehmer and Ida S. Zehmer, his wife, defendants, to have
specific performance of a contract by which it was alleged the Zehmers had
sold to W.O. Lucy a tract of land owned by A.H. Zehmer in Dinwiddie
county containing 471.6 acres, more or less, known as the Ferguson farm, for
$50,000. J.C. Lucy, the other complainant, is a brother of W.O. Lucy, to
whom W.O. Lucy transferred a half interest in his alleged purchase.
The instrument sought to be enforced was written by A.H. Zehmer on
[Saturday,] December 20, 1952, in these words: “We hereby agree to sell to
W.O. Lucy the Ferguson Farm complete for $50,000.00, title satisfactory to
buyer,” and signed by the defendants, A.H. Zehmer and Ida S. Zehmer.
The answer of A.H. Zehmer admitted that at the time mentioned W.O.
Lucy offered him $50,000 cash for the farm, but that he, Zehmer, considered
that the offer was made in jest; that so thinking, and both he and Lucy having
had several drinks, he wrote out “the memorandum” quoted above and
induced his wife to sign it; that he did not deliver the memorandum to Lucy,
but that Lucy picked it up, read it, put it in his pocket, attempted to offer
Zehmer $5 to bind the bargain, which Zehmer refused to accept, and realizing
for the first time that Lucy was serious, Zehmer assured him that he had no
intention of selling the farm and that the whole matter was a joke. Lucy left
the premises insisting that he had purchased the farm.
Depositions were taken and the decree appealed from was entered holding
that the complainants had failed to establish their right to specific
performance, and dismissing their bill. The assignment of error is to this
action of the court . . . .
The defendants insist that the evidence was ample to support their
contention that the writing sought to be enforced was prepared as a bluff or
dare to force Lucy to admit that he did not have $50,000; that the whole
matter was a joke; that the writing was not delivered to Lucy and no binding
contract was ever made between the parties.
It is an unusual, if not bizarre, defense. When made to the writing
admittedly prepared by one of the defendants and signed by both, clear
evidence is required to sustain it.
In his testimony Zehmer claimed that he “was high as a Georgia pine,”
and that the transaction “was just a bunch of two doggoned drunks bluffing to
see who could talk the biggest and say the most.” That claim is inconsistent
with his attempt to testify in great detail as to what was said and what was
done. It is contradicted by other evidence as to the condition of both parties,
and rendered of no weight by the testimony of his wife that when Lucy left
the restaurant she suggested that Zehmer drive him home. The record is
convincing that Zehmer was not intoxicated to the extent of being unable to
comprehend the nature and consequences of the instrument he executed, and
hence that instrument is not to be invalidated on that ground. It was in fact
conceded by defendants’ counsel in oral argument that under the evidence
Zehmer was not too drunk to make a valid contact.
The evidence is convincing also that Zehmer wrote two agreements, the
first one beginning “I hereby agree to sell.” Zehmer first said he could not
remember about that, then that “I don’t think I wrote but one out.” Mrs.
Zehmer said that what he wrote was “I hereby agree,” but that “I” was
changed to “We” after that night. The agreement that was written and signed
is in the record and indicates no such change. Neither are the mistakes in
spelling that Zehmer sought to point out readily apparent.
The appearance of the contract, the fact that it was under discussion for
forty minutes or more before it was signed; Lucy’s objection to the first draft
because it was written in the singular, and he wanted Mrs. Zehmer to sign it
also; the rewriting to meet that objection and the signing by Mrs. Zehmer; the
discussion of what was to be included in the sale, the provision for the
examination of the title, the completeness of the instrument that was
executed, the taking possession of it by Lucy with no request or suggestion
by either of the defendants that he give it back, are facts which furnish
persuasive evidence that the execution of the contract was a serious business
transaction rather than a casual, jesting matter as defendants now contend . . .
.
If it be assumed, contrary to what we think the evidence shows, that
Zehmer was jesting about selling his farm to Lucy and that the transaction
was intended by him to be a joke, nevertheless the evidence shows that Lucy
did not so understand it but considered it to be a serious business transaction
and the contract to be binding on the Zehmers as well as on himself. The very
next day he arranged with his brother to put up half the money and take a half
interest in the land. The day after that he employed an attorney to examine
the title. The next night, Tuesday, he was back at Zehmer’s place and there
Zehmer told him for the first time, Lucy said, that he wasn’t going to sell and
he told Zehmer, “You know you sold that place fair and square.” After
receiving the report from his attorney that the title was good he wrote to
Zehmer that he was ready to close the deal.
Not only did Lucy actually believe, but the evidence shows he was
warranted in believing that the contract represented a serious business
transaction and a good faith sale and purchase of the farm.
In the field of contracts, as generally elsewhere, “We must look to the
outward expression of a person as manifesting his intention rather than to his
secret and unexpressed intention. ‘The law imputes to a person an intention
corresponding to the reasonable meaning of his words and acts.’ “
At no time prior to the execution of the contract had Zehmer indicated to
Lucy by word or act that he was not in earnest about selling the farm. They
had argued about it and discussed its terms, as Zehmer admitted, for a long
time. Lucy testified that if there was any jesting it was about paying $50,000
that night. The contract and the evidence show that he was not expected to
pay the money that night. Zehmer said that after the writing was signed he
laid it down on the counter in front of Lucy. Lucy said Zehmer handed it to
him. In any event there had been what appeared to be a good faith offer and a
good faith acceptance, followed by the execution and apparent delivery of a
written contract. Both said that Lucy put the writing in his pocket and then
offered Zehmer $5 to seal the bargain. Not until then, even under the
defendants’ evidence, was anything said or done to indicate that the matter
was a joke. Both of the Zehmers testified that when Zehmer asked his wife to
sign he whispered that it was a joke so Lucy wouldn’t hear and that it was not
intended that he should hear.
The mental assent of the parties is not requisite for the formation of a
contract. If the words or other acts of one of the parties have but one
reasonable meaning, his undisclosed intention is immaterial except when an
unreasonable meaning which he attaches to his manifestations is known to
the other party. “ . . . The law, therefore, judges of an agreement between two
persons exclusively from those expressions of their intentions which are
communicated between them . . . .”
An agreement or mutual assent is of course essential to a valid contract,
but the law imputes to a person an intention corresponding to the reasonable
meaning of his words and acts. If his words and acts, judged by a reasonable
standard, manifest an intention to agree, it is immaterial what may be the real
but unexpressed state of his mind.
So a person cannot set up that he was merely jesting when his conduct
and words would warrant a reasonable person in believing that he intended a
real agreement.
Whether the writing signed by the defendants and now sought to be
enforced by the complainants was the result of a serious offer by Lucy and a
serious acceptance by the defendants, or was a serious offer by Lucy and an
acceptance in secret jest by the defendants, in either event it constituted a
binding contract of sale between the parties . . . . The complainants are
entitled to have specific performance of the contract sued on. The decree
appealed from is therefore reversed and the cause is remanded for the entry of
a proper decree requiring the defendants to perform the contract in
accordance with the prayer of the bill.
Reversed and remanded.
WALDEN, Judge.
This is a landlord tenant action. Ms. Barton leased [the] premises for five
years from the Mitchell Company for the purpose of operating a retail store
selling patio furniture. The lease began on November 1, 1982. On August 3,
1985, Ms. Barton vacated the property. The landlord sued Ms. Barton, and
following the non-jury trial, received judgment for $18,929.57, plus interest,
basically representing rent to the date of the judgment and rent thereafter for
the unexpired term. Ms. Barton appeals. We reverse based upon our view that
the landlord breached a material provision of the lease to the end that Ms.
Barton was constructively evicted from the premises.
The pertinent facts are not disputed.
In October or November of 1984, the landlord leased an adjacent space to
Body Electric, which space adjoined Ms. Barton’s space on two sides. Body
Electric operated an exercise studio. Loud music, screams, shouts and yells
accompanied the operation of Body Electric during business hours. The
intensity and volume of such noise manifestly impacted upon the operation of
Ms. Barton’s business. It caused the walls to vibrate, and a painting to fall off
the wall. It made it difficult, if not impossible, for Ms. Barton to conduct her
business. She lost customers and salespersons because of the noise.
Ms.Barton complained over and over to the landlord. The landlord
promised repeatedly to remedy the problem to include insulating the
uninsulated party walls. The landlord did nothing in the period from October
or November 1984 till August 3, 1985 when Ms. Barton vacated. On the
same day and immediately following Ms. Barton’s departure, the landlord
undertook some measures to alleviate the noise problem . . . . As we view it,
the dispositive lease proviso is paragraph 40 entitled Quiet Enjoyment:
Tenant, upon paying the rents and performing all of the terms on its part to be performed,
shall peaceably and quietly enjoy the Demised Premises subject nevertheless, to the terms
of this lease and to any mortgage, ground lease or agreements to which this lease is
subordinated or specifically not subordinated as provided in Article 29(b) hereof.
GOLDMAN V. KANE
3 Mass. App. Ct. 336, 329 N.E.2d 770 (1975)
Massachusetts Appeals Court
JACOBSON V. KAMERINSKY1
Karen Jacobson had gallbladder surgery on June 30, 1984. Her doctor
negligently left a surgical sponge in the surgery site when he closed the
incision. The sponge caused Jacobson considerable physical difficulty and
subsequently resulted in a second surgery to remove it. After the second
surgery Jacobson decided to seek legal representation for a medical
malpractice claim against her first surgeon. She saw Kamerinsky’s office
sign, sought his advice, and agreed to retain him to bring her claim.
Kamerinsky had been admitted to practice law only ten weeks when he
accepted Jacobson’s case.
Kamerinsky correctly realized that the surgeon was clearly liable for
Jacobson’s damages. He tried to negotiate a settlement of the claim with the
surgeon and the surgeon’s insurance carrier so that litigation would not be
necessary. As the weeks and months went by, Jacobson contacted
Kamerinsky periodically to learn whether there was any progress on her
claim. He would tell her that negotiations were proceeding well and that he
should have a settlement for her soon. Several times he told her that he had
obtained an expert opinion that leaving a surgical sponge inside the body was
clearly medical malpractice. He explained that he had not yet filed suit
because, since liability was so clear, he hoped to negotiate a settlement
without the necessity of filing suit.
Shortly before the statute of limitations expired, when negotiations had
not been successful, Kamerinsky filed suit in the appropriate state trial court.
However, he had failed to research the requirements for bringing a medical
malpractice action. State law requires that prior to filing suit a medical
malpractice plaintiff must first file a charge before the medical Malpractice
Screening Panel, complete the Panel’s discovery and hearing process, and
obtain a decision from the Panel. [citation omitted] Failure to go through
these steps results in the dismissal of the plaintiff’s court action. [citation
omitted] The lawyer for the doctor successfully moved for the dismissal of
the plaintiff’s claim, and the plaintiff was precluded from completing the
Screening Panel process and refiling the suit because by then the statute of
limitations had expired and the medical malpractice claim was barred.
Ms. Jacobson brought this legal malpractice claim against Kamerinsky,
arguing that Kamerinsky’s failure to file a charge before the Screening Panel
constituted legal malpractice and resulted in $500,000 damage to Jacobson. A
jury found in favor of Jacobson and awarded her $425,000 in damages.
Kamerinsky appeals, arguing that his error did not constitute malpractice.
A lawyer is held to a standard of competency that meets or exceeds the
professional skill and diligence commonly exercised by reasonable and
prudent lawyers in this state [citation to state’s highest court]. Lawyers are
not guarantors of a successful result; nor are they required to surpass human
limitations. Lawyers are often called upon to exercise professional judgment
in representing and advising clients. A good faith error in judgment is not
legal malpractice as long as the lawyer’s judgment was reasonable under the
circumstances.
Kamerinsky’s failure was more than an error in judgment, however. The
failure to comply with the filing requirements was readily preventable by
proper legal research. The Medical Malpractice Act creates the Screening
Panel and the requirement of completing the Panel’s hearing process before
suit is filed. The debate and ultimate passage of the Act had been covered by
the press extensively, the Screening Panel requirement being the most
controversial provision of the Act. Even if Kamerinsky was not aware of the
Act from the public press coverage, he certainly should have been aware of
the Act and its requirements as a result of the prominent coverage of the new
requirements by the State Bar Journal and the several Continuing Legal
Education programs that explained the Act’s provisions.
However, no lawyer should rely on press or state bar journalists to keep
apace with statutory changes. Kamerinsky had a duty to conduct thorough
legal research concerning statutory requirements for filing a lawsuit. Filing
lawsuits is something general practitioners are familiar with doing, and it is
well within the area of competence required of all lawyers.
Kamerinsky argues that medical malpractice litigation is a complex and
difficult area of the law and that he, as a novice lawyer, should not be held to
the standard of an experienced litigator. As we established above, researching
and complying with statutory requirements for filing a lawsuit are tasks well
within the standard of practice expected of all lawyers. However, even if they
were not, Kamerinsky cannot undertake representation on a case without
being held to the standard expected of all lawyers practicing in this state. A
lawyer must either decline the representation or meet the appropriate standard
of competence required for the representation. If bringing a medical
malpractice claim requires knowledge or experience that Kamerinsky did not
already have or could not obtain, he had no business accepting the case. All
clients are entitled to at least the minimum standard of knowledge, skill, and
diligence. Further, allowing lawyers to meet a lower standard if they can
demonstrate a lower level of skill or knowledge would not encourage lawyers
to develop their levels of skill, knowledge, and experience.
Judgment affirmed.
Barrymore/Manitoba, 84
Barton v. Mitchell Co., 308–310
Bench trial, 16
Berry/Cox, 119, 136–137
Briefs
argument, 160, 162
appellate, 161–162
case briefs, 31–36, 308–310
case caption, 158–159, 161
certificate of service, 160-161
counter-argument. See Counter-analysis
cover page, 161
ethical responsibilities. See Ethics
fact statement. See Statement of facts
generally, 4, 6–7, 153–162
introduction, 159
jurisdictional statement, 162
opinion below, 162
standard of review. See Standard of review
statement of the case. See Statement of Facts
statutory provisions, 162
summary of argument, 162
table of authorities, 161
table of contents, 161
trial-level, 7, 158–161
Burden of proof, 88-89, 109, 263
Holding
breadth, 19–21
distinguished from dicta, 21–23
generally, 18–19, 27, 32, 34, 35, 88
Legalese, 250
Legislative intent. See Statutes
Letters
advice, 6, 144–145, 301–303
generally, 141–143
Lucy v. Zehmer, 21, 36, 305-307
Lupino/Carrillo. See Carrillo/Lupino
Reasoning
analogical, 53–56, 97–99, 116–120, 185-186
custom-based, 53, 57–58, 113
deductive, 97
inferential, 53, 58–59
narrative. See Narrative
policy-based, 35, 53, 56–57, 88, 97, 99, 108, 113–115, 182, 193-194
principle-based, 53, 57, 97, 113–115, 182
rule-based, 53–54, 97, 113. See also Legal theory
syllogistic, 97
Reconciling opinions. See Authority, synthesizing
Redundancies, 250
References
gender-neutral. See Gender-neutral writing
to parties, 129-130, 132, 164–165, 208–209
shortened forms, 156
Requests for admissions, 7
Request for medical examination, 7
Requests for production of documents, 7
Reply brief. See Briefs
Responsive brief. See Briefs
Roles
generally, 3–4
persuasion, 3–4, 103, 135-136
planning and prevention, 3–4
prediction, 3–4, 103, 135-136
Rule-based reasoning. See Reasoning
Rules
generally, 33–34, 75–84, 87–89
formulating from a case, 33–34
historical development, 90
rule-based reasoning. See Reasoning structures,
balancing test, 77–78
combination, 80
conjunctive, 76
declarative, 79
defeasible, 78-79
disjunctive, 76
factors test, 76–77
generally, 75–84
umbrella, 107–110
Ryan/Kaplan, 93–94, 103
Tabulating, 156
Theory of the case. See Statement of facts
Thesis
paragraphs, 86–87, 139
sentences, 98, 139, 241–244
Threshold issue, 106–107, 169
Throat-clearing, 247–248
Tone, 142–143, 145, 148
Topic sentences. See Thesis
Transitions. See Paragraphs
Trial-level briefs. See Briefs
Watson/Carrolton, 38–40
Weight of authority. See Precedent; Authority
Young/old woman, 100