5th Ed Legal-Writing-And-Analysis-Aspen-Coursebook-Series

Legal Writing
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
Richard K. Neumann, Jr.

Alexander Bickel Professor of Law
Maurice A. Deane School of Law at Hofstra University
Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School
David Alan Sklansky

Stanley Morrison Professor of Law
Faculty Co-Director, Stanford Criminal Justice Center
Stanford Law School
ASPEN COURSEBOOK SERIES
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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Library of Congress Cataloging-in-Publication Data

Names: Edwards, Linda Holdeman, 1948- author.
Title: Legal writing and analysis / Linda H. Edwards, E.L. Cord Foundation Professor of Law, William
S. Boyd School of Law, University of Nevada, Las Vegas.
Description: Fifth edition. | New York : Wolters Kluwer, [2019] | Series: Aspen coursebook series. |
Includes bibliographical references and index.
Identifiers: LCCN 2018042375 | eISBN: 978-1-5438-0517-8
Subjects: LCSH: Legal composition. | Legal briefs—United States.
Classification: LCC KF250 .E378 2019 | DDC 808.06/634—dc23
LC record available at https://lccn.loc.gov/2018042375
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To Frances,
for her unfailing support,
and to Emilie and Katherine,

for the inspiration of their courage
Summary of Contents
Contents
Preface
Acknowledgments
Part One: Lawyers and the Legal Landscape

1. Overview of the Lawyer’s Role
2. The Legal System, the Common Law Process, and Kinds of Authority
Part Two: Reading and Analyzing the Law

3. Briefing and Synthesizing Cases
4. Interpreting Statutes
5. Forms of Legal Reasoning
Part Three: Writing the Discussion of a Legal Question

6. The Writing Process and Law-Trained Readers
7. Large-Scale Organization: Creating an Annotated Outline
8. Small-Scale Organization: Explaining the Law
9. Small-Scale Organization: Applying the Law
10. Discussing Multiple Issues: Putting It All Together
11. Deepening Your Analysis
Part Four: Predictive Writing

12. Writing an Office Memo
13. Writing Professional Letters and Emails
Part Five: The Shift to Advocacy

14. Introduction to Brief-Writing
15. Questions Presented and Point Headings
16. Writing the Argument Section
17. Standards of Review
18. Writing a Fact Statement
Part Six: Style and Formalities

19. Citations and Quotations
20. Paragraphs, Sentences, and Style
Part Seven: Oral Advocacy

21. Oral Argument
Appendices
Index
Contents
Preface
Acknowledgments
Part One: Lawyers and the Legal Landscape

1. Overview of the Lawyer’s Role
I. Writing and a Lawyer’s
Roles
II. Overview of a Civil Case
III. Ethical Duties
IV.Legal Citation
A.Plagiarism
B. When to Cite
2. The Legal System, the Common Law Process, and Kinds of Authority
I. The Structure of Court Systems
A.The Federal Court System
B. State Court Systems
II. The Functions of Trial and Appellate Courts
A.The Functions of Trial Courts
B. The Functions of Appellate Courts
III. The Common Law Process
A.Stare Decisis
B. Holdings
C. The Breadth of Holdings
D.Holdings Versus Dicta
IV.The Weight of Authority
A.Primary Authority Versus Secondary Authority
B. Mandatory Authority Versus Persuasive Authority
C. Other Characteristics Affecting the Persuasive Value of
Cases
Part Two: Reading and Analyzing the Law

3. Briefing and Synthesizing Cases
I. Introduction to Case Briefing
II. A Format for Case Briefing
III.Synthesizing Cases
A.Using Consistent Cases
B. Reconciling Seemingly Inconsistent
Cases
4. Interpreting Statutes
I. Reading Statutes
II. Identifying Issues
III. Interpreting the Statute’s
Language
IV.Canons of Construction
5. Forms of Legal Reasoning
I. Rule-Based Reasoning
II. Analogical Reasoning (Analogizing and Distinguishing
Cases)
III. Policy-Based Reasoning
IV. Principle-Based Reasoning
V. Custom-Based Reasoning
VI. Inferential Reasoning
VII.Narrative
Part Three: Writing the Discussion of a Legal

Question
6. The Writing Process and Law-Trained Readers
I. The Writing Process
II.Law-Trained Readers
A.Focus on the Reader
B. Attention Levels
C. Road Maps
D.Readers as Commentators
E. Judges as Readers
F. Law Professors as
Readers
7. Large-Scale Organization: Creating an Annotated Outline
I. Rule Structures
II.Creating an Annotated Outline
A.The First Level: The Legal Questions You Have Been Asked to
Address
B. The Second Level: Governing Rules
C. The Next Levels: Filling in the Rules
D.Omitting Issues Not in Dispute
E. Uncertainty About Which Rule Your Jurisdiction Will Adopt
F. Annotating Your Outline
8. Small-Scale Organization: Explaining the Law
I. An Overview of the Paradigm for Legal
Analysis
II. Stating the Conclusion
III. Stating the Governing Rule
IV.Explaining the Rule: Five Components
V. Guidelines for Rule Explanation
VI.Organizing a Pure Question of Law
9. Small-Scale Organization: Applying the Law
I. Two Approaches to Writing the Application Section
II. Content of Rule Application
III. Common Trouble Spots in Rule Application
Sections
IV.Evaluating Your Draft
10. Discussing Multiple Issues: Putting It All Together
I. Ordering for Your Reader
A.Accounting for Elements Not at Issue
B. Selecting an Order for the Remaining
Issues
II. Umbrella Sections
III. The Conclusion
IV.Editing Subsection Lengths
V. Variations of the Multi-Issue Paradigm
11. Deepening Your Analysis
I. Using Policies and Principles in Rule Explanation
II. Using Analogical Reasoning in Rule Application
A.Deciding Which Similarities and Differences Are
Significant
B. Choosing a Format for Your Case Comparison
III.Using Factual Inferences in Rule Application
Part Four: Predictive Writing

12. Writing an Office Memo
I. The Function of an Office Memo
II. An Overview of the Memo
Format
III. Drafting the Heading
IV. Drafting the Question Presented
V. Drafting the Brief Answer
VI. Drafting the Fact Statement
A. Fact Selection
B. Organizing the Fact Statement
VII. Drafting the Conclusion
VIII.Writing an Email Memo
13. Writing Professional Letters and Emails
I. General Characteristics of Professional Letter
Writing
II. Advice Letters
III.Emails
Part Five: The Shift to Advocacy

14. Introduction to Brief-Writing
I. Ethics and the Advocate’s Craft
II. Judges, Briefs, and Persuasion
III. The Components of a Trial-Level
Brief
IV.The Components of an Appellate
Brief
15. Questions Presented and Point Headings
I. Writing the Question Presented
II.Point Headings
A.Identifying Point Headings
B. Drafting Point Headings
C. Editing Point Headings for Readability and
Persuasion
D.Identifying Subheadings
16. Writing the Argument Section
I. Arguments for Different Kinds of Legal Issues
A.A Pure Question of Law
B.An Issue of Statutory Interpretation
C.An Issue of Common Law Case Synthesis
D.A Case of First Impression in Your
Jurisdiction
E. Seeking a Change in the Law
F. An Issue Applying Law to Fact
II. Honing Your Argument for the Court’s Role
A.The Trial Judge
B.Appellate Judges and the Appellate Process
III. Reminders About Organization
IV. Using Case Comparisons to Support Your
Argument
V. Rebutting Your Opponent’s Arguments
VI. Using Legal Theory to Sharpen Your Arguments
17. Standards of Review
I. Categories of Trial Court Decisions
II. Advocating for a More Favorable Standard of
Review
III.Conforming Headings to the Standard of Review
18. Writing a Fact Statement
I. Fact Ethics, Readers, and the Conventions of Fact
Statements
A. Fact Ethics
B. The Conventions of a Statement of Facts
II. Developing a Theory of the Case and Selecting Facts
A. Developing a Theory of the Case
B. Selecting and Citing to Facts
III. Organization
A. Formats
B. Procedural History
IV. Techniques for Persuasion
A. General Principles
B. Large-Scale Organization
C. Paragraph Organization
D. Techniques with Sentences
E. Other Small-Scale Techniques
Statement of Facts on Behalf of Carrolton
Statement of Facts on Behalf of Watson
Part Six: Style and Formalities

19. Citations and Quotations
I. Citation in Legal Writing
II. Citation Form
A.Using the ALWD Guide to Legal
Citation
B. Using the Bluebook
C. Several Key Concepts
D.Introduction to Citation Form
E. Matching the Citation to the Text
F. Citing with Style and Grace
G.Editing Citation Form
III.Quotations
A.When Quotation Marks Are Required
B. Choosing to Use Quotation Marks
C. Overquoting
D.The Mechanics of Quoting
E. Editing Quotations
20. Paragraphs, Sentences, and Style
I. Paragraphing
II. Choose Strong Subjects and Verbs
A.Active Voice
B.Nominalizations
C. Throat-Clearing
D. Sentences Beginning with Forms of “It Is” or “There Is”
III. Avoiding Wordiness
A. Revise Phrases That Can Be Replaced by a Single Word
B. Avoid Legalese
C. Avoid Redundancies
D. Avoid Intensifiers
IV. Other Characteristics of Good Style
A. Keeping the Subject and Verb Close Together
B. Avoiding Long Sentences
C. Unnecessary Variations
D. Parallelism
V. Gender-Neutral Writing
A. Techniques for Nouns: Elimination or Substitution
B. Techniques for Pronouns
C. Techniques for Proper Names and Titles
Part Seven: Oral Advocacy

21. Oral Argument
I. The Purpose of Oral Argument
II. Formalities and Organization of Oral Argument
A.Preliminary Formalities
B. The Appellant’s Argument
C. Argument of Co-Counsel for the Appellant
D.The Appellee’s Argument
E. Argument of Co-Counsel for the Appellee
F. Concluding the Argument
G.Rebuttal
III. The Content
A.The Standard of Review
B. The Burden of Proof
C. The Trial-Level Procedural Posture
D.Themes
IV.Preparation
A.The Record
B. Outline Your Argument
C. Prepare Your Folder
D.Script the Entire Opening, the Conclusion, and Your Prepared
Rebuttal
E. Practice
F. Visit the Courtroom
V. Handling Questions from the Bench
A.Anticipate Questions
B. Attitude
C. Recognize Types of Questions
D.Listen Carefully to the Question
E. Clarify the Question
F. Begin with a Clear, Direct Answer
G.Returning to Your Prepared Presentation
H.Handling Questions on Your Co-Counsel’s Issue
I. Handling a Question for Which You Do Not Have an Answer
J. Agreeing When You Can
K.Referring to Earlier Questions or Comments from the Bench
VI.Presentation
A.Dress
B. Body, Hands, and
Eyes
C. Voice
D.References
E. Nervousness
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
guidance is identified throughout the book by this recurring symbol.

Examples and Exercises: Another characteristic of this book is its
frequent use of examples and exercises. For instance, Chapter 1 succinctly
describes the writing roles of planning and prevention, prediction, and
persuasion, and then describes several hypothetical situations asking students
to decide which kind of writing each situation would require. Later in that
chapter, after an introduction to plagiarism and the purposes of citation,
students see examples of when to cite and then read a short legal discussion
and identify the ideas that need citations. This pattern of examples and
exercises continues throughout the book.
Organizing a Legal Discussion: The book explains the standard IRAC
and CRAC paradigms and explains how to use those paradigms in
discussions of multiple issues. The book introduces the structures inherent in
rules and shows students how to use those rule structures to identify issues
and to organize their written discussions.
Flexible Levels: Each major section presents its material at a basic
introductory level so all the core information is concisely grouped. Courses
that have time for a more advanced treatment can also cover optional chapters
that take students deeper into the material. For instance, the core chapters of
Part Two explain briefing and synthesizing cases and interpreting statutes.
This material is presented at a level appropriate for all students. Then, Part
Two concludes with an optional more advanced chapter explaining the major
forms of reasoning lawyers use and providing examples and simple exercises
for that material.
Similarly, in Part Three, the core chapters explain how to organize and
write a legal analysis, including how to analogize and distinguish cases. This
material is presented at a level appropriate for all students. Part Three then
ends with an optional chapter showing students how to broaden and deepen
their analysis in each part of their IRAC or CRAC structure. This chapter can
be assigned as required reading, assigned as optional reading, or omitted
entirely.
Finally, in Part Five, the core chapters explain how to write a trial-level
and appellate brief. These chapters present everything a first-year student
needs to know to write her first brief. Then Part Five ends with an optional
online chapter explaining how a lawyer can use her awareness of a judge’s
legal philosophy to target her argument more effectively. Again, this
supplemental chapter can be assigned as required reading, assigned as
optional reading, or omitted entirely.
The goal of this book is to provide a pedagogically flexible text for basic
legal writing, readily adaptable to fit the needs of any traditional legal writing
course. It presents the fundamentals in a concise, lucid style for first-year
students. It also offers discrete sections of more advanced material that can be
included or omitted at the discretion of the professor. The book includes
ample examples and exercises, which relieve the professor of the burden of
generating such material, but that may nonetheless be supplemented at any
point. It is, in short, a basic text, adaptable to a wide variety of legal writing
programs.
In addition to routine updates and edits, the Fifth Edition is designed to be
more streamlined for today’s law students. To accomplish this, the former
chapter on legal theory and some of the material on rarely assigned letters has
been moved to the book’s website. Other additional material has been
retained, in the text, such as email memos (Chapter 13), the “deep issue”
format for Questions Presented (Chapter 15), and work on analogizing and
distinguishing cases to strengthen persuasion (Chapter 16). Finally, the
citation and quotation material (Chapter 19) has been revised to match the
current editions of the ALWD Citation Manual and the Bluebook.
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
Lawyers and the Legal Landscape

CHAPTER 1
Overview of the Lawyer’s Role
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.
I. WRITING AND A LAWYER’S ROLES

Lawyers write many kinds of documents — court papers, letters, legal
instruments, and internal working documents for the law firm. As different as
these documents are from each other, they all fall into one of three categories
defined by the lawyer’s primary role when writing them: (1) planning and
preventive writing, (2) predictive writing, and (3) persuasive writing. A
lawyer’s writing differs significantly depending on which role the lawyer is
performing.
A LAWYER’S WRITING ROLES

• Planning and Preventive Writing
• Predictive Writing
• Persuasive Writing
Planning and Preventive Writing. Lawyers engage in planning and
preventive writing when they draft transactional documents such as wills,
trusts, leases, mortgages, partnership agreements, and contracts. Planning
documents define the rights of the parties and the limits of their conduct,
much as case law and statutes do for society at large. Thus, planning
documents create what is, in effect, the “law” of the transaction. In some
ways, planning and preventive writing is the most satisfying of the lawyering
roles. Through planning and preventive writing, the lawyer creates and
structures some of the most important transactions and relationships in an
individual client’s life or in the commercial world. Also, with careful
planning, the lawyer can forestall future disputes, and most lawyers would
rather help clients prevent injury than recover for injury.
Predictive Writing. Predictive writing is part of another satisfying task —

client counseling. Clients often seek a lawyer’s advice when they must make
an important decision. To help the client decide, the lawyer must research the
law and predict a legal result.
Lawyers engage in predictive writing in both transactional and litigation
settings. In transactional settings, the lawyer predicts legal outcomes in order
to analyze and prevent possible problems. In litigation, the client and the
lawyer must decide many questions, ranging from relatively routine matters
of litigation management (such as which motions to file) to such fundamental
matters as whether to settle the case. To resolve any of these questions, the
lawyer must predict the legal outcomes of the possible courses of action and
must communicate those predictions to the client or to another lawyer
working on the case.
In predictive writing, the lawyer must analyze the relevant law
objectively, as a judge would do. The most common documents for
communicating predictive analysis are the office memo (addressed to another
lawyer who has requested the analysis) or the opinion letter (addressed to the
client). The lawyer’s goal is to predict the legal result as accurately as
possible, objectively weighing the strengths and weaknesses of the possible
arguments. The answer might not be the answer the client or the requesting
lawyer wants to hear, but it is the answer they need in order to make a good
decision.
Persuasive Writing. Legal problems cannot always be prevented, and

some of them inevitably result in litigation or a proceeding before some other
decision-maker. When that happens, the lawyer takes on a persuasive role.
No matter what result the lawyer might have predicted, the lawyer now must
try to persuade the decision-maker to reach the result most favorable to the
client. The lawyer will marshal the strongest arguments in her client’s favor
and refute opposing arguments. The most common persuasive document is
the brief (also called a memorandum of law).
Although the goals of prediction and persuasion differ, on a fundamental
level predictive (objective) analysis and persuasive analysis cannot be
separated. To predict a result, a writer must understand the arguments each
side would present. To persuade, a writer must understand how the argument
will strike a neutral reader. Thus, as you improve your predictive analysis,
you will be improving your persuasive analysis as well, and vice versa.
Before you go on, turn to Appendix A, which contains a sample office
memo, and to Appendices B and C, which contain sample briefs. We will
study the parts of each document in more detail later. Your goal at this point
is simply to understand the function of each kind of document and to see
what the end products will look like before beginning the process of creating
them.
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.
II. OVERVIEW OF A CIVIL CASE

Because most of your first-year courses focus on reading appellate opinions,
you’ll need an overview of how a civil case proceeds through the litigation
process. This section summarizes the course of a fairly simple personal injury
lawsuit with only one legal claim against only one defendant and raising no
ancillary issues. As you read it, notice how many litigation stages require
legal research and the writing of a legal document (identified by italics), even
in a relatively simple case.
Initial Research. A civil case begins when a client consults a lawyer

about a legal problem. Usually the client has been injured and believes that
his injury was caused by the wrongful conduct of someone else. The client
wants to know whether he has any legal recourse and, if so, whether he
should pursue it.
To decide these questions, the lawyer must gather all the relevant facts
and research the relevant legal issues. Rarely will the lawyer already know all
the law that will be required to answer these initial questions, and the lawyer
might not have time to research all of them herself. She might ask an
associate to research some of them for her. The requesting lawyer will write
file memos to the associate, providing the necessary information and setting
out exactly what she needs to know. After finishing the requested research,
the associate will write an office memo or email memo to the requesting
lawyer, communicating the results of the research.
The first lawyer will review the research, analyze the client’s possible
claims, and provide that analysis to the client. The lawyer and client are
likely to discuss the analysis face to face, but often the lawyer also writes an
opinion letter memorializing the research and her advice. Together the client
and the lawyer decide whether to proceed with the claim.
Initial Negotiation Process. The next step is writing a demand letter to

the party whose conduct appears to have caused the injury (the defendant).
Typically, the demand letter will explain the legal basis for believing that the
defendant’s conduct was wrongful; the legal and factual basis for believing
that the conduct caused the plaintiff’s injury; and the kinds of damages the
law permits in such a case. The lawyer for the defendant will write a response
to the demand letter explaining the legal and factual bases for the defendant’s
defenses. The negotiation process may continue for some time, with
settlement offers and counteroffers communicated by additional settlement
letters between the lawyers and client letters conveying settlement offers.
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.
III. ETHICAL DUTIES

Your legal practice, including your legal writing, will be governed by the
ethical standards your jurisdiction has adopted for lawyers. Every lawyer is
bound by these ethical rules, no matter whether that lawyer is in charge of the
case or working under the direction of another lawyer.1 Most jurisdictions
have adopted a version of either the American Bar Association’s Model
Rules of Professional Conduct or the earlier Model Code of Professional
Responsibility. Sanctions for violation of these rules range from private
censure to disbarment. No matter what your jurisdiction’s ethical rules or
your lawyering role, your legal writing must meet at least the following
professional obligations:
1. Competency. A lawyer must provide competent representation,
including legal knowledge, skill, thoroughness, and preparation.2
2. Diligence. A lawyer’s representation must be diligent.3
3. Promptness. A lawyer must do the client’s work promptly.4
4. Confidentiality. Generally, a lawyer must not reveal a client’s
confidences except with the client’s permission.5
5. Loyalty. A lawyer’s advice must be candid and unbiased, not
influenced by conflicting loyalties to another client, to a third party,
or to the lawyer’s own interests.6
In addition to these general standards, your predictive legal writing must
meet at least the following ethical standards dealing with giving advice:
6. Criminal or fraudulent activity. A lawyer must not advise or assist a
client to commit a crime or a fraud.7 When the client expects
unethical assistance, the lawyer must explain to the client the ethical
limitations on the lawyer’s conduct.8
7. Moral, economic, and political factors. While a lawyer’s advice must
provide an accurate assessment of the law, it may refer also to moral,
economic, social, and political factors relevant to the client’s
situation.9 However, the lawyer’s representation of a client does not
constitute a personal endorsement of the client’s activities or views.10
Finally, your persuasive legal writing must meet at least the following
ethical standards:
8. Statements of law. A brief-writer must not knowingly make a false
statement of law.11
9. Disclosing authority. A brief-writer must not knowingly fail to
disclose to the court directly adverse legal authority in the
controlling jurisdiction.12
10. Statements of fact. A brief-writer must not knowingly make a false
statement of fact or fail to disclose a material fact when keeping
silent would enable the client to commit a crime or a fraud.13
11. Frivolous arguments. A brief-writer must not assert a legal
argument unless there is a non-frivolous basis for doing so.14
12. Communicating with the judge. A brief-writer must not
communicate ex parte15 with a judge about the merits of a pending
case, unless the particular ex parte communication is specifically
permitted by law.16
13. Filing requirements. A brief-writer must not intentionally disregard
filing requirements or other obligations imposed by court rules.17
These ethical standards will apply to your legal writing after you are a
lawyer. They will also apply, directly or indirectly, to the legal writing you
do as a law clerk before you are admitted to the bar. They will be among the
standards by which your legal writing teacher evaluates your law school
writing. Be sure that every document you write meets these standards of
professional responsibility.
IV. LEGAL CITATION

A. Plagiarism
Plagiarism is the act of presenting someone else’s words or ideas as your
own. Most of us first encountered the concept of plagiarism in an academic
environment. There, plagiarism occurs primarily in one or both of these two
situations: (1) failing to attribute an idea to the source from which it was
drawn; or (2) failing to use quotation marks to show that the words
themselves, not just the idea, came from another source. In an academic
setting, authoring a document constitutes a representation that the author is
the source of all ideas and words not otherwise attributed. Thus, in an
academic setting, failure to attribute borrowed words or ideas constitutes
plagiarism. It is both a lie and a theft.
In law practice, the concept of plagiarism can be confusing. Lawyers and
judges often adapt and use, without attribution or quotation marks, language
and ideas drawn from other lawyers’ work. Firms keep form files and brief
banks so documents prepared by one lawyer can be “recycled” by another.
Law clerks write opinions to be signed by their judges. Judges incorporate
into their opinions sections of briefs filed by the parties’ lawyers. Associates
write briefs to be signed by partners. Law publishers publish books of
pleadings and other forms designed to be used nearly verbatim.
Some wonder whether the concept of plagiarism applies at all in a law
practice setting. They argue that writing in law practice does not carry a
representation that the author is the source of all unattributed ideas and
words, especially not when the document is asserting a legal point. In legal
practice, the writer’s goal is not to take personal credit for originating
everything in the document, but rather to serve the client efficiently and well.
The identity of the writer is irrelevant. Proponents of this position argue that
service to a client requires presenting the most effective material in the most
effective manner for the least cost. Thus, they assert, a lawyer’s signature on
a document constitutes only the lawyer’s representation that the document is
not being presented for any improper purpose, including the purpose of
causing needless increase in the cost of litigation; that the legal contentions
are not frivolous; and that any factual contentions or denials are reasonably
supported by the evidence.18
No matter what standards might apply to law practice, however,
remember that your law school writing is being done in an academic
environment where the writing assignment has pedagogical goals rather than
goals of efficiency and economy. The law school project focuses on enabling
the writer to learn and the teacher to evaluate that learning. You must
generate ideas and text on your own so you can learn that skill, and your
teacher must be able to identify your ideas and text to be able to evaluate
them.
Your school’s honor code probably prohibits plagiarism, which it may
define to include conduct resulting either from an intent to deceive or from
“mere” carelessness. Being charged with an honor code violation is serious
business for any student, but especially serious for law students. Soon, you
will be applying for admission to the bar, and most Bar Character and Fitness
Committees ask questions designed to discover whether you have violated
your school’s honor code. Any honor code charge brings a risk that the
proceeding will have to be reported to the Character and Fitness Committee,
that you will have to appear personally to explain the charge, and that your
bar admission will be delayed or denied as a result.
So carefully follow your teacher’s instructions about using material from
another source or working with another student. Be precise in your note-
taking so you can remember where you found the ideas you will use and so
you can distinguish between paraphrases and quotes. Unless you have explicit
instructions to the contrary, do not use the words or ideas of another without
proper attribution and, where appropriate, quotation marks.19
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).
WHEN TO USE CITATIONS

1. When you assert a legal principle.
Example:
To recover under an implied warranty of habitability, a tenant must show
that she gave the landlord notice of the defect and allowed time for its
correction. King v. Moorehead, 495 S.W.2d 65 (Mo. Ct. App. 1973).
2. When you refer to or describe the content of an authority.
Example:
In a leading case, the leased premises had faulty sewer pipes, defective
wiring, and crumbling ceilings. Hilder v. St. Peter, 478 A.2d 202 (Vt.
1984).
3. When you quote.
Example:
An earlier court had observed that today’s tenants “seek a well known
package of goods and services — a package which includes not merely
walls and ceilings, but also adequate heat, light and ventilation, serviceable
plumbing facilities, secure windows and doors, proper sanitation, and
proper maintenance.” Javins v. First Nat’l Realty Corp., 428 F.2d 1071,
1074 (D.C. Cir. 1970).
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.
1. Model R. Prof. Conduct 5.2 (2013).

6. Model R. Prof. Conduct 1.7 and 2.1 (2013).
7. Model R. Prof. Conduct 1.2(d) (2013).
8. Model R. Prof. Conduct 1.4(a)(5) (2013).
10. Model R. Prof. Conduct 1.2(b) (2013).
13. Model R. Prof. Conduct 3.3(a)(1) and (2) (2013).
15. Ex parte, in this context, means without notice to other parties in the litigation.
17. Model R. Prof. Conduct 3.4(c) and 3.2 (2013).
18. Fed. R. Civ. P. 11(b) (2018).
19. See Chapter 19 for a discussion of when quotation marks are appropriate.
20. Modified from Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 61–62
(Aspen 4th ed. 1995).
CHAPTER 2
The Legal System, the Common

Law Process, and Kinds of
Authority
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.
I. THE STRUCTURE OF COURT SYSTEMS

Each state has its own court system, and each state also participates in the
federal court system. Federal courts have jurisdiction (authority) over cases
entrusted to them by the constitution or by federal statutes. For the most part,
these are cases raising issues of federal law1 and cases involving parties from
different states when the damages exceed $75,000.2 State courts also have
subject-matter jurisdiction over many of the same cases, so a plaintiff may be
able to choose the court system he or she prefers. We will begin with an
overview of the federal court system because it operates in the same way in
each state.
A. The Federal Court System
The federal court system has three levels. Litigation usually begins in the
United States District Court, which is the trial court of general jurisdiction3 in
the federal system. A federal district court may have a number of judges, but
normally a proceeding is heard by only one judge. Other judges of that court
are busy in other courtrooms hearing other cases.
Each state has at least one federal district, and many have two or more.
For instance, California has four districts: the Southern District, the Northern
District, the Eastern District, and the Central District. The full name for the
federal trial-level court located in Los Angeles is the United States District
Court for the Central District of California. The first four words of that long
title identify the court as the trial-level federal court. The remaining words
identify the court’s particular district.
A district court’s decision may be appealed to the intermediate appellate
court, the United States Court of Appeals. Normally, an appeal is heard by a
panel of three judges, but occasionally a case might be heard by all of the
judges of that court. In such a case, we say that the court heard the case en
banc.
For purposes of this intermediate appellate level, the country is divided
into thirteen circuits. The First through the Eleventh Circuits cover multistate
areas.4 For instance, decisions appealed from the federal district court in Los
Angeles would be heard by the United States Court of Appeals for the Ninth
Circuit. Decisions appealed from the federal district court in New York City
would be heard by the United States Court of Appeals for the Second Circuit.
The first five words of this long title identify the court as the intermediate
federal appellate court. The remaining words identify the court’s particular
circuit.
Figure 2-1 shows the geographic jurisdictions of the federal circuit courts
of appeal.
Some federal cases ultimately are appealed to the United States Supreme
Court, the highest appellate court in the federal system.5 The United States
Supreme Court reviews only a fraction of the cases decided by the federal
circuit courts each year. At the level of the Supreme Court, some preliminary
matters are decided by one justice or a panel of justices, but cases receiving
full review are heard by all the justices of the Court.
B. State Court Systems
State court systems resemble the federal court system in many respects.
Litigation usually begins in a trial court of general jurisdiction.6 The names
of these trial courts vary from state to state, but common names for them are
district courts, circuit courts, courts of common pleas, or superior courts.
Most states have at least one intermediate appellate court. Larger states
have several, whose jurisdiction is defined geographically, much as in the
federal system. At the intermediate level, most appellate cases are decided by
panels of an odd number of judges, often three. Some cases, however, are
heard en banc, either initially or after a decision by a panel.
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.
A. The Functions of Trial Courts

A trial court has two primary functions: deciding what law applies to the case
and deciding who did what to whom. In other words, a trial court decides
questions of law and questions of fact.
A court decides a question of law when it decides what the law of that
jurisdiction says about a legal question. Does the law allow relief for what the
defendant is alleged to have done? What kind of evidence does the law
permit the court to consider? What kind of relief is the court permitted to
grant? These are pure questions of law. They can be answered solely by
doing legal research in the law library. To decide them, the court need not
decide anything about what actually happened to these parties. The court
need only decide what the law will require if a particular set of facts turns
out to be true.
A court decides a question of fact when it decides what actually happened
in this case. Did Smith strike Jones? Did Kerry sign the document? Did
Newman pull into the right lane? These are pure questions of fact. They
cannot be answered by doing research in the law library. To decide them, the
court must listen to the testimony, examine the documents and other exhibits,
and decide what happened to these parties.
Questions of fact can be decided by a judge or by a jury. If the case is
tried to a jury, questions of fact are decided by the jury, not the judge.8 If the
case is a bench trial (that is, a case tried to the judge without a jury), decisions
on questions of fact are made by the trial judge. Either way, however,
questions of law are decided by the trial judge, not a jury.9
B. The Functions of Appellate Courts

A trial court’s decision usually can be appealed to a higher court. The party
who appeals (the appellant) cannot simply ask the appellate court to decide
the entire case again. The appellant must identify the particular question(s) to
be reviewed. Generally, a party seeks appellate review of a question of law or
a question of fact.10
Because the trial court had the opportunity to observe the witnesses
firsthand, the trial court’s decision on pure questions of fact will not be
disturbed on appeal unless the decision is clearly erroneous. In essence, to
reverse a trial court’s factual finding, the appellate court must believe that no
reasonable interpretation of the evidence would support the trial court’s
decision. Thus, reversals on pure questions of fact are unusual.
The situation is different for questions of law. On a question of law, the
appellate court is free to decide that the trial judge’s understanding of the law
was wrong. Because it is a higher court, an appellate court’s decision on
questions of law supersedes the trial judge’s opinion. Most reversals involve
questions of law.
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.”
III. THE COMMON LAW PROCESS

The American legal system is a direct descendant of the English legal system
that began to develop in 1066, with the Norman invasion of Britain. The most
significant characteristic of this Anglo-American legal system is its reliance
on the common law process, that is, the process by which judges “make” law
and then adhere to this judge-made law. To understand how the common law
process functions, we must examine four closely related concepts: the
doctrine of stare decisis, an opinion’s holding, the breadth of a holding, and
the distinction between a holding and dicta.
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.
C. The Breadth of Holdings

One of the ways holding statements can differ is in breadth. Consider again
our hypothetical torts case, Cantwell v. Denton. The holding statement above
is stated narrowly. It describes the holding as applying to fathers who are
choosing between entering a burning building and failing to save the lives of
their children. It does not tell us whether the rule would apply to persons
other than fathers, to situations other than burning buildings, or to saving
people other than children. It certainly tells us nothing about whether the rule
would include saving property rather than lives.
But you might need to argue on behalf of a client in one of those
situations. For instance, assume that your firm is representing Mr. and Mrs.
Gregory in litigation against Jerico Autoworks, an auto repair business. Jerico
advertised oil changes completed in twenty minutes “while you wait.” One
Saturday, the Gregorys put a turkey in their oven, set the temperature for 325
degrees, and left for town to have Jerico change the oil in their car. Jerico
completed the job and turned the car back over to the Gregorys. The
Gregorys paid Jerico and began driving the rural road toward their home.
They were only halfway home when they noticed the internal engine heat
beginning to climb. They realized that they were running low on oil and
surmised, correctly as it turned out, that Jerico had not sufficiently tightened
the oil plug. But they also realized that the turkey in their oven was nearly
done. They knew that this rural road was traveled so infrequently that the
odds were small that they would be able to flag another driver and get home
before the burning turkey might cause a fire in their kitchen.
They decided to drive on in the hope that they could get home before their
kitchen burned. The Gregorys got close enough to walk the rest of the way
and so saved their kitchen, but at the cost of serious engine damage. Your
firm has sued Jerico on behalf of the Gregorys, and Jerico has raised the
defense of assumption of the risk based on the Gregorys’ decision to continue
driving.
An attorney in your firm has asked you to write a brief arguing that the
decision to continue driving should not be considered an assumption of the
risk. Assume that your only authority is Cantwell v. Denton. Suppose you
stated the holding of Cantwell as we did above, that is:
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.
This holding statement would not tell a court much about whether the
Gregorys’ decision would constitute assumption of the risk. Can you state the
holding more broadly? Whether you will be able to formulate a broader
holding statement will depend largely on the court’s language in Cantwell.
Most opinions will contain at least several paragraphs explaining the court’s
decision, and this language might help you formulate a broader holding.
Assume you find these paragraphs in the Cantwell opinion:
A father’s choice to enter a burning building is not voluntary where he must choose
between entering the building and failing to save his child. The bond between a parent and a
child is the strongest human bond. In situations that otherwise would constitute assumption
of the risk, the law should not penalize a plaintiff for fulfilling the duties of a parent to a
child.
Further, our law places the highest value on human life, and the highest form of
courage is to risk one’s own life in an attempt to save the life of another. The doctrine of
assumption of the risk was not designed to penalize one who demonstrates this kind of
courage.
We must remember, after all, that it was the defendant’s negligence that placed the
plaintiff in the position of having to choose between the threatened harm and an option of
equal or greater evil. A defendant cannot subject the plaintiff to such a Hobson’s choice and
then defend against his own negligence by pointing to the plaintiff’s decision.
If the Cantwell opinion contains this language, could you formulate a

broader holding? What holding might you formulate if you focus primarily
on the first paragraph? What if you focus primarily on the second paragraph?
The third? Which paragraph would allow you to formulate a holding that will
accommodate the Gregorys’ concern about their kitchen?
The first paragraph grounds the result in the particular obligations of a
parent to a child. From that paragraph, you could formulate a holding that
applies to parents, not just fathers. You might even be able to formulate a
holding that would apply to property damage if protection of the property
was a clear parental duty. But the Gregorys’ dilemma did not involve parental
duty, so the holding you could formulate from the first paragraph would not
help the Gregorys very much.
The second paragraph grounds the holding in the special value we place
on trying to save human life. From that paragraph you could formulate a
holding not limited to a parental obligation, but it still might not cover
property damage.
The third paragraph, however, grounds the holding in the observation that
the defendant’s negligence has caused the necessity to choose between two
bad options. That paragraph describes the situations that call for this result as
those in which the defendant’s negligence has forced the plaintiff to choose
between the threatened harm and an equal or greater harm. The third
paragraph would allow you to formulate a broader holding like this:
Figure 2-2
Situations covered by each rule formulation
Holding Assumption of the risk requires a voluntary choice. When

the defendant’s negligence forces the plaintiff to choose
between the threatened harm and another equal or greater
harm, the plaintiff’s choice is not voluntary.
Figure 2-2 demonstrates how this broader holding statement would allow the
Gregorys to argue that their decision to continue driving did not constitute
assumption of the risk.
We have seen in this section that case analysis is inherently subjective. It
is no wonder that holding statements differ so widely from each other. At
first, you might find this subjectivity unnerving, but it provides lawyers with
wonderful opportunities for advocacy on behalf of clients. In the practice of
law, you will find that you are grateful for it.
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.
1. An item must be physically delivered unless physical delivery would be

impracticable.
2. An item locked in a safe deposit box in a bank closed for the weekend
need not be physically delivered.
3. A small, light, freely accessible item must be physically delivered to
complete a valid gift.
4. To constitute a valid gift of personal property, the donor must manifest
his intention to make the gift.
IV. THE WEIGHT OF AUTHORITY
No doubt you already have noticed many different kinds of authorities cited
in the cases you are reading and in the note material in your case books.
Some of these authorities are actually “law,” and some are not. Some of them
would bind a particular court, and some would not. Some would trump
another authority, and some would not. The principles that govern these
questions are critically important for your understanding of law.
A. Primary Authority Versus Secondary Authority

The first important distinction among authorities is the question of which
actually constitute “law.” Some do, and some are simply commentary on the
law or suggestions about what the law ought to be. Authorities that actually
constitute law are called “primary authorities.” Authorities that merely
explain or comment on these primary authorities are called “secondary
authorities.”
Primary authority is created by an entity that has the legal power to create
law, and it takes one of the forms used to create law. Four basic kinds of law
exist: (1) federal and state constitutions, (2) case law, (3) statutes, and (4)
regulations or rulings issued by governmental agencies. Situations to which
Michigan law applies will be governed by the Michigan Constitution and by
the statutes the Michigan legislature enacts. They will be governed by the
case law the Michigan courts create. They will be governed by the
administrative law the Michigan state agencies create. They are also
governed by applicable federal constitutional provisions and federal case law,
statutes, and administrative law. All of these sources are primary authority.
Secondary authority comes in many forms. You might have encountered
some secondary sources already, such as treatises or hornbooks on particular
subjects, legal encyclopedias, or law review articles. These sources are
created by private individuals, organizations, or businesses. They could help
you locate primary authority or understand it better once you have found it.
For some, respect for the author or for the drafting process might persuade a
judge to defer to the source’s content, but those private individuals,
organizations, or businesses do not have the authority to create law. Thus, a
court is not required to follow it.
Relationships Among Primary Authorities. Each jurisdiction has a
constitution, a set of statutes, a body of case law, and a body of
administrative regulations. The relationships among these primary authorities
are, in a sense, hierarchical. Applicable constitutional provisions constrain all
other authorities. Thus, a state statute or case opinion found to violate that
state’s constitution will not be followed. Properly enacted statutes constrain
both case law and administrative regulations or rulings. Thus, a judge must
follow a properly enacted statute and may not simply disagree and rule
according to her own views. The court does, however, have the authority to
interpret the meaning of a constitutional provision or a statute and to decide
whether it applies to the situation before the court. The ability to interpret the
text and decide whether it applies gives the courts broad powers to define
even statutory law. Case law constrains an administrative agency. The agency
cannot decline to follow an applicable binding court decision.
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?
B. Mandatory Authority Versus Persuasive Authority

In our discussion of primary authorities, we identified what is actually law,
but not all primary authorities will bind every court. To decide which primary
authorities will bind a particular court, we must explore another distinction
— the distinction between mandatory and persuasive authority. An authority
is mandatory in a particular court if it binds that court. An authority is merely
persuasive if it does not bind that court. The judge may choose to be
persuaded by it, but the judge has a choice.
For instance, an Iowa case would not bind a Texas trial court on an issue
of Texas law. The Texas court may find the Iowa opinion persuasive, perhaps
because of the strength of its reasoning or because the judge who wrote the
opinion is particularly well respected, but the Texas court would not be
required to follow it. Thus, in the Texas trial court, the Iowa opinion would
be persuasive authority, not mandatory authority.
On the other hand, an applicable opinion of the Texas Supreme Court
would bind the Texas trial court. The Texas Supreme Court is the highest
appellate court in the state, and the Texas trial court is bound to follow a
Texas Supreme Court opinion absent some reason to think that the opinion is
no longer viable. Thus, the Texas Supreme Court opinion is mandatory
authority for the Texas trial court. Similarly, a Texas statute would be
mandatory authority for any Texas court. Here are the basic principles for
identifying mandatory case authority, divided according to whether the issue
is a matter of state law or federal law:
On issues of state law, the decisions of a state’s highest court are
mandatory authority for all other courts of that state as well as for all federal
courts applying that state’s law. It might surprise you to learn that federal
courts can be bound by state courts. However, a state’s highest court has the
ultimate authority on matters of that state’s law. No federal court, not even
the United States Supreme Court, can control the state’s highest court on
matters of that state’s law.
Decisions of a state’s intermediate appellate courts are binding on trial
courts within the geographic boundaries of the intermediate appellate court’s
jurisdiction. In many states, the decision of an intermediate appellate court
also binds any trial court whose own intermediate appellate court has not
ruled on the issue. Decisions of federal courts or courts from other states are
persuasive but not mandatory on matters of state law.
On issues of federal law, decisions of the United States Supreme Court
are binding on all federal and state courts in the country. Decisions of the
applicable intermediate federal appellate court are binding on all federal
district courts in that circuit. Decisions of other circuits are persuasive only.
Decisions of federal intermediate appellate courts and federal trial courts
on issues of federal law are not mandatory authority for state courts.
However, as a practical matter, state courts generally give the opinions of
those courts significant weight. This is particularly true of state courts within
the geographical boundaries of the particular federal court.
EXERCISE 2-5
Gauging the Relative Weights of Authorities
Your firm represents Kay Lang, who sold a piece of commercial property
located in Los Angeles to Adam Kornfeld. Kornfeld claims that Lang failed
to disclose to him the true condition of the property, and he has filed suit
against her for damages in the state trial court. You are researching whether
under California law a seller of real property has a duty to disclose to the
buyer the condition of the property.
You have found the following authorities: (1) Which are primary
authorities? (2) For each authority, describe the precedential value it likely
will carry for the dispute between Kornfeld and Lang. Use the following
choices: binding; very persuasive; moderately persuasive; slightly persuasive;
no persuasive value.
A. An opinion of the California Supreme Court deciding the duty of a seller
to disclose to the buyer the condition of the property;
B. An article in the University of California at Los Angeles (UCLA) Law
Review discussing the applicable California rule on the seller’s duty to
disclose to the buyer the condition of the property;
C. An opinion of the United States Court of Appeals for the Ninth Circuit
applying the applicable California rule on the duty of a seller to disclose
to a buyer the condition of the property;
D. A California statute on the duty of a seller to disclose to a buyer the
condition of the property;
E. An opinion of another California state trial court applying the California
rule on the duty of a seller to disclose to a buyer the condition of the
property;
F. A section from a California legal encyclopedia explaining the applicable
California rule on the duty of a seller to disclose to a buyer the condition
of the property; and
G. An opinion of the United States Supreme Court applying the California
rule on the duty of a seller to disclose to a buyer the condition of the
property.
C. Other Characteristics Affecting the Persuasive Value of

Cases
The degree of deference a court will give to any particular case will be
affected in more subtle ways by additional factors, including the following:
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.
The strength of the opinion’s reasoning. A well-reasoned opinion is

more persuasive than a poorly reasoned one. An opinion that explains the
rationale of the decision is more persuasive than one that simply applies
existing legal authorities without exploration of the policy rationale.
The subsequent treatment of the opinion by other authorities. The more

the case has been followed by subsequent cases, the greater its precedential
value. The more it has been discussed approvingly in treatises or law review
articles, the greater its precedential value.
The number of other jurisdictions that follow the same approach. If a

majority of jurisdictions follow this court’s approach, the opinion’s
precedential value is increased. We refer to the approach of the majority of
jurisdictions as the “majority rule” and to a minority approach as the
“minority rule.”
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 number of subscribing judges. Most federal intermediate-level

appellate cases are decided by a panel of the court, often three judges. Far
less frequently, a case will be decided by all judges of that court (the court
sitting en banc). En banc opinions are binding on future panels of the same
court. Other courts generally find them more persuasive than panel decisions.
Unanimous opinions are more persuasive than split decisions. A majority
opinion generally is more persuasive than a concurring opinion, which is in
turn more persuasive than a dissenting opinion.
Be careful with concurring or dissenting opinions. If the statement of law
you are interested in is part of a disagreement between the concurring or
dissenting opinion and the majority opinion, the statement in the concurring
or dissenting opinion might actually establish that what it says is not the law.
After all, the opinion is disagreeing with the majority opinion on that point
(or agreeing for different reasons), and it is the majority opinion that
establishes the law.
En banc opinion An opinion issued in a case that was heard

by all of the judges of the court.
Majority opinion An opinion subscribed to by a majority of
the judges who heard the case.
Concurring opinion An opinion that agrees with the result
reached by the majority opinion but for
reasons different from or in addition to
those of the majority opinion.
Dissenting opinion An opinion that disagrees with the result
reached by the majority opinion.
Whether the opinion is published. If the opinion does not appear in an

official collection of published opinions (an official case reporter), it is not
“published.” In some jurisdictions, the precedential value of an unpublished
opinion is limited or nonexistent. Be sure to check relevant court rules on this
point.
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.
1. 28 U.S.C. § 1331 (2012).

2. 28 U.S.C. § 1332(a) (2012).
3. A court of general jurisdiction is a court whose jurisdiction is not limited to certain kinds of
cases. A court whose jurisdiction is limited is called, not surprisingly, a court of limited jurisdiction. An
example of a federal court of limited jurisdiction is the United States Tax Court, which may hear only
federal tax cases.
4. The other two circuits are the United States Court of Appeals for the District of Columbia, which
hears appeals from the District of Columbia, and the United States Court of Appeals for the Federal
Circuit, which hears appeals from certain specialized federal courts.
5. The United States Supreme Court can also hear cases from a state’s highest appellate court, but
only when the state court’s ruling was based on federal law.
6. Specialized courts (courts of limited jurisdiction) exist for hearing such matters as juvenile cases,
probates of estates, cases alleging small damage amounts, and housing issues.
7. New York is a notable exception. There, the trial court is called the Supreme Court. The
intermediate appellate court is called the Supreme Court, Appellate Division. The highest appellate
court in New York is called the Court of Appeals.
8. A trial judge can, however, change a jury’s factual findings if no reasonable understanding of the
evidence could have resulted in the jury’s findings. Thus the judge acts as a safety net protecting
against a jury that has disregarded the evidence.
9. A third category exists: a mixed question of law and fact. We will explore this category in
Chapter 17. For our purposes here, it is enough to understand the distinction between pure questions of
law and pure questions of fact.
10. We will explore this subject in more detail in Chapter 17’s discussion of standards of review.
11. The full term is obiter dictum, literally meaning “a remark made in passing.” “Dictum” is
singular; the plural form is “dicta.”
PART TWO
Reading and Analyzing the Law

CHAPTER 3
Briefing and Synthesizing Cases
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
I. INTRODUCTION TO CASE BRIEFING

A case brief is a method for reading, analyzing, and making notes about a
case. Formats and preferred methods for case briefing vary widely, partly
because case briefs are personal study tools. People process information
differently, so they develop personalized study methods that best
accommodate their own learning styles.
Briefing formats differ also according to the legal task to be performed.
When you brief a case for your torts class, your most immediate goal is to be
ready to answer classroom questions about the case. Your torts professor
might have given you a format to use, or you might be able to devise your
own format based on the kinds of questions your professor tends to ask.
When you brief cases for a legal writing assignment, however, your
purpose is different in several ways. First, you have a hypothetical client with
a set of facts and a specific legal question to answer. Having a discrete task
means you can focus your case brief on the aspects of the case most
applicable to your client’s facts. Second, you will be reading many cases on a
particular legal point, not just one or two. Your assignment will require you
not only to understand the case you are reading, but also to understand how it
relates to a number of other cases on the same point. That means you’ll need
to notice additional features about the case. Third, you will be writing a
document (perhaps an office memo or a memorandum of law) describing the
case and referring to its language. Therefore, you will need to be able to find
the case again, and you will need to take more careful notes about the parts
you anticipate describing in your office memo or memorandum of law. These
notes will save you time when you are writing, and they will save you from
committing plagiarism.2
The following section sets out a suggested format for briefing the cases
you read as part of your legal writing assignment. You might find that much
of this format also works well in your other courses. The key is to remember
that case briefing is a personal study tool, so adapt the format freely to fit
your own learning style and your particular analytical task.
II. A FORMAT FOR CASE BRIEFING

Read the case through once before you start to write, perhaps underlining or
highlighting key language. Then read the case again, this time making the
following notations:
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.
Procedural History. The procedural history is the story of the case’s

progress through the litigation process. If the case is on appeal, include the
procedural posture of the trial court decision being appealed, such as a
decision on a motion to dismiss, a motion for summary judgment, a jury
verdict, or a judgment after a bench trial.
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.
If the issue relates to how a term in a statute will be defined or applied,

your brief should identify the statutory language at issue. A good place to do
that is here in the issue statement, for example:
Whether the “nighttime” element of the burglary statute is satisfied if the

entry occurred twenty minutes before sunrise.
Applicable Rule(s) of Law. This section will help you begin to

understand the legal principles (rules of law) governing your issue. A rule of
law is a statement of the legal test the court will apply to resolve a legal issue.
Here is an example of a governing rule of law for deciding the will revocation
issue:
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.
Holding(s). As we saw in Chapter 2, the holding is the court’s decision on

the particular legal issue plus the important facts — the facts that seem to
make the most difference for the result. If your issue statement included a
sufficient description of the key facts, you need not repeat those facts in the
holding statement. If not, include facts in the statement of the holding. The
combination of your issue statement and your holding statement should
include the key facts and the court’s decision on the legal issue. For example:
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.
New Information. This category is optional, but it can be especially

helpful when you are working on a legal writing assignment. It provides a
place to record what you learned about the rule or its application that you did
not know before you read this case. Notice especially anything about this
case that could apply in some way to your assignment. Perhaps this opinion
modified or expanded the rule. Perhaps the court discussed a part of the rule
you have not seen discussed so thoroughly before. Perhaps the court phrased
the governing rule in a way particularly helpful to your client’s facts. Perhaps
the opinion explains the historical developments in this area of the law. You
will notice more information in the opinion if you consciously look for new
information, and you will be better able to use that information in your
assignment if you have made note of it in your case brief. Here are some
tools that will help you find new information about a rule:
1. Notice what the court said about the rule. In most opinions, the author
gives the reader some explanation of the rule before applying it to the facts of
that particular case. Here, the author’s primary goal is to tell the reader about
the rule. Begin with this part of the opinion. The court’s explicit explanation
of the rule gives you the most basic new information from the case.
2. Notice how the court applied the rule. After noticing what the court
said about the rule, look at how the court applied the rule to the facts before
it. You might expect an opinion to state and explain a rule of law and then to
apply that rule of law exactly as the opinion just explained it. Often, that is
exactly what happens. But sometimes the court’s application of the rule
differs from the court’s explanation of it. One of the best ways to understand
the rule is to observe how the court applied it. A court “holds” what it does,
not what it says.
3. Notice how the court did not apply the rule. After you have observed
how the court applied the rule, ask yourself how the court did not apply it. A
court’s unexplained silence rarely can be characterized as a binding rule of
law. However, judicial silence can have persuasive value if the most likely
reason for the silence is that the ignored topic is not a part of the relevant
legal analysis. For instance, in a child custody case, if the facts state that one
spouse is Christian and one spouse is Muslim but the opinion does not
mention religious differences, you might be able to infer that religious
differences will not be relevant to custody decisions.
After all, your goal here is to figure out what rule was governing the
judge when deciding the case and how that rule would apply to your client’s
facts. If you are wondering whether a certain fact true of your client’s
situation would affect the outcome, ask yourself whether that kind of fact
seemed to affect the judge’s ruling in the earlier case.
4. Notice any facts the court emphasized. When a court sets out the facts
or applies the law, it sometimes emphasizes a certain fact. Usually, the
opinion will explain why the fact is important, but even without explanation,
the opinion’s emphasis on the fact implies that the judge found it legally
significant.
5. Find out what leading commentators have said about the case. Case
opinions actually make law, but a wealth of secondary authorities exist. As
we saw in Chapter 2, secondary authorities are explanations of the law
written by legal commentators. Secondary authorities have persuasive value,
depending on factors such as the reputation of the author, the level of detail
of the discussion, and the recency of the writing. If you are working with a
well-known and influential case, commentators might have discussed it.
Finding secondary authority can help you understand the case and its
significance for your assignment.
Questions, Comments, and Speculations. Finally, note any questions,

speculations, or thoughts of your own about the case and how it might apply
to your assignment. It is common to have passing thoughts and questions as
you read a case. These thoughts, speculations, and questions are the first steps
toward a clearer understanding of the applicable law and how it might apply
to your client. If you do not record them, you are likely to forget them.
A Sample Case Brief

A sample case brief appears in Appendix E, along with the case itself.
Read the case and the case brief.
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.
III. SYNTHESIZING CASES

Case briefing will help you understand a single case, but a lawyer faced with
multiple authorities must do more than analyze each authority separately.
Such a discussion would be little more than reading a series of case briefs.
Instead, she must explain how the cases fit together to create the law
governing her client’s issue. She must compare the authorities to find and
reconcile any seeming inconsistencies and to combine the content of the
authorities so she can present a unified statement of the governing rule of
law. Therefore, after you have identified the cases that will be important to
your analysis, you must consider how they fit together. This process is called
“synthesizing” cases.
A. Using Consistent Cases

Sometimes the cases will use similar language to state the governing rule and
will apply that rule consistently. Or perhaps some jurisdictions follow one
rule and others follow a different rule. However, the cases within each
jurisdiction are consistent with each other. In either of these situations, it will
not be difficult to combine the language of the cases into one explanation of
the law with a consistent explanation of how the courts have applied it.
Simply identify the points you want to make about the law and its
application, and select and discuss the cases that best illustrate each point.
Usually those points will include each element or factor and may include
other observations about how the rule is usually applied. For example, recall
our rule on whether a person had effectively revoked her will:
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.
B. Reconciling Seemingly Inconsistent Cases

Cases in the same jurisdiction are not always consistent, however. If you find
seemingly inconsistent cases in the same jurisdiction, and if these cases be
important for your analysis, you must try to reconcile them. Reread carefully
all of the language in both opinions, and also look for later cases that might
resolve the inconsistency. Even if the later cases do not mention the
inconsistency, these later cases will probably articulate and apply a rule. As
you study the way these later cases articulate and apply the law, you will
probably find clues about how to reconcile the cases.
One possibility is that the later case implicitly overruled the earlier case.
As we saw in Chapter 2, a court can overrule an earlier opinion implicitly by
ignoring it while reaching an inconsistent result. Another possibility is that
the seemingly inconsistent legal rules are meant to apply to different
situations. Perhaps one rule is meant to be an exception to the other. In either
case, the rule in one of the cases will apply to your client’s situation and the
other will not. This explanation handily resolves the inconsistency. Analysis
that leads to a conclusion that the two opinions apply to different situations is
called “distinguishing” cases.
Finally, you might be able to study the language of each opinion and find
meanings in the text that will allow you to read the two cases consistently.
Identify the seemingly inconsistent aspects of the opinions. Then reread the
opinions carefully, exploring whether you can imagine a possible explanation
that would reconcile the statements.
Inconsistencies in Rule Statements. Cases can seem inconsistent because
they appear to state two different legal rules. For instance, assume that a
lawyer is representing Sharon Watson, a sales employee of Carrolton
Company, headquartered in Atlanta, Georgia. Watson had sold Carrolton to
its present owners. She remained employed by Carrolton and signed a
covenant not to compete, an agreement promising not to compete with
Carrolton in certain ways for a certain period of time after the termination of
her employment. Watson is considering leaving Carrolton to form a new
business that would compete with Carrolton. She needs to know whether
Carrolton would be able to enforce the covenant against her.
The lawyer researches the issue and finds Coffee System of Atlanta v.
Fox4 and Clein v. Kapiloff,5 two Georgia cases dealing with enforcement of
covenants not to compete. In Fox, the court uses the following language to
articulate the rule governing when a covenant is enforceable:
A covenant not to compete is enforceable if all of the following elements

are reasonable: the kind of activity restrained; the geographical area in
which it is restrained; and the time period of the restraint.
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:
A covenant not to compete is enforceable if it is reasonable. The test for

determining reasonableness is whether the covenant is reasonably
necessary to protect the interests of the party who benefits by it; whether it
unduly prejudices the interests of the public; and whether it imposes
greater restrictions than are necessary.
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:
Is the Watson covenant not to compete enforceable?

1. The rule in the Fox case: The covenant is enforceable if
a. the kind of activity restrained is reasonable;
b. the geographical area of restraint is reasonable;
c. the duration of the restraint is reasonable.
2. The rule in the Clein case: The covenant is enforceable if
a. it is reasonably necessary to protect the employer’s interests;
b. it does not unduly prejudice the interests of the public; and
c. it does not impose greater restrictions than are necessary.
This approach is problematic, however. The lawyer needs to know

Georgia’s rule of law on enforcing covenants not to compete. Determining
Georgia’s rule is the most important analytical task. Organizing by the
separate cases here would give the client two possible rules and two possible
outcomes. Yet our legal system contemplates that a jurisdiction ordinarily
will have only one rule of law on a particular issue so people can know what
the law is and how it will apply to their conduct.
The lawyer must try to reconcile these seemingly inconsistent statements
in Fox and Clein. After rereading the cases several times and carefully
considering the court’s possible meanings, the lawyer might conclude that the
language in Fox identifies the particular terms that must be reasonable while
the language in Clein identifies the criteria the court will use to judge whether
those terms are reasonable. In other words, each contract term (kind of
restraint, area of restraint, and duration of restraint) must meet the three
criteria identified in Clein. This reconciliation salvages precedential value for
each case and combines them into one unified statement of the jurisdiction’s
legal rule. Here is a rule statement that reconciles Fox and Clein:
A covenant not to compete is enforceable if the kind of activity restrained,

the geographical area of the restraint, and the duration of the restraint are
reasonable. Reasonableness is judged according to whether the restraint is
necessary to protect the employer’s interests, does not unduly prejudice the
interests of the public, and does not impose greater restrictions than are
necessary.
This reconciled rule statement might produce an analysis organized like

this:
Is the Watson covenant not to compete enforceable?

The covenant is enforceable if its terms are reasonable according to the
following criteria:
A. Are its terms necessary to protect the employer’s interests?
1. The kind of activity;
2. the geographical area;
3. the duration.
B. Do its terms unduly prejudice the interests of the public?
3. the duration.
C. Do its terms impose greater restrictions than necessary?
3. the duration.
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.
Bell v. Grackin (state’s highest appellate court, 1959)
Facts. A piece of wire was lying in a neighbor’s yard. A child walking by

saw the wire and went into the yard to get it. As he was playing with the wire,
the child bent it and then let it go. The wire recoiled, hitting the child in the
eye. The child sought recovery from the neighbor based on the doctrine of
attractive nuisance. The court denied recovery, stating:
The doctrine underlying the attractive nuisance cases applies only where the instrument or
artificial condition is within itself inherently dangerous even while being used properly,
such as weapons, explosives, or power tools. It would be extending the doctrine entirely too
far to apply it to such commonplace objects as a piece of wire, a pencil, a coat hanger, or a
hammer, all objects so commonplace as to be found around any house or yard, but not
dangerous in themselves, although they might be attractive to children and capable of
inflicting injury if misused.
Andersonville v. Goodden (state’s intermediate-level appellate court, 1961)
Facts. A neighbor’s pickup truck was parked unattended in the neighbor’s

yard. A child came into the yard to sell the neighbor candy bars for a school
fundraising project. The child saw the truck, climbed on it, fell, and impaled
himself on a hook on the end of a chain dangling from the rear of the truck.
The child sought recovery from the neighbor based on the doctrine of
attractive nuisance. The court denied recovery, stating:
The attractive nuisance doctrine was developed for the benefit of children coming upon
property even though trespassing. However, the courts of this state have been reluctant to
extend the doctrine beyond its restricted application to situations in which the dangerous
instrument is found to be one of actual and compelling attraction for children. The courts
have not expanded the doctrine to cases where the instrument or artificial condition did not
actually draw the children onto the property.
Newcomb v. Roberts (state’s highest appellate court, 1982)
Facts. A swimming pool was located in a backyard with no fence,

unshielded from view. A child visiting next door and playing hide-and-seek
came into the backyard seeking a hiding place. She hid behind a utility shack
for a while. Then she began to wonder whether her friends were still looking
for her. She decided to go investigate the status of the game. As she was
leaving the backyard, walking alongside the pool, she accidentally fell into
the pool and suffered serious injury. She brought suit against the property
owner under the doctrine of attractive nuisance. The court allowed recovery,
stating:
A landowner is liable for physical harm to trespassing children by an artificial condition if
the place where the condition exists is one upon which the possessor knows or has reason to
know that children are likely to trespass; if the risk posed by the condition is one that
children, because of their youth, will not realize; and if the landowner fails to exercise
reasonable care to eliminate the danger or otherwise to protect the children. This landowner
should have known that neighborhood children were likely to trespass and that such
children would not appreciate the risks posed by a swimming pool. The landowner did not
enclose the pool in a fence or take any steps to shield the pool from view. Thus, the
landowner is liable for the injuries to the child.
McDaniels v. Lanier (state’s highest appellate court, 1987)
Facts. A natural pond lay behind a house located on two acres of

property. The pond was visible to passersby, and no fence prevented access.
A child saw the pond and decided to swim in the pond. The child suffered
abdominal cramps and drowned. The court denied recovery, stating:
An owner who has reason to know that children are likely to trespass is liable, under the
doctrine of attractive nuisance, for injuries sustained by a child if the risk is one that
children will not appreciate and if the owner has failed to exercise reasonable care to protect
the child [cite to Newcomb].
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
THE FIVE Ws OF READING A STATUTE

Who? Whose actions are covered?
What? What kinds of actions are required, prohibited, or
permitted?
When? When was the statute effective?
Where? Where must the actions have taken place to be
covered?
What What consequences follow?
then?
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 THESE PARTS OF A STATUTE

1. The language of the individual provisions that appear to deal directly
with the legal issue;
2. The language of any other individual provisions expressly cross-
referenced by the directly applicable provisions;
3. The titles of these individual provisions and of the entire act;
4. Any set of definitions applying to the individual provisions or to the
act as a whole;
5. Any statement of purpose and any preamble to the individual
provisions or the act as a whole;
6. If length is not prohibitive, read the entire act;
7. If the entire act is too long to read, at least read carefully the titles of
all other individual provisions to identify any that might relate to the
issue at hand;
8. The dates on which the act as a whole and the individual provisions
were enacted and on which they became effective;
9. All of the same information for any amendments to important
provisions;
10. If available, read the same information for any prior versions of
important provisions (to understand what changes the legislature
intended to make when it enacted the current version).
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.
SOME WORDS THAT SIGNAL STRUCTURAL INFORMATION

and include unless other
or limited to outweighs shall
either except all may
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?
II. IDENTIFYING ISSUES

Recall that when you brief cases, you should read the whole case through
once before you begin to prepare your brief. Similarly, when you are ready to
identify statutory issues, read through all the material identified in Section I
to establish the context for your analysis and to identify the key provisions of
the statute. When you have identified the provisions that will govern your
issue, return to those provisions for another and even more careful reading.
Read with a pen or pencil in your hand. Read the text of the statute word for
word, looking for key terms that tell you what conduct the statute covers.
One way to find the key terms is to focus on the answers to the 5 Ws set
out in Section I. Another way is to ask yourself what someone would have to
prove to show that the requirements of the statute were or were not met.
Underline each word that tells you something about the answers to those
questions. Then circle all the terms that tell you something about the
relationships among the key terms (words like “and,” or “or”). Consider this
example:
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 Fair Housing Act, 42 U.S.C. §§ 3601-3619, prohibits housing

discrimination. Underline the words or phrases that raise potential legal
issues in the following portion of the Act:
[I]t 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.
III. INTERPRETING THE STATUTE’S

LANGUAGE
Statutes are interpreted by case opinions. If case authority has already told
you what the statute means, you can rely on that case law to the extent of its
precedential value. But if no binding case law has answered your particular
question, you must use other tools of interpretation. The most important of
these tools are (1) the text itself, (2) the intent of the legislature, (3) the
policies implicated by the possible interpretations, (4) the interpretation of
any governmental agencies charged with enforcement of the statute, and (5)
the opinions of other courts and of respected commentators.
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.
Policy. Consider the policy concerns implicated by a particular

construction of the statute. Some implicated policies probably were part of
the legislature’s intent, but the legislature might not have foreseen all the
policy concerns. If the legislature has not spoken on the issue, a court can
consider its own view of which possible interpretation would produce the
best result.
Some kinds of statutes carry a general policy leaning applicable to all
statutes of that particular kind. These policies call for either a strict or a
liberal construction of that kind of statute. The most common of these
policies are:
• Statutes that change long-standing case law (statutes “in derogation of
the common law”) should be strictly construed. (A statute is strictly
construed when it is read narrowly, so that it changes the legal
environment as little as possible.)
• Statutes intended to remedy a problem (“remedial statutes”) should be
liberally construed to accomplish their remedial purpose. (A statute is
liberally construed when it is read broadly to include more kinds of
situations than a narrow reading would allow.)
• Statutes making certain conduct a crime (“penal statutes”) should be
narrowly construed, out of concern for the rights of the accused.
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.
Agency Interpretation. When enforcement of a statute is assigned to a

particular agency, that agency must decide what the statute means to enforce
it. Courts often look to this agency as the entity with the most expertise in the
relevant issues and thus defer to the agency’s interpretation. Look for agency
interpretations in the agency’s regulations, in the agency’s decisions, and in
case law.
Commentators and Other Courts. Finally, courts may recognize

persuasive value attaching to the opinions of other courts and of respected
commentators. The persuasive value of another court’s opinion depends on
the factors identified in Chapter 2. The persuasive value of a commentator’s
opinion depends on the reputation of the commentator and on the
commentator’s well-reasoned reliance on the other tools of construction.
IV. CANONS OF CONSTRUCTION

To decide how to construe a statute, a court also may consider commonly
accepted maxims of interpretation known as “canons of construction.” Here
are some of the most generally applicable:
• Read the statute as a whole.
• Give effect to rules of grammar and punctuation.
• Construe technical terms technically and ordinary terms in their
ordinary sense.
• When the same language is used in various parts of an act, the language
is presumed to have the same meaning throughout.
• Where general words (such as “and any other”) follow a list, the general
words should be construed to refer to things similar to the items in the
list. This is the principle of “ejusdem generis,” meaning literally “of the
same genus.”
• Modifying words or phrases refer to the nearest referent.
• Where a statute from state X is adopted in state Y, the construction given
the statute by the courts of state X should be followed in state Y.
• If the statute does not contain an exception for a particular situation, a
court should not create one.
• The court should presume that the legislature did not intend to enact a
statute that impairs fundamental societal values.
• Specific description of one or more situations implies the exclusion of
other kinds of situations not mentioned.
• Different statutes on the same legal issue (statutes “in pari materia”)
should be read consistently.
• Sometimes the courts of state X will have interpreted a particular word
or phrase in a certain way. If, subsequently, the legislature of state X
enacts a different statute using that word or phrase, the language in the
new statute should be interpreted as having the meaning previously
given it by the courts.
• Titles, preambles, and section headings, though not technically part of
the statute’s text, are persuasive evidence of legislative intent.
• Sometimes courts will have construed the words of a statute in a
particular way. Later the legislature may amend the statute in other
ways but without changing those words. A court might conclude that
the legislature’s lack of action to change the judicial construction is
evidence of the legislature’s approval of that construction.
These maxims are treated as legal principles in and of themselves.
Therefore, when you rely on one of them as part of your analysis, cite to a
persuasive case opinion that adopts that maxim if you can. Even if you
cannot find case authority adopting the maxim, however, a court still will be
willing to consider the maxim’s logic.
None of these guidelines for interpreting statutes will provide a certain
answer. As a matter of fact, when you apply several, they might support
contradictory results.5 However, courts generally will consider these
guidelines, so they will help you to predict what a court might decide or to
persuade a court to interpret a statute favorably for your client.
1. Grant Gilmore, The Ages of American Law 95 (Yale U. Press 1979).

2. It is said that a journalist asks “five Ws and an H”: who, what, when, where, why, and how.
3. Based on Model R. Prof. Conduct 1.5(a) (2013).
4. Va. Code, § 56 (Michie 1942), construed in Temple v. Petersburg, 29 S.E.2d 357 (Sup. Ct.
Apps. Va. 1944).
5. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and Rules or Canons About
How Statutes Are to Be Construed, 3 Vand. L. Rev. 395 (1950).
CHAPTER 5
Forms of Legal Reasoning
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.
Example of Rule-Based Reasoning

“[T]he only lawful means to dispossess a tenant who has not abandoned nor voluntarily
surrendered . . . is by resort to judicial process . . . . Applying [this principle of law] to the
facts of this case, we conclude, as did the trial court, that because Wiley failed to resort to
judicial remedies against Berg . . . , his lockout of Berg was wrongful as a matter of law.”
Berg v. Wiley, 264 N.W.2d 145, 151 (Minn. 1978).
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).
II. ANALOGICAL REASONING

(ANALOGIZING AND DISTINGUISHING
CASES)
Analogical reasoning is another major form of legal reasoning. The most
common variety of analogical reasoning justifies a result by making direct
factual comparisons between the facts of prior cases and the facts of the
client’s situation. The comparison can demonstrate factual similarities
(leading to a similar result) or factual differences (leading to a different
result).2 A comparison that points out similarities asserts, “X is the answer
because the facts of this case are just like the facts of A v. B, and X was the
result there.” Comparing cases to point out similarities is often called
“analogizing” cases.
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.
Example of Analogical Reasoning

“[In Fahmie,] property was conveyed to [Fahmie], who had no knowledge of the
installation of the culvert [or the violation of state law]. Fahmie made application to the
development commission to make additional improvements to the stream and its banks. It
was then that the inadequate nine foot culvert was discovered, and the plaintiff was required
to replace it.
The case before us raises the same issues as those raised in Fahmie. Here, the court
found that in 1978 the wetlands area was filled without a permit and in violation of state
statute. The alleged violation was unknown to the defendant and was discovered only after
the plaintiff attempted to get permission to perform additional improvements to the
wetlands area.” [The result in the pending case should be the same as the result in Fahmie.]
Frimberger v. Anzellotti, 594 A.2d 1029, 1033 (Conn. 1991) (ellipses omitted).
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.
III. POLICY-BASED REASONING

Policy-based reasoning justifies a result by analyzing which answer would be
the best for society at large. It asserts, “X is the answer because that answer
will encourage desirable results for our society.”
POLICY-BASED REASONING
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.
Example of Policy-Based Reasoning

“To approve this lockout [of a defaulting tenant by a landlord] . . . merely because in Berg’s
absence no actual violence erupted while the locks were being changed would be to encourage all
future tenants, in order to protect their possession, to be vigilant and thereby set the stage for the
very kind of public disturbance which it must be our policy to discourage. . . .” Berg v. Wiley, 264
N.W.2d 145, 150 (Minn. 1978).
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.
IV. PRINCIPLE-BASED REASONING

Principle-based reasoning justifies a result by appealing to a broad principle
or character trait valued by our society, such as a principle of morality,
justice, fairness, or democracy. It asserts that “X is the answer because that
answer upholds notions of morality, justice, fair-play, equality, democracy, or
personal freedom.”
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.
Example of Principle-Based Reasoning

“A succession of trespasses . . . should not . . . be allowed to defeat the record title . . . .
[T]he squatter should not be able to profit by his trespass.” Howard v. Kunto, 477 P.2d 210,
214 (Wash. Ct. App. 1970).
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.
Example of Custom-Based Reasoning

“[T]here is no . . . reason to deny plaintiff relief for failing to discover a state of affairs
which the most prudent purchaser would not be expected to even contemplate.” Stambovsky
v. Ackley, 572 N.Y.S.2d 672, 676 (1991).
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?
VI. INFERENTIAL REASONING

Lawyers often use inferential reasoning (abduction) when analyzing a set of
facts to decide whether those facts meet the requirements of a rule of law. If a
particular factual conclusion would be consistent with the available evidence,
that consistency provides some reason to believe that the factual conclusion is
true. The possible conclusion would explain the observable facts. For
example, assume that a patient had normal blood pressure during all prior
phases of treatment and then the doctor changed one of the patient’s
medications. Immediately after taking the first dose, the patient developed
high blood pressure. No other changes in treatment or lifestyle occurred. One
could infer from this set of facts that the new medication caused the high
blood pressure.
Inferential reasoning is important in analyzing many legal issues. It is
especially important when the legal rule calls for a conclusion that cannot be
directly observed — questions like causation (as in our prior example),
knowledge (whether a person was aware of a certain fact or situation), or
motive or intent (whether a person intended to cause a certain result).
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.
Example of Factual Inferences

A will is invalid if it was written when the testator was under the undue influence of
someone. In Estate of Lakatosh, 656 A.2d 1378 (Pa. Super. 1994), the issue was whether
Roger exercised undue influence over Rose. The court noted that Roger had met Rose, a
woman in her seventies and living alone, and had immediately begun to visit her daily.
Within a couple of months, Roger had suggested to Rose that she give him a power of
attorney, which she did. A mere eight months after they met, Rose executed the will at issue
in the case. The will left all but $1,000 of Rose’s $268,000 estate to Roger. The lawyer who
drafted the will was Roger’s second cousin, to whom Roger had referred Rose.
Identify and explain the inferences implied by this description of the

Lakatosh facts.
EXERCISE 5-6
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)
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
Make a photocopy of section I-A of the sample office memo found in

Appendix A. In the margin of the photocopy, identify each form of reasoning
you find, and be prepared to explain your labeling.
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
Writing the Discussion of a Legal

Question
CHAPTER 6
The Writing Process and Law-

Trained Readers
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.
I. THE WRITING PROCESS

Writing is a process with distinct stages and distinct goals at each stage. Each
writing stage serves an important function as you work toward a finished
document. This chapter identifies five main stages of a writing task and
invites you to use each stage consciously as an opportunity to strengthen your
writing.
STAGES OF THE WRITING PROCESS

1. Reading and analyzing the materials.
2. Creating an annotated outline.
3. Writing a working draft of the analysis.
4. Converting that analysis into a document designed for a reader.
5. Editing for style and technical correctness.
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.
Stage 1: Reading and Analyzing the Materials. Start by reading carefully

all parts of your assignment, paying particular attention to the assignment’s
articulation of the issue(s). If you have any trouble understanding the issues,
try writing them out in your own words and comparing them to the issue
statements in the relevant case law. Clarify any questions with your
professor.
Then read all of the relevant legal sources, briefing the cases and taking
notes on the statutes as Chapters 2-5 explained. Use a separate sheet of paper
for each source so you can sort them later. Be sure to keep your legal issue in
mind, and look particularly for the ways in which each legal source might tell
you something about your legal issue. You are looking generally for answers
to the following questions:
KEY INFORMATION ABOUT LEGAL AUTHORITIES

1. What is the governing rule?
2. What do its important terms mean?
3. What are some examples of facts that have satisfied the rule’s
requirements?
4. What are some examples of facts that have not satisfied the rule’s
requirements?
5. What policies or principles does the rule serve?
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.
Stage 2: Creating an Annotated Outline. At some point, you must arrive

at an outline of your analysis. It is ideal if you can create the outline before
you begin to compose a draft, even if later you find you must change it. Start
by formulating and outlining the governing rule. Then use a version of the
rule’s outline to create the main categories of your outline. Chapter 7 will
explain this process in more detail, but an example here might help. Assume
that you have outlined a rule setting out the requirements for revoking a will.
The outline of that rule gives you a good starting outline for a written
discussion of that issue. Under each element, you would discuss whether your
client’s facts establish that element.
OUTLINE OF WILL REVOCATION ISSUE

To revoke a will, a testator must
1. have the intention to revoke, and
2. take some action that demonstrates that intent.
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.
Stage 3: Writing a Working Draft of the Analysis. Your first job as a

writer is working out your own analysis of the issue. Your primary purpose in
writing a working draft is to use the writing process as an analytical tool.
Dean and former judge Donald Burnett put it this way:
Clear expression . . . is not merely a linguistic art. It is the testing ground for ideas. Through
the discipline of putting an argument into words, we find out whether the argument is worth
making. . . . The secret . . . is to start verbalizing early — while there is still time to learn
from the discipline of forming ideas into words. You must begin by identifying your
client’s goal and the issues to be resolved. Each issue is defined by a cluster of facts and
governing legal principle. If you cannot articulate this nexus of law and fact, you do not yet
have a grasp of the case.1
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 4: Turning the Analysis into a Document Designed for Your

Reader. After your analysis is solid, turn your attention toward your reader.
The working draft of your analysis will become the Discussion section of
your office memo or the Argument section of your brief. In Stage 4 you will
check your organization to be sure that it will meet your reader’s needs. You
will complete the document by writing its statement of facts and its other
components.
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.
Suggestions for Consciously Using the Writing Process. First, be alert

for signs that you need to revisit earlier stages. Although the completed
document should take the reader on a linear journey toward the document’s
conclusion, you will find that the process of creating the document is far from
linear. Rather, the process returns you again and again to earlier stages to
reconsider earlier decisions. The willingness to reconsider earlier writing
decisions and to revise existing material is one of the hallmarks of a good
writer.
Second, experiment with different writing strategies, and observe your
own writing process. What works well for you at each stage? Do you work
better if you dictate a draft first? Does free-writing help you? How about
charts or colored pens? Each writer’s creative and analytical processes are
unique. Part of your goal in your first few years of legal writing should be to
observe as much as you can about your own process so that you can adopt
writing strategies that work for you.
Third, be patient. On your first few writing assignments, take the stages in
order without trying to combine or compress them. Your goal on these first
assignments is to let each stage of the writing process teach you some critical
skills. Soon you will have developed those skills well enough to speed up
each stage. You will learn to customize each stage to fit your own skill level,
the complexity of the assignment, and your own unique creative processes.
Fourth, master the general principles before you decide to try something
new. This introductory course on legal writing teaches the basic principles
that operate in most situations. First master the basic substantive and
organizational principles covered in this course. Soon you will develop the
judgment to know when and how you can depart from them.
Finally, start early. Good writing takes time — almost always more time
than the writer first expects.
II. LAW-TRAINED READERS

A. Focus on the Reader
The goal of an office memo or a brief is to communicate with a reader. As a
matter of fact, you can think of a memo or brief as a conversation with your
reader. As in any conversation, the better we know our conversational
partners, the more effectively we can communicate. The characteristics of
your reader will govern many of the choices you make as a writer.
When you undertake a legal writing task, you might not know your reader
well — perhaps not at all. But you can still write with a fairly accurate focus
on this unfamiliar reader because law-trained readers share certain
characteristics. The general characteristics of law-trained readers in this
chapter introduce you to the study of readers, but do not just accept the
principles that follow. Notice your own reactions when you read. Try to be a
participant-observer of the reading process. Your observations of your own
reactions as a reader will be your best writing teacher. Observe, too, the other
law-trained readers you know. This way, as the years of your legal practice
go by, your writing will become better and better.
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.
F. Law Professors as Readers

Your primary readers for law school documents will be law professors.
Undoubtedly, these professors already understand a great deal about the
relevant area of law and about the particular authorities on which your
analysis will be based.
Ordinarily, a writer should tailor the document to the reader’s pre-existing
knowledge. If the writer is certain that the reader knows some of the relevant
information, the writer would refer generally to the information only when
necessary to put new information in context. However, law school writing is
a different matter. Unlike most readers, your professor is not reading to learn
particular information. Instead, your professor is reading to evaluate what
information you have learned and how well you can communicate it. If the
information is not set out in your document, your professor will not know
whether and how well you understand it.
Therefore, in law school writing, assume that you are writing to a law-
trained reader who has no particular expertise in the area you are discussing.
Your goal is to include the information your professor wants to evaluate
without explaining more than the assignment asks.
1. Donald L. Burnett, Jr., The Discipline of Clear Expression, 32 The Advocate 8 (June 1989).
2. If so, be grateful to your Commentator. The sort of critical reading the Commentator inspires is
essential to legal analysis. When you are studying the law and writing about it, your own Commentator
is your best friend.
3. Girvan Peck, Writing Persuasive Briefs 77 (Little, Brown Co. 1984).
CHAPTER 7
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:
To revoke a will, a testator must

1. have the intention to revoke and
2. take some action that demonstrates that intent.
A Disjunctive Test. This kind of rule sets out an “either/or” test. It

identifies two or more subparts and establishes a certain result if the facts fall
within any one subpart. For example, consider this rule: A lawyer shall not
collect a contingent fee in a criminal matter or a divorce. You might outline
the rule 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.
A Factors (Aggregative) Test. This kind of rule sets out a flexible

standard guided by certain criteria or factors.2 Some rules condition the legal
result on a more or less objective standard. A burglary statute, for instance,
defines burglary using a number of fairly objective criteria. Was it a
dwelling? Did it belong to another? Did the defendant enter it? However,
some rules condition the legal result on a much more flexible standard, giving
more discretion to the decision-maker. To keep judges from being totally
arbitrary and to help them exercise their discretion wisely and uniformly,
rules using flexible standards often identify factors or criteria to guide the
decision-maker. Here is an example of such a rule:
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: the fitness of each possible
custodian; the appropriateness for parenting of the lifestyle of each possible custodian; the
relationship between the child and each possible custodian; the placement of the child’s
siblings, if any; living accommodations; the district lines of the child’s school; the
proximity of extended family and friends; religious issues; any other factors relevant to the
child’s best interests.
Placed in outline form, the rule would look like this:
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 Balancing Test. This kind of rule balances countervailing

considerations against each other. A rule setting out a balancing test is also
inherently flexible, so such a rule often includes factors or guidelines to assist
the decision-maker in weighing each side of the balance.
For example, consider this dispute over legal procedure. Prior to trial,
parties in civil litigation try to obtain information from each other by using
interrogatories (written questions directed to another party and calling for
answers under oath). Sometimes, the party receiving a set of interrogatories
will object to certain interrogatories, arguing that answering would be unduly
burdensome. To decide whether the party must answer the interrogatories, the
judge applies the following rule:
A party must respond to properly propounded interrogatories unless the

burden of responding substantially outweighs the questioning party’s
legitimate need for the information.
To measure “burden,” the judge might consider a number of factors, such

as the time and effort necessary to answer; the cost of compiling the
information; any privacy concerns of the objecting party; and any other
circumstances particular to the objecting party’s situation. To measure
“legitimate need,” the judge might consider a number of other factors, such
as how important the information would be to the issues of the trial, whether
the information would be available from some other source or in some other
form, and any other circumstances relating to the party’s need for the
information. Placed in outline form, the rule would look like this:
A party must respond to properly propounded interrogatories unless the

burden of responding substantially outweighs the questioning party’s
legitimate need for the information.
A. The burden of answering:
1. the time and effort necessary to answer
2. the cost of compiling the information
3. any privacy concerns of the objecting party
4. any other circumstances raised by that particular party’s situation
B. The questioning party’s need for the information:
1. how important the information would be to the issues of the trial
2. whether the information would be available from some other
source or in some other form
3. any other circumstances relating to the party’s need for the
information
Compare this rule structure with the factors test. In a factors test, the
decision-maker gauges a single interest, for example, “the best interest of the
child.” In a balancing test, the decision-maker balances two competing and
different interests, comparing the strength of each interest against the other.
In the discovery rule above, these two interests are the burden of answering
and the need for the information.
A Defeasible Rule. A defeasible rule is a rule with one or more

exceptions. Here is an example of a rule with an exception:
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.
Placed in outline form, the rule would look like this:
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?
A Simple Declarative Rule. A simple declarative rule contains no

elements, factors, or other subparts. For example, if you are analyzing the
validity of an unsigned will, you might be dealing with a rule like this:
To be valid, a will must be signed.
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
Evidence that the accused previously was convicted of a crime shall be

admitted if the crime involved dishonesty or false statement by the accused
or if the crime was punishable by death or imprisonment in excess of one
year and the conviction’s probative value outweighs its prejudicial effect.4
This rule uses the disjunctive (either/or) structure for its larger structure,
like so:
Evidence of a prior conviction may be admitted if it falls within either of

the following categories:
A. if it involved dishonesty or false statement, or
B. if it was punishable by death or imprisonment in excess of one year
and its probative value outweighs its prejudicial effect.
Notice, however, that subpart B contains two requirements (the punishment

requirement and the comparison of probative value to prejudicial effect).
Notice also that the inquiry about probative value and prejudicial effect is a
balancing test. What’s more, the cases interpreting this rule probably describe
the factors to be considered in gauging “probative value” and “prejudicial
effect.” Thus, a more detailed outline of the rule might look like this:
Evidence of a prior conviction may be admitted if it falls within either

category A or category B:
A. if the conviction involved dishonesty or false statement; or
B. if both of the following are true:
1. the conviction was punishable by death or imprisonment in excess
of one year; and
2. its probative value outweighs its prejudicial effect
a. probative value is gauged by: [List factors set out in the cases.]
b. prejudicial effect is gauged by: [List factors set out in the
cases.]
II. CREATING AN ANNOTATED OUTLINE

As you know, outlines divide material into topics and organize them, using
levels to show how the topics relate to each other. The first level of
distinction is reserved for the broadest categories. The second level represents
the largest distinctions within each of the broad categories. Those second-
level topics can be subdivided even further. We begin with the first level of
distinction for a legal analysis: the legal question(s) you have been asked to
address.
A. The First Level: The Legal Questions You Have Been

Asked to Address
Your writing assignment probably identified the legal question or questions
you are to address. If you have been asked to analyze whether William
Levitt’s actions constituted burglary, you have been asked to address only
one legal question. But if your assignment also asks you to address whether
his statement to Delores Corbitt, his alleged common law wife, will be
admissible at trial, you have been asked two legal questions. The first
question will be governed by the rule identifying the elements of burglary.
The second question will be governed by a different rule — a rule of
evidence.
Use your outline’s first level of distinction (roman numerals) to identify
the separate legal questions you have been asked to address. At the outline
stage, you can phrase these issues as questions or, if you are ready, as your
answers to the question. In the example above, the outline’s first level of
distinction would be:
I. Do William Levitt’s acts constitute burglary?

II. Will Levitt’s statements to Delores Corbitt be admissible at trial?
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.
B. The Second Level: Governing Rules

Whether or not your assignment identifies separate legal questions, your
research might reveal that the answer will depend on two different legal
issues governed by two different legal rules. Your assignment might ask,
“Can our client succeed in a claim for negligence against the other driver?”
This is one legal question. However, you might discover that its answer will
depend on the answers to two separate legal questions governed by two
separate legal rules: (1) whether your client can establish the elements of a
negligence claim; and (2) whether the applicable statute of limitations has
expired.5 If your answer to the question will require analysis under two
different and unrelated legal rules, use the next level of distinction (uppercase
letters) to represent the discussions of these two different rules.
For instance, in our prior example, assume that the second question
(admissibility of Levitt’s statements) will require analysis using two different
governing rules: the rule of evidence that prohibits admission of statements
made to a common law spouse and that jurisdiction’s rule defining a valid
common law marriage. Our outline now looks like this:
I. Do William Levitt’s actions constitute burglary?

A. Are Levitt and Corbitt married according to common law?
B. Are statements to a common law spouse admissible at trial?
C. The Next Levels: Filling in the Rules

Use your outline of the governing rule(s) to form the next levels of your
discussion’s outline. For instance, in our example, the next levels under the
roman numerals might produce the following outline:
I. Do William Levitt’s actions constitute burglary?

A. breaking
B. entering
C. dwelling
D. of another
E. in the nighttime
F. intent to commit felony therein
A. Are Levitt and Corbitt married according to common law?
1. intent of both parties to be married, and
2. actions holding themselves out to the community
as husband and wife.
B. Are statements to a common law spouse admissible at trial?
[Statements made to a common law spouse are privileged and
therefore not admissible unless the privilege is waived.]
C. Has Levitt waived the privilege?
Notice that your research on the admissibility of statements to a common

law spouse has yielded a defeasible rule (a rule with an exception). The rule
is a simple declarative statement with one exception: “The statements are
inadmissible unless the defendant has waived the privilege.” Therefore, you
have discovered another subissue: whether Levitt waived the privilege. You
must return to your research to learn what kinds of acts would constitute a
waiver. When you find the rule that governs waiver, you will use it to
structure section C in the outline.
Thus, the outlines of the relevant rules provide the organization for your
working analysis of each issue. Using this outline, your analysis of the
burglary question would discuss each element separately, completing the
discussion of one element before proceeding to the next. Then you would
proceed to the admissibility question and follow the same process there.
D. Omitting Issues Not in Dispute

You might already know that some of the categories on your outline will not
be issues in your assignment. For instance, in the burglary example, the
“nighttime” issue probably would not be disputed if the entry of the building
occurred at 2:00 A.M. You can revise your outline now to delete the
“nighttime” category, but you cannot forget the issue just yet. You will need
to explain to your reader your reasons for not addressing that element.
Chapter 10 will describe how and where to give your reader this information.
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.
E. Uncertainty About Which Rule Your Jurisdiction Will

Adopt
You might find that your jurisdiction has not yet adopted a rule governing
your particular issue. Or perhaps your jurisdiction’s rule reflects an unwise
approach to the issue, and your client’s interests would be served best by the
adoption of a different rule. If you are writing an office memo, you will have
to predict what rule the court probably would adopt. Then you can analyze
the disposition of your client’s particular issue, assuming that your prediction
is correct. You might also need to analyze the result if the decision-maker
adopts the other rule. Your working draft outline might look like this:
A. If the court adopts rule A, what will be the result?

B. If the court adopts rule B, what will be the result?
C. Which rule is the court most likely to adopt?
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.
F. Annotating Your Outline

Your working outline now provides the structure for your discussion of the
authorities. The next step is deciding which authorities you will discuss under
each point in the outline and for what purpose. Chapter 6 described this
process. Remember that you should write a complete sentence expressing
each relevant point you have learned about the rules of law. Do not select the
authorities you will use until you have identified the points you will make.
This way you will find yourself organizing according to the relevant
substantive points and not simply listing and describing cases without using
them to make a relevant point.
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.
Facts. Joe Barrymore and Reynold Manitoba, fans of different hockey

teams, came to blows in a discussion of the relative merits of their teams.
Barrymore came out the loser, with four broken ribs. The fight ended when
Manitoba pushed Barrymore into a cleaning closet and padlocked the door.
Barrymore has come to your firm to find out whether he can sue Manitoba
for battery and for false imprisonment.
Rules
• Battery is the intentional infliction of a harmful or offensive bodily
contact.
• A contact is harmful if it causes pain or bodily damage.
• A contact is offensive if it would be damaging to a reasonable sense of
dignity.
• To meet the requirement of intent for a battery claim, the defendant
need only have intended to make the contact; intent to harm is not
necessary.
• A defendant has committed a false imprisonment if he intentionally
confined the plaintiff within boundaries set by defendant.
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.
I. AN OVERVIEW OF THE PARADIGM FOR

LEGAL ANALYSIS
A legal issue is analyzed by first identifying and understanding the governing
rule and then applying that rule to a particular set of facts. First you must
explain the rule; then you must apply that rule to the facts. Here is an
overview of the basic paradigm:
PARADIGM FOR A WORKING DRAFT

Rule Explanation
1. Conclusion: State your conclusion about the issue.
2. Rule: State the applicable rule of law.
3. Rule Explanation: Explain the rule.
Rule Application
4. Rule Application: Apply the rule to your client’s facts.
5. Conclusion: Restate your conclusion.
This chapter describes the rule explanation half of this paradigm.

Many new legal writers are not sure what rule explanation covers. They also
might think they have explained the rule more thoroughly than they actually
have. These difficulties can be eased if, after the introductory paragraph
(described below), you do not allow discussion of your client’s facts (the
second half of the paradigm) to slip into the first half of the paradigm — your
explanation of the rule itself. Mixing explanation and application leads to
confusion in identifying rule explanation. If you keep application out of the
spot reserved for explanation, you will learn what rule explanation is not,
which is vital to learning what rule explanation is.
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.
II. STATING THE CONCLUSION

Law-trained readers want to learn your answer, so the first thing your reader
will want to see is your conclusion. If you already know what your
conclusion will be, put it in a sentence and use that sentence as the section
heading. Then write an introductory paragraph (sometimes called a “thesis
paragraph”) in which you state your conclusion again in two to three
sentences. Place this paragraph immediately after the heading. In these
sentences, your reader should learn (1) the issue to be decided, (2) your
conclusion on that issue, and (3) your basic reason for that conclusion, if you
can state it succinctly. Often the governing rule will be implicit in this
statement, but you need not state it directly here because you likely will be
stating it as the first sentence in the next paragraph.
For example, assume that your firm represents Linda Pyle, who recently
bought a tract of land to use as a commercial horse stable. A lawyer from
another firm, Howard Gavin, represented Pyle in the land purchase
transaction. After buying the land, Pyle discovered that a neighboring quarry
owned an easement across her property, and the use of the easement is
interfering with the stable’s operation. Pyle has come to a partner in your
firm, and the partner has asked you to research whether Gavin’s failure to
check the title for possible easements constituted legal malpractice. Here is an
example of the beginning of the written discussion of this issue:
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.
III. STATING THE GOVERNING RULE

Next, state the governing rule. Follow it with citations to the primary
source(s) for the rule. Here is a rule statement added to our example:
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.
IV. EXPLAINING THE RULE: FIVE

COMPONENTS
The third step is explaining where the rule comes from and what it means.
Rule explanation usually includes five components. Generally, these
components are so closely interrelated that you will not be able to break them
out and explain them sequentially. While you are explaining one, you will
also be explaining another, so do not use this list as an organizing tool.
Instead, use it to evaluate your rule explanation for its completeness:
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?
5. To the extent necessary, discuss any other possible understanding of

the rule. If another reasonable interpretation of the rule exists, your reader
will want to know it. Address any competing interpretation that is reasonably
likely to arise, and explain why your interpretation is more accurate. The
explanation of another possible interpretation is sometimes called “counter-
analysis” or “counter-explanation.”
Match the depth of your discussion to your assessment of the strength of
this second interpretation. If it is possible but unlikely that a court would
adopt it, cover it briefly. However, if the choice between the interpretations is
a closer call, discuss the counter-analysis in more detail, and explain why it is
not the best or most likely interpretation.
V. GUIDELINES FOR RULE EXPLANATION

Here are some guidelines to keep in mind as you write the rule explanation
section:
Use all relevant tools of statutory and case law analysis. Review the
tools for case law and statutory analysis described in Chapters 2-5.
Remember that the value of the information they yield is not simply in
reporting it but rather in using it to make a point about the rule. The form of
reasoning most relevant to rule explanation is rule-based, with some help
from policy- or principle-based reasoning.
Limit your explanation to those topics that will be relevant to the

way the rule will apply to your client’s facts. When you explain what the rule
means, do not include everything one might ever want to know about the
rule. Include only the information that might pertain to your client’s situation.
This focus will save your reader’s patience, and it will save you writing and
editing time. Because you have not yet written the section applying the rule
to your client’s facts, you will have to anticipate the application you have not
yet written. After you write the application section, you might need to return
to the rule explanation section to add or delete topics of rule explanation.
Your goal is to match the coverage of the explanation section to the coverage
of the application section.
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.
Order your discussion of the authorities according to their importance,

placing the most important authorities early in the discussion. Case
authorities are important to an analysis primarily by virtue of their
precedential value generally or by the similarity of their particular facts to
your client’s facts.
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.
Include a description of the rule’s historical development if (1) the

development is important for understanding the rule’s current form; or (2) the
rule’s current form does not decisively answer your question, but the rule’s
history establishes a trend that can help you predict or persuade. If you
choose to describe the rule’s development, tell your reader why. Otherwise, a
law-trained reader will become impatient with what might seem like an
unnecessary history lesson.
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).
Citation with a parenthetical summary:

A minor is estopped from disaffirming a contract if the minor knowingly misrepresented his
age at the time he made the contract. Woodall v. Grant, 9 S.E.2d 95 (Ga. Ct. App. 1940)
(minor not estopped when he signed without reading a contract representing that he was an
adult).
Citation with an in-text illustration:
A minor is estopped from disaffirming a contract if the minor knowingly misrepresented his
age at the time he made the contract. Woodall v. Grant, 9 S.E.2d 95 (Ga. Ct. App. 1940). In
Woodall, the minor had signed a brokerage contract to purchase stock options, and the
contract contained a representation that the purchaser had attained the age of majority.
However, the minor had signed the contract without reading it. The court reasoned that the
law does not require a minor to read a contract and does not enforce the same consequences
on a minor as it would on an adult in the same circumstance. The court held that the minor
had not knowingly misrepresented his age and, therefore, that he was not estopped from
disaffirming the contract.
VI. ORGANIZING A PURE QUESTION OF
LAW
Occasionally, your issue will be a pure question of law. You have a pure
question of law if the assignment asks you to analyze only what the law is in
your jurisdiction and does not ask you to apply that law to your client’s facts.
For example, you might be asked, “In this jurisdiction, can a husband be
forced to testify against his wife?” In such a case, your analysis will consist
primarily of rule explanation, culminating with your conclusion about the
question of law (“A husband cannot be forced to testify against his wife”).
Or perhaps the assignment might ask you to apply the law to your client’s
facts, but there is no real question about the result of that application. For
example, you might be asked “Can Mr. Studdard be forced to testify against
Mrs. Studdard?” Once you have explained that a husband cannot be forced to
testify against his wife, the application of that rule to Mr. Studdard is clear. In
that case, your analysis will consist almost entirely of rule explanation. You
will spend most of your time explaining the rule. At the end of the rule
explanation, you can apply the rule to Mr. Studdard, but you probably will
not need to do more than announce that as Mrs. Studdard’s husband, Mr.
Studdard will not have to testify.
Here is an example of a working draft of a rule explanation for the

Pyle/Gavin issue.
A WORKING DRAFT OF RULE EXPLANATION
I. Linda Pyle has a strong claim for legal malpractice Conclusion

against Howard Gavin.
Howard Gavin committed legal malpractice in his Conclusion

representation of Linda Pyle because he did not meet the plus facts
required standard of professional skill and diligence.
The subject matter of the representation is common to
general practitioners, and the problem could have been
prevented with thorough research.
A lawyer has a duty to provide a client with Rule and
representation that meets or exceeds the standard of citation
professional skill and diligence commonly possessed
and exercised by a reasonably prudent lawyer in this
jurisdiction. See Jacobson v. Kamerinsky. [citation]
In Jacobson, the lawyer failed to file a timely claim Key facts
before the medical malpractice screening panel. By from cited
statute, a medical malpractice claim cannot be pursued case
unless it has been filed before the screening panel within Holding from
the applicable time limit. [citation] Therefore the cited case
client’s claim was barred. Because a reasonably prudent
lawyer would research and comply with the statutory
requirements for bringing a particular kind of claim, the
court held that the lawyer was liable for the losses that
resulted from the failure to file the claim. [citation]
One gauge of the prudent lawyer standard is whether Thesis
the task is something general practitioners are familiar sentence (a
with doing. In Jacobson, the court had pointed out that characteristic
the enactment of the screening panel requirement had the court
been widely publicized in newspapers, electronic media, found
and the state bar journal. However, the court explained significant)
that even without publicity, a prudent lawyer would
comply with filing requirements because filing lawsuits Key facts
is something general practitioners are familiar with
doing. [citation] Therefore if the task is familiar to Court’s
general practitioners, the court need not ask whether the statement
particular lawyer should have been aware of the about those
particular requirement. facts
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?
Checklist for Rule Explanation

State the Conclusion
• Did you state your conclusion on the issue and your basic reason, if you
can state it succinctly?
State the Applicable Rule of Law
• Did you place the rule statement immediately after the introductory
paragraph?
Explain Where the Rule Comes From and What It Means
• Did you show how the authorities demonstrate that the rule is what you
say it is?
• Did you explain the rule’s purpose or the policies it serves?
• Did you explain how the rule has been applied in the past?
• Did you explain any additional characteristics that may affect how the
rule will be applied?
• If necessary, did you explain any other interpretation of the rule?
Tools for Using Case Authority
• Setting out the facts of the case
• Explaining what the court held about the rule
• Explaining any important dicta
• Explaining how the court applied the rule
• Where appropriate, explaining how the court did not apply the rule
• Pointing out any facts the court emphasized
• Explaining what legal commentators have said about the case or the rule
Tools for Interpreting Statutes
• Explaining the statute’s plain meaning
• Applying any relevant canons of construction
• Explaining the legislature’s intent
• Explaining the policies implicated by the possible interpretation(s)
• Explaining the interpretation of any governmental agencies charged
with enforcement
• Explaining the interpretations of courts and respected commentators
General Principles
• Did you cite a source for each statement of a rule, a holding, the court’s
reasoning, or the facts from a case?
• Did you refrain from discussing your client’s facts in this section?
• Did you order your discussion of the authorities according to their
importance?
• Did you articulate any relevant factors or guidelines?
• Did you identify the key authorities and analyze them thoroughly,
including historical development if helpful for prediction or persuasion?
• Did you choose wisely among the options for using cases?
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.
Application to particular These three terms of the

facts Conclusion Watson/Carrolton covenant are
reasonable.
Therefore, the Watson/Carrolton
covenant is enforceable.
Although rule-based reasoning is still important, factual inferences,
narrative, analogical reasoning, policy- and principle-based reasoning, and
custom-based reasoning are at least as important here to rule application.
I. TWO APPROACHES TO WRITING THE

APPLICATION SECTION
The point of the paradigm is to apply the rule you just explained, so the rule
application section should track the explanation section. Each aspect of the
rule you explained should now be applied to your client’s facts. Some writers
use the explanation section as their outline as they write the application
section. If you use this approach, simply work your way through the
application section by applying each point you discussed in the explanation
section. This way you are sure to apply the rule you just explained instead of
allowing your application section to wander.
You might find, however, that a slightly different approach works

better for you. Although a written legal analysis ultimately should be framed
in tightly reasoned logic, you might find that rigid adherence to the structure
of the explanation section stifles your own writing process. You might
choose to open your early drafts to a broader writing process. You can begin
writing the application section by focusing on the narrative (the facts) without
looking back to the explanation section. You will have the rule in mind, but
more impressionistically so. This strategy frees you to think like a storyteller,
focusing more on narrative themes and the policies and principles they
implicate. Be sure to compare your client’s facts to the facts of precedent
cases, pointing out relevant similarities and differences.
When you have a draft of each section, revise them both so the rule
explained in the first half matches the rule applied in the second half. Perhaps
you will need to add application of a point you discussed in rule explanation
but forgot to mention in the application section. Just as often, you will need
to return to the explanation section to add or edit the discussion of a point you
had not noticed until you began to write about your client’s facts. No matter
which way you approach the writing process, the end result should be the
same — a logical analysis built on a narrative theme.
II. CONTENT OF RULE APPLICATION

Although the organization of each rule application section will be unique,
here are some general principles to keep in mind:
1. Begin with a sentence or two stating your factual conclusion, for
example: “A judge would probably find that a reasonably prudent
lawyer in Howard Gavin’s situation would have checked the title for
easements.”
2. Then apply each point from the rule explanation section, keeping
the most important points early in the discussion.
3. For each point, write a thesis sentence stating how that point will
apply to your client’s case.
4. In one or more paragraphs following each thesis sentence, use your
client’s facts to explain why your thesis sentence is accurate. If your
role is predictive, explain the inferences and factual conclusions you
think a judge or jury would draw from these facts. If your task is
persuasive, use the facts to set out and support the inferences you
want the court to draw.
Use common sense. Imagine the situation your client has
described to you. What would it have looked like? Seemed like?
What other things might have been true if these are the facts? What
additional unconfirmed facts might you be assuming? How might
the scenario look to a judge or a jury? What facts would be
important to a judge or a jury? Could someone else use the same
facts to paint a different picture?
5. Where possible, support your thesis with direct fact-to-fact
comparisons. Identify the factual similarities between your client’s
situation and relevant cases, explaining how these similarities
demonstrate your points. Also, identify any significant factual
differences, and explain the point they demonstrate. These case
comparisons are analogies and disanalogies. Chapter 11 explains
this important reasoning skill more thoroughly.
6. If helpful, apply the rule’s underlying policies to your client’s
situation. Your client’s facts might raise the precise concerns the
rule was designed to address. If so, a court will be more likely to
apply the rule strictly and resolve doubts of application in your
client’s favor. Reread the sample office memo in Appendix A, this
time noticing particularly the uses of policy to help predict a result.
A similar use of policy can persuade as well.
7. In an office memo, identify any unknown facts that would be
important to a resolution of the legal issue. The assigning attorney
will need to know if potentially important facts are missing from the
analysis.1
8. Where necessary, refute any alternative rule applications. In
Chapter 8, we saw that you sometimes need to address and refute
alternative interpretations of the rule. Just so, there might be
alternative views of how the rule might apply to your client’s facts.
This process is sometimes called “counter-application” or simply
“counter-analysis.” In predictive writing, your reader will need to
understand these alternative views. In persuasive writing, you will
need to address and refute your opponent’s position.
Note the difference between counter-analysis in the two stages:
In the rule explanation stage, the disagreement is over what the rule
means. Here, the disagreement is over how the rule should apply to
the facts. In either case, however, do not let your analysis become
lost in your focus on counter-analysis. Keep your own explanation
and application at the center of the conversation.
9. Restate your conclusion. At the end of the application section,
restate the conclusion. If the analysis has been long or complex and
your document will not have a separate “Conclusion” section,
summarize the key reasons supporting the conclusion.
III. COMMON TROUBLE SPOTS IN RULE

APPLICATION SECTIONS
The three most common weaknesses in rule application sections are failing to
(1) apply the rule as the first half of the paradigm explained it, (2) sufficiently
explain the reasoning that supports the prediction, and (3) recognize other
possible interpretations of the facts.
We have already discussed in some detail the first common

weakness: failing to apply the rule as it was explained. Yet this is such a
common difficulty that it merits a reminder. Be sure to match the coverage
and approach of the explanation section. Equally important, be sure to revise
the rule explanation section to reflect the deepened and sharpened rule
understanding you gained by writing out the factual analysis. This double-
checking of rule-based and narrative reasoning against each other is an
example of why both are critical to good legal writing.
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.
PYLE/GAVIN EXAMPLE — RULE APPLICATION

ADDED
I. Did Howard Gavin commit legal malpractice in his Issue

representation of Linda Pyle?
Conclusion
Howard Gavin committed legal malpractice in his plus facts
representation of Linda Pyle because he did not meet the followed by
required standard of professional skill and diligence. The rule and
subject matter of the representation is common to general citation
practitioners, and the problem could have been prevented
with 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]. . . . [See
Chapter 8 for the rest of the rule explanation.]
A judge would probably find that a reasonably prudent Thesis
lawyer in Howard Gavin’s situation would have checked sentence
the title for easements. Receipt of title is, after all, the stating
heart of the transaction, and carefully checking the title factual
would be critical to evaluating the title the purchaser conclusion
would receive from the seller.
The duty to check the title carefully would be Thesis
particularly clear in a situation like Gavin’s where the sentence
client has asked specifically whether there would be any applying
problem with using the land for a particular purpose. A Gavin’s
prudent lawyer would know that the use of real property particular
can be limited either by law (such as by a zoning facts
regulation) or by private agreement (such as an easement
or a restrictive covenant recorded against the title). The Reasoning
client’s specific question should have flagged the issue for from factual
Gavin, making Gavin’s error even less excusable than the comparisons
error in Jacobson. In Jacobson, the client did not ask a
question that should have reminded the lawyer of the
possible problem; yet the lawyer’s error constituted
professional malpractice anyway. [citation]
Further, both of the Jacobson gauges point toward Thesis
Gavin’s liability. Representing a party to a real estate sentence
transaction probably falls within the group of tasks a applying
general practitioner is familiar with doing. Basic real points from
estate transactions are as common in the general practice rule
of law as filing law suits. Nor was Gavin’s omission a explanation
mere error in the exercise of professional judgment. The
need to look for an easement would have been apparent if Comparing
Gavin had done adequate legal research, and the easement facts
itself would have been apparent if he had done adequate
factual research. Just as in Jacobson, Gavin’s error could
have been prevented by proper research. Applying
second point
and
comparing
facts
Since the standard is not reduced by virtue of facts
particular to the lawyer’s experience, Gavin’s relative Thesis
inexperience and his lack of real estate expertise will not sentences
affect the legal result. Nor will his status in the bar or his dealing with
usual skill and diligence. However, these facts do add to other facts
the equities of his case, especially since a judge in this
jurisdiction would probably be aware of them. Although Flagging the
those facts should not change the ultimate result, they human
probably mean that the judge will not be happy about impact
having to rule against Gavin. The evidence at trial will
have to establish the cause of action clearly.
Finally, this evaluation that Gavin’s representation fell Pointing out
below the prudent lawyer standard is based on an a necessary
assumption that the standard can be judged without expert qualification
testimony. Additional research would be necessary to
check this assumption. If the standard must be evaluated
by reference to expert testimony, it will be necessary to
consult with an expert.
The claim that Gavin breached the applicable standard Conclusion
of care is strong. The subject matter of the representation statement
is common to general practitioners. The problem could
have been prevented with proper research. If Pyle is Summary of
interested in pursuing the matter further, our next step most
should be the completion of our research on the need for important
expert testimony. points
IV. EVALUATING YOUR DRAFT

Try to complete your working draft in time to put it away and let your mind
clear. Then go through this procedure:
1. Check the paradigm. Mark off and label each part of the paradigm.
Check to be sure that each part is there and in its proper order. Be
sure that rule explanation and rule application are not intermixed.
2. Evaluate the depth of rule explanation. Ask yourself how well
settled the rule is and how much explanation is necessary to clarify
the rule’s meaning.
3. Evaluate the depth of rule application. Have you written out a
complete discussion of how the rule would apply to your client’s
facts and what inferences a judge or jury might draw from them?
Watch particularly for rules that include an element pertaining to
someone’s state of mind or rules that set out a flexible standard
(such as “a reasonable person” or “the best interests of the child”).
For those rules, you probably will need to do significant factual
analysis in the application section.
4. Evaluate the content and internal organization of rule explanation
and rule application. First, confirm that the rule you explained is
the rule you applied. Now, examine each section in smaller chunks.
Identify the blocks of text devoted to particular substantive points,
using labels in the side margin as do the sample drafts in this
chapter and in Chapter 8. Is your organization logical? Does it
communicate good ideas clearly?
5. Check your perspective. Remember the difference between
predicting and persuading. If you are writing a predictive document,
maintaining an objective perspective can be difficult. Many writers
find themselves slipping into advocating their prediction rather than
objectively evaluating it. Be sure you have not slipped into writing
as an advocate.
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.
Checklist for Rule Application3
State Your Factual Conclusion

• Use one or two sentences to state your conclusion about how the rule
applies to your client’s facts and, if feasible, the most important reasons
supporting that conclusion.
Apply the Rule to Your Client’s Facts
• Be sure the content of the rule explanation and rule application sections
are consistent and that you applied the rule you explained.
• Compare the key facts from the case authorities to the key facts of your
client’s situation, noting the legally significant similarities and
differences.
• Explain the inferences and factual conclusions a judge or jury could
draw from your client’s facts.
• In the draft of an office memo, identify any unknown facts that would
be important to a resolution of the legal issue.
• Evaluate the appropriateness of the factual discussion’s depth.
State Your Conclusion
• Restate your factual conclusion in one sentence.
• If the analysis has been long and complex or if your document will not
have a separate “Conclusion” section, include a brief summary of the
primary reasons supporting the conclusion.
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
Discussing Multiple Issues: Putting

It All Together
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:
THE MULTI-ISSUE PARADIGM

1. Heading stating your overall conclusion on a legal question
[An “umbrella section” introducing the subsections to follow.]
A. Heading stating your conclusion on the first issue
• Conclusion
• Rule statement and explanation
• Rule application
• Conclusion on this issue
B. Heading stating your conclusion on the second issue
• Conclusion
• Rule statement and explanation
• Conclusion on this issue
[Add discussions of any other issues.]
Overall conclusion
I. ORDERING FOR YOUR READER

A. Accounting for Elements Not at Issue
Recall from Chapter 7 that your outline did not have to cull out the elements
not at issue. Now that you have completed your study of the authorities and
how they apply to your client’s facts, you can finalize the selection of
elements requiring discussion. Remove from your draft the headings for any
elements needing no discussion, but make a note of them. You will need to
explain to your reader why you are not discussing them. Section II explains
where and how to give your reader this information.
B. Selecting an Order for the Remaining Issues

Now that your analysis is complete, you have the information you need to
select the order your reader will prefer. The three most common choices for
the order of single-issue discussions are (1) important issues, (2) threshold
issues, and (3) familiar order.
1. Important Issues. The important-issues approach places subheadings

in the order of importance to the reader and to the analysis.1 An issue can be
important because it is likely to be dispositive. For instance, any burglary
element the state cannot prove would be dispositive since the state must
prove all elements to win a conviction. The issues most likely to be
dispositive usually should be discussed first.
A subissue can be important even if it would not be dispositive alone. For
instance, in a factors test, usually no one factor is dispositive; yet the
particular circumstances of a case can make some factors more important to
the analysis than others. A child custody dispute is a good example. The court
will consider many factors in deciding custody. Rarely will one factor be
dispositive alone, but several might be especially important. All other things
being equal, discuss these first.
Organizing according to importance is an effective tool to help your
reader manage a number of issues or subissues. The most important issues are
placed where the reader’s attention is greatest. The time a busy reader must
invest is minimized. The reader can choose how far into the analysis to read
and with what degree of care. It assures the reader that the writer’s analysis is
complete enough to identify the most important issues.
2. Threshold Issues. A threshold issue is one that determines the direction

of the analysis from that point on. For instance, assume that a rule of law tells
you that if a business is a lending institution, it may not do certain things. The
issue of whether your client is a lending institution within the meaning of that
rule determines the direction of the analysis from that point on. If your client
is not a lending institution, the rule prohibiting certain conduct does not apply
to your client, and the analysis can move on to any other rules that might
apply to your client. But if your client is a lending institution, the rule does
apply, and the analysis must continue to determine whether your client’s
proposed conduct falls within the category of conduct prohibited by the rule.
Thus, the issue of whether your client is a lending institution is a threshold
issue.
When you are analyzing a legal question that includes a threshold issue,
consider placing the threshold issue first. The reader probably will expect the
analysis to begin with the threshold issue. Also, if you conclude that the
threshold step in the analysis is not met, the reader need not devote as much
attention to later steps.
Occasionally, however, you might be working with a rule where the
analysis of the threshold issue is complex and your answer to a remaining
issue makes the complex analysis of the threshold issue unnecessary. For
instance, perhaps the issue of whether your client is a lending institution —
and therefore whether the statute would apply to your client at all — is a
close and complex question. However, even if the statute applies to your
client, the statute rather clearly would not prohibit your client’s proposed
conduct. If this second conclusion is relatively clear and easily explained,
your reader might prefer that you organize by importance. Simply explain
your organizational choice in the introductory paragraphs. Your reader will
appreciate your organizational choice if she understands your reasons.
3. Familiar Order. Many rules of law are familiar to law-trained readers,

and the elements of those rules are often listed in a certain familiar order.
Often the familiar order is the order the rule uses. Common law burglary is a
good example. The definition of burglary is traditionally stated as “the
breaking and entering of the dwelling house of another in the nighttime with
the intent to commit a felony therein.” On a burglary issue, a law-trained
reader will be accustomed to thinking of the elements in the order recited in
that sentence.
Even if no rule establishes a familiar order of elements, the custom of
ordering issues chronologically might establish a familiar order. If the
subissues pertain to events occurring in a chronology, a law-trained reader
probably will expect to analyze the issues in that order. For instance,
contracts issues are often ordered by the chronology of events constituting the
formation and performance of the contract: offer, acceptance, modification,
and performance. Unless the reader’s other needs require a different choice,
order your discussion in the way the reader is expecting.
II. UMBRELLA SECTIONS

All the subsections are in place now, but you need introductions so your
reader will understand what will follow and why. We will call these
introductions “umbrella sections.” Umbrella sections are appropriate
wherever the analysis is broken down into subsections. Take a moment to
read an example of an umbrella section between “I” and “A” in Appendix A.
The umbrella section can serve four main functions. First, it provides a
place to state the governing rule(s) so the reader has a road map of the
analysis to follow. If you use it for this purpose, provide a citation to the main
authority establishing the rule, and include any other information important to
how the rule functions. For instance, one party will carry the burden of proof.
The rule might require a higher-than-normal level of proof (for example,
clear and convincing).2 Some rules come with a presumption of one variety
or another.3 Some come with policy “leanings” (for instance, case law stating
that doubts are to be resolved in favor of the criminal defendant). The
procedural posture of a case, such as a motion for summary judgment, a
motion to dismiss, or an appeal from a jury verdict, might impose a particular
standard more favorable to one party. A canon of statutory construction
might call for a strict reading of a particular kind of statute. If the authorities
have mentioned any such information, you can include it here.
Second, an umbrella section can identify elements not at issue. For each
undisputed element, ask yourself whether your conclusion will be readily
apparent to your reader or whether the reader will require some (although
perhaps simple) analysis to be satisfied on the point. Make this decision
based on your assessment of (1) your reader’s existing knowledge, (2) the
degree of your reader’s faith in you as a legal thinker, and (3) your reader’s
need for certainty. Make these assessments conservatively. If you are in
doubt, err on the side of treating an issue as disputed.
If you conclude that an issue is not genuinely disputed, say so. And if
your reasons might not be obvious to your reader, provide a cursory
explanation of the basis for your conclusion — just enough to reassure the
reader that your reasons for this conclusion are consistent with the reader’s
understanding.
Third, the umbrella section identifies the remaining issues and explains
the order in which you will address them. Explaining your choice of
structures is particularly important if your structure is different from the one
the reader expects.
Finally, if necessary to prevent confusion, identify any related legal issues
not covered by the analysis. If a reader might assume that your analysis
includes all relevant legal issues pertaining to the question but it does not, be
sure to say so. For example, the requesting attorney might have asked you to
analyze claims under only one statute, but claims might exist under other
statutes as well. In such a case, clarify that your memo covers only possible
claims under the identified statute. Your reader will appreciate this clarity,
and you will be protected from later misunderstandings.
Often the umbrella section is fairly simple. For instance, in the burglary
example, the umbrella section would state the rule defining burglary and cite
to the statute establishing it. One item of rule explanation applies to all
elements: the burden of proof. If several of the elements are not disputed, the
umbrella section would explain their omission and explain organizational
decisions. The umbrella section need contain nothing else. It would look like
this:
1. Jamison’s actions probably do not establish the elements of burglary.

To obtain a burglary conviction, the state must prove that Jamison’s
conduct constituted a breaking and entering of the dwelling house of
another in the nighttime with the intent to commit a felony therein.
[citation] The state must prove each of these elements beyond a reasonable
doubt. [citation] The only elements in dispute are the nighttime element
and the intent element. Since the nighttime element is most likely to be
dispositive, this memo discusses it first.
A. Jamison probably did not enter the building in the nighttime.
• Conclusion
• Rule and rule explanation
• Conclusion on nighttime element
B. The state probably can prove that Jamison intended to commit a
felony inside the dwelling.
• Conclusion
• Rule and rule explanation
• Conclusion on intent element
Here is an umbrella section for a discussion governed by several separate

rules.
1. The Foster car sale probably included a warranty.

In [name of jurisdiction], warranties governing U.C.C. transactions are
set out in [citation]. Non-U.C.C. warranties are set out in [citation].
Because these warranty provisions differ in critical ways, the first question
this memo will discuss is whether U.C.C. warranties would apply to the
Foster transaction.
The first section concludes that U.C.C. warranties probably will govern
the Foster transaction, so the second section discusses the application of
those provisions to that transaction. However, because the application of
U.C.C. warranties is a close question, the final section of the memo
discusses the possible application of non-U.C.C. warranties to that
transaction.
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.
III. THE CONCLUSION

If the format of your document permits, write a conclusion pulling together
the results of each separate analysis and setting out the ultimate conclusion
on the question presented. Include a summary of the primary reasons for the
overall conclusion. Chapter 12 explains the Conclusion section of an office
memo, and Chapter 14 explains the Conclusion section of a brief to the court.
Chapter 13 explains the format for a letter to a client.
IV. EDITING SUBSECTION LENGTHS

Now that you have your organization in place, check the length and
complexity of each of the subsections. If a subsection strikes you as
particularly long and complex, consider further subdivisions with headings.
These subdivisions can reflect different lines of authority, different tests set
out in case law, rule explanation versus rule application, or any other points
of division that would be helpful to the reader. For length, use three pages as
a rough outside limit. Headings and subheadings will constitute your reader’s
road map. Most busy readers want to orient themselves in the text at least
every three pages or so. Also remember that reader attention wanes between
subheadings and can be renewed with a new subheading.
Finally, check your headings and subheadings to be sure they
communicate your conclusions. Headings are important to readers because
they make the large-scale organization visible at a glance. They mark the
reader’s progress through the analysis, so the reader always knows where she
has been and where she is headed. They mark the spots where the reader
might choose to invest a bit more attention. They assist the reader in
evaluating the analysis itself, and through it the writer’s ability and
credibility. They enable the reader to consider preliminary issues with the
assurance that anticipated sections are coming. They allow busy readers to
jump immediately to the particular sections they want to review.
V. VARIATIONS OF THE MULTI-ISSUE

PARADIGM
Like the paradigm for a single-issue analysis described in Chapters 8 and 9,
the multi-issue paradigm provides a format you can adapt to fit each
assignment. The most common adaptation of the paradigm is stating and
explaining the rules for all elements before applying any of them to the facts.
An outline for such a discussion would look like this:
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.
Issue. Do the Lupinos have a reasonable chance of recovery on 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
Deepening Your Analysis
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.
I. USING POLICIES AND PRINCIPLES IN

RULE EXPLANATION
The main forms of legal reasoning used in rule explanation and their common
uses are:
Rule-Based Clarifying the precise language, structure, and

meaning of the rule
Policy-Based Identifying underlying rationales intended to
encourage desirable results for the society at large
and affecting either the rule’s original purpose or
the ways the rule might be interpreted now
Principle-Based Identifying any principles that the rule is intended
to serve or that might constrain the rule’s
interpretation
Custom-Based Identifying social norms or business customs that
the rule supports or formalizes
Once you have formulated the rule, supported your formulation with
citations to authority, and shown how the courts have applied the rule in the
past, you have given the basic explanation of the rule. But you should also
explain the purpose of the rule to understand and eventually apply the rule
with some degree of confidence. In most cases, policy- and principle-based
reasoning will be your most valuable tools in explaining the rule’s purpose.
Does the rule embody a broad principle valued by our society, or might its
interpretation and application be constrained by such a principle? What did
the creator of the rule, be it a legislature or a court, intend to accomplish? To
answer these questions, you need policy- and principle-based reasoning.
Policies and principles cover many kinds of concerns. Professor Ellie
Margolis has identified four common categories:1
Policies affecting judicial administration pertain to the practical
administration of the rule by the courts.2 For example, a court’s reasons for
choosing a flexible factors test might include the ability to fashion a
particularized fair result in each future circumstance. The choice of a more
rigid rule, however, might be designed partly to maximize people’s ability to
predict legal outcomes and to bring their conduct into line with that
prediction, thus reducing the need for litigation.3
Normative policies promote shared societal values. These policies can
include moral considerations such as the promotion of honesty and fair
dealing, social considerations such as the promotion of stability within
families, and corrective justice considerations such as the placement of
liability on the most culpable party.4
Institutional competence policies recognize the value of relying on the
decision-maker who is most capable of resolving the dispute wisely.5 Perhaps
the rule is designed to encourage an appellate court to defer to the trial court
because the trial judge is able to see the witnesses and evaluate their
demeanor. Perhaps the rule relies on the expertise of an administrative agency
staffed by presumably neutral experts in a complex field. Perhaps the rule
defers to the legislature because the legislative process allows for more public
input and accountability.
Economic policy rationales seek to maximize efficient resource
allocation, keep economic costs in line with resulting benefits, and maintain a
free market.6 Economic rationales include such considerations as placing the
liability on the party most able to obtain insurance for such losses. They also
can include larger scale economic considerations such as balancing the desire
to refrain from government interference against the need for protection
against practices that, in the long term, would reduce desirable competition.
As we saw in Chapter 5, these policies and principles can help you predict
how a court might apply the rule to a particular set of facts, especially in a
close case. Most assuredly, policy- and principle-based rationales can help
you persuade a court to apply the rule in your client’s favor. A court will try
to apply the rule in a way that advances the policies and principles the rule is
designed to advance. Conversely, the court will try to avoid applying the rule
in a way that impedes those policies and principles.
The first and best place to look for policy- and principle-based rationales
is in the authorities themselves. Often a statute or its legislative history will
contain a statement of the purposes for the legislation. Often courts will
articulate the rationales their rulings are designed to address. Secondary
sources like treatises and law review articles are instructive as well. And you
can use your own common sense. What are the most likely goals the
legislature or the courts had in mind when they were developing the rule?
What long-term results would follow if courts ruled one way rather than the
other on your issue? What advantages would be produced? What dangers? To
jumpstart your thinking, here are examples of some common policy
rationales:
• As between two parties, the law should place the risk of liability on the
party most able to prevent a loss.
• As between two parties, the law should place the risk on the party who
already bears similar risks and therefore whose legal and practical
situation will be least affected by the risk.
• Where the bargaining positions of certain kinds of parties are grossly
disparate, the governing rule should protect the weaker party.
• The law should not impose a liability that might limit the ability of
people to engage in a particular business in the future, especially if the
business provides a socially desirable service.
• The rule should place the burden of proof on the party with the easiest
access to the evidence.
• The governing rule should be workable in light of the practical realities
of day-to-day life. It should incorporate a realistic view of human
psychology and business custom.
• The governing rule should not create a legal standard that is easily
subverted by knowledgeable and crafty individuals and businesses.
• Stability in the law is desirable. The law should not change unless the
need for the change is clear.
• The realities of modern life have changed significantly (explain how).
The law must be willing and able to change and adapt to changing
circumstances.
• The law should resist the temptation to rush to the rescue when a refusal
to intervene will encourage people to be diligent and responsible in
handling their economic and legal affairs.
• The rule should not create additional costs for a person or an industry
unless the harm to be prevented justifies the imposition of those costs.
• The governing rule should not add impediments to the free transfer of
assets and the ease of doing business.
• The governing rule should be flexible enough to allow future courts to
achieve a fair result in individual future circumstances.
• The governing rule should be concrete enough to ensure that future
adjudications will be based on objective criteria rather than on
prejudices of the decision-maker.
• It is appropriate for the law to require a higher standard of conduct from
a commercial party than from an individual not engaged in a particular
business.
• The court should adopt a rule that is as consistent with established
custom as possible since customs become established because, over
time, people have discovered that they work well.
II. USING ANALOGICAL REASONING IN

RULE APPLICATION
In the rule application section, the focus shifts to your client’s facts. Each of
the forms of reasoning described in Chapter 5 can be brought into play here.
You need not use all forms of reasoning in all cases, but you should not
neglect to consider how each of them might serve your purpose. The
structure, the specific words, and the form of the rule must be related to the
situation at hand (rule-based reasoning). But the law is more than words, so
you should look behind the words to consider the principles or social policies
the rule serves. Consider how those principles and policies could bear on
your client’s story (policy- and principle-based reasoning). Look for any
customs, practices, or normal behavior of people in your client’s situation,
and consider that most rules of law probably intend to codify normative
conduct, not prohibit it (custom-based reasoning). Look also for the narrative
themes of your client’s story, particularly those that might affect the way the
rule should be applied (narrative).
All of these forms of reasoning can be helpful in the rule application
section, but analogical reasoning is one of the most important forms of
reasoning here. It can provide the critical connection between your client’s
facts and the way the rule has been interpreted in prior cases. Chapters 5 and
9 introduced analogical reasoning; now we explore it in greater depth.
Analogical reasoning compares two things. A lawyer uses analogical
reasoning when she compares the facts of a prior case with her client’s facts,
pointing out similarities that can help her predict or advocate a similar result.
This process is sometimes called analogizing cases. A lawyer can also
compare two cases to find differences that might call for a different result.
This process is called distinguishing cases.
A. Deciding Which Similarities and Differences Are

Significant
The first step in mastering the skill of analogizing and distinguishing cases is
to understand what kinds of similarities and differences could be legally
significant. If you have a sense of how you might use a similarity or
difference, you will have a better idea of what you are looking for. A
similarity or difference is legally significant if it relates to
• a term in the governing rule of law, or
• a policy or principle implicated by the rule or its application in this case.
Comparisons relating to a key term of the governing rule are the most
important. The governing rule is the starting point for all legal analysis. No
matter how compelling a party’s case, the judge must be able to reconcile the
result with the governing rule. If a factual similarity or difference would help
a court decide how the rule might apply to that party’s situation, the
comparison will be important.
For example, in most jurisdictions, a seller of real property who knows or
should know of material defects in the property must disclose those defects to
a potential buyer. Notice that this rule has two elements:
A seller must disclose if:

1. the seller knows or should know of the defect, and
2. the defect is material.
Therefore, factual similarities or differences will be most important if they

help the judge decide either of these two elements — what kind of
“knowledge” is enough to raise the duty and how to gauge whether a defect is
“material.”
Similarities or differences that do not relate directly to an element of the
rule but do relate to the purpose or policy behind the rule can be important as
well. If applying the governing rule in your client’s case would not serve the
policies the rule was meant to further, a court might be willing to create an
outright exception for situations like that of your client.
B. Choosing a Format for Your Case Comparison

Now that you have identified the comparisons you want to make, you can
decide how much depth you need. Professor Michael Smith has identified
two formats for case comparisons: the short form and the long form.7 Use the
long form for important comparisons, for complicated comparisons, or for
multiple points of comparison. In all other circumstances, you can use the
short form. In either format, however, be sure to give direct, fact-to-fact
comparisons. Notice how the examples below directly compare facts.
1. Short-Form Case Comparison

Begin with a thesis sentence stating the point of the comparison, and give a
factual overview of the cited case, unless your reader is already familiar with
its facts. Next state the specific facts that will form the basis of your factual
comparison, and state the result reached in the cited case. Then use a thesis
sentence to state the nature of the similarities or differences you are pointing
out. Identify the specific facts from your client’s situation to which you are
comparing the cited case, and use that comparison to explain why the result
in your client’s situation should or should not be the same. Here are two
examples of a short-form case comparison, one showing differences and the
other showing similarities:
Differences
Buckley’s representation that she was old enough to buy a car is significantly different
from the representations in Carney. There, a minor entered into a contract to purchase a car.
The minor affirmatively stated to the sales agent that he was twenty-two, and the agent
recorded that information on the loan application, which the minor then signed. The court
affirmed the holding that the minor had fraudulently misrepresented his age and was
therefore estopped from disaffirming the contract. Id. at 807–808.
Buckley, however, never stated her age at all. Further, her answer, taken to mean what
she intended it to mean, was not even false. The sales agent had asked her whether she was
old enough to buy a car. Buckley misunderstood the question, thinking the agent was asking
whether she was old enough to drive. She truthfully answered the question she thought the
agent was asking. She said “yes,” meaning that she was old enough to have a driver’s
license. Thus Buckley’s facts do not constitute misrepresentations according to the Carney
standard.
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.
2. Long-Form Case Comparison

The long-form case comparison uses an extensive in-text discussion of the
case to give the reader more information about the cited case and about the
relevant comparisons. Here is an example of a long-form case comparison8
that demonstrates many factual similarities and also a factual difference:
Fahmie v. Wulster, 408 A.2d 789 (1979), provides the closest analogy to Frimberger’s
situation. In Fahmie, a corporation that originally owned a parcel of property requested
permission from the Bureau of Water to place a nine-foot diameter culvert on the property
to enclose a stream. The Bureau required instead that a sixteen-foot diameter culvert should
be installed. The corporation, however, went ahead with its original plan and installed the
nine-foot culvert.
The property was later conveyed to Wulster, the CEO of the corporation, who had no
knowledge of the installation of the nine-foot culvert. Nine years later, Wulster conveyed
the property, by warranty deed, to Fahmie.
In anticipation of the subsequent resale of the property, Fahmie made application to the
Economic Development Commission to make additional improvements to the stream and
its banks. It was then that the inadequate nine-foot culvert was discovered, and the plaintiff
was required to replace it with a sixteen-foot diameter pipe.
Fahmie sued Wulster for the cost to correct the violation, claiming a breach of the
deed’s warranty against encumbrances. The New Jersey Supreme Court concluded that a
claim for breach of a covenant against encumbrances cannot be predicated on the necessity
to repair or alter the property to conform with land use regulations.
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?
III. USING FACTUAL INFERENCES IN RULE

APPLICATION
As we saw in Chapter 5, inferential reasoning (abduction) does not provide
irrefutable evidence of a conclusion, but it can show that a particular
conclusion is consistent with the provable facts. Better yet, it can show that
this conclusion is more likely than any other. In Chapter 5 we used this
example: Assume that a patient had normal blood pressure during all prior
phases of treatment and then the doctor changed one of the patient’s
medications. Immediately after taking the first dose, the patient developed
high blood pressure. No other changes in treatment or lifestyle occurred. One
could infer from this set of facts that the new medication caused the high
blood pressure.
Inferential reasoning (drawing factual inferences) is important in
analyzing many legal issues. It is especially important when the legal rule
calls for a conclusion that cannot be directly observed — questions like
causation (as in our prior example), knowledge (whether a person was aware
of a certain fact or situation), or motive or intent (whether a person intended
to cause a certain result). Many rule application sections deal with such legal
questions that cannot be answered definitively. Without an undisputed
answer, we must rely on inferences.
For much of this book, we have been studying the meaning of “legal
analysis” and we have seen a recurring theme: We cannot simply state a
conclusion and expect a reader to be satisfied. Merely “telling” the reader the
answer is not enough. We must both “show” and “tell.” Nowhere is this more
true than in the rule application section, where many new legal writers are
tempted to state the rule and then simply assert that it is or is not met by the
client’s facts. Inferential reasoning can be the vital link between the facts and
the conclusion.
You might think that the application is obvious and that there is no need
to talk about the facts. Talk about them anyway. Explain to the reader exactly
why the test is or is not met. The facts will not be as obvious to the reader as
they seem to you. Also, as you write out why the facts lead to a certain result,
you will think of other reasons that had not occurred to you before, and you
might even notice some other facts that call your conclusion into question.
For inferential reasoning, your primary goal is to bolster your conclusion
by showing how a particular cluster of facts is consistent with the conclusion
you are asserting. If possible, you want to do even more. You want to
challenge other possible conclusions by showing that the facts are not
consistent with other conclusions. You might even be able to point out
missing facts — facts that one would expect to see if the other conclusion
were true.
In our blood pressure example, for instance, we are showing that the new
medication was the only change relevant to blood pressure and that the high
blood pressure occurred immediately after that change. If the change had
been caused by something else, we would expect to see facts consistent with
that other cause, such as the gradual development of the problem over time,
or a sudden increase in salt, a sudden decrease in exercise, or a sudden new
anxiety-producing situation in the client’s life. If those facts are not present,
you can draw inferences from their very absence.
To notice the factual inferences you can draw, your imagination is your
best friend. If the medication caused the high blood pressure, what facts
would you imagine in that scenario? Do the client’s facts match your
imagination? Do the same for competing conclusions. If the cause were age,
nutrition, lack of exercise, or situational anxiety, what facts would you
imagine? Are those facts present? Then write out your thought processes, so
your reader can see exactly why you think that the facts do or do not establish
a certain factual conclusion.
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
Writing an Office Memo
The traditional way to provide a colleague with a predictive analysis is by

using an office memo. Times are beginning to change, however, and some
situations now call for an email version of the traditional memo. This chapter
covers the traditional memo first and then introduces the newer email memo.
I. THE FUNCTION OF AN OFFICE MEMO

An office memo is an internal working document. It is not designed for
outside readers, although clients and others might receive a copy if the need
arises. The function of an office memo is to answer a legal question, usually
for a particular client in a particular situation. Often, it will be the primary
basis for making a decision with both legal and nonlegal consequences. Also,
the firm might keep office memos for future use when a similar question
arises again. Therefore, your document could have a long life, impact many
clients, and create impressions about you in the minds of many future
readers.
When you write an office memo, your role is predictive rather than
persuasive. You must try to take an objective view of the question you are
asked. The client and the requesting attorney need an accurate understanding
of the situation. Learning bad news later could be costly for the client, for the
firm, and for you. Making an accurate prediction, then, is the function of an
office memo.
II. AN OVERVIEW OF THE MEMO FORMAT

The format of a memo is designed to fit its function and its reader’s needs.
Because a memo is an internal document, law firms are likely to have a
preferred memo format. The firm’s format may use various words for the
section titles, it may place the sections in an order different from that
described here, or it may include other sections. If your reader (your teacher
or law firm) has a particular format preference, use it. If not, you can use the
standard memo format this chapter describes. Variations in format are much
less important than the accuracy and thoroughness of the analysis. The
components of a standard office memo are
1. Heading
2. Question Presented
3. Brief Answer
4. Fact Statement
5. Discussion
6. Conclusion (when appropriate)
Look at the sample memo in Appendix A to locate and review each
component.
Heading. The function of the Heading is to identify the requesting

attorney, the writer, the date, the client, and the particular legal matter.
Question Presented. The Question Presented identifies the question(s)

you have been asked to analyze. It allows your reader to confirm that you
have understood the question(s). It also might remind a busy reader of the
question(s) he or she asked you to analyze.
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.
Discussion. The Discussion section explains to your reader the analysis

that led to your answer. Chapters 7-11 explained how to write this section.
Conclusion. You may choose to end with a Conclusion section, a

summary of the main points of your analysis. A Conclusion section can be
helpful in two ways. First, if the analysis has been complex, a Conclusion
section can tie together and summarize the Discussion section. Sometimes,
this summary can add a clarity that the Discussion alone might not be able to
achieve. Also, a Conclusion can increase your reader’s options for deciding
how much attention to invest in understanding the details of your analysis. A
Conclusion would be a summary with more detail than the Brief Answer but
not as much as the Discussion. Therefore, a law-trained reader could read
your Brief Answer first, then proceed to your Conclusion for somewhat more
depth, and finally read your Discussion for even more depth. After reading
each section, your reader can decide how far and how deeply to read on.
III. DRAFTING THE HEADING

Draft a heading in the format of standard business interoffice
communications. Here is an example of a heading:
TO: Ramon Caldez

FROM: Marcia Willingham
DATE: March 17, 2003
RE: Sharon Watson (file #96-24795); covenant-not-to-compete
against Carrolton; enforceability of the covenant.
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.
IV. DRAFTING THE QUESTION PRESENTED

The Question Presented, sometimes called the “Issue,” states the question(s)
you have been asked to analyze. If you have been asked only to research the
state of the governing law on a particular question, without reference to a
particular client, the Question Presented simply states the legal question:
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:
Can Carrolton enforce the Watson covenant-not-to-compete when the

covenant prohibits Watson from making sales contacts for three years and
applies to the three counties closest to Carrolton’s headquarters?
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:
Whether Carrolton can enforce the Watson covenant-not-to-compete when

the covenant prohibits Watson from making sales contacts for three years
and applies to the three counties closest to Carrolton’s headquarters.
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:
Under the Georgia common law rule that allows covenants-not-to-compete

only when the area restrained, the activities restrained, and the duration of
the restraint are reasonable, can a covenant-not-to-compete be enforced
when the covenant prohibits the covenantor from making sales contacts for
three years, and applies to the three counties closest to the headquarters of
the covenant’s beneficiary?
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.
Generic Versus Specific References. No matter which format you

choose, you will need to decide whether to use a general or a specific
Question Presented. For example, Format Options 1 and 2 above refer
specifically to Watson and Carrolton, whereas Format Option 3 does not.
Here is an example of a generic Question Presented drafted in Format Option
1:
Can a covenant-not-to-compete be enforced where the covenant prohibits

the covenantor from making sales contacts for three years and applies to
the three counties closest to the headquarters of the covenant’s beneficiary?
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:
Can Carrolton (the beneficiary) enforce the Watson covenant-not-to-

compete when the covenant prohibits Watson (the former employee) from
making sales contacts for three years and applies to the three counties
closest to Carrolton’s headquarters?
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.
Degree of Detail. Try to limit the Question Presented to one readable

sentence. Packing both the legal issue and the major facts into one readable
sentence can be quite a challenge. If your draft of the Question Presented is
unwieldy, first use the editing techniques described in Chapter 20. If those
techniques do not allow you to achieve a readable sentence, consider
shortening the facts you include. If all else fails, use two sentences. Two clear
sentences are better than one confusing sentence.
Assuming the Answer in the Question Presented. Avoid stating the

Question Presented in a way that assumes the answer. For instance, in the
Watson/Carrolton case, the following Question Presented assumes the
answer:
Can Carrolton enforce the Watson covenant-not-to-compete when the
covenant prohibits Watson from making sales contacts for an unreasonable
length of time and applies to an unreasonable geographic area?
According to the governing rule, a covenant with unreasonable terms is

not enforceable. But the requesting attorney did not ask merely what rule
governs the issue. The requesting attorney has asked how the rule applies to
Watson’s facts. She has asked whether the Watson terms are unreasonable, so
do not phrase the Question Presented so as to assume the very question you
are to answer.
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.
V. DRAFTING THE BRIEF ANSWER

The Brief Answer gives your busy reader the answer quickly and right up
front. Because Questions Presented come in several formats, their Brief
Answers do as well. A Brief Answer responding to a Question that does not
articulate the rule of law (those described in Formats 1 and 2) should state the
answer forthrightly (“yes,” “probably yes,” “no,” or “probably not”). The
remainder of the Answer should set out, either directly or indirectly, the rule
of law governing the issue and a summary of the reasoning leading to the
answer. Assume that you have decided that Carrolton will be able to enforce
the Watson covenant. Your Brief Answer might be:
Probably yes [forthright statement of the answer]. 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 [statement of the governing rule of law]. 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 [summary
of reasoning].
Brief Answers that respond to Questions in format three (Questions that

have already stated the law) can be shorter. When you are using this format,
state the answer in the first few words. Then state, in several complete
sentences, the reasons for your answer, like so:
Probably yes [forthright statement of the answer]. 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 [summary
of reasoning].
Generic Versus Specific References. Use references that match those in

the Question Presented. If you used the parties’ names in the Question, use
them in the Brief Answer. If you used characterizations in the Question
Presented, use those characterizations in the Brief Answer as well.
Degree of Detail. An average length for a Brief Answer is one moderate

paragraph (about one-third to one-half of a double-spaced page). The
function of the Brief Answer is compromised when the Answer is much
longer than that. Occasionally, you will be dealing with a rule that is so
complex that even a Brief Answer will take more space, but usually not. Try
to limit this section to a maximum of five sentences, like the example above.
Degree of Certainty. For many memo assignments, deciding your degree

of certainty is daunting. Perhaps the answer seems clear and certain. Have
you simply received an easy, straightforward assignment? Or have you
missed something important? Perhaps you think the answer could go either
way, and you cannot decide which is more likely; yet you know that the
requesting attorney wants an answer, not a coin toss.
There is no easy solution to this discomfort. You are just beginning the
lifelong project of developing the legal judgment to gauge the certainty of a
predicted result. With experience, you will get better at making these
judgments. For the time being, you must research and analyze thoroughly and
then make the best judgment you can.
When you are struggling with the question of the degree of certainty of
your answer, keep in mind the possible spectrum:
Think carefully before you choose an answer on either end of the

spectrum. Some issues actually have certain answers, but before you
conclude that yours is one of them, be sure you have done a complete and
accurate legal and factual analysis. Some issues actually will be a coin toss,
but before you conclude that yours is one of them, ask yourself whether you
are simply resisting the discomfort of having to make a prediction in an
uncertain area.
Here is how the office memo looks so far:
TO: Ramon Caldez

FROM: Marcia Willingham
DATE: August 17, 1996
RE: Sharon Watson (file #96-24795); covenant-not-to-compete
against Carrolton; enforceability of the covenant.
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.
VI. DRAFTING THE FACT STATEMENT

In drafting the fact section, your primary tasks are (1) selecting which facts to
include, (2) organizing those facts in an effective way, and (3) remembering
your predictive role.
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.
As you compile your list of known relevant facts, ask yourself

what other facts you would like to know — what unknown facts might affect
your prediction? Even if the requesting attorney has not asked you to identify
important unknown facts, she almost certainly will appreciate ideas about
factual investigation. Also, you will find that legal analysis and fact
investigation are inextricably intertwined. Often the process of identifying
important unknown facts will yield new insights about rule application, rule
explanation, or both. Fact identification is yet another opportunity to deepen
your analysis of the question presented.
B. Organizing the Fact Statement

Once you have identified the facts, think about how you want to organize
them. Normally, your first paragraph should identify your client and briefly
describe the client’s problem or goal. This paragraph will give your reader a
context for the facts that follow. The first or the last paragraph should
describe the current status of the situation, including the procedural posture
of any litigation. You can organize the material in between either
chronologically, topically, or both.
Chronological Organization. If the legal analysis has not identified

complex and distinct factual topics, if the order of events is particularly
important, or if there are a number of factual developments in the story, a
simple chronology might be best. For instance, turn back to the description of
the Ryan/Kaplan facts in Exercise 8-2. Notice how those facts are organized.
The legal issue there is whether a reasonable person would have thought that
Kaplan was serious. The story has a number of factual developments, and the
chronology is particularly important. Therefore, a chronological organization
works well.
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.
Combination of Chronological and Topical. If the facts have

characteristics of both patterns, you can use a combination. Turn back to the
Carillo facts in Exercise 10-2. Some of those facts have chronological
importance, but many are descriptive. Notice how they fall roughly into four
topics: (1) an introduction of the Carillos and a description of their
neighborhood; (2) facts surrounding the purchase of the trampoline, its
purpose, its placement in their yard, and the rules for its use; (3) the events on
the day of the accident; and (4) the present status of the matter. The overall
organization of that fact statement is topical, devoting a paragraph to each
factual topic. However, the topics appear chronologically, and the facts
within the third topic are presented chronologically.
Identifying format choices will be helpful as you organize your

first few fact statements. Many writers find it best to write a preliminary
draft, letting the story unfold according to the writer’s intuition. Then they
can identify the format that emerged, evaluate where it works and where it
does not, and edit it in a second draft. Your goal is to use the format that will
best meet your reader’s needs for clarity and logical presentation.
Remembering Your Role. As you begin to write the Fact

Statement, be particularly attentive to your role. Remember that both your
legal analysis and your factual description must be as objective as possible.
Watch for the tendency to try to prove something by the way you tell the
story. Here are three techniques to help you avoid this role confusion:
1. Use neutral language and objective characterizations when possible.
Rather than writing, “the defendant was speeding through the school
zone,” write instead “the defendant was traveling 40 MPH through
the school zone.” Rather than writing, “Wade brutally beat the
victim,” write instead, “Wade struck Baker on the head several times,
resulting in multiple lacerations and a concussion.”
2. Include the unfavorable facts. You may have to remind yourself to
identify and include these unfavorable or conflicting facts, but the
discipline will help you stay in role.
3. Where appropriate, identify one or two important unknown facts.
Pointing out a potentially important but currently unknown fact will
help counteract the unconscious tendency to slip into describing the
facts with more certainty than you can justify.
EXERCISE 12-3
Critique the following Fact Statement, using the criteria described above and
any others you choose. Then write an improved version.
Fact Statement. On March 1, 1996, our client Karen Berry, a lawyer,

loaned $50,000 to her client, Morgan Cox. Cox was to use the money to
purchase a lot to construct a warehouse for his wholesale distribution
company, ABC Distributing. The loan was to be repaid over ten years. As
security for the loan, Berry took a mortgage on the lot and assumed a 51
percent partnership status in ABC. The partnership documents give Berry
both control over ABC and joint ownership with Cox of all company assets.
ABC had been operating out of leased space, but the lease would soon
expire, and the owner had served notice that the lease would not be renewed.
ABC had only four months to vacate the leased premises. Berry had learned
of this fact during the course of her representation of Cox and ABC in the
negotiations to renew the lease. Upon learning that the owner had decided not
to renew the lease, Berry suggested to Cox that he buy a particular lot in the
heart of the industrial district and build a warehouse on the lot. Cox
responded that he did not think he could come up with the necessary funds.
Berry offered to loan him $50,000 at 8 percent per annum. She said that as
security she would take a mortgage on the lot, and she would assume 51
percent partnership status in ABC.
The law requires that Berry refrain from misrepresenting or concealing
any material fact. Berry knew that the lot was close to one of the routes
proposed for a planned interstate connector. She knew that the value of the
lot would increase if that route was chosen for the highway. Berry says that
she told Cox about this possibility. Whether Cox will confirm Berry on this
point is presently unknown.
On the matter of the $50,000 loan, Berry says that she explained the
transaction to Cox. However, she says that Cox already understood the
proposed transaction clearly because he has over 20 years of business
experience. Cox has a Masters degree in Business Administration, and he was
at one time a licensed real estate broker. Clearly, with this kind of
background, Cox should have been aware of the nature and effect of the
proposed transaction. Being sure that the client is aware of the nature and
effect of the proposed transaction is one of the key elements required by
Goldman v. Kane.
Shortly after completing the transaction Berry discovered that Cox had a
gambling problem and was draining ABC of its cash. The business was in
serious trouble. Fortunately for Berry, she was able to dissolve the
partnership agreement before she incurred significant liabilities. Because Cox
was in default on the loan payments, Berry foreclosed on the lot. She did not
claim interest in any other company asset.
Within a month after Berry took title to the lot, the proposed connector
route nearest the lot was selected for the new highway. Two months later
Berry sold the lot for $80,000. Cox has filed a disciplinary grievance against
Berry, alleging that Berry violated the ethical rule governing a lawyer’s
business transactions with a client.
VII. DRAFTING THE CONCLUSION

If your Discussion section is relatively short and clear and if your teacher or
requesting attorney does not have a preference, you need not add a separate
Conclusion section. A Conclusion section should not simply repeat the Brief
Answer. However, if your analysis has been complex or multifaceted, a
Conclusion section can tie together and summarize the Discussion. A
Conclusion should include more detail than the Brief Answer but not as much
as the Discussion.
Checklist for an Office Memo

Heading
• Have you included the name of the requesting attorney, your name, the
date, the client’s name; the file number; and a phrase identifying the
particular legal matter and issue?
Question Presented
• Have you made an appropriate choice of format?
• If you chose the “legal issue/major facts” format, did you state the legal
question in the first half of the sentence and the significant facts in the
second half?
• If you chose the “whether” format, did you state the legal question first
and the significant facts second, all in a clause and ending with a
period?
• If you chose the “under/does/when” format, did you state the rule, then
the legal question, and then the significant facts?
• Have you made an appropriate choice of generic or specific references?
• Have you edited to achieve one readable sentence?
• Have you maintained an objective perspective?
Brief Answer
• Have you stated the answer in the first several words?
• Have you included a statement of the rule if the Question Presented did
not already state it?
• Have you stated a summary of the reasoning leading to the answer?
• Have you chosen either generic or specific references to match the
Question Presented?
• Have you kept the Brief Answer to a maximum of one-third to one-half
a double-spaced page?
• Have you taken a position, even if you are not sure?
• Have you avoided sending your reader mixed signals about how sure
you are of your answer?
Fact Statement
Fact Selection
• Have you included all legally significant facts?
• Have you included sufficient factual context?
• Have you included any major emotional facts?
• Have you avoided including discussion of legal authority?
• Have you avoided drawing legal conclusions?
Organization
• Have you identified the client and the client’s situation at the beginning
of the Fact Statement?
• Have you selected an appropriate organization (chronological, topical,
combination) for the facts?
• Does your last paragraph give the facts closure and lead into the
Discussion section by explaining the procedural posture of the legal
issue or by some other device?
Role
• Have you maintained neutral language and objective characterizations?
• Have you included both favorable and unfavorable facts?
Discussion
Umbrella Section
• Have you summarized the rule, setting out all subparts and clarifying
how they relate to each other?
• Have you included any important information about how the rule
functions generally, such as a burden of proof or a relevant
presumption?
• Have you identified any genuinely undisputed issues and, if necessary,
provided a cursory explanation for why they are not in dispute?
• Have you stated the order in which the remaining issues will be
discussed, explaining the reason for this organizational choice?
• If necessary to prevent confusion, have you identified any related legal
issues not covered by the memo?
Analysis
• Have you selected an appropriate order for the issues?
• Have you checked section lengths, combining or dividing subsections
where appropriate?
• Are your headings complete thesis sentences?
• Have you placed a thesis paragraph at the beginning of the discussion of
each issue?
• Have you also used the checklists at the ends of Chapters 8 and 9?
Conclusion
• Have you added a Conclusion section only if your reader prefers or the
Discussion has been long and complex?
• Is your Conclusion more detailed than the Brief Answer but
significantly less detailed than the Discussion?
VIII. WRITING AN EMAIL MEMO

When time is short and issues are relatively simple, email communication
may replace more traditional paper communication. Even when issues are
complex, an email summary can accompany a more traditional hard-copy
memo, serving many of the same functions as the Brief Answer or
Conclusion sections of the memo format. An email memo demands a careful
balance of clarity and brevity.
The content of an email memo will vary, but the most common form will
include very short versions of the same components typically included in a
traditional memo. The heading of the email will mimic the heading of the
traditional form. The email’s body will briefly describe the question, key
facts, the answer, and key points of the legal analysis. Often the email will
end with some reference to the next appropriate steps. In this example of an
email memo for the Pyle/Gavin facts from Chapter 8, identify the
components that resemble a more traditional office memo:
FROM: Matthew Cairn

TO: Raquel Acosta
SENT: Thursday, Feb. 16, 2015
RE: Linda Pyle’s Possible Attorney Malpractice Claim against
Howard Gavin
Raquel, I’ve looked into the question of whether Linda Pyle might have a
viable malpractice claim against Howard Gavin for his failure to notice the
access easement across the land Ms. Pyle bought for a commercial horse
stable. My research shows that she has a strong claim.
A lawyer has a duty to provide the standard of skill and diligence

commonly exercised by a reasonably prudent lawyer. [citation] Courts
have found that duty breached when lawyers fail to do sufficient research
or when they make mistakes on matters commonly handled by general
practitioners. Representing a buyer in a land purchase is commonly
included within the general practice of law, and the easement would have
been easily located had Gavin performed a title search. A title search is
routine in all land transactions, but here Gavin knew of Pyle’s proposed
use for the land, so he knew she had a special need for sole control of the
property. This special knowledge seems to make Ms. Pyle’s case even
stronger.
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
Be especially careful to use appropriate professional tone and etiquette in an

email memo. Don’t let email habits used in social settings creep into your
professional emails. The next chapter contains a section on voice, tone, and
style in professional emails. Be sure to take a look at that section before you
hit “send.”
CHAPTER 13
Writing Professional Letters and

Emails
Letters and email messages are critical to a lawyer’s reputation. Lawyers

write far more letters and email messages than office memos or briefs, and
these less formal communications are seen by many people — people with
whom the lawyer must maintain a key professional relationship and people
the lawyer will never meet. Unlike oral communications, letters and email
messages can have a long life. They often are copied and distributed well
beyond the original audience, and they are read and reread long after a human
voice would have died away.
Perhaps even more important, self-disclosure is nearly impossible to
avoid when you write a letter. The genre is by far the most personal kind of
writing lawyers do, and inevitably, the reader of a letter forms opinions about
the character and personality of the writer. These opinions might not be true,
but they become part of the lawyer’s reputation anyway.
Of course, letters and email messages are important substantively as well.
Key information is conveyed in both media. Clients make decisions based on
their lawyer’s letters and emails, and lawyers are exposed to malpractice
liability when a letter or email is inaccurate or misleading.
This chapter introduces professional letter and email writing. The first
section discusses the general characteristics of professional letters.
Succeeding sections introduce an important client letter: the advice letter. We
conclude with a section on writing professional emails.1
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.
Substantive Purposes. Every letter has at least one substantive purpose.

Letters are used primarily (1) to convey information or advice objectively; (2)
to document information for the protection of the client and the lawyer; and
(3) to persuade someone to do something. For these substantive purposes,
you will need the same analytical skills you have already been learning:
accurate content, good organization, and clarity of expression.
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).
WARMER TONE COOLER TONE

Beginning and ending the letter
with content establishing a No content establishing a personal
personal connection. connection.
Word choices without Word choices that are sharp, blunt,

connotations of blame, fault, biting.
criticism.
Words with more syllables and Shorter words with hard consonant
soft initial sounds; sentences sounds; shorter sentences with
with longer phrases. powerful verbs and vivid nouns but
fewer adjectives and adverbs.
Contractions (only when No contractions.
informality is appropriate).
Mutual references using the Liberal use of the pronoun “you” to
pronoun “we” to underline the underline the distinction between the
relationship. writer and the reader.
Tempering any uncomfortable Discussing uncomfortable subjects
subjects with offsetting indirect without any reassurances.
assurances that the writer likes
and respects the reader.
Using passive voice for Using the active voice for
uncomfortable subjects. uncomfortable subjects.
Placing uncomfortable subjects Placing uncomfortable subjects early
in the middle of the letter or in in the letter and at the beginning of a
the middle of a paragraph. paragraph.
Letters as Public Documents. Before we begin considering particular

kinds of letters, one word of caution is helpful. Because letters are addressed
to particular readers and are not usually filed in court, it is easy to think of
them as private documents. But any document that goes outside your office is
or might one day become a public document. You could find your letter
appended as “Exhibit A” to a court document or presented against you or
your client in a future dispute or settlement negotiation. Never write a letter
that you would cringe to see again in another context. If you are angry, do not
mail a letter until you either have calmed down or had another lawyer review
what you have written. Do not click on your email program’s “send” icon in
the heat of the moment.
II. ADVICE LETTERS
Lawyers write two kinds of advice letters: formal advice letters (usually
called “opinion letters”) and informal advice letters. Opinion letters are
formal documents communicating a lawyer’s legal opinion. They are
commonly required for particular kinds of transactions, as a form of
assurance to the parties of their legal situation. The requirements for these
opinion letters often are highly specialized and beyond the coverage of this
course.
Informal advice letters, however, are common, important, and well within
your present ability. Here is a summary of the content and organization of an
informal advice letter. Use your understanding of your reader to help you
decide the appropriate level of formality for the letter. Refer to the advice
letter in Appendix D for an example of each of the following components.
Opening Paragraphs. Begin with any personal material that is

appropriate for your relationship with this client in this particular matter. For
instance, assume that you are probating the estate of your client’s deceased
wife and that during your last conversation with your client, he told you that
his children were having difficulty adjusting to their mother’s death. You
might begin with an expression of hope that the children are doing better. Do
not manufacture a stilted opener, however. Simply respond genuinely to your
client, as one human being to another.
Then set out a summary of the question you have analyzed. Usually you
can summarize the question in one paragraph or less, although a complex
question might take more space. If you think your reader is ready, provide a
summary of your conclusion here as well. If you think your reader will be
more receptive to your conclusion after reading your reasoning, postpone
your conclusion.
Fact Summary. Usually you should include a fact summary to be sure

that your client understands the facts on which you base your conclusion. If
your understanding of the facts is incorrect or incomplete, the client can
advise you. Your responsibility for the accuracy of your conclusions is
limited to the circumstances of which you were aware. If different
circumstances develop in the future, you will not be held accountable for a
conclusion not meant to apply to those other circumstances.
Legal Analysis. Explain the results of your research and the legal
conclusions you have reached. Use your understanding of your reader to help
you decide the appropriate level of detail for this explanation and the degree
to which you can use legal terms. Follow roughly the paradigm for legal
analysis; that is, explain the governing rule and then apply it to your client’s
situation. If the analysis must cover several separate topics, feel free to use
headings to help you mark the transition from one topic to the next. Clear
organizational markers help readers manage new, frightening, or complex
material.
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.
Professional Uses. The first question is whether to choose email as the

medium for your message. Usually you have five choices: a face-to-face
conversation; a telephone conversation; a hard-copy letter; an email; or a
combination of media. If the message is significant and difficult — such as
bad news to the client — the best choice may be a face-to-face conversation.
If the message is complicated, you may need the length and physicality of a
hard-copy letter. Even for a simple message, you may need to document the
file with a hard-copy letter. If you need to ease your recipient into hearing the
news, you might want to begin with a phone call or email that prepares the
way but does not yet communicate the entire scope of the message. Then,
after an in-person meeting or telephone call, you might need to document the
file. As you can see, choosing the medium can require almost as much
thought as choosing your words. The most important point, however, is to
choose intentionally rather than defaulting to the easiest or least threatening
medium.
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.
Trouble-shooting. By its very nature, emailing happens quickly, in the

press of a busy day. That situation calls for some special care. Here are some
tips to avoid common email problems:
1. Don’t forward an email you have received unless you’re certain that
forwarding is appropriate, either because of the context (an email of
the kind you’d be expected to share with your client) or because the
email’s author has given permission to forward.
2. On the other hand, always assume that your own emails may be
forwarded, usually to the person you’d least want to see them. An
email makes its way out into cyberspace, and after you’ve hit the
“send” button, you have no control over its path.
3. To avoid accidentally sending an email before you’ve had a chance
to reread it, checking its content, style, and tone, leave the “to” line
blank until you are sure you are ready to send.
4. Never use the “reply all” function without carefully checking all the
names included, but remember to use the “reply all” function to avoid
unintentionally cutting others out of the conversation.
5. Be especially careful when replying to a message sent originally from
a listserv. Some listserv settings send replies to the whole list, even
when the writer has used “reply” rather than “reply all.”
6. Before clicking “send,” check to be sure you’ve attached the
documents you meant to attach and not one you didn’t mean to
attach.
7. Use folders to store important emails you’ve received. Your email
system will have some kind of system for saving emails. Use it.
8. When the message is important, it should go in the file in hard copy.
Print it out and place it in the file.
9. Use a confidentiality statement as part of your routine signature
material. Most likely your firm will have a form for this statement.
Here is an example:
NOTICE: This E-mail (including attachments) is covered by the attorney-
client privilege and the Electronic Communications Privacy Act, 18 U.S.C.
§§ 2510-2521. The information in in this email is confidential, privileged and
exempt from disclosure under applicable law. This E-mail and its attachments
are intended solely for the use of the addressee. If you are not the intended
recipient of this message, you are prohibited from reading, disclosing,
reproducing, distributing, disseminating, or otherwise using this transmission.
Delivery of any portion of this message to any person other than the intended
recipient is not intended to waive any right or privilege. If you have received
this message in error, please promptly notify the sender by e-mail and
immediately delete this message from your system.
1. The website, www.wklegaledu.com/Edwards-LWAnalysis5, for this book also covers retainer

letters, status reports, demand letters, confirming letters, and transmittal letters.
2. For email office memos, consider this section together with Section VIII in Chapter 12.
PART FIVE
The Shift to Advocacy

CHAPTER 14
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.
I. ETHICS AND THE ADVOCATE’S CRAFT

Language and justice are distinctive attributes of humanity. Instead of
growling and gesticulating naked aggression or craving, human beings reason
with language toward resolutions that are just, compassionate, and practical.
This connection between language and justice made rhetoric an honored
study and practice in classical antiquity, a study and practice whose
foundations were formed, in part, by ancients such as Socrates, Aristotle, and
Cicero. In writing a brief, today’s lawyer takes her place within that
honorable tradition. Reasoned argument in the quest for justice is not a mere
trade performed for pay, but a craft in the Aristotelian sense, and its right
practice helps sustain and advance our common humanity.
Many of the ethical principles that govern the right practice of brief-
writing are codified in the professional rules governing lawyers. Chapter 1
covered many of these duties, but a reminder and some additional
explanation is in order here.
1. A brief-writer must not knowingly make a false statement of law.1

This means, for example, that the writer must not assert that a particular case
stands for a proposition of law when no reasonable interpretation of the case
would yield that proposition. It also means that the writer cannot fail to
disclose that a case has been reversed or overruled. Many law-trained readers
maintain that citing an authority is an implicit representation that the writer
has read the authority itself (not just the headnotes). Citing an authority you
have not read and updated is unprofessional and extraordinarily risky. Never
do it.
2. A brief-writer must not knowingly fail to disclose to the court directly

adverse legal authority in the controlling jurisdiction.2 The writer is not
required to disclose the adverse authority if it has been disclosed already by
other counsel. However, omitting the authority from an opening brief cannot
be justified by the argument that the lawyer was simply waiting to see if
opposing counsel would raise it in reply.3
Disclosure is not only ethically required, but it is strategically wise as
well. If you wait for the opposing lawyer to raise the adverse authority, you
forgo the chance to be the first to interpret the authority and explain its
impact. Allowing opposing counsel the first shot at interpreting the authority
means that you start out behind and must make up that lost analytical ground.
The scope of the duty to disclose can be articulated in several ways, most
often focusing either on the question of whether the case is one that the judge
should consider or on the more subjective reactions of a “reasonable judge.”
In a pre–Model Rules Formal Opinion, the ABA Ethics Committee adopted
both articulations:
The test in every case should be: Is the decision which opposing counsel has overlooked
one which the court should clearly consider in deciding the case? Would a reasonable judge
properly feel that a lawyer who advanced, as the law, a proposition adverse to the
undisclosed decision, was lacking in candor and fairness to him? Might the judge consider
himself misled by an implied representation that the lawyer knew of no adverse authority?4
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
3. A brief-writer must not knowingly make a false statement of fact.6

The duty to refrain from false statements of fact applies throughout the brief,
not merely to the section of the brief labeled “Statement of Facts” or
“Statement of the Case.”7
4. A brief-writer must not assert a legal argument unless there is a non-

frivolous basis for doing so. A position that argues for an extension,
modification, or reversal of existing law is not frivolous. When defending the
accused in a criminal matter, it is not frivolous to require that every element
of the case be established.8
A claim is not frivolous merely because the lawyer believes that probably
it will fail.9 But when a lawyer cannot “make a good faith argument on the
merits of the action” the claim is frivolous.10 The attorney’s subjective belief
is not sufficient to meet the standard. The test is whether a reasonable,
competent attorney would believe that the argument could have merit.11 The
meaning of “frivolous” in this context often is subject to debate, even among
experienced lawyers. In the early years of law study, while you are still
observing the kinds of arguments that do and do not have persuasive value
for judges, you might feel particularly at sea with this standard. When you
suspect that you might be approaching the line, consider doing two things: (1)
Ask a more experienced lawyer whether the argument might be frivolous.12
(2) Ask yourself (and the more experienced lawyer) whether making such a
marginal argument is good strategy, even if the argument is permissible. If
you are wondering whether the argument is so weak that it might be
considered frivolous, your position might be stronger without it.13
5. A brief-writer must not communicate ex parte14 with a judge about

the merits of a pending case, unless the particular ex parte communication
is specifically permitted by law.15 In the context of brief-writing, this means
that you must provide each party (through counsel, if any) with a copy of
your brief. Court rules require certification that you have done so.16
6. A brief-writer must not intentionally disregard filing requirements or

other obligations imposed by court rules.17 Virtually all courts operate under
rules of procedure that set out the applicable time deadlines and format
requirements for your brief. Many courts impose page limits, and some
prescribe the margins and number of permissible characters per inch. You
can guess the purpose behind these rules. It might be tempting to change the
font or ignore the margin requirements so that you can file a longer brief, but
it is neither ethical nor wise to do so. Resist the temptation, both in practice
and in your legal writing course.
II. JUDGES, BRIEFS, AND PERSUASION

In your brief-writing, judges are your primary readers, so keep in mind their
needs and expectations. Review the description of judges in Section IIE of
Chapter 6. Judges serve an important and difficult role, and respect for their
position requires a respectful tone and the formality befitting the position and
the task at hand. Do not use contractions, colloquialisms, slash constructions
(“and/or”), or note-taking abbreviations. Do not use humor, for the job you
are doing is serious work.
The judge should find your brief clear and in control of the material,
respectful of the court, and focused on issues rather than personalities. Here
are some editing strategies to help you send these important messages.
Tabulate. When your document deals with several items (such as

elements of a rule, factors, guidelines, categories of facts), consider tabulating
the items.
A lawyer has a responsibility to undertake legal service in the public interest. Among the
possible avenues of service are (1) free or reduced-fee representation of the poor, (2) free or
reduced-fee representation of public service organizations, (3) participation in activities
designed to improve the legal system, or (4) financially supporting legal services programs.
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.
Use short forms of reference. Where helpful, create shortened forms of

reference for people and things your text refers to often. This is another
technique for sending the message that you are in control of the material.
Introduce the shortened reference at the earliest feasible occasion, and
maintain consistency of reference from then on. If you will use several
shortened references, consider a paragraph or footnote early in the text
introducing all of them.
This brief will refer to Defendants Carter, Colham, Tellerhoff, and Winston, in
combination, as “the owners” and to Defendants Allen, Rakestraw, and Vernon, in
combination, as “the managers.” The brief also refers to 42 U.S.C. § 2000e-17 by its
popular name, “Title VII,” and to 42 U.S.C. § 1983 by its popular reference, “Section
1983.”
Where possible, select a shortened reference that will facilitate your

theory of the case. Avoid references that will work at odds with your theory
of the case.
Add explanatory parentheticals to citations. Before finalizing your brief,
review your citations to identify any authorities that could use an explanatory
parenthetical.18 A citation might profit from a parenthetical if you are not
discussing its facts and reasoning in the text. Look for cases you are citing
cursorily, either as support for a minor and uncontested proposition or as
additional authority for a proposition principally supported in some other
way. You can use the parenthetical to quote a nugget of language or to
provide relevant facts that serve as examples of your point. Here is an
example of each:
See also Slack v. Havens, 7 F.E.P. 885, 885 (S.D. Cal. 1973), aff’d as modified, 522 F.2d
1091 (9th Cir. 1975) (“Colored folks are hired to clean because they clean better”).
Courts have held that a defendant who resides out-of-state cannot be lured into the state
by fraud or trickery and then served with process. McClellan v. Rowell, 99 So. 2d 653
(Miss. 1958) (petitioner told his ex-wife that his mother was dying and wanted to see the
couple’s child one last time); Zenker v. Zenker, 72 N.W.2d 809 (Neb. 1955) (plaintiff told
defendant that his presence was needed to convey certain real estate).
Purge your document of vague references. Avoid references like these:

this matter with regard to
it involves it deals with
it pertains to it concerns
Writing peppered with these phrases forces the reader to struggle to
understand the reference and to wonder whether the writer is in control of the
material.
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:
a. Shift the focus to a tactful statement of another court’s error:

The lower court erred in ordering that . . .
b. Use a passive-voiced verb (to avoid identifying the court as the
actor); substitute “should” for “cannot”; and switch to a permissive
statement (what the court should do) rather than a prohibitory
statement (what the court should not do):
The defendant’s motion should be denied . . .
c. Focus on the rule that governs the issue rather than on the entity that
must follow the rule:
The rule allows consideration of subsequent negotiations only where
...
Edit out signs of negative emotion. Cool reason is much more persuasive
than sarcasm or anger. Cool reason says to your reader, “The law and the
facts are on my side, so I do not have to be disturbed by the opposing side’s
position.”
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).
Moderate any exaggerations of the law, the facts, or the inferences. A

necessary part of the advocacy process is the shift from an objective
perspective to a partisan perspective. But a brief-writer still must evaluate the
final draft of the brief with an objective eye, being careful not to overstate the
law or the facts. Remember that a reader who suspects that the advocate has
exaggerated one point will doubt all of the writer’s other points as well.
III. THE COMPONENTS OF A TRIAL-LEVEL

BRIEF
Although formats for trial-level briefs vary with the customs of the court and
the law firm, the variations are seldom substantively significant. This chapter
describes a standard format for a trial-level brief. Refer to the sample trial-
level brief in Appendix B for examples of the components described here.
Case Caption and Title of Document. The function of the Caption is

simply to identify the court, the case, and the document, for example:
The Caption must include the docket number (the case number assigned
by the court)19 and the name of the document. In many courts, the captions of
cases with multiple parties need list only the first plaintiff and the first
defendant followed by “et al.”20 Court rules might require additional
information such as the name and address of the attorney or the name of the
assigned judge. The Caption can appear on a separate cover sheet or simply
at the top of the first page of the brief.
Introduction. The Introduction (sometimes called a “preliminary

Statement”) introduces the judge to (1) the nature of the case, (2) the parties,
(3) the motion or other procedural event that has led to filing of the brief, (4)
the party’s requested relief, and (5) the primary legal points justifying that
relief. All of this information must be conveyed concisely, usually in one or
two paragraphs. Here is an example of an Introduction:
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.
Question(s) Presented. The Question(s) Presented section states the legal

issues addressed by the brief and the factual context in which they have
arisen. The questions are phrased favorably to your client’s position,
suggesting a decision in your favor. Some lawyers include Questions
Presented in trial-level briefs and some do not. Chapter 15 of this book
explains how to draft Questions Presented.
Argument. The Argument section contains your fully articulated

argument on the legal issues. In drafting the argument, you will be drawing
on the analytical material in Chapters 3-5 and the organizational material and
writing process information in Chapters 6-11. Chapter 16 provides some
suggestions and important reminders for drafting this section.
Remember one special characteristic of trial judges, however. Trial judges
are constrained by mandatory precedent. They primarily want to know what
those precedents are and how they apply to your case. Authorities from other
jurisdictions hold less interest for trial judges, most of whom do not see
themselves as free to change the law. Therefore, right up front, the trial judge
wants to know whether there are mandatory authorities on your issue, and if
so, what they are. Use authorities from other jurisdictions only to fill in any
gaps in your jurisdiction’s mandatory authority and only after you have
explained to the judge why you are presenting these outside authorities.
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.
However, if court rules and local customs permit, consider a Conclusion

that gives you one last opportunity for advocacy. This sort of Conclusion
should still be short — no more than half a double-spaced page — but it
could gather together the most compelling arguments in support of the result
you seek. Here is an example:
Therefore, as this brief has demonstrated, the circumstances of this case

render the covenant’s terms unreasonable. The covenant would protect
Carrolton to a degree far greater than necessary, while devastating both
Ms. Watson’s fledgling business and her personal finances. Further, it
would significantly infringe the public’s interest in reasonably priced
health care equipment, merchandise vital to the community’s well-being.
For these reasons, Carrolton’s Motion for Summary Judgment should be
denied.
Certificate of Service. Ethical rules prohibit ex parte contact with the

judge about the merits of a legal matter.21 Court rules require copies of all
filings to be served upon all parties, via their attorneys.22 The Certificate of
Service demonstrates compliance with these rules. The Certificate is placed
either after the Conclusion or on a separate page at the end of the brief. It
certifies that copies of the brief have been mailed or delivered to the attorneys
for all parties. For an example of a Certificate of Service, see the last page of
the sample trial brief in Appendix B.
IV. THE COMPONENTS OF AN APPELLATE

BRIEF
An appellate brief is a working document for the court, so its sections and
format are designed to make it a useful and efficient tool for the judges and
law clerks who will work on the case. Requirements for appellate briefs
largely are determined by court rules, which vary from court to court. This
section describes a standard set of sections and formatting practices. Follow
these instructions unless your assignment requires different sections or
formats.
Cover Page. The cover page of an appellate brief usually is printed on

colored paper of a heavier stock than the rest of the brief. Court rules
determine the color of the cover page according to the kind of brief. For
instance, the cover sheet on the appellant’s brief might be blue and the cover
sheet on the appellee’s brief might be red. These colors allow the court and
the law clerks to distinguish the briefs easily and quickly. On the cover sheet,
place the case caption, the docket number, the document’s title, and the
lawyer’s name and contact information. See the sample appellate brief in
Appendix C as an example.
Table of Contents. Include all subsequent sections of your brief in the

Table of Contents along with the page numbers on which they appear. These
section titles (such as “Table of Authorities”) should appear in initial caps
here, although they will appear in all caps in the body of the brief. The Table
of Contents also includes the point headings and subpoint headings, allowing
a busy judge to skim the Table for a quick summary of the major points of
the argument. Point headings and subheadings should appear in the Table of
Contents in the same typeface as they appear in the text of the Argument. The
first page of the Table of Contents should be numbered as page one.
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.
Question(s) Presented. The Question(s) Presented section states the legal

issues addressed by the brief and the factual context in which they have
arisen. The questions are phrased favorably to your client’s position,
suggesting a decision in your favor. Chapter 15 will explain in detail how to
draft Questions Presented.
Additional Sections. Some courts might require other sections, such as

the following: Opinion Below (a complete sentence providing the court with
the citation to the opinion from which the appeal is taken); Jurisdictional
Statement (a complete sentence providing the citation to the statute on which
appellate jurisdiction is based); and Constitutional and Statutory Provisions
Involved (a section setting out the text of and the citation to any
constitutional provision or statute important to the resolution of the issues).
See Appendix C for examples of these sections.
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.
Summary of the Argument. Summarize your argument here, allotting

approximately one paragraph per issue. Often the judge will read the
Summary of the Argument either first or immediately after reading the
Question Presented, so this section provides an early opportunity for
advocacy. Phrase your summary as persuasively as possible, pulling together
your most important points.
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.
Conclusion. The Conclusion of an appellate brief is a one-line, pro forma

request for the relief you seek, for instance: “For the foregoing reasons, the
judgment of the District Court should be reversed and the case should be
remanded to the District Court for a new trial.”
3. Jorgenson v. County of Volusia, 846 F.2d 1350 (11th Cir. 1988) (applying Fed. R. Civ. P. 11).
4. ABA Committee on Ethics and Professional Responsibility, Formal Op. 280 (1949).
5. In re Greenberg, 104 A.2d 46 (N.J. 1954).
7. See Chapter 16.
9. Model R. Prof. Conduct 3.1 cmt. 2 (2013).
10. Id.
11. See, e.g., Beeman v. Fiester, 852 F.2d 206, 211 (7th Cir. 1988).
12. Take care not to violate any honor code regulations pertaining to your law school assignment or
your duty of confidentiality to a client.
13. See Chapter 6, Section IIE.
14. Ex parte, in this context, means without notice to other parties in the litigation.
16. See Fed. R. Civ. P. 5(d) (2014).
18. See Chapter 8, Section V.
19. See Fed. R. Civ. P. 10(a) (2014).
20. Et al. is an abbreviation for et alii, meaning literally “and others.” See Fed. R. Civ. P. 10(a) and
7(b)(2).
22. See, e.g., Fed. R. Civ. P. 5(a) (2014).
CHAPTER 15
Questions Presented and Point

Headings
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.
I. WRITING THE QUESTION PRESENTED

A Question Presented should both apprise the judge of the legal issue to be
decided and begin persuading the judge to decide that issue in your client’s
favor. To draft a Question Presented that accomplishes both purposes, the
writer must walk a fine line between neutrality and overzealous advocacy.
The goal is to draft a Question that accurately states the issue and suggests a
favorable answer. For example, here are examples of Questions Presented
from opposing briefs:
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:
Format for a pure question of law. A Question Presented for a pure

question of law is a straightforward statement of the legal issue. It should
identify the particular legal issue, rather than simply asking whether one
side’s position is correct. For instance, the first of the following Questions
simply asks whether one party’s position is correct, without identifying the
legal issue. The second actually poses a legal question.
Can Dole bring a claim for malicious prosecution?
Can a criminal defendant bring a civil action for malicious prosecution prior to the
resolution of the criminal proceedings that give rise to the claim?
Traditional formats for a question requiring the application of law to

facts. If your legal issue requires applying law to facts, your Question
Presented should include both law and facts. You can think of the Question in
two parts, the first part stating the legal issue and the second part stating the
key facts.
Can . . . [state the legal question] . . . where . . . [state the major facts] . . . ?
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.
References to parties. To refer to the parties, a Question Presented can

use (1) the parties’ names, (2) generic descriptions (property owner, retailer,
buyer, lessor), or (3) procedural titles (plaintiff, defendant, appellant,
respondent). Procedural titles require the judge to remember who the parties
are in this particular case. Thus, they make the Question less readily
understandable and, for this reason, some court rules instruct the lawyers to
avoid procedural titles.1 You can use procedural titles, however, when they
are actually the generic description of the kind of person to whom the
question would pertain, for example:
Can a criminal defendant bring a civil action for malicious prosecution

prior to the resolution of the criminal proceedings that give rise to the
claim?
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:
May Carrolton enforce the terms of the covenant-not-to-compete where the

terms are unreasonable?
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.
Phrase the question in a way that suggests a favorable answer.

Generally, a question that suggests an affirmative answer is more persuasive
than a question that suggests a negative answer. Sometimes, however, other
rhetorical factors can outweigh that advantage. For instance, a structure that
asks, “Can X force Y to do Z?” implies that X is being oppressive to Y, simply
by virtue of the structure of the question. The structure invites the reader to
respond with a resounding “No.” For example, consider this Question
Presented:
Can an employer, in order to collect urine samples, force employees to

urinate in the plain view of a supervisor?
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 a reckless defendant, whose callous conduct caused the death of a

precious new life, escape liability for wrongful death just because the
baby’s guardians had not yet completed an adoption proceeding?
To avoid argumentative Questions Presented, limit adjectives and

adverbs, using facts instead of such descriptors. Edit out language that
smacks of name-calling. Stick to facts the opposing party cannot dispute.
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:
To maintain a cause of action for fraud under California law, a plaintiff

must show that the defendant made a false representation. In his
deposition, Jones concedes that neither Continental nor its agents or
employees made a false representation. Is Continental entitled to summary
judgment on Jones’s fraud claim? [forty-nine words.]3
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:
Fiver’s insurance policy required it to give Barndt Insurance notice of a

claim “immediately.” In May 1994, one of Fiver’s offices was damaged by
smoke from a fire in another tenant’s space. Ten months later, Fiver gave
notice. Barndt investigated the claim for [six] months before denying
coverage and did not raise a late-notice claim until [eighteen] months after
the claim was filed. Can Barndt now deny coverage because of late notice?
[seventy-three words]5
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?
II. POINT HEADINGS

A. Identifying Point Headings
Usually, a point heading is the statement of your argument on a dispositive
legal issue — that is, an independent and freestanding ground that entitles
your client to the relief you seek. Here is an example of a point heading:
I. THE WATSON COVENANT SHOULD BE ENFORCED BECAUSE ITS RESTRICTIONS
ON DURATION, NATURE, AND SCOPE ARE REASONABLE.
To tell if your argument on an element or set of elements is an
independent ground for the relief you seek, ask this: If the judge agrees with
me on only this component of the rule, is that enough? If yes — if the judge
would not need to consider other legal issues before granting the ruling you
seek — then your argument on that component of the rule is an independent
ground. A heading that states your conclusion on that component is a point
heading.
This definition will be clearer if we look at an example. In a burglary
case, the state must prove all of the elements to win a conviction. Thus, a
defense attorney’s brief need only show that any one of these elements is
missing to show that the state cannot prove the burglary charge. In that brief,
each challenged element will constitute an independent ground for the desired
result. If the attorney challenges the state’s proof on three elements
(“nighttime,” “intent,” and “of another”), the defense attorney will have three
independent, freestanding ways to win. The defense attorney can prevail by
persuading the judge on any one of these elements. Therefore, the argument
on each element will constitute a point, and the defense attorney’s brief will
contain three point headings.
However, the prosecution’s brief must argue that the state can prove all of
the elements of burglary. The state cannot obtain the ruling it seeks
(submission of the case to the jury) simply by showing that the facts will
prove any one element; the prosecutor’s brief must show that the facts can
prove all of the challenged elements. In the prosecutor’s brief, then, each
challenged element will be a subpoint. The prosecutor’s brief will have only
one point heading — a point arguing that all elements are provable. As in an
office memo, having only one roman numeral is fine. The roman numerals
will identify for the judge the freestanding arguments that entitle your client
to the result you seek.
As we said, a point heading is generally a freestanding ground that will
entitle your client to the relief she seeks. In brief-writing, this is not a rigid
rule, but rather a custom and a general principle of persuasion. In most cases,
your reader will expect you to follow this method, and your case usually will
be more persuasively presented if you do. Rarely will you have three
freestanding grounds for relief that would be more persuasively argued under
a single point heading. Instead, you will want to emphasize each by giving
each its own point heading. You will want the judge to know at a glance that
you are correct for three independent reasons, not just one.
Occasionally, however, you might choose to treat an issue as a point
heading even if it is not a freestanding ground for relief. You might consider
this organizational variation if your case falls into one of the following
categories:
• When you have a major threshold issue;
• When you are responding to a brief that has given that issue its own
point heading;
• When you must win on two weighty issues that are very different from
each other.
Arguing an Important Threshold Issue. Recall that a threshold issue is

one that determines the direction of the analysis from that point on.6 For
instance, the question of which standard of review is appropriate would be a
threshold issue. The court must decide how much deference to give to the
trial court’s opinion before the court can consider what decision it will make
on the issues you raise.
The question of which law will govern your legal issue would be a
threshold issue. Perhaps the court will have to decide whether the law of state
A or the law of state B will govern the situation. Or perhaps your client’s
legal duty would be different depending on whether a particular statute
applies to your client. For instance, under Title VII, an “employer” must not
discriminate on the basis of religion.7 The question of whether your client is
an “employer” as defined by the act would constitute a threshold question.
An evidentiary or procedural issue may be a threshold issue. The court
might have to decide an evidentiary or other procedural issue before it can
consider your argument on the merits. The court might have to consider
whether a particular document was properly admitted into evidence before
that court can consider whether the trial evidence was sufficient to support
the trial court’s opinion.
If you have a threshold issue such as one of these, and if you do not have
much to say about it, you can simply include it in the umbrella section of
another point heading. But if you have a great deal to say about it, you might
want to give it a point heading of its own.
Mirroring the Organization of the Opening Brief. If you are filing a

brief in response to another brief, you might find that the judge’s
understanding of your arguments will be improved if you adopt the
organizational structure of the opening brief. If the judge will have read your
opponent’s brief, which uses three point headings, you can consider whether
to respond by giving each of those three issues its own point heading in your
brief as well. Be careful, though, not to concede structural decisions to your
opponent too easily. Sometimes structural decisions carry important
implications for persuasion.
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.
B. Drafting Point Headings

Headings and subheadings provide the structure of your Argument. They also
serve as a tool of persuasion. They can persuade because they assert your
position in compelling language; they make visible the persuasive structure
you have selected for your rule and your argument; and they allow the judge
to find a quick summary of your entire argument by reading only the point
headings and subheadings, either in a Table of Contents or by paging through
the body of the Argument itself.
Ideally, a point heading should identify, expressly or implicitly, three
things: (1) the result you seek, (2) the part of the rule that justifies that result,
and (3) the key facts supporting that result.8 The heading should phrase these
items of information as assertions of their correctness. One way to learn to
draft point headings is to think of them in halves. The first half asserts the
correctness of the result you seek. The second half identifies, at least
implicitly, the part of the rule that justifies that result and adds the key facts:
DRAFTING A POINT HEADING

[Identify the ruling you seek, asserting its correctness.]
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:
A BURGLARY POINT HEADING

The burglary charge should be dismissed
[Identify the ruling you seek, asserting its correctness.]
because
the testimony of the bartender and other bar patrons establishes that Mr.
Shaffer arrived at the house earlier than thirty minutes past sunset.
[Identify the key facts and state how they establish the correctness of the ruling.]
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.
1. THE BURGLARY CHARGE AGAINST THE DEFENDANT

SHOULD NOT BE DISMISSED BECAUSE THE EVIDENCE AT
TRIAL WILL ESTABLISH ALL ELEMENTS OF BURGLARY.
A. The evidence will show that the crime occurred in the nighttime
because it occurred at 6:45 P.M., more than thirty minutes past
sunset.
B. The evidence will show that the defendant intended to commit a
felony when he entered the house because he alluded to his intent
to batter Mrs. Shaffer before he left the bar for her home.
C. The evidence will show that the dwelling was not the
defendant’s own because he had waived his claim to the
premises and did not retain any right of access.
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.
C. Editing Point Headings for Readability and Persuasion

1. Editing for Readability
Often the inclusion of all desirable information in a point heading results in a
long, complex, and confusing sentence. Yet a point heading cannot persuade
a judge of something she cannot decipher. And readability is especially
important for point headings because the traditional format for point headings
(all capital letters) already hinders readability.
If you are struggling with readability, use all relevant editing techniques
in Chapter 20 to help simplify and clarify the heading. As a quick checklist,
here are some of the techniques most likely to help tame a point heading.
1. Keep the subject and the verb close together. In other words, avoid
intrusive phrases and clauses.
2. Avoid nominalizations. Nominalizations are noun forms of verbs.
“Investigate” is a verb; “investigation” is a nominalization.
Nominalizations require more words and make sentences harder to
understand.
3. Avoid unnecessary passive-voiced verbs. Passive verbs make the
sentence’s subject something other than the actor. These verbs
generally require more supporting words and make sentences harder
to understand.
4. Keep the facts and reasoning at the end of the sentence. Placing the
desired result first and the facts and reasoning second often results
in a more readable point heading.
5. Avoid vague words. Vague words cause the reader to puzzle over
the writer’s meaning. Purge your point headings of words like these:
this matter with regard to
it involves it deals with
it pertains to it concerns
6. Avoid negatives. Negatives, especially multiple negatives, can make a
sentence harder to understand.
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.
1. Affirmative Language Versus Negative Language. Most briefs focus

on certain conduct: Is the conduct lawful? Proper? Desirable? Sometimes the
writer can articulate the client’s position either by using affirmative language
or negative language. In addition to being more readable, affirmative
language generally is more forceful and appealing than negative language.
Here are examples of two point headings, one using affirmative language and
one using negative language.
Negative language Carrolton’s Motion for Summary Judgment should
be granted because Watson is unable to show that the
terms are unreasonable or that she has not breached
those terms.
Affirmative language Carrolton’s Motion for Summary Judgment should
be granted because the terms of the covenant-not-to-
compete are reasonable and the uncontested facts
establish Watson’s breach.
2. Varying the Structure of the Point Heading. The point heading

structure described in this chapter is the easiest structure for learning to draft
a readable point heading. It begins with the relief you want and follows with
the facts and law supporting that relief. After you have a little practice with
drafting point headings, however, you can vary the formula and sometimes
achieve a more persuasive version. For instance, consider these versions of a
burglary heading. What differences in effectiveness do you notice?
Version 1 The burglary charge against Mr. Shaffer should be dismissed

because the alleged breaking and entering occurred at 6:15 P.M., which
was earlier than thirty minutes after sunset.
Version 2 Because the alleged breaking and entering occurred at 6:15 P.M.,
which was earlier than thirty minutes after sunset, the burglary charge
against Mr. Shaffer should be dismissed.
Version 3 The alleged breaking and entering occurred at 6:15 P.M., which
was less than thirty minutes after sunset, and therefore the burglary
charge against Mr. Shaffer should be dismissed.
Tinker with the structure of the point heading until you are satisfied that it
is as persuasive as it can be.
3. Phrasing Alternative Arguments. When you have more than a single

point heading, one or more of the headings may be an alternative argument,
presented in case the judge does not agree with the first argument. The
challenge here is to avoid seeming to reduce the credibility of the first
argument by making an alternative argument. The following example
demonstrates this flaw:
I. THE LAW OF THIS JURISDICTION DOES NOT ALLOW RECOVERY FOR THE
WRONGFUL DEATH OF A FETUS, EVEN IF THE FETUS IS VIABLE AT THE TIME
OF THE INJURY.
II. THE LAW OF THIS JURISDICTION ALLOWS RECOVERY FOR THE WRONGFUL
DEATH OF ONLY A VIABLE FETUS, AND THE LAWRENCE FETUS WAS NOT
VIABLE AT THE TIME OF THE INJURY.
In this pair of headings, a strong first argument is followed by a second
argument that seems to undercut the first. Rather than undercutting your own
best argument, phrase alternative arguments in terms that assume the
correctness of the first argument. One way to do this is to restate the first
argument expressly, like this:10
I. THE NEGLIGENCE CLAIM IS BARRED BY THE STATUTE OF LIMITATIONS
BECAUSE THE PLAINTIFF DID NOT FILE THE COMPLAINT UNTIL FOUR YEARS
AFTER THE ALLEGED NEGLIGENT ACT.
II. NOT ONLY IS THE CLAIM BARRED BY THE STATUTE OF LIMITATIONS, BUT
THE PLAINTIFF’S ASSURANCE THAT HE WOULD NOT PURSUE AN ACTION
BARS THE CLAIM UNDER THE EQUITABLE DOCTRINES OF ESTOPPEL AND
WAIVER.
Reiterating the first point in the course of making the second can make
the second heading unwieldy, however. Another way to avoid seeming to
disavow the first point heading is to use, in the second heading, a verb tense
that communicates that any assumption of a flaw in the first point is contrary
to fact:
I. THE LAW OF THIS JURISDICTION DOES NOT ALLOW RECOVERY FOR THE
WRONGFUL DEATH OF A FETUS, EVEN IF THE FETUS IS VIABLE AT THE TIME
OF THE INJURY.
II. EVEN IF THE LAW DID ALLOW RECOVERY FOR THE WRONGFUL DEATH OF A
VIABLE FETUS, THE LAWRENCE FETUS WAS ONLY IN THE FOURTH MONTH OF
GESTATION, AND THEREFORE WAS NOT VIABLE.
Notice the use of the subjunctive verb “did.” The subjunctive is used
when stating something contrary to fact. Therefore, the first clause of the
alternative heading affirms your assertion of the first heading rather than
disavowing it.
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:
I. THE COURT SHOULD DISMISS THE COMPLAINT BECAUSE

THE PLAINTIFF LIED ON HER EMPLOYMENT
APPLICATION AND UNDER 42 U.S.C. § 2000e, A PLAINTIFF
CANNOT RECOVER IF SHE OBTAINED HER JOB UNDER
FALSE PRETENSES.
A. The Plain Meaning of the Statute Establishes That Only an
Employee Who Has Acted in Good Faith Can Recover.
B. The Legislature Did Not Intend to Allow a Windfall to an
Employee Who Lied on the Application.
C. Construing the Statute to Allow Recovery Would Encourage
Applicants to Lie and Would Undermine Employers’ Efforts to
Employ Trustworthy Employees.
As Chapter 10 explained,12 use three pages as a rough maximum for a

section or subsection. Readers prefer to orient themselves every three pages
or so, and new section headings will revive waning attention levels.
1. See Fed. R. App. P. (28)(d) (2013).

2. Bryan A. Garner, The Deep Issue: A New Approach to Framing Legal Questions, 5 SCRIBES J.
LEG. WRITING 1 (1994-1995).
3. Id. at 4.
4. Id. at 13.
5. Id. at 35.
6. See Chapter 10, Section IB.
7. 42 U.S.C. § 2000e-2(a) (2001).
8. If the issue is a pure question of law, not requiring fact application, then you have no facts to
add. However, the heading should still state the supporting rationale.
9. See Chapter 16, Section IA.
10. Modified from Girvan Peck, Writing Persuasive Briefs 135–136 (Little, Brown Co. 1984).
11. See Chapter 7.
12. See Chapter 10, Section IV.
CHAPTER 16
Writing the Argument Section
I. ARGUMENTS FOR DIFFERENT KINDS OF

LEGAL ISSUES
Legal issues, including legal writing assignments, come in several varieties.
Drawing on the material in earlier chapters, this section will identify the
major kinds of legal issues and provide suggestions for how to handle each.
Some of these categories overlap, so be sure to read each section to learn if
your assignment falls into more than one category.
A. A Pure Question of Law

You have a pure question of law when the only issue meaningfully before the
court is what the law is — when there is no meaningful issue before the court
about how that law will apply to the facts. The application of the law to the
facts either is not before the court or is essentially uncontested. You can have
a pure question of law before either a trial court or an appellate court.
For instance, assume you are representing a plaintiff in a wrongful death
action arising from an automobile accident in which your client’s wife was
killed. At the time of the accident, your client’s wife was pregnant with the
couple’s second child, and the unborn child also died. The defendant might
file a motion to dismiss part of your client’s claim, arguing that the law in
your jurisdiction does not allow recovery for the death of an unborn child.
You would file a brief arguing that the law does allow recovery. Both briefs
deal with a pure question of law. The question of how that law will apply to
the facts of the case is not yet before the court. That will be a question for the
jury to decide.
The same issue also could come before the court on uncontested facts. For
instance, the defendant might move for summary judgment in this same
wrongful death claim, arguing that the law in your state allows recovery for
the death of an unborn child only if the fetus was viable at the time of the
injury. If your client’s unborn child clearly was not viable at the time of the
injury, your only response to the defendant’s motion can be to argue that the
law does (or should) allow recovery for a fetus not yet viable. You will be
arguing a pure question of law — whether the law in your jurisdiction allows
recovery for a fetus not viable at the time of the accident. The way the law
will apply to your client’s facts is not in dispute. For a pure question of law,
your introduction or umbrella section will explain to your reader, if
necessary, why the facts are not at issue. Then you will proceed with rule
explanation. The core of your issue is what the law requires — what the
governing rule is in this jurisdiction. Once your rule explanation section has
proven and explained this governing rule, your work is done. You need not
add a rule application section in the usual sense.
You still might be able to use your client’s facts to help you persuade the
judge on the question of law, however. Consider using your client’s facts in
your rule explanation section, to demonstrate any policy rationales or
important principles on which you rely. You might be able to strengthen
these policy- or principle-based rationales by showing the results of each
possible interpretation of the law in situations like your client’s. This strategy
would be an exception to the normal practice of avoiding discussion of your
client’s facts in the rule explanation section.
B. An Issue of Statutory Interpretation

You have an issue of statutory interpretation when the primary question
before the court is what a particular statutory provision means and especially
when little case law has arisen defining the provision. In such a situation, the
court must interpret the statute itself rather than relying on interpretations
other courts have given. The issue might arise because the statute does not
directly address your client’s legal question or because the statute addresses
the question in ambiguous language.
For issues of statutory interpretation, you should use all the relevant tools
from Chapter 4. Start with the statutory text — the language and punctuation
of the provision itself and other related provisions; any definitions of terms;
the titles of the provisions; and the name of the act itself. Consider any
arguments you can make from the legislative history or from other indicia of
the legislature’s intent. Discuss any favorable interpretations by other courts,
by an enforcing agency, or by law review authors or other commentators.
Argue from any helpful canons of construction. Do not forget to rely on
policy- and principle-based reasoning. In matters of statutory construction,
these arguments can be particularly persuasive.
C. An Issue of Common Law Case Synthesis

You have an issue of common law case synthesis when you must combine
holdings of several cases to formulate the governing rule, to discern the
factors courts consider when deciding an issue under the rule, or to discern
any exceptions to the rule. For issues of case synthesis, find arguments by
using all of the tools in Chapters 2, 3, and 7. Consider the following:
• Which cases are most similar to your client’s case;
• Whether any of the opinions have subsequently been followed,
overruled, or questioned;
• Distinctions between a holding and dicta;
• The breadth of the holdings;
• Differences in the precedential values of the cases;
• Differences in the procedural histories of the cases;
• The depth of the courts’ analyses and the quality of the courts’
reasoning processes;
• The age of the various opinions;
• The weight of authority in your own jurisdiction and in others;
• The evaluations of commentators;
• The comparison between the rule the court announced and the way the
court ruled on the facts before it;
• The facts the courts emphasized;
• Any rulings the court declined to make, either expressly or by
implication;
• Whether any of the opinions are concurring or dissenting opinions; and
• Whether cases, reviewed chronologically, establish a trend.
For issues of case synthesis, sensitivity to the varying precedential values
of cases is critical. The judge will want you to focus on the mandatory
authorities and on the cases from the highest courts in your jurisdiction.
Again, do not forget to consider policy- and principle-based reasoning.
Not only will judges consider the policies and principles implicated by
various understandings of the rule of law, but some of the cases whose
holdings you must synthesize might raise policy and principle concerns that
are different from or closely similar to your client’s situation. Those policy-
and principle-based comparisons can help you justify placing more reliance
on some cases than on others.
D. A Case of First Impression in Your Jurisdiction

You have a case of first impression if the courts of your jurisdiction have not
addressed the legal question you must brief. Usually, the issue has been
decided in other jurisdictions, although perhaps inconsistently. For federal
issues, this situation is sometimes called a “circuit split,” meaning that the
circuit courts have issued inconsistent opinions on the question.
For an issue of first impression, research the holdings of the other
jurisdictions to identify the approach most favorable to your client, and argue
that this approach is the best. Use all the tools set out in subsection C above
to show why your proposed approach is best and why the other approaches
are inferior. If more jurisdictions have adopted the approach you prefer, be
sure to point out that the “weight of authority” supports your position. Where
possible, use analogies to align your case with similar cases from favorable
jurisdictions. Rely on any secondary authorities that have compared the
diverse approaches and supported the approach you prefer. You can include
interdisciplinary sources that support your position. Also, use policy- and
principle-based reasoning. When a court must rule on a case of first
impression, policy and principle considerations are among the most important
parts of your analysis.
E. Seeking a Change in the Law

You have an issue asking for a change in the law when the existing law in
your jurisdiction is not favorable for your client and you must ask the court to
change the rule or to create an exception to it. The strategies for handling
such an issue are similar to those used for a pure question of law (subsection
A above) and a circuit split (subsection D above). You must honestly disclose
the existing state of the law but show the court why a change is appropriate.
Therefore, your job is to point out the infirmities of the existing rule, propose
the change you desire, and explain why your proposal is better. Courts
hesitate to change the law without careful thought because the law should be
stable and because citizens plan their lives and businesses in reliance on the
law. Therefore, address these concerns directly if you can. Also, state clearly
the change you propose. A court cannot effectively consider changing the law
without understanding the exact nature of the change you request.
Again, policy- and principle-based rationales are persuasive. You might
draw on persuasive authority from other jurisdictions, the opinions of legal
scholars in secondary sources, and available interdisciplinary sources. If you
can, use your client’s facts as an example of the infirmities of the old rule and
the advantages of the rule you propose.
F. An Issue Applying Law to Fact

You have an issue applying law to fact when the issue will be resolved
primarily by how the court views your client’s facts. Issues of application of
law to fact often arise when the governing rule is a factors test or a balancing
test or when the language of the governing rule is vague enough to invite
speculation about how it might apply. A classic example is the standard for
defining negligent conduct: the “reasonable person.” If you have taken torts,
you probably have had many debates about what conduct would be
reasonable in particular circumstances. These debates raise issues of
application of law to fact.
Analogical reasoning (analogizing and distinguishing cases) is by far the
most important tool for issues such as these. Your analysis should provide the
judge with examples of cases in which courts have applied the governing rule
to situations like your client’s and ruled as you hope your judge will rule.
Focus primarily on opinions from courts in your jurisdiction. Use opinions
from other jurisdictions in a supporting role if necessary to bolster your
jurisdiction’s case law.
Explicitly state the similarities between your client’s facts and the facts of
the favorable cases. Distinguish unfavorable cases by showing relevant
factual differences. Show similarities or differences of policy and principle as
well, thus further aligning your client’s case with the favorable cases and
distinguishing it from the unfavorable cases. Custom-based reasoning can be
effective to show that your client’s actions were consistent with customary
practices and that the actions of other parties strayed beyond those bounds.
II. HONING YOUR ARGUMENT FOR THE

COURT’S ROLE
The roles of trial court judges and appellate court judges differ significantly.
Effective arguments target precisely the role of the judge who will be reading
the brief. Let’s review the most important differences.
A. The Trial Judge

Most trial judges share the characteristics described in Chapter 6, Section IIE.
They are busy, skeptical, and impatient with squabbling. They want to make
good decisions that accurately apply the law in their jurisdiction and achieve
a fair result. More than any other characteristics in a brief, they want clarity,
brevity, and accuracy.
Because trial judges have heavy caseloads, they usually are not familiar
with individual cases in the pretrial stages, when most of your briefs will be
filed. They might or might not be familiar with the law on your legal issue,
depending on how often that issue has arisen in prior cases. Therefore, do not
assume that your judge knows the facts and circumstances of your case or
even that the judge knows the law on your issue. Your brief must give the
judge the factual and legal background necessary to decide your issue.
Finally, trial judges are constrained by mandatory precedent. They
primarily want to know what those precedents are and how they apply to your
case. Authorities from other jurisdictions hold less interest for trial judges,
most of whom do not see themselves as free to change the law. Therefore,
right up front, the trial judge wants to know whether there are mandatory
authorities on your issue and, if so, what they are. Use authorities from other
jurisdictions only to fill in any gaps in your jurisdiction’s mandatory
authority and only after you have explained to the judge why you are
presenting these otherwise extraneous authorities.
B. Appellate Judges and the Appellate Process
Both a trial-level brief and an appellate brief are written to persuade a judge
to rule favorably on one or more legal issues. But on appeal, the lawyer’s job
is more complicated and more difficult. First, the appellate court will not
review the entire proceeding below. The court will review only the issues the
appellant’s lawyer has identified for appeal and see only the portions of the
trial record the lawyers have designated to be included in the record on
appeal.1 Therefore, the appellant’s lawyer must first comb the record of the
proceedings below to identify issues that might have been decided wrongly.
It might not be enough, however, that the appellate court would have
decided the case differently had it been sitting in the trial judge’s place.
Rather, as Chapter 17 explains in greater detail, reversal of some kinds of
cases would require a finding that (1) the trial judge applied the wrong law,
or (2) the record below cannot reasonably be read to support the decision
below, even if all inferences are interpreted in the appellee’s favor. Further,
not every clear error of law or fact will result in appellate relief, but only
those that might have made a difference in outcome (“reversible” error). Nor
can any additional evidence be submitted,2 although the appellate court might
rely on extrinsic information in making policy judgments.3 The appellate
court will be evaluating whether the record below adequately supported the
lower court’s decision, so the relevant facts are those that were before the
lower court.
Not only does the decision-making process differ on appeal, but the roles
and perspectives of the judges differ as well. Appellate judges, especially
those sitting on the highest appellate level of their jurisdiction, see
themselves as responsible for the law’s development. They are more willing
to reevaluate the wisdom of a governing rule and therefore more willing to
consider policy-and principle-based reasoning. Still, they understand the
value of stability and the legitimate need of citizens to rely on legal rules.
Therefore, they find analogical reasoning (analogizing and distinguishing
cases) persuasive because they want their rulings to be consistent with similar
prior rulings, if possible. Although they are just as persuaded by stories as are
trial judges, they are seeing only the “cold” record, not the actual witnesses,
and so will tend to defer to the lower court’s subjective interpretations.
Important similarities remain, however. All of the characteristics
attributed to trial court judges above apply to appellate judges as well. They
are busy with heavy caseloads. They want to issue good, just rulings. More
than anything else in a brief, they want clarity, brevity, and accuracy.
III. REMINDERS ABOUT ORGANIZATION

Umbrella Section. If your brief will analyze several rules or several
elements of a rule, begin with an umbrella section.4 An umbrella section
should be concise — generally limited to one or two short paragraphs. Its
primary function is to introduce the components of the analysis that follows.
You can use an umbrella section at the beginning of the Argument section
(before the first roman numeral) to introduce the roman numerals or after a
point heading to introduce subparts within that point heading.
The content of an umbrella section depends on the particular situation and
on your own writing decisions. Among the uses for an umbrella section are
the following: (1) summarizing the rule and citing the controlling authority
defining the rule; (2) providing any favorable principles affecting the
application of the rule, such as presumptions, burdens of proof, elevated
levels of proof (such as clear and convincing evidence), or policy leanings;5
(3) explaining the status of any elements not discussed in the brief; (4)
providing a one- or two-sentence summary of your argument on each
element; and (5) resolving any potential resistance to the order in which you
will discuss the issues.
The Standard Paradigm. Because a brief is an advocacy document, it

asserts positions (conclusions) at numerous points. The argument begins with
a statement of the conclusion the writer hopes the judge will reach. This
conclusion, in one form or another, appears in the point heading for that
issue, as Chapter 15 explains. It also may appear in the first paragraph of text
beneath the heading. A version appears at the beginning of the rule
application section, right before the writer shows how the client’s facts
establish the conclusion. Finally, the conclusion appears at the end of the
argument on that issue. This repetition contributes to an orderly route through
rule-based reasoning. Also, subtle repetition is an effective technique for
emphasis.6 Here is an overview of the paradigm for the persuasive analysis of
a single issue:
Conclusion
• State the conclusion you want the judge to reach on this issue (your
thesis).
• Place it in the point heading and in the first paragraph.
• Succinctly state the most important reasons supporting your conclusion.
Rule Statement
• State the applicable legal rule.
• State it in the form and structure most favorable to your client’s position.
Rule Explanation
• Explain where the rule comes from so the judge is satisfied that your rule
statement is accurate.
• Explain what the rule means and how it applies to your client’s facts.
• Explain these characteristics of the rule in the terms most favorable to
your client’s position.
• Rebut any counter-explanation you can weaken by a preemptive
discussion.
Factual Conclusion
• State the conclusion you want the judge to reach about how the law
applies to your client’s facts.
Rule Application
• Discuss how the rule applies to your client’s facts.
• Emphasize the favorable facts and deemphasize or justify the
problematic facts.
• Rebut any counter-application you can weaken by a preemptive
discussion.
Conclusion
• Restate your conclusion.
• Unless the discussion has been short, summarize the key points
supporting the conclusion.
Separating Rule Explanation and Rule Application. Remember that rule

explanation generally should remain distinct from rule application, with rule
explanation coming first. All the reasons we saw earlier for keeping these
sections separate still apply, but in persuasive writing another important
reason applies as well. Presenting the reader with rule explanation first and
separate from rule applications capitalizes on a principle of persuasion:
Readers are more persuaded by ideas they have first thought of themselves
than by an idea first asserted by another.7 This is especially true when the
reader knows that the person doing the asserting is an advocate with an
admitted persuasive agenda.
The strategy goes like this. The reader first reads the brief’s fact statement
and has those facts in mind when reading the rule explanation. During the
rule statement and explanation, the reader will be thinking of those facts and
anticipating rule application. The reader’s Commentator8 will be applying
each point the writer is explaining about the rule to those facts. Presenting
rule explanation first, without explicit application to the facts, allows the rule
explanation to lead the reader to the desired conclusions about rule
application, before the writer asserts those conclusions. Then, when the
writer reaches the rule application phase, she is only asserting the conclusions
the reader has already reached on his own.
Variations on the Paradigm. Occasionally, later drafts can alter the

normal paradigm by combining the rule explanation section for each element
into one comprehensive explanation of the rule and then combining the rule
application section for each element into a comprehensive application of the
rule. If you think that your situation might call for this approach, review the
description of this variation in Chapter 10, Section V. However, resist using
this variation for the first draft. Let the discipline of separately writing out the
rule explanation and rule application for each individual element help you
deepen your understanding of that element. After you have mined the depths
of possible arguments for each individual element, you can decide whether a
combined discussion is appropriate.
Writing the Fact Statement First. You might find it helpful to

write out a draft of the Statement of Facts9 before writing a draft of the
Argument section. If you are having trouble getting started, this strategy
could help. Also, you might find that immersing yourself in your client’s
story is excellent preparation for the more linear reasoning required in the
Argument section.
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.
IV. USING CASE COMPARISONS TO

SUPPORT YOUR ARGUMENT
Months ago, when you learned to write an office memo predicting the answer
to a legal question, you used analogical reasoning to explain your conclusion.
Look again at Chapter 5, Section II and Chapter 11, Section II. What you
have already learned will be our starting point here, but now you are ready to
hone your skills even further.
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:
Just as in Fahmie, [states a similarity]. In both cases, [states another

similarity]. In both cases, [states a third similarity]. In neither case [states a
fourth similarity]. In both cases, [states a fifth similarity].
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:
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 he was making a representation of majority because he did
not read the contract he was signing. 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.
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.
V. REBUTTING YOUR OPPONENT’S

ARGUMENTS
As we saw in Chapter 1, lawyers write both opening briefs and briefs
responding to the briefs filed by others. Lawyers often need to rebut their
opponent’s arguments, both in their own opening brief, where they anticipate
opposing arguments, and in responsive and reply briefs filed after those
opposing arguments have been made. Often lawyers must rebut both an
opposing explanation of the law and an opposing application of the law to
the current situation.
Lawyers struggle with how to treat counter-argument in an opening brief.
On the one hand, the writer wants to respond to the arguments she
anticipates. On the other hand, she does not want to raise arguments the
opposing party might not have thought of or articulate them better than the
opposing brief would have.10 Nor does she want to sacrifice her affirmative
stance — the primary advantage of the opening brief — by turning her own
brief into a defensive document. Resolving these strategic questions is always
a case-by-case task, but here are some helpful guidelines:
1. Include counter-argument in an opening brief when you are relatively
sure that the opposing brief or the court itself will raise the argument
and when you can weaken it by a preemptive discussion. More often
than not, a well-crafted preemptive discussion will weaken an
opponent’s argument.
2. The most effective forms of counter-argument might not draw
attention to opposing argument by labeling it as such (“The defendant
may argue that . . . . However, . . .”). Instead, the counter-argument
disproves opposing arguments primarily by affirmative proof of the
writer’s own position (“The Defendant’s actions constituted
negligence [explain why]. The unreasonableness of the behavior is
not justified by . . . or by . . . [explain why].”)
3. Articulate your position on that argument in more detail than you use
to articulate the opposing party’s argument. Detail is a technique for
emphasis, and lack of detail is a technique for deemphasis.11
4. Do not place an identified counter-argument ahead of your own
affirmative argument. Address it after you have made all of your own
points. Otherwise, your brief will take on a defensive tone and will
lose much of its rhetorical power.
5. After you have a draft of the argument, compare the space devoted to
counter-argument with the space devoted to affirmative argument.
The great majority of the draft should be devoted to your own
affirmative argument.
6. If your opponent has used rhetoric that is either excessive or
particularly effective, consider ways to defuse that opposing rhetoric.
Confront excessive rhetoric if you think that, left unconfronted, it
could influence the judge. Confront particularly effective rhetoric if
you can devise a way to remove the rhetoric’s power. Usually the
best way to remove the power of rhetoric is by using the law or the
facts or both. For example:
Defendant’s brief contains broad general conclusions such as “preemptive
effect . . . is firmly established in the case law,” a “comprehensive network of
agency regulations,” “pervasive nature of the regulations,” and the agency’s
“specifically stated intent.” Def. brief 4. The support and analysis of these
grandiose phrases and broad-brush conclusions consists simply of three
agency source materials, plus an extensive reliance on one district court
opinion, Simon. We now show these authorities do not support these
statements . . . .12
VI. USING LEGAL THEORY TO SHARPEN

YOUR ARGUMENTS
Forms of legal reasoning draw their persuasive force from underlying
assumptions about the nature and function of law — about how cases are and
should be decided. These are the questions of legal theory (jurisprudence).
Jurisprudence ponders such topics as what law is; where it comes from;
whether it is internally consistent; whether it is or can be neutral; how we
should decide new or hard cases; and whether and how law relates to
morality, social values, economics, or politics.
The more you know about jurisprudence, the more it will show you
practical arguments and lawyering strategies. Your own grasp of the
jurisprudential basis of a form of argument and your sensitivity to the
jurisprudential approach of the judge will strengthen your ability to use these
forms of argument to represent your clients well. For helpful material on the
major schools of American jurisprudence and how they can help you make
effective arguments, see www.wklegaledu.com/Edwards-LWAnalysis5.
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.
176 (West 1991).
12. Irwin Alterman, Plain and Accurate Style in Court Papers 125–126 (student ed. ALIABA
1994).
CHAPTER 17
Standards of Review
Effective appellate advocacy requires careful attention to the standard of

review. The standard of review is a vitally important threshold issue shaping
how other issues will be decided. Also, it determines the language in which
you frame the issues, especially in your point headings.
The standard of review defines the level of deference the appellate court
must give to the trial court’s decision Can the appellate court freely decide
the question on its own, without any regard for the decision of the trial court?
This standard would be good news for the appellant, who objects to the trial
court’s decision. It would be like starting over, as if the trial court had never
decided the question. Or must the appellate court give some level of
deference to the trial court’s decision? That would be good news for the
appellee, who agrees with the trial court’s decision. It increases the odds that
the trial court’s decision will prevail. The question of which party will have
the good news, and just how good the news will be, depends on the kind of
trial court decision being appealed.
I. CATEGORIES OF TRIAL COURT

DECISIONS
In a trial before a judge, the judge must decide both the law and the facts. A
trial judge also must decide many discretionary questions, often procedural in
nature. Errors in making any of these decisions — decisions of law, decisions
of fact, or decisions left to the court’s discretion — can lead to an appeal. The
following sections describe these categories of decisions and the standard of
review and policy rationale applicable to each.
Questions of Law. A pure question of law can be decided without
reference to the facts of the case. Does this jurisdiction recognize a claim for
the wrongful death of a fetus? Within what time period must a notice of
appeal be filed? Must a will be signed? These are all purely questions of law.
They can be researched and answered without reference to any particular set
of facts.
A trial court’s decision on a pure question of law is subject to de novo
review. The appellate court need grant no deference to the trial court’s
opinion. The appellate court is free to substitute its own opinion on the
question of what the jurisdiction’s law provides.1 The principle of stare
decisis encourages the appellate court to pay some deference to existing
common law, but this deference is unrelated to whether the lower court
adopted and applied that law. Therefore, an appellate court need not give any
deference even to a trial court ruling that is correct — correct in the sense
that it accurately states the rule of law at the time of the lower court’s
decision. Depending on the level of the appellate court and on the nature of
the issue being appealed, the appellate court might decide that the trial judge
was right in concluding what the law was, but that the law ought to be
something else. The appellate court might take the opportunity presented by
this case to announce a change in the law.2 As a matter of fact, the primary
rationale for the de novo standard is the recognized function of appellate
courts to make new law.
Questions of Fact. A pure question of fact is a question that can be

decided on the basis of only the evidence in the record. What the law is has
absolutely nothing to do with the question. What speed limit was posted? Did
the defendant enter the building? Is the signature on the contract that of the
plaintiff? These are all purely questions of fact. They can be decided without
reference to any rule of law. You could have decided such questions long
before you came to law school.
A trial judge’s decision of a pure question of fact usually is subject to
review using a “clearly erroneous” standard.3 To overturn the trial judge’s
decision, an appellate court would have to decide that, although some
evidence supporting the decision might exist in the trial court record, the
appellate court “is left with the definite and firm conviction that a mistake has
been committed.”4 It is not enough that the appellate court would have made
a different decision. As long as the lower court’s decision is plausible, given
the record as a whole, the opinion must be upheld.5
The most common policy rationales for the clearly erroneous standard are
(1) the better opportunity of trial courts to judge the credibility of witnesses
and the weight to be accorded to testimony, (2) the function assigned to trial
courts as the primary fact finders, (3) the inadvisability of expending judicial
resources on duplicating functions and responsibilities, (4) the unfairness of
requiring the parties to convince two different courts of their facts, (5) the
concern for crowded appellate dockets, and (6) the advantage of a trial
judge’s expertise in fact-finding.
A jury’s decision on a pure question of fact usually is subject to an even
more limited standard of review — a competent evidence standard. If the jury
was properly instructed and if the record contains some modicum of
competent evidence supporting the jury’s decision, the appellate court must
allow the jury’s decision to stand.6 In other words, the appellate court’s only
function in reviewing a jury verdict is to be sure that the jury’s verdict is not
irrational, given the trial evidence.7 In addition to some of the same policies
supporting the limited review of a judge’s fact-finding, the primary rationale
for this competent evidence standard, the most limited of reviews, is the
parties’ constitutional right to a trial by jury.
Mixed Questions of Law and Fact. Identifying purely factual or purely

legal questions and the corresponding standards of review is fairly
straightforward. The matter becomes more complex, however, when the
question involves a mixture of law and fact. For example, consider the
following example drawn from a car accident case. Here are some questions
of fact and the trial court’s decisions on them:
Question of Fact Trial Court’s

Answers
What speed limit was posted? 55 MPH
What speed was the defendant traveling? 65 MPH
Was it raining? Yes
Did the driver signal before changing No
lanes?
Here is a question of law and the trial court’s decision on it:
Question of Law Trial Court’s Answers

What is the duty of care A driver must exercise the degree of care that
owed by an automobile would be exercised by a reasonable person
driver to other drivers? under those same circumstances.
Having decided both the facts and the relevant law, the trial court now
decides how that law applies to those facts.
Mixed Question of Law and Fact Trial Court’s

Answers
Is driving 65 MPH in the rain when the speed limit is No
55 and not signaling the intention to turn [facts]
consistent with the degree of care that would be
exercised by a reasonable person under those same
circumstances? [law]
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
Questions Within the Trial Court’s Discretion. A trial judge has no

discretion about whether to apply the relevant rule of law. However, during a
case, a trial judge must decide many other questions, questions that the
applicable rule of law leaves within the judge’s discretion.
The governing rule and relevant authorities might identify factors or
guidelines to help the judge know how to make the decision, but the
governing rule and relevant authorities do not tell the judge what to decide.
Instead, the rule recognizes that the best answer to that particular question
will differ from situation to situation and will depend on circumstances that
no single rule of law could anticipate, describe, and evaluate.
Questions left in the trial court’s discretion are usually either matters of
equity or matters of procedure and case management. For instance, in some
circumstances, a party who has filed an answer must obtain the judge’s
permission before she can amend that answer.10 Case law might give the
judge some guidelines about when to give permission, but under most court
rules, the decision is left to the judge’s discretion. The trial judge’s duty in
making such decisions is to refrain from acting unreasonably or arbitrarily.
This scope of authority gives a trial judge broad latitude, and,
correspondingly, it gives appellate courts a narrow role in reviewing these
decisions. An appellate court is not free to overturn a trial judge’s decision
merely because the appellate court would have made a different decision. To
overturn a decision left to the trial court’s discretion, the appellate court must
hold that the decision was an abuse of discretion.11 As long as the trial
court’s decision was not unreasonable or arbitrary, the appellate court must
affirm it. Policy rationales justifying the “abuse of discretion” standard
include (1) the need for flexibility in case management; (2) judicial economy
and the crowded appellate docket; (3) judicial comity, that is, a judge’s
respect for the decisions of other judges; (4) the ability of the trial judge to
assess the circumstances firsthand; (5) the need for flexible rules of law to
address satisfactorily all possible circumstances; and (6) the need to support
the trial judge’s authority and control of her own courtroom.
II. ADVOCATING FOR A MORE
FAVORABLE STANDARD OF REVIEW
The first and best way to identify the appropriate standard of review for your
case is to look for opinions issued by the court deciding your case. Search for
cases deciding issues similar to yours, and see what standard of review the
court used. If you are relying on appellate cases from your own jurisdiction
for some of your argument on the merits of your case, those cases prob ably
also mention the appropriate standard of review. If not, look for cases on your
issue from other appellate courts, and look for opinions from your own
jurisdiction on similar issues.
It should go without saying that an advocate should look for authority,
including policy arguments, supporting the most favorable standard of review
possible. Where doubt exists as to the proper standard, an appellant should
argue for the least restrictive standard — a standard that maximizes the
appellate court’s authority to overturn the challenged decision. An appellee
should argue for the most restrictive standard — a standard that limits the
appellate court’s authority to overturn the trial court’s ruling. On pure
questions of law, the de novo standard of review is well settled, and few, if
any, distinctions will affect it. On pure questions of fact, the “clearly
erroneous” or “competent evidence” standards are fairly well settled, too.
However, an advocate might still be able to influence, subtly, an appellate
court’s application of the standard for reviewing fact-finding. For instance, in
an appropriate case the lawyer might point out that the evidence was entirely
documentary (requiring no assessment of witness credibility) or that the
evidence was uncontested. In either situation, the policy rationales listed
above would be less relevant.
However, the standards applicable both to mixed questions of law and
fact and to questions left to the trial court’s discretion might leave some room
for advocacy. For questions that might be categorized as mixed law and fact,
a lawyer might influence the appellate court’s decision on whether the
particular question is a mixed question and, if so, what standard should apply.
Does the factual aspect or the legal aspect predominate? Were the facts
contested? Was the law well settled and construed by many cases? Were the
facts established by a judge or by a jury? Does the case involve an important
issue of constitutional rights?
For questions that might be left to the trial court’s discretion, the advocate
can sometimes influence the appellate court’s decision on (1) whether the
applicable rule does leave the question to the trial court’s discretion and, if
so, (2) just how much discretion the appellate court should allow the trial
court to exercise
Compare the policy rationales for the “abuse of discretion” standard to the
circumstances of your case, and use your common sense. What small points
can you make to subtly convince the appellate court to narrow or widen the
deference it will give to the trial court? For instance, do the authorities
announce standards or factors that are to guide the trial court’s discretion?
Did the trial court have to make factual findings as part of the decision of the
question left to its discretion? How important are the rights at stake? How
desirable is it to increase the uniformity of approach among trial courts on
this issue? Has the trial court deviated from a common custom or practice? Is
this a relatively new question that could benefit from a period of
experimentation at the trial court level before an appellate court takes a
position on it? The answers to these sorts of questions can provide the raw
material for influencing the way the appellate court applies the standard.
III. CONFORMING HEADINGS TO THE

STANDARD OF REVIEW
The brief’s point headings ordinarily should be consistent with the applicable
standard of review.12 Here are examples of headings phrased according to the
appropriate standard:
No competent evidence The burglary conviction should be reversed
because the record contains no competent
evidence that the breaking and entering
occurred later than thirty minutes after
sunset.
Clearly erroneous De novo The judgment should be reversed because
the trial court’s finding of intent to
discriminate was clearly erroneous.
The judgment entered on the defendant’s
motion to dismiss should be reversed
because this jurisdiction allows recovery for
the wrongful death of a fetus.
Abuse of discretion The trial court abused its discretion when it
issued a preliminary injunction prohibiting
the defendant from concealing or disposing
of his assets.
Notice that the de novo standard does not change the phrasing of the
argument because that standard puts no gloss whatsoever on the question.
That standard imposes no limitations on the appellate court’s decision.
A brief is far more effective when it establishes the most favorable
standard of review and makes a few points about how that standard should be
applied to the pending case. Consider the policy rationales that underlie each
standard of review. As you write the argument, make whatever points you
can in favor of applying the standard most favorable to your position. As
Senior United States Circuit Judge Ruggero J. Aldisert explained,
“[S]tandards of review are critically important in appellate decision
making.”13 Yet many lawyers forget to research the proper standard and to
couch their arguments according to its terms. As a matter of fact, Judge
Aldisert describes his experience of observing the “psychological block” that
seems to prevent some lawyers from recognizing and dealing with the
standard of review.14 If, from the beginning of your practice, you pay careful
attention to the standard of review, you will never be one of the lawyers
Judge Aldisert describes.
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
Writing a Fact Statement
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
I. FACT ETHICS, READERS, AND THE

CONVENTIONS OF FACT STATEMENTS
A. Fact Ethics
Remember from Chapter 14 that a lawyer must not misrepresent facts.2
Misrepresentation includes both stating facts untruthfully and omitting
material facts when the result of the omission is to create a false inference.
The rule further requires lawyers to disclose material facts when disclosure is
necessary to avoid assisting the client in a criminal or fraudulent act.
In virtually every case, you will find some facts you wish were not there.
The more material the facts are, the more you wish they would go away. But
they exist nonetheless, and leaving them out of your Fact Statement will not
make them disappear, for they will certainly appear in the opposing brief.
Omitting them from your brief will only damage your credibility before the
judge, causing the judge to wonder how much she can rely on the other facts
you assert and on the legal analysis you propose. Few things make a judge
angrier than feeling misled by a lawyer.
The omission of important facts also forces the judge to use the opposing
party’s Fact Statement, rather than yours, as the court’s primary factual
reference. These consequences are serious for both lawyer and client.
Therefore, both good ethics and good strategy require inclusion of all
material facts, favorable or not.
B. The Conventions of a Statement of Facts

Certain formal requirements and generally accepted conventions apply to the
Statement of Facts. Refer to the Statement of Facts of the briefs in
Appendices B and C for examples of how a Statement of Facts employs the
following conventions:
1.When it comes to the client’s facts, an appellate brief must refer only to
facts that are a part of the court record. Facts cannot be added to the record on
appeal.3 Because the point of an appeal is to decide whether the lower court’s
decision on a certain point was supported by the facts and the law before that
court, the appellate court may consider only the factual record that was
before the lower court at the time of the decision from which the appeal has
been taken.
The Statement of Facts must cite the location of the fact in the record.4
The citation allows the judge to verify that the fact actually appears in the
record and to check that the writer’s descriptions of the fact and its context
are not misleading. Judges do check the facts. For an appellate brief, the most
common form for these citations to the record is “R. at [page number].” Some
briefs filed electronically may include direct links to documents, photos, or
other parts of the record. This new trend will probably become increasingly
common in the next few years.
2. A Statement of Facts is a part of a legal document and retains the
formal style of the rest of the brief. Although a Statement of Facts tells the
story of the legal dispute, its style is not like a short story. You do not want
the style of the fact statement to cause the judge to wonder if she is reading
fiction. Therefore, present the facts in an objective style, avoiding obvious
appeals to emotion, grand description, dramatic literary devices, and other
obvious attempts to manipulate the reader. The style should be dignified and
courteous, never sarcastic or angry.
3. A Statement of Facts generally does not discuss law. It sets out all of
the facts the rule makes important, but it customarily does not explain the
rule or make legal arguments. Rule explanation and application come in the
Argument section. An exception to this convention is that the last paragraph
of the fact statement may segue into the legal argument by stating the legal
issue the Argument will address.5
4. A Statement of Facts should not contain overt argument, whether legal
or factual. The goal of the fact statement is to persuade, of course, but the
facts should be presented in an objective style rather than in a style that
makes the attempt to persuade too obvious. Also, the fact statement doesn’t
expressly assert factual conclusions. For instance, for a case involving
medical malpractice, the Fact Statement might relate the patient’s vital signs,
the medical test results, the patient’s medical history, and the nurse’s
observations, but the writer would not argue that the doctor breached the
applicable standard of care.
Note that this restriction applies to conclusions drawn by the writer, but
the writer is permitted to relate the conclusion of someone else. For instance,
the writer can report the testimony of an expert witness who asserted that the
doctor breached the applicable standard of care. The testimony of the witness
is a fact that occurred at a deposition or at trial. Reporting the conclusions of
others is sometimes called “masked editorializing.”6 Quotations, used in
moderation, are appropriate in a Statement of Facts, and often are effective,
as Section IV explains.
A Statement of Facts also can point out the absence of certain facts from
the record. The absence of a fact from the record is itself a fact. Thus it is fair
game to include in the Statement of Facts the following:
At trial, three officers testified that they were stationed at the building’s entrance between
5:00 and 6:00. However, no witness testified to seeing the janitor enter or leave the
building.
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.
II. DEVELOPING A THEORY OF THE CASE

AND SELECTING FACTS
Although some facts must be included no matter what theory of the case or
theme the lawyer selects, other fact-selection decisions are tied directly to the
theme the lawyer will develop. This section explores these two interrelated
lawyering tasks.
A. Developing a Theory of the Case

Lawyers use the term “theory of the case” to refer to the theme they will
weave throughout the facts, the theme that will explain the facts from their
client’s perspective. The theme should be sympathetic to the client. It should
help the judge understand who the client is, why the client acted in the way
he did, feels the way he does, and needs the things he needs. At the least, a
good theory of the case assures the judge that a ruling in favor of your client
will not be unjust. At best, the theory convinces the judge that justice requires
a ruling for your client.
Of course, a theory of the case must be consistent with the key facts.
Creating a theory is easy when the facts are generally favorable and much
more difficult when they are not. For troublesome facts, you must work even
harder to see and feel the story from your client’s perspective. Look at the
sample Questions Presented for Carrolton and for Watson in Chapter 15,
Section I. Can you see what Carrolton’s theory of the case will be? How
about Watson’s?
To find an effective theory of the case, try to look at the facts from your
client’s perspective and look for narrative themes. Professors Brian Foley and
Ruth Anne Robbins have pointed out seven common kinds of narrative
themes: (1) a person against another person, (2) a person against herself, (3) a
person against nature, (4) a person against society, (5) a person against a
machine, (6) a person against God, and (7) a person against everybody else.7
Might one of these stock themes describe your client’s struggle? If so,
explore possible theories of the case that would communicate that narrative
theme.
You might find that several of these themes could describe your client’s
story. People are complex, after all, and seldom are we motivated by only one
need, feeling, or goal. For presentation of the facts in a legal proceeding,
however, beware of trying to present several themes at once. The medium of
a brief generally is better suited to handle one consistent theme rather than
several themes intermixed. The effort to combine several themes might leave
the reader with no coherent theory at all; so pick the theme that is most
compelling and best supported by the facts.
The best way to find an effective theory of the case is by talking with
your client. However, your client might not be good at communicating the
heart of his position and might not even be consciously aware of it himself,
so you will need also to use your imagination. Try to put yourself in his
position. Imagine what it must have been like, what it must be like now. Try
to understand who this person is and who the other key characters are. Mull it
over in the shower, on your morning run, on your way to the grocery store.
Try to fill in the blanks of the following statement: “This is a story about a
(man) (woman) who (is) (was) . . . [describe client] . . . and who is struggling
to . . . .” If you can do so without breaching client confidentiality, try telling
the story orally. Go to lunch with another lawyer from your firm and tell her
your client’s story. Telling the story and then talking about it with another
person often gives you a fresh perspective. After you have developed a
clearer sense of your client and the situation, what helps you understand your
client’s behavior? What moves you about the story? What might move the
judge?
Once you have an idea, try articulating it in a few sentences, like so:
Carrolton bought Watson’s company, the only provider of health care products in the
area, and immediately began to take advantage of the company’s customers by raising
prices, limiting product lines, and allowing long delays for special-order items. Because the
customers had nowhere else to go for their health care products, they had no choice but to
pay the prices and put up with the limited service. Watson, who had continued to work at
the business, had to sit by and watch as Carrolton took advantage of her neighbors and
longtime customers. Many of them even thought that Watson was intentionally profiting at
their expense, as she was still the customer contact person in the office — the only face her
old customers saw. This situation was personally distressing to Watson. She also became
increasingly convinced that it just wasn’t right.
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.
B. Selecting and Citing to Facts

Once you have developed your theory of the case, select the facts you will
include in the Statement of Facts. Include these facts:
1. Facts that fit the theory of the case
2. Facts mentioned in the argument section of the brief
3. All important facts, whether favorable or unfavorable
4. Significant background facts
5. Emotionally significant facts
Note the location of each fact in the record. In the final draft of a trial-level
brief, the citations should appear like so:
On January 20, 1995, Carrolton filed a complaint in state court alleging that Watson was
violating the terms of the covenant-not-to-compete. (Compl. ¶ 27.) Carrolton’s Vice
President, Justin Bakker, stated that the Complaint was filed within one month of
Carrolton’s discovery of Watson’s business activity. (Bakker Aff. ¶ 14.)
III. ORGANIZATION
A. Formats
The most common organizational formats for fact statements are organizing
chronologically, by topics, or by theories of the case.
Chronological. For simple facts, a chronological presentation is often

best. For instance, in a simple collection matter, the facts will usually set out
the events giving rise to the debt, the default, the plaintiff’s demand that the
defendant cure the default, and the amount owed. These simple facts are best
presented chronologically.
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.
IV. TECHNIQUES FOR PERSUASION

A. General Principles
1. Clarity is more important than using sophisticated techniques for
persuasion. Judges will not be persuaded by a fact statement they cannot
understand. If a technique impedes the clarity of favorable facts, don’t use it.
2. Don’t use a technique that the reader will notice. An effective
technique must be invisible or nearly so. Once a reader recognizes a
technique, it has lost its power because the reader’s attention is on the
technique and not the fact. For instance, assume that you have used the
technique of repetition to emphasize a favorable fact. You hoped that it
would encourage the reader to realize the significance of the fact, to let it sink
in. If, instead, your reader’s Commentator9 observes, “Ah, look, the writer is
repeating this fact to try to get me to notice it,” the reader will be thinking
about the technique and the writer’s goals rather than the fact. Your Fact
Statement would have been more persuasive if you had not used the
technique at all.
3. Don’t overuse any technique. Overuse creates monotony, decreases the
technique’s power, and increases the chances that the reader will notice the
technique rather than the facts.
4. Any technique for emphasizing one fact or group of facts deemphasizes
the remaining facts. To the extent you try to use techniques of emphasis for
nearly all of the facts, your strategy will fail. Pick the few facts you want
most to emphasize and allow the others to serve as the background.
5. Some of the techniques described below are inconsistent with each
other. The inconsistency doesn’t mean that one is right and the other wrong,
but only that each has its advantages and disadvantages. The writer’s job is to
select the technique that will work best for the needs of a particular fact
statement.
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.
D. Techniques with Sentences

14. As a general rule, reduce clutter by using the techniques in Chapter 20
to eliminate surplus verbiage. Clutter reduces clarity, irritates the reader, and
deemphasizes the important facts. Occasionally, you can allow just a bit of
clutter to surround an unfavorable fact. The clutter will reduce emphasis by
lengthening the sentence and by making it less striking. Use this technique
sparingly.
15. Use active verbs for emphasis and passive verbs for deemphasis or to
avoid focus on the identity of the person who took the action.
a. To encourage focus on the person taking the action:
Shaffer kicked in the front door of the house and attacked his estranged wife, breaking
her forearm.
[Here the prosecutor wants all attention on Shaffer as he takes these violent actions.]
b. To avoid focus on the person taking the action:

Acme Health Equipment was formed and began operation on April 22, 1995.
[Here the writer seeks to deflect attention away from the person who formed and ran
Acme — Watson.]
c. To focus on a person other than the one taking the action:

In the early morning of January 1, 1995, after attending several New Year’s Eve
parties, the defendant was stopped for a routine sobriety test.
[Here the writer is not so much trying to keep attention away from the police officer
who stopped the defendant as to keep the focus on the defendant who was stopped.]
16. Place favorable facts in main clauses and unfavorable facts in
dependent clauses. Consider this sentence in a brief for Watson:
Although Acme’s business does compete with Carrolton [dependent clause], the
competition only extends to three small product lines and could only impact, at the most,
four percent of Carrolton’s profits [main clause].
17. If an unfavorable fact must go in the first or last sentence of a

paragraph, place the dependent clause carrying the unfavorable fact toward
the interior of the paragraph. Thus, for the first sentence of the paragraph, a
dependent clause carrying an unfavorable fact should go at the end of the
sentence. Which party’s brief would contain this sentence?
Acme competes directly with Carrolton in the three prohibited counties [main clause],
although the competition presently extends only to three product lines [dependent clause] . .
. [paragraph continues by setting out the facts of the competition].
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.
Use this technique sparingly because it makes sentences less readable.

19. Use shorter sentences for material you want to emphasize and longer
sentences for material you want to deemphasize.
Longer Sentences for Less Emphasis
On July 1, while Mr. and Mrs. Emilio and their daughter Ashley were driving south on
Interstate 75 toward Valdosta, a car swerved across the median and hit the Emilio car. Mr.
and Mrs. Emilio survived, although they were seriously injured. Their daughter, who had
been riding in the back seat, died as a result of the injuries she sustained in the accident.
Shorter Sentences for Greater Emphasis
On July 1, Mr. and Mrs. Emilio were driving south on Interstate 75 toward Valdosta.
Their daughter Ashley was riding in the back seat. A car swerved across the median and hit
the Emilio car. Mr. and Mrs. Emilio survived, though seriously injured. Ashley, however,
died.
E. Other Small-Scale Techniques

20. Compress the space you devote to unfavorable facts, and expand the
space you devote to favorable facts. The more material you provide about the
favorable facts, the more emphasis they soak up.
21. Use detail to describe the material you want to emphasize.
Conversely, limit the detail of your discussion of the unfavorable facts,
although of course you cannot omit any significant facts.
22. Use visual facts and images to describe favorable facts; avoid them
for unfavorable facts. Visual images carry particular power for placing the
reader, mentally, at the scene.
On July 1, Mr. and Mrs. Emilio were driving south on Interstate 75 toward Valdosta. Their
daughter Ashley was riding in the back seat. A car swerved across the median and crashed
into the Emilios. The front of the other car hit the Emilio car at the left rear door, precisely
where Ashley was sitting, strapped in by her seat belt.
The force of the impact carried the other car’s engine well into the passenger cabin of
the Emilio car. It ripped Ashley from her seat belt, pinned her against the opposite door, and
crushed her thoracic cavity.
Mr. and Mrs. Emilio survived, though seriously injured. Ashley, however, died at the
scene.
23. Short quotations (a sentence or two) or snippet quotations (just a word

or a phrase) can be powerful facts. If the words of the witness or document
are particularly helpful, quote them.
Shaffer left the bar, declaring “I’m going to go talk to my wife,

and she’ll need a doctor before I’m through.”
Avoid overquoting, however. Overquoting will result in a disjointed story
and will cause the most effective quotes to fade into the pack with the rest of
the quotes.
24. When you can repeat key facts unobtrusively, the repetition serves to
emphasize those facts or concepts. For instance, the first sentence of the
paragraph might summarize the facts, and the remaining sentences could set
out the facts in more detail. Or the beginning of a sentence might refer to the
facts of the prior sentence as a transition.
Marie Claxton, the expert witness who testified on behalf of Pyle, concluded that a
reasonable and prudent lawyer would have checked the deed for easements. Claxton
explained that deeds often contain restrictions that significantly affect the use of the
property. She testified that any prudent lawyer would know that such restrictions are
common. According to Claxton, Gavin’s failure to check the deed fell below the standard of
professional skill and diligence of a reasonable and prudent lawyer.
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.]
An Option with a Better Connotation

Mr. and Mrs. McMann were anticipating the birth of their first child.
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?
Statement of Facts on Behalf of Carrolton

STATEMENT OF FACTS
This is an action to enforce the terms of a covenant-not-to-compete. On
Dec. 1, 1994, the Defendant sold Carrolton Company to Richard Meyers,
Andrea McPhane, and James Rey (“Purchasers”) for $220,000. (Compl. ¶
10.) The sale included not only Carrolton’s inventory and accounts
receivable, but also the company’s good will in the community. (Compl. ¶
11.) As part of the contract of sale, the Defendant promised that she would
not compete with Carrolton for the three years immediately following the
sale. (Compl. ¶ 13.) The covenant covers only Quincy, Herring, and Gawin
Counties, the three counties closest to Carrolton’s office. (Compl. ¶ 13.)
The covenant-not-to-compete was an integral part of the Defendant’s sale
of Carrolton to the Purchasers. (McPhane Aff. ¶ 8.) Carrolton retails in-home
health care products in the Kinston, Georgia area. (Compl. ¶ 13.) Through her
ownership of Carrolton, the Defendant had been engaged in the retail sales of
health care products in the Kinston area for fifteen years. (McPhane Aff. ¶ 8.)
On behalf of Carrolton, she had made and maintained the sales contacts
necessary to a successful retailer of those products. (McPhane Aff. ¶ 9.) Her
contacts and ongoing relationships with physicians and customers were part
of the good will for which the Purchasers paid. (McPhane Aff. ¶ 10.) Thus,
these contacts and relationships were a critical part of the sale of the business.
(Compl. ¶ 14.) The covenant prohibits the defendant from making sales
contacts for in-home health care products in the three counties that comprise
the heart of Carrolton’s marketing area. (Compl. ¶ 15.)
After the Defendant sold Carrolton to the Purchasers, the Defendant
remained with the company, employed as Carrolton’s General Manager. She
held that position of trust for fourteen months after the sale. (Compl. ¶ 16.)
On February 21, 1996, the Defendant left her position as Carrolton’s General
Manager and immediately opened a competing business one mile from
Carrolton’s office. (Compl. ¶ 17.) Since that date, the Defendant has been
making sales contacts for health care products in the three prohibited
counties, in direct competition with Carrolton. (Compl. ¶ 18.) The Purchasers
have filed this action seeking to enjoin the Defendant’s continued breach of
the covenant not to compete.
Statement of Facts on Behalf of Watson

STATEMENT OF FACTS
In 1979, Sharon Watson founded Carrolton Company, a retailer of in-
home health care equipment in Kinston, Georgia. (Watson Aff. ¶ 3.) Before
Carrolton opened, residents of Kinston and the surrounding area had to travel
seventy-five miles to the nearest retailer of health care equipment. (Williams
Aff. ¶ 2.) The lack of a nearby health care equipment retailer was particularly
problematic for the Kinston community because people needing in-home
health care equipment are among those least able to make a seventy-five-mile
trip to purchase that equipment. (Williams Aff. ¶ 3-6.) With Carrolton’s
opening, area residents had local access to the health care equipment they
needed. (Williams Aff. ¶ 8.)
As the only retailer of in-home health care equipment in the area,
Carrolton did a large volume of business. (Watson Aff. ¶ 7.) Ms. Watson
believed that Carrolton’s virtual monopoly brought with it an obligation not
to take advantage of her customers. (Watson Aff. ¶ 9.) Thus, she used a
markup of only 35 percent to ensure that her customers paid fair prices.
(Watson Aff. ¶ 10.) She kept the business responsive to customer needs,
making diligent efforts to fill special orders, and maintaining close
communication with local physicians. (Williams Aff. ¶ 8; Watson Aff. ¶ 11.)
She made certain that Carrolton was a concerned and responsible commercial
citizen of the community. (Tharpe Aff. ¶ 6; William Aff. ¶ 9.)
In early 1994, a group of Atlanta investors approached Ms. Watson about
the possibility of buying Carrolton. (Compl. ¶ 5.) Over the next few months,
the parties discussed the terms of a possible sale. (Compl. ¶ 7.) During these
conversations, Ms. Watson expressed concern about how the business, still a
virtual monopoly, would be run. (Watson Aff. ¶ 12.)
In response to these concerns, the investors suggested that Ms. Watson
remain with the company as General Manager and continue to manage the
operation. (Watson Aff. ¶ 14.) The investors explained that they would not
want Carrolton’s fundamental operating policies to change, and Ms.
Watson’s continued management would be a way to continue the company’s
successful marketing approach. (Watson Aff. ¶ 15.) They explained that Ms.
Watson’s approach was so important to them that they would like the
transaction to include the covenant that Ms. Watson would not leave
Carrolton to compete in the local market for at least three years. (Watson Aff.
¶ 15.) Ms. Watson agreed, and on Dec. 1, 1994, after fifteen years of building
the business, Ms. Watson sold Carrolton to its present owners. (Compl. ¶ 10.)
The terms of the sale placed Ms. Watson in the position of General
Manager. (Compl. ¶ 12.) While the contract did not expressly state the reason
for the terms, the parties had always discussed Ms. Watson’s continued
service and noncompetition covenant as a method to maintain continuity of
management philosophy. (Watson Aff. ¶ 14.) The covenant prohibited Ms.
Watson from competing with Carrolton’s new owners in the three counties
that make up Carrolton’s virtual monopoly. (Compl. ¶ 11.)
Within a month after the sale, Carrolton’s new owners began
implementing management changes. (Williams Aff. ¶ 11; Watson Aff. ¶ 16;
Tharpe Aff. ¶ 8.) They issued new pricing policies, raising the company’s
markup on its product lines. (Watson Aff. ¶ 16.) They ordered Ms. Watson to
lay off one of Carrolton’s only two other employees, and they eliminated
most special orders. (Watson Aff. ¶ 17.) Eliminating these special orders
effectively blocked the access of area customers to any health care products
not a part of Carrolton’s regular inventory. (Tharpe Aff. ¶ 9.)
In response to Ms. Watson’s protests, the owners argued that these new
policies maximized efficiency and company profits. (Watson Aff. ¶ 19.) They
maintained that customer complaints were not important since without
Carrolton, customers would have no local access to health care equipment at
all. (Watson Aff. ¶ 20.)
On Feb. 21, 1996, after repeated attempts to persuade Carrolton’s new
owners to rescind their new policies, Ms. Watson left her position at
Carrolton. (Watson Aff. ¶ 22.) Believing that Carrolton’s owners had
breached their assurances that Carrolton would continue being responsive to
its customer’s needs, Ms. Watson formed Acme Health Care. (Watson Aff. ¶
22.) Ms. Watson incurred $75,000 in personal debt to open Acme,
mortgaging her home to secure the loan. (Watson Aff. ¶ 23.) In the first two
years of business Acme will do well to break even. During that time, Ms.
Watson will have to make loan payments from her personal savings. (Watson
Aff. ¶ 24.)
Although Ms. Watson hopes that one day Acme will represent a viable
customer alternative to Carrolton (Watson Aff. ¶ 27), presently Acme
competes with Carrolton in only three product lines: respiratory equipment,
diabetic monitoring equipment, and wheelchairs. (Watson Aff. ¶ 25.) Even in
these lines, Acme’s business is just beginning. Presently, Acme carries only
the products of the two leading manufacturers in these product lines. (Watson
Aff. ¶ 26.) During the next nineteen months (the remaining term of the
covenant-not-to-compete), Acme cannot expect to attract more than 30
percent of Carrolton’s business in these product lines. Acme will have no
impact on Carrolton’s virtual monopoly over the twenty-two other product
lines Carrolton sells. (Watson Aff. ¶ 29.)
Even if Acme meets with phenomenal success during the next nineteen
months, Carrolton will still make healthy profits. (Watson Aff. ¶ 32.) During
the remaining covenant term, Acme poses no realistic threat to Carrolton’s
business. (Watson Aff. ¶ 34.) Acme’s potential threat to Carrolton is the
potential end to Carrolton’s virtual monopoly over the in-home health care
market in the Kinston area. (Watson Aff. ¶ 35; Williams Aff. ¶ 17; Tharpe
Aff. ¶ 15.) That threat to Carrolton’s market position would arise, if at all,
long after the covenant has expired. (Watson Aff. ¶ 36.)
Checklist for Fact Statements

Large-Scale Organization
• Does the organization present the facts clearly? Is it easy to follow?
• Does the organizational format allow you to put most of the unfavorable
facts in the middle and put some of the favorable facts at the beginning
and some at the end? (The “theory of the case” format is an intentional
exception to this principle.)
• Does the material at the beginning catch the reader’s interest?
• If your reader needs context, does the material at the beginning provide
it?
• Does the draft communicate your theory of the case?
• Does the draft include all significant facts and all facts mentioned in
your Argument?
• Does the draft include enough context to allow the reader to understand
the dispute and your theory of the case, but no more?
• Does the draft place the procedural history at an appropriate location?
• Does the last paragraph have the “feel” of an ending?
• Does the draft end with a sentence that you want the reader to
remember?
Paragraph Organization
• Are your best facts on the outside ends of the paragraph, while your
least favorable facts are in the middle?
• Does the last phrase or clause of the paragraph contain favorable
information?
• Are the paragraphs with facts you want to emphasize relatively short?
• Are those with facts you want to neutralize longer?
Techniques with Sentences
• Are the sentences (except one or two carrying unfavorable facts) free of
clutter?
• Do the passive-voiced verbs serve a purpose? Are there any actions you
would like to deemphasize by changing to passive?
• Where appropriate, are unfavorable facts in dependent clauses
juxtaposed with more favorable facts or explanatory context?
• Do the shorter sentences carry favorable facts? Where appropriate, are
the unfavorable facts in longer sentences?
• Using brackets in the margins of the draft, identify the text that deals
with favorable topics and the text that deals with unfavorable topics.
How does the total allocation of space to each compare?
• Notice where you have used detail and visual images. Notice where you
have not.
• Do the quotations really help?
• If you have used the technique of repetition, is it too obvious?
• How have you referred to your client? To the opposing parties?
• At spots where you are presenting favorable material, are there any
verbs you can switch for more powerful or graphic synonyms?
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.
171 (West 2d ed. 2003).
PART SIX
Style and Formalities

CHAPTER 19
Citations and Quotations
After you have a completed draft, it’s time to edit cites and quotes.
I. CITATION IN LEGAL WRITING

In legal writing, as in other writing, you must cite to the sources for both
ideas and quoted words. Citing to authority has twin purposes:
• to show your reader the authority that supports what you say, and
• to identify the ideas and words that someone else said.
In legal writing, it’s essential to show support for your points. Your cites
should prove that the law is what you say it is and means what you say it
means.
A cite is also your attribution to another writer, recognizing that the ideas
(and the words, if you are quoting) came from that writer. Remember the
discussion of plagiarism in the Introduction to this book. Because a reader
will assume that you are the source for uncited material, a cite is your way of
disclaiming credit for the words and ideas you didn’t create. So, cite when
you quote and when you paraphrase someone else’s point.
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.
In People v. Smith, James Smith, an attorney, was under investigation for

drug use. 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 were
ultimately used to convict the former client of three felony charges. The
Colorado Supreme Court held that although Smith
no longer represented the [former client], the conduct in all probability would not have
occurred had [Smith] 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.
II. CITATION FORM

A citation is your promise to your reader that the cited material says what you
say it says. It also helps your reader find the source and gives some basic
information about precedential weight. Several commercially published
citation authorities exist, and some courts have adopted their own citation
rules. The two most often used citation guides are the ALWD (pronounced
“ALL-wid”) Guide to Legal Citation2 (“ALWD Guide” or “ALWD”) and The
Bluebook: A Uniform System of Citation (“the Bluebook”).3
Learning to use one of the citation systems is unavoidable. As much as
you might like to, you can’t just copy the citations you find in the authorities.
Many of those citations don’t conform to current citation requirements. This
chapter covers both the ALWD Guide and the Bluebook. We’ll begin by
becoming familiar with the overall layout of each book.
A. Using the ALWD Guide to Legal Citation

1. Sections of the ALWD Guide
The ALWD Guide contains the following sections and features:
1. Part 1 — Introductory Material: ALWD begins with a short

section expressly designed to introduce you to the book and
show you how to use it. This section explains the book’s
organization and helps you find quick answers to common
questions. A particularly helpful feature of this section is the
discussion of how word processing software can affect citation
formats. The section gives suggestions for handling margin
settings, spacing, default settings, and quick-correct features, all
of which can alter your citations in ways you didn’t expect or
intend. Reading these five pages will help you understand how
to use the guide and how to manage your word processor.
2. Part 2 — Citation Basics: This section gives you key general
information, such as when to italicize or underline, how to
abbreviate, what to capitalize, and how to decide spacing.
Familiarize yourself with the foundational points in this section
before you look up citation rules in later sections.
3. Part 3 — Citing Specific Sources: The citation rules specific to
all printed legal authorities are found in Part 3. The most
commonly used are cases (Rule 12), statutes (Rule 14), books
(Rule 20), and periodicals (Rule 21). One of the best features
of the ALWD Guide is the use of Fast Formats at the beginning
of each rule covering kinds of sources. The Fast Format gives
you, on a single page, examples of how to cite to that kind of
authority in all the most common circumstances.
4. Part 4 — Online Sources: This section tells you how to cite to
electronic legal sources such as a website or cases from
Westlaw and Lexis.
5. Part 5 — Incorporating Citations into Documents: You’ll find
more basic information here about how to use citations,
covering such common questions as how many and which
citations to include, where to put them, in what order, how to
use signals, and how to use explanatory parentheticals.
6. Part 6 — Quotations: Pesky questions about handling
quotations are answered here. This section covers use of
quotations as they appear in the original source, alteration of
quotations, and trimming quotations down to size.
7. Appendices: The appendices contain a wealth of important
information. Appendix 1 tells you exactly how to cite all the
primary authority (like statutes and cases) from your particular
jurisdiction. Appendix 2 gives you all the court citation rules
from each jurisdiction. Appendices 3-4 show you how to
abbreviate almost all the words you’ll need to abbreviate as
you cite.
2. How to Locate the Rules You Need

Finding the rules you need in the ALWD Guide isn’t hard. Here are the best
strategies for locating rules and finding out how to cite a certain kind of
source:
Ways to Find the Rules You Need

1. For the quickest way to check basic form, use the Fast Format
Locator on the inside front cover. This handy list will take you
immediately to the Fast Format for the source you’re citing. For
example, if you want to see how to cite to a case, the Locator will
refer you to the Fast Format found at the beginning of Rule 12, the
rule covering cases. There, on a single page, you’ll find examples of
how to use all the major varieties of case cites. Then, if you need
more, you’re already at the beginning of the section covering cases,
so you can simply go further into the following pages to find a more
specific answer.
2. If you can’t find what you need by using a Fast Format, use the
index, which is excellent.
3. To find larger sections of the ALWD Guide, such as the whole section
covering electronic sources, use the Table of Contents.
B. Using the Bluebook

The Bluebook will intimidate you if you let it. The best way to approach the
Bluebook is to cut it down to size mentally by identifying the primary parts
you’ll use. Notice the larger sections of the Bluebook as they are set out in the
Table of Contents.
1. Sections of the Bluebook

1. Introduction and Inside Covers. The Bluebook begins with an
Introduction expressly designed for new users. The Introduction
describes the parts of the Bluebook. Also, notice the reference
guides on the inside front and back covers.
2. The “Bluepages.” This section is necessary because the rest of the
Bluebook focuses on citation form for law review publishing. The
Bluepages section adapts the rules in the rest of the Bluebook to
practitioner writing — the kind you’ll be doing in your legal
writing class and in practice. This section also includes a table for
suggested abbreviations to use in court documents and a table
identifying jurisdiction-specific citation rules.
3. Rules. The rules themselves come next. Rules 1–9 are general rules
that apply broadly to many situations. They are followed by rules
dealing with citing kinds of sources. You’ll use Rules 10, 12, 15,
and 16 (cases, statutes, books, and periodicals) most often.
4. Tables. After the rules comes a second set of tables. These are
reference sources for basic information about court and reporter
systems and statutory compilations for each jurisdiction as well as
standard abbreviations for courts, case names, publications, and
other commonly used terms.
2. How to Find the Rules You Need

Here are the best strategies for finding information in the rules:
Ways to Find the Rules You Need

1. Use the Bluebook’s index, which is quite good.
2. Use the Table of Contents.
3. When reading a rule, look at the listed cross-references.
4. Use the Quick Reference [for] Court Documents and Legal
Memoranda found on the last page and the back inside cover. (The
one on the front inside cover and first page is for law review
citations.)
C. Several Key Concepts

Before you dive into either citation guide, you’ll want to know these two
general concepts:
1. Typeface requirements. The Bluebook’s rules (the white pages) are

designed primarily for law review writing, not practitioner writing. For law
review writing, the Bluebook requires, on different occasions, large and small
capitals, regular typeface, and italics. The examples and explanations in the
rules section (the white pages) use those typeface distinctions. Practitioner
writing is simpler, using only regular type such as courier and either italics or
underscoring. Simply type everything else in regular typeface, and don’t
worry about the more complicated distinctions in the rules section of the
Bluebook.
The ALWD Guide follows the commonly accepted approach for
practitioner writing, so selecting the correct typeface is easy. Most material in
a citation is presented in ordinary type, italics, or underlined type. The ALWD
rule covering a certain kind of source will tell you (and show you) which
information, if any, to italicize.
Notice, though, that for practitioner writing, both the ALWD Guide and
the Bluebook use the word “italics” to include either slanted type or
underscoring.4 You can use either, but don’t use both in the same document.
2. Citing in text versus citing in a footnote. Law review articles are

notorious for footnotes, and the rules section of the Bluebook provides special
requirements for citations in law review footnotes. But footnotes should be
the exception rather than the rule for practitioner writing. When practitioners
do use a footnote, they usually use the same citation principles they have
been using in the text.
D. Introduction to Citation Form

Although the applicable rules are more detailed, an overview will help you
put the more detailed rules into a context. Here are the basic components of a
citation to a case, a statute, a book, and a law review article:
BASIC COMPONENTS OF A CITATION TO A CASE

1. Case name
2. Case’s location:
a. Volume
b. Abbreviation for name of reporter
c. Page where the case begins
d. Page where the cited material appears
3. Court abbreviation
4. Year
State Court Example
BASIC COMPONENTS OF A CITATION TO A STATUTE

1. Title number (if the code uses title numbers)
2. Abbreviation for name of code
3. Section number
4. Year the code was published
Example
BASIC COMPONENTS OF A CITATION TO A BOOK

1. Author’s name(s)
2. Title of book
3. Volume number, if any
4. Section, paragraph, or page number
5. Edition number, if more than one
6. Year
Example
BASIC COMPONENTS OF A CITATION TO A LAW REVIEW

ARTICLE
1. Author’s name
2. Title of article
3. Location of article:
a. Volume number
b. Abbreviation for name of law review
c. Page where article begins
d. Page where cited material appears
4. Year
Example
E. Matching the Citation to the Text

A writer tells a reader which point the cite supports by where she puts the
cite. If the cite is put outside the textual sentence, the reader knows that the
cite supports all the material in the preceding sentence. For example:
To prove a claim for sexual harassment without showing an adverse employment action, a
plaintiff must show that the harassment created a “hostile or abusive work environment”
and that the plaintiff indicated that the harassment was unwelcome. Meritor Sav. Bank v.
Vinson, 477 U.S. 57, 66 (1986).
This sentence says two things: that the plaintiff must show a hostile
environment and that the plaintiff must show that he or she communicated
that the conduct was unwelcome. The placement of the citation to Meritor
outside the textual sentence (as a citation sentence of its own) tells the reader
that Meritor establishes both points.
But if Meritor supported only the first of these points, the cite would go
inside the textual sentence, immediately after the point it supports (as a
citation clause). The writer would cite another authority for the other
proposition, like this:
To prove a claim for sexual harassment without showing an adverse employment action, a
plaintiff must show that the harassment created a “hostile or abusive work environment,”
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986), and that the plaintiff indicated that the
harassment was unwelcome [cite to the other case].
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).
F. Citing with Style and Grace

Citations can make the text hard to read. A reader must jump over all the
names, numbers, and parentheticals; find the spot where the text begins
again; and then pick back up on the message. Granted, law-trained readers
become good at these mental and visual gymnastics, but even law-trained
readers can use all the help a writer can give them. Here are some suggestions
for minimizing the disruption caused by citations:
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)).
2. Avoid beginning a sentence with a hard-to-read cite. Here is an

example of a sentence with this problem and a better version:
Change Public Law 95-555, 92 Stat. 2076, October 31, 1978,
included a new § 701(k).
To Congress added a new version of § 701(k) when it
enacted Public Law 95-555, 92 Stat. 2076, October 31,
1978.
3. Avoid string citations. A string citation “strings” together many
authorities to support the same point. Lawyers often cite several
authorities for an important proposition, but the longer the “string,” the
more the citations impair readability and frustrate a reader. And since
citations alone are devoid of discussion, the long list seldom adds much
to the analysis. Generally, it’s better to cite and discuss the several most
important authorities and omit the others.5
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.
G. Editing Citation Form

This section assumes that you’ve looked up the relevant citation rules in your
citation manual. What follows is an editing checklist to help you find the
most common citation errors.
Checklist for Editing Citations

EXERCISE 19-4
Editing for Citation Form
Edit the following citations for correct citation form. Use the checklist in
section G. If you spot an error that you cannot correct without additional
information, simply note the error and identify the information you would
need to correct it.
1. Leibel vs. Raynor Manufacturing Co., 571 S.W. 2nd 640 (1978).
2. Brown v. New Haven Civil Service Comm., 474 F.Supp. 1256, 1263,
(1979).
3. Equal Pay Act of 1963, 29 USC § 206(d), et seq.
4. Connecticut v. Winnie Teal, et al., supra at 444.
5. Harold S. Lewis, Jr., Litigating Civil rights and Employment
Discrimination cases, 1996. (This is a book.)
6. Humphrey v. McLaren, 402 N.W.2d 535 (Minn, 1987). [cited in a
brief filed before a trial court in Minnesota]
7. Prandini v. National Tea Co., Id. at 49.
8. Jack Lee Sammons, The Professionalism Movement: the Problems
Defined, 7 Notre Dame Journ. of Law, Ethics & Public Pol. 269,
1993.
9. e.g., U.S. Dept. of Labor v. Triplett, 494 US 715, 716 (1990).
10. Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 431 (1978).
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.
A. When Quotation Marks Are Required

Use quotation marks to show that the words themselves came from someone
else.6 Quotation marks tell a reader the source of the language, and they give
the creator the credit (or blame) for the creation.
Quotation marks are necessary when you quote the words of another but
unnecessary when you paraphrase. Sometimes it’s hard to tell the two apart.
When are the words yours and when are they “the words of another”?
Start with the proposition that usually you should rephrase the thoughts of
others into your own words and sentence structures. But even if you aren’t
looking at the source while you write, you might find that your text turns out
to be similar to your source’s text. Maybe the source uses common words or
sentence structures to express the idea, or maybe, without realizing it, you’ve
been thinking of the topic in the source’s words.
If the original text used the word “table” and you use it too, no one would
argue that you should put quotation marks around “table” in your document.
But if your draft shares a whole paragraph in common with the original text,
everyone understands that the paragraph must be presented as a quotation.
Somewhere between these two extremes lies the point at which the words
qualify as someone else’s (and quotation marks become necessary), but no
bright-line test will tell you precisely where.
The absence of a clear test is particularly unfortunate in legal writing.
Legal writers rely heavily on sources, and most legal writing texts advise
writers to paraphrase most sources. If you follow this good advice, you’ll be
doing a lot of paraphrasing. How can you know whether your paraphrase is
different enough from the original text that it doesn’t need quotation marks?
To decide whether you need quotation marks, consider the combined
effect of these factors:
• the length of the common unit of text;
• the number of units in common;
• whether the sentence structure is the same or similar; and
• whether the common units include particularly striking language.
Some writers use a seven-word benchmark as a starting point for
measuring the length of a common unit. If seven or more words used together
in your text match the text of the source, use quotation marks for those
words. The benchmark recognizes the unlikelihood of a common seven-word
unit appearing inadvertently in texts by different authors. So to be safe, use
quotation marks at least for any unit of seven or more words.
But you can’t avoid quotation marks just by changing every seventh
word. The seven-word benchmark is only an approximate measure, and it
applies only when the texts aren’t similar in other ways, so consider also
whether there are other common units of text and whether the sentence
structure is similar. Would an objective reader think that this passage is
fundamentally someone else’s, with just a few surface changes?
Finally, use quotation marks for language another author has used in a
particularly vivid, creative, or unusual way. For example, in Griggs v. Duke
Power Company, Chief Justice Burger condemned employer practices that
function as “built-in headwinds” impeding employment for minority groups.7
In Watson v. Fort Worth Bank and Trust, Justice O’Connor described the
positions argued by the parties as “stark and uninviting alternatives.”8 In his
dissent in Wards Cove Packing Company v. Atonio, Justice Stevens described
the living and working conditions at the defendant’s canneries as “a
plantation economy.”9
These are examples of words and phrases used in distinctive ways. In
each case, the author was especially effective in selecting the words to
express the idea. In each case, the author’s effective use of language merits
recognition, and other writers who use these phrases should give credit to the
original author by using quotation marks.
Make your decisions conservatively. It’s far better to use quotation marks
or to paraphrase the passage more thoroughly than to risk questions about
whose writing your document really reflects.
B. Choosing to Use Quotation Marks

Even if quotation marks aren’t required, you might choose to use them
anyway, for example, when the analysis applies a particular legal test or
interprets the words of a statute. Here are examples:
PARTICULAR LEGAL TEST

A lawyer must use the degree of skill commonly exercised by a
“reasonable, careful and prudent lawyer.” Cook, Flanagan Berst v.
Clausing, 438 P.2d 865, 867 (Wash. 1968).
PARTICULAR WORDS OF STATUTE
Title VII makes it unlawful for a labor organization “to exclude or expel”
an individual because of religion. 42 U.S.C. § 2000e-2(c)(1) (1994).
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).
D. The Mechanics of Quoting

Here is an editing checklist to help you flag the most common quotation
errors:
1. Indent quotations of 50 or more words from both side margins. The
indentation indicates that the material is quoted, so don’t use
quotation marks. Indented quotations should be single-spaced. ALWD
R. 38.5; Bluebook R. 5.1(a).
2. Don’t indent or single-space quotations shorter than 50 words. Use
quotation marks. ALWD R. 38.4; Bluebook R. 5.1(b).
3. Put end punctuation inside the quotation marks if it is part of the
quoted material. For punctuation you add, put commas and periods
inside the quotation marks, but put other added punctuation outside
the quotation marks. ALWD R. 38.4(b); Bluebook R. 5.1(b).
“Discriminatory employment practices are prohibited.”
[The period is part of the quoted material.]
The statute prohibits “discriminatory employment practices.”
[The period is not part of the quoted material.]
Does the statute prohibit “discriminatory employment
practices”?
[The question mark is not part of the quoted material.]
4. Show changes in the quotation by using brackets and ellipses. Use
brackets when you replace letters or words or when you add material
to the quotation:
“[R]egulations [of employee appearance] making distinctions on
the basis of sex will not support allegations of discrimination
unless [the regulations] are unreasonable or unevenly enforced.”
In the first bracket, the uppercase R replaces a lowercase r
because in the original the quoted language did not begin a sentence.
The second and third brackets identify material added or substituted
to clarify, simplify, or shorten the quoted material. ALWD R. 39;
Bluebook R. 5.2 & 5.3.
5. To show that you’ve omitted letters, use empty brackets. For
instance, write “draft[]” when omitting the “ing” from “drafting.”
ALWD R. 39.2; Bluebook R. 5.2(b).
6. To show that you’ve omitted words, use ellipses. An ellipsis is a
series of three dots with a space before, between, and after. ALWD R.
40.1 & 40.2; Bluebook R. 5.3.
“The evidence included a communication . . . suggesting that the
employee should wear clothing of a more feminine style.”
7. Don’t use an ellipsis at the beginning of a quotation. A reader will
know that the original source might include material ahead of the
quote. ALWD R. 40.3(b); Bluebook R. 5.3(b)(i).
8. Don’t use an ellipsis at the end of a quotation if the quoted material
ends with a complete sentence. A reader will know that the original
source might contain material after the quoted sentence. ALWD R.
40.3(c); Bluebook R. 5.3(b)(iv).
9. When you use material that was a part of a sentence in the original
but you are using it as a complete sentence in your text, show the
omitted material at the end of the quotation with an ellipsis after the
end of the quote.
“The mere existence of a grievance procedure does not insulate
an employer from liability . . . .”
The ellipsis tells the reader that in the original, the sentence contained
additional material. ALWD R. 40.2(b); Bluebook R. 5.3(b)(iii).
10. Use a parenthetical at the end of the cite to signal that you’ve omitted
citations or footnotes or to signal added or deleted emphasis. ALWD
R. 40.3(c); Bluebook R. 5.3(c). For example:
The court observed that a partner’s interest in partnership
property “is a derivative interest subject to significant
limitations. [A partner] has no right to use this property for other
than partnership purposes without the consent of the other
partners.” Bellis v. U.S., 417 U.S. 85, 98 (1974) (citations
omitted; emphasis added).
Here, the original material contained citations after “limitations” and
before the next sentence. The italicized phrase was not italicized in
the original.
11. If you find an error in the quoted material, either alter the quotation
to correct the error or signal the error by following it with “sic”
enclosed in brackets. ALWD R. 39; Bluebook R. 5.2(c). For example:
“The party least anxious to settle was her [sic].”
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
Paragraphs, Sentences, and Style
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.
These paragraphing principles are more than just principles of

writing style. Proper paragraphing will improve the substance of your
analysis by helping you flesh out and order your thoughts, make appropriate
decisions about the depth of your analysis for each point, and think of new
points you want to include. Here are some important guidelines for
paragraphing:
When possible, use a thesis sentence rather than a topic

sentence. A topic sentence identifies the topic the paragraph will discuss, but
that is all it does. A paragraph centered on a topic sentence is apt to discuss
the topic without ever making a point. A thesis sentence, however, asserts a
position. A paragraph centered on a thesis sentence will support or explain
this position. It will focus on the material that “proves” the thesis. Often the
thesis is the rule itself, a part of the rule, or a point about how the rule
functions. Compare the following paragraphs. Which has the best thesis
sentence? Notice how the thesis sentence articulates a point that advances the
analysis. Notice how its discipline has led the writer to analyze rather than
merely report on the authorities.
Cantwell v. Denton [citation] dealt with the issue of when a choice is

sufficiently voluntary to constitute assumption of the risk. In that case, the
defendant negligently caused a fire in an apartment building, and a father
entered the burning building to save his child. The court held that the
father’s action was not sufficiently voluntary to constitute assumption of
the risk. [citation]
A choice is not sufficiently voluntary to constitute assumption of the risk if
the defendant’s negligence has forced the plaintiff to choose between the
threatened harm and another equal or greater harm. Cantwell v. Denton
[citation]. In Cantwell, the defendant had negligently caused a fire in an
apartment building. A father had to choose between entering the burning
building and standing by while his child’s life was in danger. The court
held that standing by while the child was in danger would have been an
equal or greater harm. [citation] Under such circumstances, the court held,
the choice to subject one’s self to danger is not “voluntary” in the sense
necessary to constitute assumption of the risk. [citation]
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.
Keep the paragraph’s content within its thesis. Limiting the

paragraph’s content to information about the paragraph’s thesis will help you
find the gaps in your reasoning and in the “proof” you have found in the
authorities. If you limit the paragraph to material that supports the thesis, you
will notice if you have little or no support for that thesis. You will know
when you need to go back to the authorities in search of stronger support.
Keep your paragraphs moderately short. Limit paragraphs to one-

third to one-half of a double-spaced page. Keeping your paragraph short will
keep you focused on the thesis. A long paragraph often has one of these two
problems: (1) it has wandered from its thesis, or (2) the thesis is too big to be
covered without dividing it into subpoints. A large thesis generally produces
a large paragraph that mixes information about the subpoints more or less
randomly. It also results in a discussion that is not sufficiently fleshed out.
The best way to avoid these two problems is to keep your paragraph lengths
at or below a half-page, double-spaced.
Use a transitional word, phrase, or sentence each time you move

on to a new point. Being explicit about the relationships between the theses
of succeeding paragraphs will help you insure that your reasoning is logical.
Here is a list of commonly used transitions:
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
Thesis sentences and proper paragraphing can make a major

substantive difference in your analysis. If you cannot concentrate on the
material and on paragraphing at the same time, simply write your initial draft
in your normal way and then, in your first revision, edit your paragraphs and
add thesis sentences where necessary.
STRATEGIES FOR USING PARAGRAPHING TO IMPROVE

YOUR ANALYSIS
1. Check your thesis sentences and paragraphs. For each paragraph,
first ask yourself what your point is. Identify your thesis sentence,
and underline it on your draft. Then identify the paragraph(s) that
support that thesis, and be sure you know how all of the other
material in that paragraph pertains to that point. Now evaluate the
strength of your analysis of that point by evaluating the strength of
the supporting paragraph(s). This kind of point-by-point evaluation
helps you identify weak spots, leaps of logic, and misuse of sources.
2. Check paragraph length. Use a maximum length of about one-half of
a double-spaced page. For those paragraphs that run longer, ask
yourself whether the paragraph’s thesis has subpoints you should
separate. If you separate these sub-points and treat them in separate
paragraphs, you may find that the subpoints deserve more analysis.
As a matter of fact, sometimes you will find whole new issues you
had overlooked.
3. Check your transitions. Identify each transition to a new point, and
ask yourself how the new point is connected to the former point. Be
sure that each transition is clearly communicated.
4. Read all of the underlined thesis sentences in order. They should
provide a logically ordered summary of your reasoning, point by
point.
II. CHOOSE STRONG SUBJECTS AND VERBS

One of the characteristics of good style is the predominance of strong
subjects and verbs. Here are some of the most effective techniques for finding
and using stronger subjects and verbs.
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
give consideration to consider

had knowledge that knew
effect a termination terminate
make an assumption assume
make a decision decide
places emphasis on emphasizes
it is a requirement of the contract that the contract requires that
commencement of discovery will occur discovery will commence
EXERCISE 20-2
Nominalizations
Underline the nominalizations, and edit the sentences to eliminate them.
1. New York law is very protective of medical peer review procedures, so
a challenge to the procedures would not be beneficial to our client.
2. The Executive Committee members made a statement to the effect that
the Vice President had given them assurance that the Personnel Office
had made an announcement of its decision.
3. The County Tax Assessor’s Office made a number of new assessments
to properties with locations in Midtown.
4. This letter serves as confirmation of our meeting last week, during
which our firm agreed to provide representation to First National Bank.
5. The arbitrator made a determination that the claim for damages was
reasonable.
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.
D. Sentences Beginning with Forms of “It Is” or “There Is”

Sentence constructions beginning with forms of “it is” or “there is” always
lack force and often lack clarity. Like the constructions described above, they
obscure the subject and verb. Try to reword these constructions to put the
“real” subject and action up front in their usual spots.
Change It is unethical to contact a party represented by another lawyer.
To Contacting a party represented by another lawyer is unethical.
Change There are four defendants seeking dismissal on jurisdictional
grounds.
To Four defendants are seeking dismissal on jurisdictional grounds.
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.
III. AVOIDING WORDINESS

A. Revise Phrases That Can Be Replaced by a Single Word
Unnecessary phrases abound in poor legal writing. Phrases beginning with
“the fact that” are nearly always culprits, but many other phrases create
clutter as well. Here are examples:
Change To
at the time when when
at the point in time when when
as a result of because
by reason of the fact that because
for a period of one week for one week
for the purpose of to
for these reasons therefore
inasmuch as because
in many cases often
in order to to
it was formerly the case that formerly or previously
previous to before
that was a case where there
Also watch for phrases that can be replaced by adjectives.

Change the contract between Wigby and Matthews
To the Wigby-Matthews contract
Change The buyer discovered six violations of code requirements.

All of the violations dealt with plumbing.
To The buyer discovered six plumbing code violations.
Change . . . for the purpose for which it was intended . . .

To . . . for the intended purpose . . .
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.
B. Avoiding Long Sentences

The more complex the message, the simpler the medium must be. Long
sentences bury the subject and verb and tax a reader’s patience. Use twenty-
five words as a benchmark for gauging maximum length.
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.
In this version of the sentence, the first “because” is followed by a subject

and verb, but the second is followed by a prepositional phrase.
To maintain parallelism, be sure that all items in a list and all repeated
structures use the same grammatical elements. If the list is complex, you can
repeat the last common word so your reader will have no difficulty
understanding how each item of the list relates to the rest of the sentence.
Not parallel Problems occur when the parties conceal relevant
documents or by deluging the opponent with
irrelevant documents.
Parallel Problems occur when the parties conceal relevant
documents or when they deluge the opponent with
Now that the structure is parallel, extra words can go:
Problems occur when the parties conceal relevant documents or deluge the opponent with
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.
A. Techniques for Nouns: Elimination or Substitution

1. Where possible without loss of clarity, eliminate the noun entirely. For
instance, you could probably eliminate the term “bat boys” from the
following sentence without altering the meaning.
. . . to all players, coaches, [bat boys,] ticket takers, concession
workers, or other employees whose jobs are related to the sport of
baseball.
2. Substitute gender-neutral synonyms where the noun is needed.
Use Rather than
worker workman
mail carrier mailman
chairperson chairman
supervisor foreman
server waitress
reporter newsman
housekeeper maid
firefighter fireman
police officer policeman
flight attendant stewardess
persons, individuals men, mankind
staffing manning
B. Techniques for Pronouns

1. Where showing possession is not necessary to the meaning, substitute
“the” or “an” for “his” or “her.”
. . . a plaintiff may petition the court for relief, attaching to the
[rather than “his”] complaint a copy of . . .
2. Repeat the antecedent. The antecedent is the noun to which the pronoun
refers. In the following sentence, “doctor” is the antecedent:
. . . to a doctor and the nurses, secretaries, and receptionists in the
doctor’s [rather than “his”] office . . .
3. Make the antecedent plural so you can use the plural (nongendered)
pronoun “their.”
The license fee applies to taxi drivers [rather than “a taxi driver”]
driving their [rather than “his”] own taxis.
4. Rephrase to use a clause beginning with “who.”
Change A person must assume the risk of injury if he rides a roller
coaster.
To A person who rides a roller coaster must assume the risk of
injury.
5. Eliminate the pronoun by using a passive-voiced verb.
If the examining physician knows that the person being examined
[rather than “he is examining”] has been under treatment . . .
6. Substitute “one.” This technique can seem stilted, but it might suffice
from time to time.
Change A person should always tell the truth to preserve his
reputation.
To One should always tell the truth to preserve one’s
reputation.
The less formal “you” or “your” might work in less formal
documents but not in court documents.
You should always tell the truth to preserve your reputation.
7. Rephrase the clause entirely.
Change For each speaker, enclosed is an outline of his presentation,
a copy of the exercise he has prepared, and a memorandum
explaining his exercise.
To Each speaker has prepared a presentation outline, an
exercise, and an explanatory memorandum. Copies are
enclosed.
8. Where elimination, substitution, and rephrasing fail, use both pronouns
separated by a conjunction, such as “or.”
A parent may enroll his or her child . . .
9. Slash constructions (his/her, he/she, s/he) are not recommended for
formal professional writing.
C. Techniques for Proper Names and Titles

Unless strategic considerations intervene, use the following guidelines for
referring to people:
Be consistent in the use of courtesy titles. If you do not use “Mr.” for
men, do not use “Miss,” “Mrs.,” or “Ms.” for women.
Unless you have a good reason, use “Ms.” rather than “Mrs.” or
“Miss.” The object is to treat men and women the same. Because the
courtesy title for men (“Mr.”) does not indicate a marital status, the title for
women should not do so either. You can decide to use “Mrs.” or “Miss”
when a reader prefers it, when the legal issue makes marital status relevant,
when using the title will eliminate confusion, or when you have a particular
strategic reason.
Be consistent in the use of first names and last names. You can use last
names only, first and last names together, or (rarely) first names only.
However, unless you have a good strategic reason, apply your decision
equally to both genders.
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.
I. THE PURPOSE OF ORAL ARGUMENT

Before you plunge into preparing your oral argument, consider its purpose.
An oral argument is not simply an opportunity to say orally what you have
already said in writing. If that were the purpose of oral argument, the judges
would not waste your time or theirs. They would simply read your brief and
issue a ruling.
Rather, an oral argument is an opportunity for the judges to ask you
questions. They want to clarify their understanding of your arguments. They
want to give you a chance to alleviate their concerns about adopting the
position you advocate. They want to have a conversation. As your only
chance to speak directly with those who will decide your case, oral argument
is an important opportunity.
Oral argument also provides you a chance to return the judges’
deliberation to the big picture and to emphasize the narrative themes and
policy rationales that underlie your legal argument — the themes that show
not just how the law does support your position, but also why it should.
Direct, eye-to-eye contact often is the best way to bring home the importance
of those fundamental aspects of your argument.
II. FORMALITIES AND ORGANIZATION

The first step in preparing for oral argument is to understand the formalities
you will encounter and the overall organization your argument should follow.
Here is an overview of the oral argument:
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.
B. The Appellant’s Argument

As the lawyer for the moving party, counsel for the appellant goes first. You
might be the only lawyer for the appellant, or you could have co-counsel
arguing one of the issues. Use the following structure, leaving out the
mention of co-counsel if you are arguing alone:
May it please the Court. My name is Russell Stege, and along with
my co-counsel, Susan Marks, I represent the Appellant, Paul Giray.
I would ask the Court for permission to reserve two minutes for
rebuttal. [Pause to allow the Chief Justice to respond.]
Thank you, your Honor. Mr. Giray respectfully asks this Court
to . . . [state in one or two phrases the ruling you seek, for example,
“reverse the trial court’s entry of summary judgment and remand
the case for trial”].
The issue(s) before the Court is/are whether . . . [state each
issue in one sentence, phrased favorably to your side1]. Ms. Marks
will argue the damages issue, and I will argue the adverse
possession issue.
Then give the Court a short overview of the arguments you will make.
Your Honors, Mr. Giray will show that the undisputed facts in this
case simply are not adequate to establish the elements of adverse
possession. [In two or three sentences, state a summary of your
argument so the judges will have a sense of the arguments you
will make and the order in which you will present them. This is
also a good spot to introduce your narrative theme, as described in
Section III below.]
Your Honors, the facts are these: . . . [Inform the Court of the
relevant facts, and then begin the main section of your argument,
as described in Section III.]
C. Argument of Co-Counsel for the Appellant

If you are co-counsel arguing a second issue for the appellant, you will argue
next. Go to the podium as soon as your co-counsel leaves it without waiting
for an invitation from the judges. If the judges are still writing or conversing
when you arrive at the podium, wait a moment until they are ready or until
one of them tells you that you may begin. Then introduce yourself and
identify your client, as the first lawyer did. You do not need to introduce your
co-counsel from whom the Court has already heard. Nor do you need to
repeat the request to reserve time for rebuttal. Proceed to a short overview of
the arguments you will make:
May it please the Court, my name is Susan Marks, and I also represent Paul Giray. I will argue the
issue of the adequacy of money damages in this case. Your Honors, even if the undisputed facts
were sufficient to establish a claim for adverse possession, an award of money damages would be
more than sufficient in this case. [In two or three sentences, state a summary of your argument.]
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.
D. The Appellee’s Argument

Go to the podium as soon as counsel for the appellant leaves it. If the judges
are still writing or conversing, wait a moment until they are ready or until one
of them tells you that you may begin. Then introduce yourself, your co-
counsel, if any, and your client, just as the first lawyer did. As counsel for the
appellee, you do not have a rebuttal, so you do not need to reserve any time.
May it please the Court, my name is Elizabeth Tunnesen, and along with Jason Kennedy, I
represent Carol Cole. Ms. Cole requests the Court to affirm the trial court’s order granting
summary judgment. Mr. Kennedy will argue the damages issue, and I will argue the adverse
possession issue. I will show that the undisputed facts are more than sufficient to establish each
element of adverse possession.
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.
E. Argument of Co-Counsel for the Appellee

Your argument should follow the format described for the second lawyer for
the appellant.
F. Concluding the Argument
No matter whether you argue for the appellant or the appellee, you will have
to reach a graceful and persuasive ending while negotiating the timing
constraints. Prepare a conclusion consisting of a short summary (three to five
sentences) of your best points, phrased compellingly, and a request for the
relief you seek:
[A summary of your strongest arguments] . . . . Therefore, the appellant requests that the Court
reverse the trial court’s entry of summary judgment and remand the case for trial on the adverse
possession claim. Thank you, Your Honors.
Try to be ready to begin your conclusion at the one-minute mark. When

time is up, you may finish your sentence, but then you must stop. Simply say,
“Thank you, Your Honors,” and sit down. If you are in the middle of
answering a judge’s question when time expires, stop and say to the Chief
Judge:
Your Honor, I see that my time is up. May I finish answering Judge Nottingham’s question and
have a moment to conclude?
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.
A. The Standard of Review

The standard of review governs how much deference the appellate court must
give to the decision of the judge or jury at the trial level. Review the material
on the standard of review in Chapter 17. If the standard of review is favorable
to your side, be especially sure to phrase your argument in its terms. No
matter how much you choose to emphasize the standard, be ready to respond
clearly and succinctly to a judge’s question regarding the appropriate
standard.
B. The Burden of Proof

Be sure you know the relevant burden of proof on the issue you are arguing.
The burden of proof identifies the party who has the responsibility of proving
the necessary facts and persuading the trial court. Usually, the plaintiff bears
the burden of proving the elements of the cause of action, and the defendant
bears the burden of proving an affirmative defense. On a procedural issue, the
moving party often bears the burden. For instance, on a motion to compel
discovery, the moving party would bear the burden of proof. Check the
authorities on your legal issue to be sure you know which party bears the
burden of proving each aspect of the case.
C. The Trial-Level Procedural Posture

Finally, your argument could be affected by the procedural posture of the
ruling from which the appeal arose. The trial-level procedural posture defined
the appropriate legal question in the trial court, and it is the decision on that
legal question that is now on appeal. For instance, if the appeal is from a
ruling granting summary judgment, the question before the trial court judge
was whether the undisputed facts entitled the moving party to judgment
without the necessity of a trial. Therefore, the role of the appellate court is to
decide whether the trial judge ruled correctly on that legal question. If the
appeal is from a judge’s decision after a bench trial, the question is whether
the facts in the trial record are sufficient to sustain the ruling (in other words,
whether a reasonable judge, reviewing that trial record, could have decided
the case in the way this judge did). Therefore, the role of the appellate court
is to decide whether the trial judge ruled correctly on that legal question.
Check the authorities to be sure of the implications of your case’s trial-level
procedural posture, and frame your arguments and your answers with that
posture in mind.
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 point of your argument is a policy implication,

select a theme based on that policy:
Even if a minor is less than completely candid about his age, the law should still require a
merchant to take the remarkably simple precaution of asking to see the minor’s driver’s license.
Such a requirement does not burden the merchant at all, and it protects against the very real danger
that a merchant might find it profitable to be too easily convinced of an eager young customer’s
age.
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.
If the most compelling part of your argument is the procedural posture of

the trial court decision on which the appeal is based, select a theme that keeps
bringing the discussion back to that procedural posture:
The defendant strenuously disagrees with the inferences the plaintiff asks the Court to draw from
the affidavits. However, even if the affidavits did support the plaintiff’s inferences, the fact
remains that this case comes before the Court on appeal from a summary judgment ruling. The
question is not whether the plaintiff’s inferences are possible, or even whether they are the most
likely, but rather whether they are the only possible inferences. Clearly they are not.
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
B. Outline Your Argument

Usually the outline of your argument should mirror the large-scale
organization of your brief, as described in Chapter 7. The first level of
headings should articulate your position on each relevant element of the
governing rule. Under each heading, place as subheadings each argument you
will make on that element, and under that subheading, place each point you
will make in that part of the argument.
C. Prepare Your Folder

Prepare a folder with your notes for oral argument. You can use a file folder
and small index cards. Open the folder and use both sides for your opening
and closing language (in case you panic), for important factual information to
which you might need to refer (for example, dates and relevant numbers you
might not remember), and for the outline of your argument.
Consider including two outlines, one for a cold bench (a bench that asks
few questions) and one for a hot bench (a bench that leaves you little time for
your scripted material). The outline for the cold bench is your expanded
outline — the one you will use if the judges are quiet and you have time to
present most of your prepared material. The outline for the hot bench is
compressed into just the main points you want to make in case you have only
a few minutes. You can start with the expanded outline but shift to the
compressed outline as necessary during the argument.
Reserve one area of the folder for the index cards. For each important
case, statute, or regulation, summarize on a card the important information
from that source and quote any key language. Tape the cards on top of each
other with the bottom of each card protruding a quarter of an inch from
beneath the card on top of it. Tape the cards to the folder along the card’s top
edge, so the cards can be flipped up like an address file. In the visible space
on the bottom of each card, write the name or the case, statute, or regulation.
Practice finding the information on the cards and in the other parts of the
folder quickly and easily.
D. Script the Entire Opening, the Conclusion, and Your

Prepared Rebuttal
Although you cannot and should not try to script the body of the argument,
the opening and closing should be scripted, essentially memorized, delivered
with full eye contact, and spoken as if they were not memorized. This
preparation will guarantee that you say what you want to say and that you say
it smoothly and effectively. Your extemporaneous responses might not
always be smooth, but your beginnings and endings can and should achieve a
high level of poise and persuasion.
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.
F. Visit the Courtroom

Familiarize yourself with the room where you will argue. Imagine yourself
delivering your argument there, and remind yourself that you belong there,
advocating for your client. Psychologically claim the space.
V. HANDLING QUESTIONS FROM THE

BENCH
Because a primary purpose of oral argument is to answer the judges’
questions, a big part of your preparation should consist of preparing those
answers. Here are some important points to guide you.
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.
C. Recognize Types of Questions

You will encounter three basic kinds of questions: friendly questions,
questions genuinely seeking clarification of information, and adversarial
questions.
A friendly question is designed to help you present your argument or
make an additional point. A judge might want you to make a certain point
primarily for the benefit of another judge, or a judge might simply be pleased
to have thought of another point and might want to share it. Be sure to
recognize a friendly question and to make use of the opportunity it gives you
to agree with a judge and to articulate and validate the judge’s point.
A question genuinely seeking information is an opportunity to be helpful
to a judge who needs a point clarified. Do so willingly. Then, if you have a
point to make about the subject of the inquiry, you can use this chance to
make it, but only after you have answered the judge’s question.
You might find that most of the questions you receive are adversarial,
designed to test your arguments. Despite their threatening nature, these are
the questions you should welcome most because these are the questions that
allow you to resolve the concerns that could stand in the way of success.
Often these questions will be politely phrased, but sometimes a judge will
deliver the question in an intimidating, angry, or even rude manner. Your job
is to answer politely but firmly, ignoring the packaging of the question and
responding only to its content. Do not respond in anger, even if you are
feeling angry. Remain calm, at least outwardly, and answer the question as
best you can.
Your Honor, I must respectfully disagree. In the Jones case, the Supreme Court did not hold that . .
. . Rather , . . . . And this is precisely why . . . .
D. Listen Carefully to the Question

You might find that your nervousness impedes your ability to listen carefully
to the question. After you hear the first part of the question, you might
assume that you know what the judge will be asking, and your nervousness
could cause you to stop listening and begin scrambling to formulate an
answer. Yet you cannot answer a question that you have misunderstood.
When a judge begins to speak, remember to listen carefully to the whole
question before you answer.
E. Clarify the Question

Sometimes you will not understand a question even when you have listened
carefully. This could happen because you are nervous or because the judge
has not articulated the question clearly. Simply admit that you did not
understand the question, apologize, and ask the judge to repeat it. If you think
that you might have understood it but you are not sure, you can clarify your
understanding: “Is Your Honor asking whether . . . ?”
F. Begin with a Clear, Direct Answer

Usually you will want to say a number of things in response to a question.
However, you should always begin with a very short, direct answer to the
question in the form in which the judge posed it: “Yes, Your Honor,” or “No,
Your Honor, I must respectfully disagree,” or “Your Honor, that has
sometimes been the case, but not always.” After you have responded directly,
you can go on to explain your answer, but the judge should know within
roughly your first ten words what your answer to the question will be.
G. Returning to Your Prepared Presentation

When you have finished answering a question, return immediately to your
prepared presentation. Do not wait for the judge to respond or to give you
permission. Try to find a way to connect the ending of your answer to an
entry point into your argument so that the answer seamlessly weaves you
right back into your prepared material. However, if you cannot think of a
connection on the spot, simply return to your argument.
H. Handling Questions on Your Co-Counsel’s Issue

Sometimes a judge will ask you a question about the issue your co-counsel
has already argued or will shortly argue. Try to answer it if you can, but
qualify your answer by admitting that your co-counsel might be able to
provide a better answer. This should minimize the chance that the judge will
pursue the matter further.
Your Honor, because Home Finders dealt with the issue of sufficiency of money damages, my co-
counsel might be the best person to assist the Court on this question. However, I believe that the
court there held that . . . .
I. Handling a Question for Which You Do Not Have an
Answer
Your hard work should prepare you for most questions, but you might be
asked a question for which you do not have an answer. A judge might ask
you about a case or a statute with which you are not familiar, about how your
issue compares to the comparable issue in some other area of law, or about
how some particular procedural practice would affect your position. Even
experienced appellate attorneys do not know all aspects of the law. If you do
not know the answer to a judge’s question, admit it. You can offer to find the
answer and provide it to the court promptly after the argument concludes:
Your Honor, I regret that I am not familiar with Hatcher v. Norman. However, if the Court allows,
I will provide the Court with an answer to this question within twenty-four hours after today’s
argument concludes.
J. Agreeing When You Can

Remember that you will probably receive a friendly question here and there,
so do not automatically disagree each time the judge engages you. You can
even agree partially with the concerns underlying some adversarial questions
as well, but go on to show why that valid concern does not defeat your
position:
Yes, Your Honor, I agree that this is a legitimate concern. However, . . .
K. Referring to Earlier Questions or Comments from the

Bench
Remember the questions directed to you or to your opponent; you can refer to
them when appropriate in your argument. If a judge has asked you a friendly
question or made a friendly comment, you can refer to it later in the
argument. You can refer also to the adversarial questions or comments
directed to opposing counsel.
As Justice Bailey pointed out, . . .
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.
B. Body, Hands, and Eyes

Stand straight, with your weight equally placed on both feet, and remain
behind the podium. Maintain eye contact with the judges, and include the
whole bench in that eye contact. Do not read your argument. Rather, speak to
the judges conversationally, looking down at your notes now and then. Lay
your hands on the podium, and use them only moderately for occasional
small gestures. Do not grip the podium. Do not put your hands in your
pockets or clasp them behind your back.
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
Sample Office Memorandum
To: Requesting Attorney

From: Summer Clerk
Date: November 9, 2002
Re: Beth Buckley; file # 756385; stolen car; whether Buckley can
disaffirm purchase of car based on her minority
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
Sample Trial-Level Brief
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
Sample Appellate Brief
The issue addressed in this brief is essentially a pure question of law,

requiring interpretation of a rule of evidence. Therefore, the rule explanation
sections focus primarily on the language of the rule, the intent of the rule’s
drafters, and the policies served by adhering to the rule’s plain language. The
writer relies on case authorities as well, but because the cases are not
mandatory authority for this court, the writer presents the cases as further
support for the primary arguments of plain meaning, intent of the drafters,
and policy.
In both the “plain language” section and the “intent of the drafters”
section, notice how closely the writer focuses on the actual words of Rule
615. If the case authority had defined the Rule’s terms more fully, the writer
would have relied primarily on case authority for the definitions of the words
used in the Rule. Even without strong case authority defining the terms,
however, a writer can use legal and other dictionaries to parse each word of a
rule or statute, as the writer has done here.
In the “intent of the drafters” section, the writer casts the Rule as
primarily defining what restrictions a party can force on other parties as a
matter of course, without justifying the need for the restrictions. This section
expressly articulates the primary theme of the brief, contrasting the trial
court’s powers with the powers given to parties. The section relies on a canon
of statutory construction to point out not only what is included in the Rule’s
plain language, but also what is omitted. The writer also discusses the Rule’s
silence on important questions that would arise routinely if the Rule had been
intended to have the scope urged by the appellant. This section ends by
pointing out that the trial court, which presumably knew what it meant by its
own order, did not intend that the order apply in the manner the appellant has
proposed, thus harkening back to the theme of reliance on the court’s trial
management powers.
Then, after the rule explanation sections, the writer applies the Rule to the
facts of the case before the court. The way the Rule will apply to these facts
is clear, but the writer uses the rule application section as an opportunity to
reinforce the points made in the rule explanation sections and to reassure the
court that justice will not be infringed by a ruling in the appellee’s favor.
IN THE UNITED STATES COURT OF APPEALS FOR THE

FIFTEENTH1 CIRCUIT
BRIEF OF THE APPELLEE2
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
Federal Circuit Court

Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir. 1981) 3
Shotz v. City of Plantation, 344 F.3d 1161 (11th Cir. 2003) ........... 6
Thompson v. Goetzmann, 337 F.3d 489 (5th Cir. 2003) ................. 6
U.S. v. Angwin, 271 F.3d 786 (9th Cir. 2001) .............................. 3
U.S. v. De Jongh, 937 F.2d 1 (1st Cir. 1991) ................................. 8
U.S. v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993) ............................ 7
U.S. v. Smith, 578 F.2d 1227 (8th Cir. 1978) ............................... 7
Federal District Court Cases

Lapenna v. Upjohn Co., 665 F. Supp. 412 (E.D. Pa. 1987) ............ 7
U.S. v. Scharstein, 531 F. Supp. 460 (E.D. Ky. 1982) .................... 6
Rules of Evidence
Fed. R. Evid. 102 ........................................................................ 3
Fed. R. Evid. 615 ........................................................................
Passim
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.
Counsel for the United States

1This is a hypothetical circuit.
2This brief is based on briefs written by students in the Spring 2005 Advanced Writing Groups at
Mercer University School of Law. Professor Beth Cook of the Pennsylvania State University Dickinson
School of Law graciously allowed the use of the problem that was adapted for that class.
APPENDIX D
Sample Informal Advice Letter
Informal Advice Letter

[date]
Mr. Joseph S. Crimshaw
Crimshaw Plumbing Supply
1245 Glenwood Dr.
Gooding, New State 55832
RE: Crimshaw Plumbing Supply; personnel matter
Dear Joe:
Last week, I said that I would research the question of whether you can
require an existing sales employee to sign a covenant not to compete to retain
his employment. My research indicates that you can require the employee to
sign a non-competition covenant as long as the employee is an “at will”
employee and as long as the terms of the covenant are reasonable. I will
explain that conclusion more fully below, but first let me summarize my
understanding of the facts that have raised this question for you.
Facts: I understand that about a year ago, you hired Steven Lewis to call
on potential customers and take orders for plumbing supply products. Lewis
told you that he had been selling plumbing supply products for ten years for
another company but was recently laid off when that company reduced its
work force. He told you orally that he wished to go to work for another
established company and stay there until he retires in ten years. I understand
that you did not offer him any particular term of employment and that he did
not make any promises to you about how long he would stay or whether he
would leave and compete against Crimshaw Plumbing Supply. You have now
heard a rumor indicating that Lewis is planning to open his own plumbing
supply business in about a year and that he will be directly competing against
Crimshaw Plumbing. You would like to require Lewis to sign a covenant not
to compete with Crimshaw for three years after he leaves Crimshaw’s
employment.
Issues: These facts raise two issues: (1) whether a current employee can
be required to sign a covenant not to compete; and (2) what covenant terms
are enforceable.
Research and Legal Conclusions: On the first issue, no statute or reported
case in our state has addressed the question of whether continuation of
employment can be conditioned on the signing of a covenant not to compete.
However, all employment contracts are treated as “at will” employment
unless the contract specifies otherwise. Assuming that you did not offer
Lewis employment for any particular period of time, he is an “at will”
employee. You can terminate an “at will” employee at any time as long as the
termination is not for a particular prohibited reason, such as the employee’s
race, religion, or sex.
While no reported cases in our jurisdiction have dealt with requiring an
employee to sign a non-competition covenant, several cases did deal with
requiring a current “at will” employee to abide by other kinds of newly
instituted rules of employment such as new attendance or dress requirements
or new rules requiring particular training or certifications. These cases have
uniformly upheld an employer’s right to institute new employment rules or
requirements and to condition continued employment on compliance with
those rules.
Further, I was able to find several cases in other jurisdictions that dealt
specifically with requiring a current employee to sign a covenant not to
compete, and those cases all permitted the requirement. In those cases, the
courts stated that there was no significant difference between requiring the
signing of a non-competition covenant and requiring the employee to abide
by other newly instituted rules. Although a court in our state would not be
required to follow the ruling of a case from another state, these cases do
provide additional support for our position.
On the second issue, the cases in our state uniformly hold that a signed
covenant not to compete is enforceable if its terms are reasonable. Customary
terms set out the geographic area of the restriction, the duration of the
restriction, and a description of the restricted activities. The opinions all
recite that the restrictions should not be broader than necessary to protect the
employer’s business. Commonly, durational terms do not exceed one year,
and geographic restrictions do not exceed the area of the employer’s primary
market. The restricted activities are limited to the activities the employee
performed for the former employer plus any additional activities for which
the employee could profitably use confidential information obtained from the
former employer (such as a customer list). Consequently, if you are going to
require Lewis to sign a covenant, we should carefully discuss its terms, and I
would recommend that you allow our firm to draft the agreement for you so
we can help you create terms a court would enforce.
Advice: First, if competition from former sales employees is a concern, as
I suspect it is, I suggest that you ask all new sales employees to sign a non-
competition agreement with carefully drafted terms. This will prevent future
occasions in which the current delicate situation arises.
Second, it appears that legally you can condition Lewis’s continued
employment on the signing of a covenant not to compete. However, you may
want to think carefully about whether to bring the issue to a head in this way.
If Lewis has not yet decided whether to start his own business, presenting
him with a covenant at this point may push him to decide to leave and begin
to compete immediately. Further, presenting him with a legal document and
requiring him to either sign it or be fired may cause him to react emotionally.
He might feel both strong-armed and suspected of wrong-doing, in which
case he might react by doing exactly what you are trying to prevent.
Therefore, you will need to assess carefully the risks of acting as compared to
the risks of waiting.
If you decide to ask for the non-competition agreement, I suggest that you
consider two possible strategies. If Lewis is a valuable employee you would
like to keep, consider whether you can devise a promotion or some other
increase in status or benefits and present the covenant as part of that new
position. If a promotion or increase in benefits is not feasible, you might
present the covenant as a new policy applying to a whole category of
employees so Lewis does not feel singled out and personally offended.
I hope this information is helpful. I would be happy to discuss this matter
with you further. Let me know if you would like us to assist in any other way.
Very truly yours,
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.
BARTON V. MITCHELL COMPANY

507 So. 2d 148 (Fla. Dist. Ct. App. 1987)
Fourth District Court of Appeal of Florida
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.
When there is a constructive eviction such constitutes a breach of the

covenant of quiet enjoyment. Richards v. Dodge, 150 So. 2d 477 (Fla. 2d
DCA 1963). A constructive eviction occurs when a tenant is essentially
deprived of the beneficial enjoyment of the leased premises where they are
rendered unsuitable for occupancy for the purposes for which they are leased
(emphasis added). Hankins v. Smith, 103 Fla. 892, 138 So. 494 (1931).
Since this was a large shopping center, we assume, we hope correctly,
that all leases were similar. In paragraph 11 of the printed lease, it was stated
that, “nor shall tenant maintain any loud speaker device or any noise making
device in such manner as to be audible to anyone not within the premises.”
Thus, from our overview, we hold, according to the mentioned
authorities, that Ms. Barton was constructively evicted from the premises at
the time of her departure and, therefore, has no responsibility for rent
thereafter. Here, the landlord was advised of the difficulty. The landlord
acknowledged responsibility and agreed to remedy the situation and had the
means to do so. The terms of the lease with reference to noise could have
been enforced against Body Electric. The walls could have been insulated.
Yet the landlord did nothing. Despite the damage to her business, Ms. Barton
waited a reasonable time for the landlord to act.
The judgment on appeal is REVERSED. ANSTEAD and DELL, JJ.,
concur.
SAMPLE CASE BRIEF

1. Barton v. Mitchell Co.
507 So. 2d 148 (Fla. Dist. Ct. App. 1987)
4th Dist. Court of Appeal — Fla.
2. Facts: (The facts are undisputed.)
Tenant (Barton) signed a five-year lease of commercial space
for a patio furniture store. The lease included a term promising that
tenant “shall peaceably and quietly enjoy the Demised Premises . .
..”
Subsequently, landlord (Mitchell Co.) leased adjacent space to
Body Electric (an exercise studio). Loud music, screams, shouts,
and yells regularly came from the exercise studio. The noise
vibrated the walls and made conducting tenant’s business difficult
or impossible. Tenant lost customers and employees as a result.
Tenant complained to landlord repeatedly. Landlord promised to
remedy the problem, including by insulating the walls if necessary,
but landlord did nothing. Tenant vacated with a little over two
years remaining on the lease. That day, the landlord took some
action. The case doesn’t say what the landlord did.
3. Procedural History:
Landlord sued Tenant for rent due for the rest of the lease term.
Trial Court: Landlord won $18,929.57 plus interest, representing
past and future rent for rest of lease term (non-jury trial). Tenant
appealed.
4. Issue(s):
Does a landlord’s failure to control vibration and noise made by
other tenants constitute constructive eviction?
5. Rule(s) of Law:
• “A constructive eviction occurs when a tenant is essentially
deprived “A constructive eviction occurs when a tenant is
essentially deprived of the beneficial enjoyment of the leased
premises where they are rendered unsuitable for occupancy for
the purposes for which they are leased.”
• A constructive eviction breaches the covenant of quiet
enjoyment.
6. Holding(s):
Excessive vibration and noise caused by another tenant constitutes
constructive eviction when it interferes with a commercial tenant’s
business and when the landlord had notice of the problem and had
the ability to remedy the problem but did not act within a
reasonable time.
7. The Court’s Order:
Trial court’s judgment was reversed.
8. Reasoning:
The court did not expressly explain its reasoning except by
pointing to these key facts: (1) the tenant notified the landlord and
waited a reasonable time; (2) the landlord had the ability to stop
the problem (by requiring the other tenant to stop the noise and
vibration or by insulating the walls); and (3) the landlord did not
take any action. The result would seem, however, to protect the
ability of commercial tenants to conduct their businesses without
unreasonable interference (a positive economic benefit).
9. New Information:
Here the problem was caused by actions of another tenant, not the
landlord. The court held the landlord responsible anyway, as the
landlord could have corrected the problem but did not.
10. Questions, Comments, and Speculations:
• Interesting that the court speculated that the lease for Body
Electric was the same as the lease for the tenant and based its
holding on the assumption that the Body Electric lease permitted
the landlord to regulate Body Electric’s noise (“nor shall tenant
maintain any loud speaker device or any noise making device in
such manner as to be audible to anyone not within the
premises”). Tenant’s lawyer must not have made this argument
or provided the court with Body Electric’s lease. Why not?
• Would the result have been the same if tenant’s lease had not
included a provision promising quiet enjoyment? Would the
court have held that a covenant of quiet enjoyment is implied in
commercial leases? Maybe not because the court calls the lease
provision “the dispositive lease pro-viso” and because the court
does not mention an implied covenant.
GOLDMAN V. KANE
3 Mass. App. Ct. 336, 329 N.E.2d 770 (1975)
Massachusetts Appeals Court
HALE, Chief Justice.

[Barry Kane represented Lawrence Hill, a law school graduate but not a
lawyer. Kane had represented Hill for several years on various matters. In
April 1971, Hill signed an agreement to purchase a boat for $31,500 and paid
a deposit of $3,150. Hill agreed to pay the balance on May 17. Kane advised
Hill about miscellaneous legal matters pertaining to the purchase and
registration of the boat. Hill also asked Kane to arrange for the financing of
the balance of the purchase price. When Kane could not arrange a loan
through a bank, Hill told Kane to sell a piece of real property Hill owned.
Kane put the property on the market, but the property did not sell. With one
day to go before losing the deposit, Hill told Kane that he was in dire need of
the money to complete the sale. Kane told Hill that the timing and Hill’s
financial circumstances made it “virtually impossible” to get a loan. After
several telephone conversations, Kane offered to arrange for Kane’s
corporation to lend Hill $30,000. However, Hill would have to transfer to
Kane’s corporation absolute title to the unsold real property, to all of the
personal property located on the real property, and to a smaller boat Hill
owned. In addition, Hill would have to secure the loan with a mortgage on
the new boat. Kane urged Hill not to accept these terms, but Hill insisted. In
July 1971, Kane’s corporation sold the real property and the personal
property located on it for $86,000. Subsequently, Hill defaulted on the loan.
Kane seized the boat and sold it. Hill’s estate thereafter sued Kane and his
corporation, alleging that Kane had breached his fiduciary duty as Hill’s
attorney. Judgment for the plaintiff; defendants appealed.]
The defendants argue that even if an attorney-client relationship existed
the record does not support the conclusion that there was a breach of that
relationship. We disagree. The relationship of attorney and client is highly
fiduciary in nature. “Unflinching fidelity to their genuine interests is the duty
of every attorney to his clients. Public policy hardly can touch matters of
more general concern than the maintenance of an untarnished standard of
conduct by the attorney at law toward his client.”
The law looks with great disfavor upon an attorney who has business
dealings with his client which result in gains to the attorney at the expense of
the client. “The attorney is not permitted by the law to take any advantage of
his client. The principles holding the attorney to a conspicuous degree of
faithfulness and forbidding him to take personal advantage of his client are
thoroughly established.” When an attorney bargains with his client in a
business transaction in a manner which is advantageous to himself, and if that
transaction is later called into question, the court will subject it to close
scrutiny. In such a case, the attorney has the burden of showing that the
transaction “was in all respects fairly and equitably conducted; that he fully
and faithfully discharged all his duties to his client, not only by refraining
from any misrepresentation or concealment of any material fact, but by active
diligence to see that his client was fully informed of the nature and effect of
the transaction proposed and of his own rights and interests in the subject
matter involved, and by seeing to it that his client either has independent
advice in the matter or else receives from the attorney such advice as the
latter would have been expected to give had the transaction been one between
his client and a stranger.”
Applying these principles to the case at bar, it is clear that the judge was
correct in concluding that Kane, by entering into the transaction, breached his
fiduciary duty to Hill. While the defendants contend that Kane’s conduct did
not constitute a breach of his fiduciary duty because Hill fully understood the
nature and effect of the transaction and because Kane advised Hill against it,
in the circumstances of this case, Kane’s full disclosure and his advice were
not sufficient to immunize him from liability. The fundamental unfairness of
the transaction and the egregious overreaching by Kane in his dealings with
Hill are self-evident. In light of the nature of the transaction, Kane, at a bare
minimum, was under a duty not to proceed with the loan until he was
satisfied that Hill had obtained independent advice on the matter. The
purpose of such requirement is to be certain that in a situation where an
attorney deals with a client in a business relationship to the attorney’s
advantage, the “presumed influence resulting from the relationship has been
neutralized.” . . . Judgment affirmed.
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.
1. This is a hypothetical case based on several real cases.

Index
A-1 Realty/Guzman, 195–196
Abduction. See Reasoning, inferential
Active voice and passive voice
gender-neutral writing, 255
generally, 244-246
respectful writing to a court, 157
strategic use, 206
Affidavits, 7
Analogical reasoning. See Reasoning
Analogizing cases. See Reasoning, Analogical
Anger, in legal writing, 158
Answer, 6
Alternative arguments, 175
Appellate briefs. See Briefs
Argument, in brief. See Briefs
Argument, oral. See Oral argument
Authority
analogizing. See Analogical reasoning
binding, 24–25
distinguishing. See Reasoning, analogical
hierarchy of, 23–28
mandatory, 24–25
persuasive, 24–25
primary, 23–24
reconciling. See synthesizing
secondary, 23–24, 36
synthesizing, 36–43, 94, 178–179
weight, 23–28
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
Canons of statutory construction. See Statutes

Cantwell v. Denton, 19–22, 242
Carillo/Lupino, 111–112, 168
Carrolton/Watson. See Watson/Carrolton
Checklists
citation form, 227–233
office memo, 137–139
rule application, 103-104
rule explanation, 95
statement of facts, 212–213
Citations. See also Parentheses in citations
generally, 217–233
checklist for editing, 227–233
placement of, 225–227
string citations, 226
when to cite, 11–12
Clearly erroneous standard. See Standard of review
Clein v. Kapiloff, 38–40
Coffee System of Atlanta v. Fox, 38–40
Complaint, 6
Concurring opinion. See Opinion
Counter-application. See Counter-analysis
Counter-analogical reasoning. See Analogical reasoning
Counter-analysis, 89, 99, 187–188
Counter-argument. See Counter-analysis
Counterclaim, 6
Counter-explanation. See Counter-analysis
Courts
appellate, 15–17
Circuits, U.S. Court of Appeals, 14–15
of general jurisdiction, 13–14
of limited jurisdiction, 13–14
paradigm. See Organization
point headings. See Point headings
preliminary statement. See Briefs, introduction
question presented, 159, 162, 163–168
reply, 6–7
responsive, 6–7
system, 13–17
trial, 15–17
Covenant-not-to-compete. See Watson/Carrolton
Cox/Berry. See Berry/Cox
Cresnshaw/Green. See Green/Crenshaw
Custom-based reasoning. See Reasoning
De novo review. See Standard of review

Dicta. See Holding
Dictum. See Holding
Dispositive issues. See Organization
Distinguishing cases. See Reasoning, analogical
En banc. See opinions

Ethics
competence, 8
confidentiality, 8
conflict of interest, 8
criminal activity, 8
diligence, 8
disclosure of adverse legal authority, 9, 154, 187
disregarding court rules, 9, 155-156
ex parte communication with judge, 9, 155
false statement of law or fact, 9, 154–155, 198
fraudulent activity, 8
frivolous claims, 9, 155
generally, 8–9, 153–156
loyalty, 8
moral, economic, and political factors, 8
plagiarism, 9–11, 32
promptness, 8
signature on pleading, 10
Ex parte communications. See Ethics
Fact Statement. See Statement of facts

False statement of law or fact. See Ethics
File memo, 5
Form file, 133
Gavin/Pyle. See Pyle/Gavin

Gender-neutral writing
nouns, 254
pronouns, 254–255
proper names and titles, 256
Goldman v. Kane, 119, 310–312
Green/Crenshaw, 23
Gregory/Jerico Autoworks, 19–21
Grisham Employment/Matthews, 89
Guzman/A-1 Realty. See A-1 Realty/Guzman
Holding
breadth, 19–21
distinguished from dicta, 21–23
generally, 18–19, 27, 32, 34, 35, 88
Inferential. See Reasoning

Intensifiers, 250-251
Interrogatories, 6–7
IRAC. See Organization, paradigm
Jacobson v. Kamerinsky, 91-93, 101-102, 312–313

Jerico Autoworks/Gregory. See Gregory/Jerico Autoworks
Judges as readers, 156–158, 181–182
Judgment, 7–8
Jurisprudence. See Legal theory
Jury instructions, 7
Kaplan/Ryan. See Ryan/Kaplan
Legalese, 250
Legislative intent. See Statutes
Letters
advice, 6, 144–145, 301–303
Lucy v. Zehmer, 21, 36, 305-307
Lupino/Carrillo. See Carrillo/Lupino
Majority opinion. See Opinion

Mandatory authority. See Authority
Manitoba/Barrymore. See Barrymore/Manitoba
Matthews/Grisham Employment. See Grisham Employment/Matthews
Memorandum
office. See office memo
of law. See briefs
Mixed question of law and fact, 16, 191–192
Motions
for protective order, 7
for summary judgment, 7
generally, 6
post-trial, 7
to compel, 7
Names. See References

Narrative, 53, 60–61, 97, 100-101, 197–213
Nominalizations, 173, 246–247
Notice of deposition, 7
Notice of appeal, 7
Objective writing. See Roles
Office memo
brief answer, 126, 131–133
checklist, 137–139
conclusion, 137
discussion section, 126
ethical requirements. See Ethics
fact statement. See Statement of facts
format, overview, 125–127
function, 125
generally, 4, 6, 125–140
heading, 126–127
question presented, 126–131
Old/young woman, 100
Opinion Letter, 4, 6
Opinions, judicial. See also Authority
concurring, 27
dissenting, 27
distinguishing. See Reasoning, analogical
en banc, 14, 27
majority, 27
overruled, 17-18, 38
published, 27
reconciling. See Authority, synthesizing
synthesizing. See Authority, synthesizing
threshold issue. See Threshold issue
unpublished. See published
Oral argument, 259–270
Organization
counter-analysis. See Counter-analysis
counter-argument. See Counter-analysis
dispositive issues, 106
fact statement
brief, 197–213
office memo, 133–137
multiple issues, 105–112
order of arguments, issues, or authorities, 90, 106–107, 169–170
paradigm for organizing, 85–86, 102-103, 182–184
paragraphs. See Paragraphs
rule application, 85-86, 97–104, 105, 111, 183–184
rule explanation, 85–91, 102-103, 110-111, 183–184
thesis paragraph, 86–87
umbrella section, 105, 107–110, 138, 182-183
variations, 110-111, 184
Overruled opinions. See Opinions
Paradigm for organizing legal analysis. See Organization

Paragraphs
length, 243-244
persuasive organization, 205
thesis sentences. See Thesis sentences
topic sentences. See Thesis sentences
transitions, 243
Parallelism, 253–254
Parentheses in citations, 90-91, 157
Passim, 161
Passive voice. See Active voice and passive voice
Personal references. See References
Persuasive authority. See Authority
Persuasive writing. See Roles
Plagiarism. See Ethics
Point headings
basic format for, 168–170
conforming to standard of review, 194-196
defined, 168-169
editing, 173–176
ordering of. See Organization
subheadings, 176
Policy. See Reasoning
Precedent. See Opinions; Authority
Predictive writing. See Roles
Primary authority. See Authority
Principle-based reasoning. See Reasoning
Procedural history, 32, 203
Procedural postures. See Standard of review
Pyle/Gavin, 87-88, 91–93, 101–102
Question of fact, 15–16, 180, 190-191208–209. See also Standard of review

Question of law, 15–16, 91, 177–178, 189–192. See also Standard of review
Question in the court’s discretion, 192–193
Question presented
brief. See Briefs
office memo. See Office memo
Quotations, 89, 233–239
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
Secondary authority. See Authority

Slash constructions, 255
Standard of review, 189–196
Stare decisis, 17–18
Statement of the case. See Statement of facts
Statement of facts
brief, 159, 162, 197–213
checklist, 212–213
citations. See Citations
fact ethics. See Ethics
office memo, 126, 133–137
organization, 134–136, 202–203
theory of the case, 200–202
Statement of issue. See question presented
Statement of uncontested facts, 7
Statutes
agency interpretation, 51
canons of construction, 51–52, 108
generally, 45–53
in derogation of common law, 50
issue of statutory interpretation, 178
legislative history and intent, 50
narrow construction, 50
penal statutes, 50
remedial statutes, 50
strict construction, 50
Subheadings. See Point headings
Synthesizing opinions. See Authority
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
Umbrella section. See Organization

Unpublished opinions. See Precedent; Authority
Watson/Carrolton, 38–40
Weight of authority. See Precedent; Authority
Young/old woman, 100

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Legal Writing

Richard K. Neumann, Jr.

David Alan Sklansky

Published by Wolters Kluwer in New York.

To contact Customer Service, e-mail [email protected] , call 1-800-234-1660, fax

Library of Congress Cataloging-in-Publication Data

Serving customers worldwide, its legal and regulatory portfolio includes

and to Emilie and Katherine,

Part One: Lawyers and the Legal Landscape

Part Two: Reading and Analyzing the Law

Part Three: Writing the Discussion of a Legal Question

Part Four: Predictive Writing

Part Five: The Shift to Advocacy

Part Six: Style and Formalities

Part Seven: Oral Advocacy

Part One: Lawyers and the Legal Landscape

Part Two: Reading and Analyzing the Law

Part Three: Writing the Discussion of a Legal

Part Four: Predictive Writing

Part Five: The Shift to Advocacy

Part Six: Style and Formalities

Part Seven: Oral Advocacy

guidance is identified throughout the book by this recurring symbol.

Lawyers and the Legal Landscape

Overview of the Lawyer’s Role

I. WRITING AND A LAWYER’S ROLES

A LAWYER’S WRITING ROLES

Predictive Writing. Predictive writing is part of another satisfying task —

Persuasive Writing. Legal problems cannot always be prevented, and

II. OVERVIEW OF A CIVIL CASE

Initial Research. A civil case begins when a client consults a lawyer

Initial Negotiation Process. The next step is writing a demand letter to

III. ETHICAL DUTIES

IV. LEGAL CITATION

WHEN TO USE CITATIONS

1. Model R. Prof. Conduct 5.2 (2013).

The Legal System, the Common

I. THE STRUCTURE OF COURT SYSTEMS

A. The Functions of Trial Courts

B. The Functions of Appellate Courts

III. THE COMMON LAW PROCESS

C. The Breadth of Holdings

If the Cantwell opinion contains this language, could you formulate a

Holding Assumption of the risk requires a voluntary choice. When

1. An item must be physically delivered unless physical delivery would be

A. Primary Authority Versus Secondary Authority

B. Mandatory Authority Versus Persuasive Authority

C. Other Characteristics Affecting the Persuasive Value of

The strength of the opinion’s reasoning. A well-reasoned opinion is

The subsequent treatment of the opinion by other authorities. The more

The number of other jurisdictions that follow the same approach. If a

The number of subscribing judges. Most federal intermediate-level

En banc opinion An opinion issued in a case that was heard

Whether the opinion is published. If the opinion does not appear in an

1. 28 U.S.C. § 1331 (2012).

Reading and Analyzing the Law

Briefing and Synthesizing Cases

I. INTRODUCTION TO CASE BRIEFING

II. A FORMAT FOR CASE BRIEFING

Procedural History. The procedural history is the story of the case’s

If the issue relates to how a term in a statute will be defined or applied,

Whether the “nighttime” element of the burglary statute is satisfied if the

Applicable Rule(s) of Law. This section will help you begin to