Legal Research And Writing

by Murray, Michael D.; DeSanctis, Christy Hallam

• ISBN13: 9781587788970
• ISBN10: 1587788977
• Format: Paperback
• Copyright: 2005-07-15
• Publisher: Foundation Pr

Summary

The book covers objective writing, legal research, and adversarial writing in a process method, and provides multiple annotated samples of good and bad writing throughout the text many of which use a common hypothetical, and teaches the TREAT method and explanatory synthesis that produce powerful and effective objective and adversarial writing.

Table of Contents

Introduction to the Process of Law	1	(4)
Legal method	1	(1)
The law	1	(1)
Sources of the law-primary and secondary	2	(1)
The role of a lawyer	3	(2)
Rules of Law and Legal Reasoning	5	(12)
A rule of law	5	(1)
Finding, breaking down, and outlining a rule of law	5	(3)
Sources of the law	5	(1)
Breaking down a rule of law into its parts	6	(1)
Outlining the parts of a rule	6	(2)
Use of the outline of parts for structure	8	(1)
Legal reasoning	8	(9)
The Life of a Case, State and Federal Court Systems, and Jurisdiction	17	(22)
The life of a case in civil litigation	17	(6)
State and federal court systems	23	(5)
Federal system	24	(2)
California	26	(1)
New York	27	(1)
Texas	28	(1)
Hierarchy of judicial authority	28	(4)
Jurisdiction	32	(7)
Jurisdiction as a place	32	(1)
Personal jurisdiction	33	(2)
Subject matter jurisdiction	35	(4)
Determining the Rule from a Single Case or Other Authority	39	(12)
Determining the rule from constitutions, statutes, or administrative regulations	39	(2)
Finding the rule in a case	41	(10)
The legal method of judges	41	(2)
The Borrowed Rule	43	(1)
The Applied Rule or Precedent	43	(3)
How do you phrase the applied rule?	46	(3)
The holding of the case and dicta	49	(2)
Determining the Applicable Rule Through Statutory Interpretation and Analysis of Multiple Authorities	51	(44)
Statutory and rule interpretation	52	(13)
Analysis of multiple authorities: potentially controlling v. persuasive authority	65	(17)
You must know what jurisdiction's law applies	65	(1)
Constitutions, statutes, and administrative rules and regulations from the applicable jurisdiction always are controlling authority	66	(1)
Timing determines the weight of these authorities	66	(1)
Cases can and will interpret and modify constitutions, statutes, and regulations	66	(1)
Cases that are potentially controlling authority	66	(1)
Federal law issues in federal court	67	(1)
State law issues in state court	68	(1)
Federal law issues in state court	69	(2)
State law issues in federal court	71	(1)
Determining if ``potentially controlling'' authorities are actually controlling	72	(1)
Facts and issues of the case	72	(1)
Is the case still good law?	73	(1)
Has the case been superseded by more recent, equally authoritative cases, statutes, or rules?	74	(1)
Relative weight of controlling authorities	75	(2)
Primary persuasive authority	77	(1)
Relative weight of primary persuasive authorities	78	(1)
Dicta from controlling cases	78	(1)
Non-controlling cases from the jurisdiction whose law applies	78	(1)
Out-of-jurisdiction cases -- holding and dicta	79	(1)
Out-of-jurisdiction statutes and regulations	80	(1)
Dicta from out-of-jurisdiction cases	80	(1)
Factors that affect the weight of primary persuasive authorities	80	(2)
Secondary authority	82	(2)
Drafting the rule in a rule section: reconciling, synthesizing, harmonizing the various authorities	84	(6)
Do start with constitutions, statutes, or regulations	87	(1)
Otherwise, start with a watershed opinion	87	(1)
Do not change the order or basic contents of the elements of a much borrowed rule	87	(1)
Do try to reconcile your authorities; do not formulate a rule with inherent contradictions	87	(1)
List interpretive rules and exceptions after the main rule	88	(1)
List sub-rules on elements of the rule in the TREATment of the individual element	89	(1)
Do accept the possibility that two competing rules might exist	90	(1)
Rule synthesis	90	(5)
Organization of Legal Writing	95	(24)
Thesis heading	95	(2)
Rule section	97	(2)
Statement of legal principles and requirements that govern the issue	97	(1)
Interpretative rules	98	(1)
Explanation section and explanatory synthesis	99	(11)
Purpose of the explanation section	99	(2)
Explanatory synthesis	101	(3)
Comparing unsynthesized and synthesized explanation sections	104	(4)
Use of secondary authorities	108	(1)
Explanation of rules not found in cases	109	(1)
Application section	110	(2)
Thesis restated as a conclusion	112	(1)
Other structural formats	113	(1)
Identifying multiple issues	114	(2)
What are the separate legal questions you have to answer?	114	(1)
Which elements or factors of the rules and sub-rules of the rules are at issue?	115	(1)
Structuring the discussion of multiple issues	116	(3)
The Office Memorandum and the Client Letter	119	(42)
Focusing on the reader of the office memo	119	(1)
Attention levels of the law-trained reader	120	(1)
Structure of the office memorandum	121	(2)
Drafting the Caption	123	(1)
Drafting the Issues or Questions Presented	124	(2)
Drafting the Brief Answers or Conclusions	126	(3)
Drafting the Statement of Facts	129	(3)
Drafting the Discussion Section	132	(4)
Drafting the Conclusion	136	(1)
Client letters	137	(1)
Sample office memoranda	138	(19)
Sample client letters	157	(4)
Editing and Fine-Tuning Your Writing	161	(24)
Style issues for the office memorandum	161	(17)
Plain English	161	(1)
Avoid legalese	161	(1)
Be concise	161	(1)
Limit your use of the passive tense	162	(1)
Quotations	162	(1)
Never plagiarize	163	(1)
Do not quote so much that the quotes attempt to replace your own analysis of the issues	163	(1)
Proper quotation technique	164	(1)
When to use quotation marks	164	(1)
The mechanics of quotation	165	(1)
Quote accurately	166	(1)
Parentheticals	166	(1)
Discuss dicta correctly so as not to trick the reader into thinking it is holding from a case	167	(1)
Obvious and not so obvious ways to discuss a court's holding	167	(1)
How do you avoid saying ``holding''?	168	(1)
Avoid using the word ``dicta'' in your writing	169	(1)
Formality of language	169	(1)
Do not use slang and colloquialisms	170	(1)
Avoid slash constructions unless that is the actual word, phrase, or address that you are quoting or referring to	170	(1)
Avoid contractions but do use shorthand words and phrases	171	(1)
Do not use symbols except where required	171	(1)
Avoid first-person and second-person references	172	(1)
Do not use rhetorical questions	173	(1)
Write out dates	173	(1)
Internal consistency and parallelism	173	(1)
Sexist language	174	(1)
References to cases and courts	175	(1)
Citation to authority	175	(1)
The Golden Rule	175	(1)
Jump cites must be provided	176	(1)
Cite all the sources you need, but do not string cite	176	(1)
Tone: humor and excessive emotion is out; vivid and engaging work is in	177	(1)
Fine tuning with alternative modifications of the TREAT format	178	(3)
Editing tips	181	(4)
Write early, rewrite often	181	(1)
Employ more than one editing and proofreading technique	182	(1)
Stay objective	182	(1)
Track the language of the authorities when applying the rule to your facts	182	(1)
Be as definite as you can be	183	(1)
Statement of facts: how much is too much?	183	(1)
Editing the discussion section	183	(1)
Side issues, interesting questions	183	(1)
Redundancy is bad	184	(1)
Too many authorities?	184	(1)
Legal Citation	185	(1)
Part I. The ALWD Citation Manual	185	(18)
Citation sentences and citation clauses	186	(3)
Citation sentence	187	(1)
Citation clauses	187	(2)
Introductory phrases (ALWD R. 44)	189	(3)
Shorthand devices for repeat citations (ALWD 10, 11)	192	(1)
Style of the case (ALWD R. 12)	193	(3)
Certain words are omitted	193	(1)
Use ALWD standard abbreviations	194	(2)
Required information for cases	196	(2)
Page spans and jump cites (pinpoint cites or pin cites)	196	(1)
Court information	197	(1)
Subsequent history	198	(1)
Parentheticals (ALWD R. 12.11)	198	(1)
Short forms for cases	199	(1)
Citation forms for other authorities	200	(3)
Part II. The Bluebook (a uniform system of citation)	203	(118)
Citation sentences and citation clauses	203	(3)
Citation sentence	204	(1)
Citation clauses	204	(2)
Introductory phrases (BB 4.1)	206	(3)
Shorthand devices for repeat citations (BB 10.9 and B5.2)	209	(3)
Style of the case (BB 10)	212	(3)
Certain words are omitted	213	(1)
Use Bluebook standard abbreviations	213	(2)
Required information for cases (BB 10.1)	215	(4)
Subsequent history	219	(1)
Parentheticals (BB 10.6)	219	(1)
Short forms for cases (BB 10.9 and B5.2)	220	(1)
Citation forms for other authorities	221	(4)
Introduction to Legal Research and Printed Sources of the Law	225	(12)
Initial assessment of the problem	225	(5)
Determining what is at issue	225	(1)
Background research into the area of law	226	(2)
Background research into the facts	228	(1)
Background information of the ``how to do it'' kind	228	(1)
Your colleagues, and other lawyers you know	229	(1)
Practice guides and practice-oriented continuing legal education (CLE) materials	229	(1)
The agency or court	229	(1)
Pleading and practice form books	229	(1)
Planning your research	230	(1)
Performing the research using printed sources of the law	231	(4)
Determining the scope of the research	231	(1)
Legal research sources	231	(4)
Reaching your goal and knowing when you are finished	235	(2)
Federal and State Reporters of Cases	237	(14)
Case reporters and elements of reported opinions	237	(6)
Case reports and reporters	237	(1)
``Unpublished'' cases	237	(1)
State trial level court opinions	238	(1)
Appellate level court opinions	238	(1)
Reporting in two or more different reporters	238	(1)
Elements of reported opinions	239	(1)
The title (also called the caption or style) of the case	239	(1)
The citation	239	(1)
The court	240	(1)
Docket number	240	(1)
Date of the decision and opinion	240	(1)
Synopsis (a/k/a prefatory statement, heading, summary)	240	(1)
Headnotes and syllabi	241	(1)
Names of counsel	241	(1)
Facts	241	(1)
Opinions of the court and separate opinions of judges	241	(1)
Decision---the judgment, order, or decree	242	(1)
Official and unofficial reporters	243	(1)
Federal court reports	243	(3)
United States Supreme Court cases	243	(1)
Federal court of appeals cases	244	(1)
Federal district court cases	245	(1)
Other volumes for federal cases	246	(1)
State court reports, West's National Reporter System, and regional reporters	246	(5)
State court cases	246	(1)
Official reporters	246	(1)
Regional reporters---official and unofficial	247	(1)
West's state-specific publications	247	(1)
West's reprint editions of one state's cases	248	(1)
Topical, subject matter reporters	248	(1)
The National Reporter System	248	(3)
Case Finders and Verification Sources: Digests, Annotated Law Reports, and Shepard's Citations	251	(16)
Digests	251	(6)
Finding cases on point using digests	251	(1)
Catch words, concepts from legal issues	251	(1)
Look up these words, concepts and phrases in your digest's indices	252	(1)
If you run short, search more broadly, think of synonyms	252	(1)
West's digests---key number system	252	(1)
How do you find what topics and key numbers to look up	253	(2)
West's digest series	255	(1)
West's United States Supreme Court Digest	255	(1)
Federal Practice Digest	255	(1)
Regional digests	255	(1)
State digests	255	(1)
American Digest System	256	(1)
Century Edition Digest 1658-1896	256	(1)
Decennial Digests 1897-2001	256	(1)
General Digests 2001-Present (in progress)	256	(1)
Specialized digests	256	(1)
Other digests	256	(1)
Annotated law reports	257	(3)
What are annotations and annotated law reports	257	(1)
What are annotations used for	257	(1)
Who writes them	257	(1)
American Law Reports---the granddaddy of them all	258	(1)
Function of A.L.R.s	258	(1)
Limitations of A.L.R.s	258	(1)
How to find relevant A.L.R.s	259	(1)
A.L.R. series	259	(1)
Updating older A.L.R.s	259	(1)
Verifying the accuracy of A.L.R.s	260	(1)
The wonderful world of Shepard's citations	260	(7)
Frank to the rescue!	260	(1)
What can you accomplish with Shepard's citations	260	(1)
Finding the parallel citations to cases	260	(1)
Trying to find out if the case is still ``good law''	261	(1)
Shepard's can be used to find the direct history of the case	261	(1)
Shepard's can also be used to find most (hopefully all) of the indirect history of the case	261	(1)
What are these codes used in Shepard's	261	(1)
Can Shepard's miss negative subsequent history?	262	(1)
How do you compensate for this?	262	(1)
Should the codes alone be enough to cause you to doubt a case?	262	(1)
Trying to find other cases using ``one good case'' with Shepard's	263	(1)
Shepard's for non-cases	263	(1)
Which Shepard's do you use	263	(1)
Updating Shepard's	264	(1)
Shepard's and KeyCite on-line	264	(3)
Secondary Sources of the Law: Encyclopedias, Treatises, Law Reviews, and Periodicals	267	(10)
Encyclopedias	267	(2)
A few words about anything and everything; in depth information on nothing	267	(1)
When to use encyclopedias	267	(1)
Main examples	268	(1)
Corpus Juris Secundum (C.J.S)	268	(1)
How do you find information on your topic?	268	(1)
Can you cite to C.J.S.?	268	(1)
American Jurisprudence Second (Am. Jur. 2d)	268	(1)
Am. Jur. Proof of Facts; Am. Jur. Trials; Am. Jur. Legal Forms and Pleading and Practice Forms	269	(1)
State encyclopedias	269	(1)
Treatises and hornbooks vs. practice guides and CLE publications	269	(2)
Citation to treatises---gold mine or fool's gold?	270	(1)
How do you use treatises	271	(1)
Updating	271	(1)
Restatements---not your ordinary treatise	271	(1)
Uniform laws	272	(1)
Law reviews, law journals	272	(2)
This can be complicated	272	(1)
More than you can shake a stick at	273	(1)
The table of contents is easy to find	273	(1)
Are you supposed to be impressed?	273	(1)
Compared to other secondary authorities, where do law review articles rank?	274	(1)
Finding law review articles	274	(1)
Other periodicals	274	(3)
Court Rules, Local Rules, and Loose-leaf Services	277	(12)
Court rules	277	(5)
Federal rules of ``general'' application	277	(1)
Sources regarding the federal rules of general application	278	(3)
Other federal rules	281	(1)
Secondary sources for commentary, interpretation of rules	281	(1)
Federal and state court local rules	282	(3)
State general rules of procedure	285	(1)
Drafting reports (``legislative history'') of the federal rules	285	(1)
Citator services	286	(1)
Why are loose-leaf services created?	286	(1)
To keep things current	286	(1)
Information overload!	286	(1)
Types of loose-leaf service	287	(1)
Publishers	287	(2)
Constitutions and Federal, State, and Municipal Legislation	289	(18)
The Constitution of the United States of America	289	(1)
Primary sources for researching and interpreting the Constitution	289	(2)
Annotated constitutional law materials	290	(1)
United States Code Annotated, Constitution of the United States Annotated	290	(1)
United States Code Service, Constitution	290	(1)
The Constitution of the United States of America (Library of Congress Edition)	290	(1)
Digests	290	(1)
ALR annotations	291	(1)
Shepard's	291	(1)
On-line access	291	(1)
Secondary sources for interpretation	291	(1)
Collections of commentary and bibliographies	291	(1)
Leading treatises on constitutional law	291	(1)
Framers' intent and founding fathers' information	292	(1)
The Constitutional Convention	292	(1)
State constitutions	292	(1)
How federal laws are made	292	(4)
Forms of congressional action	293	(1)
Bills	293	(1)
Joint resolutions	293	(1)
Concurrent resolutions	293	(1)
Simple resolutions	293	(1)
Introduction and referral to committee	294	(1)
Consideration by committee---public hearings and markup sessions	294	(1)
Committee action	294	(1)
House floor consideration	295	(1)
Resolving differences	295	(1)
Final steps	295	(1)
Publication of federal laws	296	(4)
Slip Laws---Statutes-at-Large---United States Code	296	(1)
Slip laws	296	(1)
Statutes at Large	297	(1)
United States Code	298	(1)
The 50 Titles of the United States Code	298	(2)
Researching federal statutory law	300	(4)
United States Statutes at Large	300	(1)
Public laws	300	(1)
Private laws	300	(1)
Treaties	300	(1)
Early publication of new laws and amendments to existing laws	301	(1)
U.S.C.C.A.N.	301	(1)
U.S.C.S. Advance Service	301	(1)
Slip Laws, U.S. Law Week, Westlaw, and Lexis	301	(1)
Codifications and subject organization	302	(1)
United States Code	302	(1)
West's United States Code Annotated	302	(1)
United States Code Service	303	(1)
Session laws	304	(1)
Codifications of state laws	304	(1)
Annotated statutes	304	(1)
On-line services	305	(1)
Multiple states sources	305	(1)
Municipal law	305	(2)
Legislative History	307	(8)
What is legislative history?	307	(1)
For what purposes is legislative history used?	307	(1)
Legislative history as legal authority	308	(1)
What documents and materials make up legislative history?	309	(2)
How to compile a legislative history	311	(4)
Compiled legislative histories	311	(1)
To do a legislative history of a bill passed in 1970 to the present	312	(1)
To do a legislative history of any bill introduced before 1970	313	(1)
To find committee reports and documents	313	(1)
To find committee hearings	314	(1)
To find committee prints	314	(1)
To find floor debates	314	(1)
Federal Regulatory and Administrative Law	315	(6)
Why regulatory and administrative functions are delegated by Congress and the executive branch	315	(1)
Types of Administrative Law	315	(1)
The federal register	316	(1)
Code of Federal Regulations	317	(4)
C.F.R.s organization	318	(1)
Locating relevant and current C.F.R. provisions on-line	319	(1)
Westlaw and Lexis	319	(1)
Internet	319	(1)
Locating relevant and current C.F.R. provisions by the book	319	(1)
Updating C.F.R. provisions	320	(1)
Computer Assisted Legal Research	321	(1)
Part I. Computer assisted legal research using Westlaw and Lexis	321	(15)
On-line services	321	(1)
Do they replace law libraries?	321	(1)
Before you log on: planning your research	322	(1)
Initial assessment of the problem	323	(1)
Write down a plan for each issue you have to research	323	(1)
Databases	323	(2)
Boolean searching: formulating your search requests	325	(9)
Key words, catch phrases, and concepts from legal issues	325	(1)
Think synonyms	326	(1)
Terms and connectors: what logical connections between the terms do you want	326	(1)
Connectors	327	(1)
Expanders and alternative forms	328	(1)
Plurals and possessive forms	329	(1)
Acronyms, abbreviations, and compound words	330	(1)
Phrases	330	(1)
Putting it all together---use expanders and connectors to make a better search	331	(1)
Revise and re-search again and again	331	(1)
Advanced searching: fields, date restrictions, locate and focus	331	(1)
Field and segment searching	331	(1)
Date restrictions	332	(1)
Searching for particular headnotes (keynotes)	333	(1)
Locate (or focus)	334	(1)
Natural language searching	334	(1)
It is not logical enough	334	(1)
It does not find synonyms	334	(1)
You cannot be certain you have exhausted the field	335	(1)
KeyCite™ and Shepard's™ Citations	335	(1)
Part II. Computer assisted legal research using the internet and world wide web	336	(325)
Comparison of the on-line fee based services and free internet services	336	(3)
Why would you use the internet for legal research	339	(1)
Appropriate uses of the internet as a tool for legal research	340	(1)
Resources for legal research on the internet	341	(8)
Directory sites and legal search engines	342	(1)
Findlaw	342	(1)
Cornell Legal Information Institute	342	(1)
LexisONE	342	(1)
Web sites that contain good links to legal resources	343	(1)
ABA Legal Technology Resource Center	343	(1)
American Law Sources Online	343	(1)
CataLaw	343	(1)
Heiros Gamos	343	(1)
Internet Legal Resource Guide	343	(1)
Law.com Dictionary	344	(1)
LLRX	344	(1)
Megalaw	344	(1)
Virtual Chase	344	(1)
Sites for federal court opinions, statutes and regulations	344	(1)
Cornell Law School's Legal Information Institute	344	(1)
U.S. Supreme Court	344	(1)
Individual federal court sites	345	(1)
Government Printing Office	345	(1)
FirstGov	345	(1)
Sites for state court cases and regulations	345	(1)
Federal legislative history	346	(1)
Administrative agency opinions	346	(1)
More mainstream search engines	346	(1)
Google	347	(1)
Alta Vista	347	(1)
Fast	347	(2)
Strategies for Research and Determining When You are Finished	349	(12)
Initial assessment of the problem	349	(1)
What is at issue?	349	(1)
Background research into the area of law	349	(1)
Background research into the facts	350	(1)
Background information of the ``how to do it'' kind	350	(1)
Planning your research	350	(1)
Performing the research	351	(3)
What determines the scope of the research	351	(1)
Sample research plans	351	(3)
How do you know when you are finished?	354	(7)
Several recent controlling authorities that agree	355	(1)
Finding paydirt!	355	(1)
Not finding anything?	355	(1)
How do you ``keep looking?''	355	(1)
Old cases are not by definition bad cases	355	(1)
Why controlling authorities are of paramount importance	356	(1)
Statutes and rules are controlling	356	(1)
A whole new regime?	356	(1)
What are ``statutory'' research issues?	357	(1)
Several good, recent, persuasive authorities	358	(1)
Reality check	358	(1)
Comfort level	358	(1)
Good authority for big picture, policy issues	358	(1)
More analogous facts	358	(1)
Reconciling/distinguishing authority	359	(1)
Nagging questions?	359	(2)
Adversarial Legal Writing	361	(6)
Differences between objective and adversarial legal writing	361	(1)
The nature of the adversarial system	362	(1)
Strategies and goals for zealous representation in the adversarial context	362	(5)
Follow the fifteen minute rule and write clearly and concisely	362	(2)
Know your audience and write with your audience in mind	364	(1)
Concede facts and give up arguments when it will benefit your client to do so; do not concede when it will not	364	(1)
Know the facts and the law, and know your options	365	(2)
Pretrial Motions	367	(48)
Structure of pretrial motions and memoranda in support	367	(2)
The structure of the memorandum in support	368	(1)
The structure of the memorandum in opposition	368	(1)
The structure of the reply	369	(1)
The Caption, Title, and Pre-introduction	369	(2)
The Introduction	371	(8)
The objective of the introduction	371	(1)
The importance of the introduction	371	(1)
The drafting of the introduction	371	(1)
Movant's introduction	371	(3)
Opponent's introduction	374	(1)
Themes in the introduction	375	(1)
Length of the introduction	376	(1)
Sample introductions	376	(3)
The Statement of Facts	379	(10)
Drafting the statement of facts	379	(1)
Advocacy through narrative reasoning and story telling	379	(2)
Legal conclusions vs. factual conclusions	381	(1)
Limits on drafting the facts -- style and good taste	382	(3)
Do you cite authority in the statement of facts?	385	(1)
In what order do you have to present the facts?	386	(1)
Sample statement of facts	386	(3)
Argument	389	(18)
Goal for the argument	390	(1)
Client oriented	390	(1)
Persuasive	390	(1)
Correct legal standards---no cheating!	391	(1)
Movant's advice	391	(1)
Opponent's advice	391	(1)
Be open and discuss the law as it is, but argue for a change	391	(1)
Change the issues, and argue a legal position that you can defend	392	(1)
Structure -- Treat format	392	(1)
Argumentative thesis headings	392	(1)
Forming a favorable rule for the rule section	393	(3)
Use interpretive rules that support the client's case	396	(1)
Use of explanatory synthesis in the explanation section	397	(3)
Movant's anticipation and handling of negative authority	400	(1)
Opponent's handling of negative authority	401	(1)
How much of a TREAT to give -- procedural vs. substantive issues and counter-arguments	402	(1)
Procedural versus substantive	402	(1)
Anticipating counter-arguments	403	(1)
How many issues do you TREAT in a given motion?	404	(3)
The Conclusion Section	407	(1)
Formatting a trial level brief	408	(1)
Style issues of motions	409	(3)
Tone and formality	409	(1)
Footnotes	410	(1)
It looks bad	410	(1)
Some people never read footnotes	411	(1)
Footnotes are a nuisance	411	(1)
Side issues that deserve brief attention	411	(1)
Additional facts of some interest to the analysis	411	(1)
Tertiary legal support for the argument	411	(1)
Parentheticals	412	(1)
Finishing the memorandum in support	412	(3)
Cite-checking	412	(1)
Proof-reading	412	(1)
Editing	413	(2)
Motions to Dismiss	415	(20)
Initial pretrial motion for defendant	415	(1)
Motion to dismiss for lack of jurisdiction over the subject matter - Fed. R. Civ. P. 12(b)(1)	415	(1)
Motion to dismiss for lack of jurisdiction over the person - Fed. R. Civ. P. 12(b)(2)	416	(2)
Motion to dismiss for improper venue - Fed. R. Civ. P. 12(b)(3)	418	(1)
Motion to dismiss for insufficiency of process or service of process - Fed. R. Civ. P. 12(b)(4), (5)	418	(1)
Motion to dismiss for failure to state a claim upon which relief may be granted - Fed. R. Civ. P. 12(b)(6)	419	(1)
Format of motions to dismiss and the opposition to the same	420	(1)
Sample motions	421	(14)
Motions for Summary Judgment	435	(24)
Federal rule of civil procedure 56(c)	435	(2)
Material facts	435	(1)
Genuine dispute	436	(1)
The burden shifts	437	(1)
Judgment must be appropriate as a matter of law	437	(1)
Cross-motions for summary judgment	437	(1)
Structure and format of a summary judgment motion and opposition	438	(1)
Sample motions	439	(20)
Appellate Advocacy: Appeals, Writs, Standards of Review	459	(12)
Introduction to the appellate process	459	(1)
It is hard to win on appeal	459	(1)
Quality is much better than quantity	459	(1)
Types of appeals and appellate writs	460	(3)
Appeal after a final judgment	460	(1)
Interlocutory appeals	460	(1)
Extraordinary writs -- writs of mandamus, writs of prohibition	461	(2)
Standards of review	463	(4)
Determinations of law -- ``de novo'' standard of review	464	(1)
Determinations of fact by the jury standard of review	464	(1)
Determinations of fact by the trial court in a bench trial -- ``clearly erroneous'' standard of review	465	(1)
Mixed questions of law and fact standards of review	465	(1)
Review of trial court's rulings on proceedings before and during the trial -- ``abuse of discretion'' standard of review	466	(1)
Trial court's evidentiary determinations -- ``abuse of discretion'' standard but the discretion is more limited	467	(1)
The record on appeal	467	(4)
What is the ``real record'' on appeal -- district court record or transmitted record?	468	(1)
Supplementing the transmitted record	468	(1)
What the transmitted record contains	468	(1)
Appellant's and appellee's duties regarding the record	469	(2)
Appellate Briefs	471	(140)
The importance of advocacy in writing in the appellate context	471	(1)
What briefs are allowed?	471	(1)
Structure of appellate briefs and appellate writs	472	(18)
Structure of writs of mandamus and prohibition	472	(1)
Structure of interlocutory appellate briefs	473	(1)
Structure of appellate briefs in the U.S. Supreme Court	473	(1)
Caption (on the Cover)	473	(2)
Questions Presented for Review (or Issues Presented, Points of Error, Points Relied On, Points for Review)	475	(1)
Questions presented in an intermediate level appellate court	475	(1)
Questions presented in a court of last resort	476	(1)
Parties to the Proceeding	477	(1)
Table of Contents	477	(1)
Table of Authorities	478	(3)
Opinions and Orders Entered in the Case (or Opinions Below)	481	(1)
Statement of Jurisdiction	481	(1)
Constitutional, Treaty, Statutory, and Administrative Law Provisions	481	(1)
Statement of the Case (Including Statement of Facts and Proceedings Below)	482	(1)
Statement of Facts	482	(1)
Persuasive facts vs. argument	483	(1)
Accuracy	483	(2)
Highlighting good facts and downplaying bad facts	485	(1)
Level of detail	486	(1)
Divide facts with subheadings	487	(1)
Citations to the record	487	(1)
Party names	487	(1)
Abbreviations and acronyms	488	(1)
Tell your client's story	488	(1)
Standard of Review	488	(1)
Summary of Argument	489	(1)
Argument	489	(1)
Conclusion	489	(1)
Appendices	490	(1)
Drafting the argument	490	(3)
Use argumentative thesis headings	490	(1)
Policy counts more on appeal, and precedent becomes a two-way street	491	(1)
The continuing benefits of explanatory synthesis	492	(1)
Be assertive rather than critical about the court below and your opponent's arguments, and remember the standard of review	492	(1)
Minimize alternative arguments	493	(1)
As in other litigation documents, limit the use of footnotes, overuse of emphasis, and lengthy quotes	493	(1)
Drafting an answering brief	493	(2)
Drafting the reply brief	495	(1)
Sample brief grading sheets	496	(4)
Sample briefs	500	(111)
Oral Advocacy at Pretrial, Trial and Appellate Stages	611	(26)
Background principles of the practice of oral argument	611	(2)
It is an efficient use of the court's time and resources	612	(1)
It allows a judge to question the two sides about the motion or appeal	612	(1)
It can assist a judge in making up her mind	612	(1)
Oral argument in trial level courts prior to trial	613	(2)
``No oral argument'' jurisdictions	613	(1)
``Motion Day'' or ``Law Day'' Jurisdictions	613	(1)
``Open Court'' jurisdictions	614	(1)
Informal matters and ``show up'' jurisdictions	614	(1)
The necessity to ``notice up'' motions	614	(1)
Style of oral argument in trial courts in the pretrial period	614	(1)
Oral argument during a trial	615	(1)
Appellate oral argument	615	(1)
How to prepare for oral argument	616	(7)
Know every case and legal authority inside and out	616	(1)
Write an outline, not a script	617	(1)
Prepare an introduction	617	(4)
Themes are not just for briefs	621	(1)
Try to anticipate likely questions, and work out good answers to them	621	(1)
Organize your materials for easy access	621	(1)
Go and do some field research -- see how this is done	622	(1)
How do you get to the Supreme Court? -- practice, practice, practice	622	(1)
Moot court judges	623	(1)
Decorum, appearance, and delivery	624	(2)
Constructing the argument	626	(1)
Questions from the panel	626	(6)
Other considerations	632	(5)
Winning points	632	(1)
Candor toward the court	633	(1)
Finishing your argument	633	(1)
Pay attention to the stop sign	633	(1)
Wait and listen to the whole question	634	(1)
Give a direct ``yes-no'' answer to a ``yes-no'' question; then explain	634	(1)
Unexpected events	634	(1)
Poker face	634	(3)
Strategies for Moot Court and Beyond	637	(24)
Moot court competitions	637	(2)
A taste of practice	637	(1)
Devil's advocacy skills	638	(1)
Ideal traits for a moot court partner	639	(2)
Dedicated and hardworking	639	(1)
Available	639	(1)
Balanced	640	(1)
Good match for your strengths and weaknesses	641	(1)
Interpreting moot court rules	641	(5)
Read the rules	642	(1)
United States Supreme Court rules	642	(1)
Rules on typesetting and printing	642	(1)
Brief covers	642	(1)
Brief length	643	(1)
Page limits and typeface rules	643	(1)
Binding	644	(1)
Outside assistance	644	(2)
Analyzing a moot court problem	646	(11)
Careful reading	646	(1)
Handling the facts	646	(1)
Put the facts in chronological order	646	(1)
Separate good facts from bad facts	647	(1)
Make reasonable and logical inferences from the facts	647	(1)
Group the facts by topic and subject matter and look for themes	648	(1)
Return to the facts again and again	649	(1)
Issue spotting	650	(1)
Harmless error, appealable error, preservation, and clear error	650	(2)
Jurisdictional errors in the trial court	652	(1)
Appellate court jurisdictional issues	652	(2)
Constitutional defects of justiciability	654	(1)
Appellant's determination of which issues to raise	655	(1)
Appellee's determination of which issues to rebut	656	(1)
The collaborative writing process	657	(4)
Write a complete first draft of the brief as early as you can	657	(1)
Write multiple drafts	658	(1)
Meet frequently with your teammates and let them comment on each draft	658	(1)
Talk about each section the first week, each paragraph the second and third weeks, and each sentence and word the last week	658	(1)
Thoroughly discuss each authority	659	(1)
Use another team or persons briefing the opposite position if the rules allow it	659	(1)
Use all the outside help the rules allow	659	(2)
Appendix A. Preparing a Case Brief or Case Analysis for Class	661	(4)
Appendix B. Common Errors in Grammar and Punctuation	665	(12)
Appendix C. Preparing For and Taking Exams	677