Legal Reasoning and Legal Writing : Structure, Strategy, and Style

by NEUMANN RICHARD K.

• ISBN13: 9780735546554
• ISBN10: 073554655X
• Edition: 5th
• Format: Paperback
• Copyright: 2005-03-01
• Publisher: Wolters Kluwer

Summary

The new edition of this highly successful text remains grounded in the premise that legal reasoning and legal writing are learned better when they are taught together. Building on that foundation, The book offers complete coverage of how to form a legal argument and how to write an effective legal memorandum. the Fifth Edition preserves the features that earned the book its loyal following: comprehensive coverage of writing an office memo, a motion memo, and an appellate brief, along with chapters on oral argument, client letters, and client interviewing the best available explanation of the reasoning underlying the proof of a conclusion of law in Explanation of the Paradigm for Organizing a Proof of a Conclusion of Law thoughtful treatment of all aspects of legal reasoning, from rule-based analysis To The strategy of persuasion instruction on the process of writing, As well as the mechanics of style and grammar textual explanations that include example and exercises when appropriate appendices including an office memo, two lawyers letters, a motion memo, and two appellate briefs the skillful guidance of author Richard K. Neumann, Jr., who is highly regarded for both his scholarship and his writing This extensive revision responds to feedback from both students and instructors: Chapter 2 on Rules of Law rewritten to make the material more accessible the chapter on Organizing Proof of a Conclusion of Law (formerly Chapter 10) has been reorganized into 4 separate chapters with new exercises to make the material more understandable for students examples, exercises, and skill explanations are updated and refined new chapter on demand letters Please visit the new companion website to learn more about this book. Website: http://www.aspenlawschool.com/neumann5

Table of Contents

Preface	xxvii
Acknowledgments	xxix
I INTRODUCTION TO LAW AND ITS STUDY	1	(50)
An Introduction to American Law	3	(12)
The Origin of Common Law	3	(3)
How American Courts Are Organized	6	(2)
State Courts	6	(1)
Federal Courts	7	(1)
An Overview of the Litigation Process	8	(5)
Phase 1: Pleadings and Service of Process	8	(2)
Phase 2: Between Pleadings and Trial	10	(1)
Phase 3: Trial	10	(1)
Phase 4: Post-Trial Motions	11	(1)
Phase 5: Appeal	12	(1)
Phase 6: Post-Appeal Proceedings	12	(1)
Criminal Cases	13	(1)
The Importance of Understanding Procedure	13	(1)
The Adversary System	14	(1)
Rule-Based Reasoning	15	(14)
The Inner Structure of a Rule	15	(7)
Organizing the Application of a Rule	22	(2)
Some Things to Be Careful About with Rules	24	(1)
Causes of Action and Affirmative Defenses	25	(2)
Where Rules Come From (Sources of Law)	27	(2)
Exercise I. The Uniform Commercial Code and Unconscionability	28	(1)
Exercise II. The Freedom of Information Act and the Federal Register	28	(1)
Exercise III. The Federal Rules of Civil Procedure and Motions to Compel	28	(1)
An Introduction to Judicial Decisions and Statutes	29	(14)
The Anatomy of a Judicial Decision	29	(7)
Exercise I. Dissecting the Text of Roberson v. Rochester Folding Box Co.	30	(6)
The Interdependence Among Facts, Issues, and Rules	36	(4)
Exercise II. Analyzing the Meaning of Roberson v. Rochester Folding Box Co.	40	(1)
The Anatomy of a Statute	40	(3)
Exercise III. Analyzing the Meaning of §§ 50 and 51 of the New York Civil Rights Law	41	(2)
Briefing Cases	43	(8)
Introduction	43	(1)
How to Brief a Case	43	(8)
Exercise. Briefing Costanza v. Seinfeld	49	(2)
II INTRODUCTION TO LEGAL WRITING	51	(20)
The Art of Legal Writing	53	(6)
The Language as a Professional Tool	53	(2)
Your Writing and Your Career	55	(1)
Predictive Writing and Persuasive Writing	56	(1)
The Art Forms of Legal Writing	57	(2)
The Process of Writing	59	(12)
Writing in Four Stages	59	(1)
Analyzing	60	(2)
Organizing	62	(1)
The First Draft	63	(1)
Overcoming Writer's Block	63	(2)
Rewriting	65	(1)
Plagiarism	66	(1)
Some General Advice about Writing	67	(4)
III OFFICE MEMORANDA	71	(26)
Office Memoranda	73	(6)
Office Memorandum Format	73	(5)
Writing an Office Memorandum	78	(1)
Initially Obtaining the Facts: Client Interviewing	79	(6)
Introduction	79	(1)
Lawyers and Clients	80	(1)
How to Interview	81	(4)
How to Begin	81	(1)
How to Learn What the Client Knows	82	(1)
How to Conclude	83	(2)
Predictive Writing	85	(12)
How to Predict	85	(5)
How to Test Your Writing for Predictiveness	90	(7)
Exercise I. Nansen and Byrd	92	(2)
Exercise II. The Hartleys and Debenture	94	(3)
IV ORGANIZING PROOF OF A CONCLUSION OF LAW	97	(48)
A Paradigm for Organizing Proof of a Conclusion of Law	99	(12)
Why We Need to Organize Proof of a Conclusion of Law	99	(1)
A Paradigm for Structuring Proof	100	(3)
Why Readers Prefer This Type of Organization	103	(1)
Varying the Paradigm Formula to Suit Your Needs	104	(7)
Varying the Sequence	104	(1)
Varying the Depth	104	(1)
Combining Separately Structured Analyses	104	(1)
Exercise I. Changing Planes in Little Rock	105	(2)
Exercise II. What You See or What U See	107	(4)
Varying the Depth of Rule Proof and Rule Application	111	(10)
Introduction	111	(1)
Conclusory Explanations	112	(1)
Substantiating Explanations	113	(1)
Comprehensive Explanations	113	(3)
Cryptic Explanations	116	(5)
Exercise. Punitive Damages and Bedbugs	116	(5)
Combining Proofs of Separate Conclusions of Law	121	(12)
Introduction	121	(1)
How to Organize Where More Than One Element Is at Issue	121	(3)
How to Organize Where More Than One Claim or Defense Is at Issue	124	(1)
How to Organize Alternative Ways of Proving a Single Conclusion	125	(1)
How to Organize Where There Are Other Separate but Related Issues	125	(1)
How to Start Working with Multi-Issue Situations	126	(7)
Exercise. After the Night in the Bar	127	(6)
Working with the Paradigm	133	(12)
Using the Paradigm to Outline and to Begin Your First Draft	133	(2)
Rewriting: How to Test Your Writing for Effective Organization	135	(10)
Exercise I. Griggs and the Anti-Bandit (Checking Organization During Rewriting)	138	(2)
Exercise II. Teddy Washburn's Gun (Analyzing and Organizing)	140	(5)
V. GENERAL ANALYTICAL SKILLS	145	(70)
Selecting Authority	147	(16)
Introduction	147	(1)
The Hierarchy of Authority	148	(3)
How Courts Use Dicta	151	(1)
How Courts React to Foreign Precedent	152	(2)
How to Use Foreign Precedent and Other Nonmandatory Authority to Fill a Gap in Local Law	154	(3)
Laying the Foundation	154	(2)
Filling the Gap	156	(1)
How to Select Nonmandatory Precedent	157	(1)
How to Work Effectively in the Library	158	(5)
Exercise. The Hierarchy of Authority	161	(2)
Working with Precedent	163	(20)
Eight Skills for Working with Precedent	163	(1)
Formulating a Variety of Rules from the Same Precedent	164	(1)
Analogizing and Distinguishing	165	(1)
Eliciting Policy from Precedent	166	(1)
Synthesis and Reconciliation	167	(2)
Testing for Realism and Marketability	169	(14)
Exercise I. Emil Risberg's Diary (A ``Confidential or Fiduciary Relation''?)	169	(8)
Exercise II. Qkast (The Partial Breach Issue)	177	(6)
Working with Statutes	183	(22)
Ten Tools of Statutory Interpretation	183	(9)
How to Present Statutory Analysis in Writing	192	(13)
Exercise I. Plagiarism and the Board of Bar Examiners	194	(6)
Exercise II. The Ironwood Tract	200	(5)
Working with Facts	205	(10)
What Is a Fact?	205	(2)
Identifying Determinative Facts	207	(2)
Building Inferences from Facts	209	(2)
Identifying Hidden and Unsupportable Factual Assumptions	211	(4)
Exercise I. The Menu at the Courthouse Cafe	213	(1)
Exercise II. Welty's State of Mind	214	(1)
VI GENERAL WRITING SKILLS	215	(62)
Paragraphing	217	(10)
How Paragraphing Reveals Your Organization	217	(1)
Probative Paragraphs and Descriptive Paragraphs	218	(1)
Thesis Sentences, Topic Sentences, and Transition Sentences	219	(1)
The Two Most Common Ways of Botching the Beginning of a Paragraph	220	(3)
How to Test Your Writing for Effective Paragraphing	223	(4)
Exercise I. The First Weeks of Law School (Probative and Descriptive Paragraphs)	224	(1)
Exercise II. Maldonado's Citrus Croissants (Thesis and Topic Sentences, Paragraph Coherence)	225	(1)
Exercise III. Escape from Prison (Paragraph Unity, Coherence, and Length)	225	(2)
Effective Style	227	(24)
James P. Degnan, The Ph.D. Illiterate	227	(1)
Clarity and Vividness	228	(1)
Conciseness	229	(3)
Forcefulness	232	(4)
Punctuation and Other Rules of Grammar	236	(1)
How to Test Your Writing for Effective Style	237	(14)
Exercise I. Kalmar's Driveway (Clarity and Conciseness)	248	(1)
Exercise II. Smolensky at the Plate (Clarity and Forcefulness)	249	(2)
Citations and Quotations	251	(26)
Why Legal Citation Is Complicated	251	(1)
Touring the ALWD Citation Manual and the Bluebook	252	(2)
The ALWD Citation Manual	253	(1)
The Bluebook	253	(1)
Citation to Specific Types of Authority	254	(6)
Citation to Cases	254	(4)
Citation to Statutes	258	(2)
Rules Governing All Citations	260	(7)
Quotations	267	(3)
How to Test Your Writing for Effective Use of Quotations	270	(7)
Exercise I. The First Amendment (Quotations)	273	(1)
Exercise II. Suing Presidents (Citations and Quotations)	274	(1)
Exercise III. Disqualifying Judges (Citations and Quotations)	275	(2)
VII LETTERS AND EXAM ANSWERS	277	(22)
Client Advice Letters	279	(6)
The Letters Lawyers Write	279	(1)
Client Advice Letters	280	(5)
Demand Letters	285	(6)
Why and How Lawyers Write Demand Letters	285	(1)
Strategy: Persuading through a Letter	286	(2)
Legal Ethics and Demand Letters	288	(1)
Structure of a Demand Letter	288	(3)
How to Write Exam Answers	291	(8)
How Exam Answers Differ from Other Forms of Legal Writing	291	(1)
Answering Essay Questions	292	(3)
Other Types of Questions	295	(1)
General Suggestions for Taking Exams	296	(3)
VIII THE SHIFT TO PERSUASION	299	(94)
Developing a Persuasive Theory	301	(14)
Introduction	301	(1)
Strategic Thinking	301	(1)
Professional Creativity	302	(3)
Theories: Of the Case, of the Motion, of the Appeal	305	(1)
Characteristics of a Persuasive Theory	306	(2)
Developing a Theory	308	(2)
Imagery and Story-Telling	310	(5)
Exercise. Escape from Prison? (Developing a Theory)	311	(4)
Developing Persuasive Arguments	315	(24)
What Is an Argument?	315	(2)
What Judges Expect from Written Argumentation	317	(1)
Argumentation Techniques	318	(15)
Argumentation Ethics	333	(1)
How to Handle Adverse Authority and Arguments	334	(5)
Exercise I. The Shoelaces	337	(1)
Exercise II. The Painter and the Preschool	337	(2)
Handling the Procedural Posture	339	(14)
Why Procedural Postures Matter	339	(1)
Types of Procedural Postures	339	(8)
Motions Challenging the Quality of a Party's Allegations	340	(1)
Motions Challenging Other Aspects of the Way in Which the Litigation Began	341	(1)
Motions Challenging the Quality of a Party's Evidence	342	(4)
Miscellaneous Case Management Motions	346	(1)
Appeal	347	(1)
Writing in a Procedural Posture	347	(2)
Researching to Account for Your Case's Procedural Posture	349	(4)
Exercise. Welty's Facts at Various Procedural Postures	351	(2)
Motion Memoranda	353	(6)
Motion Memorandum Format	353	(3)
Writing a Motion Memorandum	356	(3)
Point Headings and Sub-Headings	359	(10)
How Points and Headings Work	359	(3)
How to Evaluate Your Headings and Sub-Headings for Effectiveness	362	(7)
Exercise. Point Headings and Sub-Headings	368	(1)
Statements of the Case	369	(14)
How a Statement of the Case Works	369	(3)
How to Tell Your Client's Story Persuasively	372	(6)
Fact Ethics	378	(1)
The Record	379	(4)
Exercise I. What Is a Fact? (Reprise)	380	(1)
Exercise II. Story-Telling	380	(1)
Exercise III. Topical Organization v. Chronological Organization	380	(1)
Exercise IV. Escape from Prison? (Rewriting Statements of the Case)	380	(1)
Exercise V. Drafting Statements of the Case	381	(2)
Questions Presented	383	(10)
The Purpose and Structure of a Question Presented	383	(2)
How to Evaluate Your Questions Presented for Persuasiveness	385	(8)
Exercise I. Bank Robbery (Questions Presented)	390	(1)
Exercise II. Drafting Persuasive Questions Presented	391	(2)
IX APPELLATE BRIEFS	393	(32)
Appellate Practice	395	(12)
Introduction to Appeals	395	(2)
What Happens During an Appeal	397	(3)
The Roles of the Brief and of Oral Argument	400	(2)
Limitations on Appellate Review	402	(5)
Appellate Briefs	407	(8)
Appellate Brief Format	407	(5)
How Judges Read Appellate Briefs	412	(3)
Writing the Appellate Brief	415	(10)
Developing a Theory of the Appeal	415	(1)
The Process of Writing a Brief	416	(3)
Handling the Standard of Review and the Procedural Posture Below	419	(6)
X INTO THE COURTROOM	425	(24)
Oral Argument	427	(22)
Your Three Goals at Oral Argument	427	(1)
The Structure of an Oral Argument	428	(3)
Questions from the Bench	431	(2)
Delivery, Affect, and Style	433	(2)
Formalities and Customs of the Courtroom	435	(1)
Preparation for Oral Argument	436	(2)
State v. Dobbs and Zachrisson: An Oral Argument Dissected	438	(11)
APPENDICES	449	(88)
Basic Legal Usage	451	(6)
24 Rules of Punctuation	457	(14)
Sample Office Memorandum	471	(6)
Sample Client Advice Letter	477	(4)
Sample Demand Letter	481	(4)
Sample Motion Memorandum	485	(10)
Sample Appellant's Brief	495	(24)
Sample Appellee's Brief	519	(18)
Index	537