Legal Writing : Process, Analysis, and Organization

by Edwards, Linda Holdeman

• ISBN13: 9780735556560
• ISBN10: 0735556563
• Additional ISBN(s): 9780735503106
• Edition: 4th
• Format: Paperback
• Copyright: 2006-03-31
• Publisher: Wolters Kluwer
• More Book Details
• Purchase Benefits

Summary

Instructors who want to concentrate on the basics of legal writing will welcome the new edition of this successful process-oriented text. LEGAL WRITING: Process, Analysis, and Organization, Fourth Edition, Is a concise and straightforward guide For The beginner. The book is designed to facilitate learning: provides a basic guide To The skills of legal writing process-oriented text takes students step by step through outlining, creating a working draft, creating the final document, and revising effectively teaches reasoning and writing as two interrelated processes by integrating creating a rule of law into the writing process and linking it To The large-scale organization of the document The author pays close attention to different learning styles, keeping the book teachable and accessible concrete explanations and examples reinforce the material exercises help students build their writing skills appendices include a sample office memorandum, trial brief, appellate brief, and cases uses in the examples and exercises Changes For The Fourth Edition enhance the teachability of the book: two more sample documents are introduced, and all the documents in the appendices are identified as examples of particular common kinds of analysis materials are streamlined wherever possible to control the length of the text citation materials are fully updated

Table of Contents

Preface	xxi
Acknowledgments	xxv
Introduction	xxvii
First Things First	1	(12)
Who Me? A Writer?	1	(1)
Predicting Versus Persuading---Understanding Your Role	2	(1)
Analysis and Pliable Authority	3	(1)
How Lawyers Reason	4	(4)
Exercise 1 Forms of Reasoning	8	(1)
Ethics	8	(1)
Plagiarism	9	(4)
I. The Process of Writing Predictively: The Office Memo	13	(220)
Stage One Structuring for Analysis: Outlining the Working Draft
Outlining a Rule of Law	17	(12)
Outlining a Rule of Law: Overview	17	(1)
Common Rule Structures	18	(4)
Rules Combining Several Structures	22	(1)
The Importance of Relationships Among Subparts	23	(1)
A Few Hints About Outlining Rules	24	(2)
Exercises in Formulating a Rule	26	(3)
Exercise 1 Rule Formulation	26	(1)
Exercise 2 Rule Formulation	27	(1)
Exercise 3 Rule Formulation	27	(1)
Exercise 4 Rule Formulation	28	(1)
Outlining a Rule to Organize Your Analysis of a Legal Issue	29	(10)
The Working Draft of Your Legal Analysis	29	(1)
Using the Rule to Structure a Working Analysis	30	(5)
Exercises in Outlining a Rule	35	(4)
Exercise 1 Rule Outlining	35	(1)
Exercise 2 Rule Outlining	36	(1)
Exercise 3 Rule Outlining	36	(1)
Exercise 4 Rule Outlining	37	(2)
Formulating a Rule from a Case Opinion	39	(14)
The Slippery Task of Formulating a Rule from a Case Opinion	39	(1)
The Inherited Rule and the Processed Rule	40	(3)
Tools for Finding New Information About the Rule	43	(2)
Deciding the Breadth of the Rule You Formulate	45	(3)
Holding Versus Dictum	48	(1)
Formulating a More Complex Rule	49	(4)
Exercise 1 Formulating and Outlining a Rule from an Opinion	51	(1)
Exercise 2 Distinguishing Holding from Dictum	52	(1)
Formulating a Rule from Multiple Authorities	53	(16)
The Continuing Search for a Rule	53	(2)
Comparing the Precedential Value of Each Authority	55	(6)
Primary Authority: Is This Authority Really ``Law''?	56	(1)
Mandatory Authority: Is This Authority Binding?	56	(2)
Subsequent Treatment: Is This Authority Still ``Good Law''?	58	(1)
What Other Characteristics May Affect the Persuasive Value?	59	(2)
Reconciling the Authorities	61	(3)
Exercises	64	(5)
Exercise 1 Gauging the Relative Weights of Authority	64	(1)
Exercise 2 Gauging the Relative Weights of Authority	65	(1)
Exercise 3 Reconciling Opinions	66	(3)
Using a Rule to Form the Structure: Special Circumstances	69	(12)
Rules Within a Rule	69	(4)
Several Separate Rules with No Umbrella Rule	73	(1)
Two Rules: One Substantive and One Procedural	74	(3)
Uncertainty About Which Rule a Jurisdiction Will Adopt	77	(4)
Stage Two Drafting for Analysis: Writing the Working Draft
Writing the Analysis of a Single Issue: Rule Explanation	81	(22)
How to Identify a Single Issue Discussion	82	(1)
Exercise 1 Identifying Single Issues	82	(1)
The Working Draft Organization of a Single Issue: An Overview of the Paradigm for Legal Analysis	83	(3)
Exercise 2 Identifying and Labeling the Parts of the Paradigm	86	(1)
Stating the Issue and Stating the Rule of Law	86	(2)
General Principles of Rule Explanation	88	(5)
Ordering Rule Explanation Using a Single Case	93	(1)
Discerning and Explaining Policy Rationales	94	(2)
Counter-Analysis	96	(7)
Checklist for Rule Explanation Half of Paradigm	99	(1)
Exercise 3 Writing the Rule Explanation	100	(3)
Writing the Analysis of a Single Issue: Rule Application	103	(16)
Two Approaches to Writing the Application Section	103	(1)
Content of the Rule Application Half of the Paradigm	104	(2)
Analogical and Counter-Analogical Reasoning	106	(6)
Deciding Which Similarities and Differences Are Significant	106	(1)
Recognizing Similarities and Differences	107	(3)
Choosing a Format for Your Case Comparison	110	(2)
Common Trouble Spots in Rule Application Sections	112	(7)
Checklist for Rule Application Half of Paradigm	116	(1)
Exercise 1 Recognizing Analogical and Counter-Analogical Reasoning	117	(1)
Exercise 2 Analogical and Counter-Analogical Reasoning	117	(1)
Exercise 3 Policy Analogies and Counter-Analogies	117	(1)
Exercise 4 Writing the Rule Application; Using Analogical and Counter-Analogical Reasoning	118	(1)
Writing the Analysis of a Single Issue: Organizing and Writing the Discussion of Multiple Authorities	119	(14)
Organizing Multiple Authorities for an Analysis Primarily Governed by Case Law	119	(9)
Organizational Investigation	120	(1)
Organizational Options for Rule Explanation	121	(1)
Importance-to-Analysis Approach	121	(3)
Topical Approach	124	(1)
Historical Development Approach	125	(1)
Combination Approach	126	(1)
Formats for Using Cases to Explain the Rule	126	(2)
Ordering Authorities for an Analysis Primarily Requiring Statutory Construction	128	(5)
The Text Itself	128	(1)
The Legislature's Intent	128	(1)
Canons of Construction	129	(1)
Policy	130	(1)
Agency Interpretation	130	(1)
Commentators and Other Courts	131	(2)
Writing the Analysis of Multiple Issues	133	(16)
Writing the Analysis of a Single Rule with Subparts	133	(4)
The Umbrella Section	134	(2)
The Discussion of Each Subissue	136	(1)
The Conclusion	136	(1)
Writing the Analysis When You Have No Umbrella Rule	137	(1)
Variations of the Multi-Issue Paradigm	138	(3)
Order of Elements	138	(1)
Whether to Truncate the Analysis	138	(1)
Whether to Combine Rule Explanation and Rule Application for All Elements	139	(2)
An Example	141	(8)
Exercise 1 Identifying the Parts of a Multi-Issue Discussion	145	(1)
Exercise 2 Ethical Issues	145	(1)
Exercise 3 Writing a Multi-Issue Discussion	146	(3)
Stage Three Converting Your Working Draft to an Office Memo
The Office Memo and the Law-Trained Reader	149	(10)
Observations About Readers	149	(5)
Focus on the Reader	149	(1)
Attention Levels	150	(2)
Road Maps	152	(1)
Readers as Commentators	153	(1)
Law Professors as Readers	153	(1)
An Overview of the Office Memo	154	(5)
Function	154	(1)
Format	155	(2)
Degree of Formality	157	(1)
Ethical Requirements	157	(2)
Organizing for Your Reader: The Discussion Section	159	(8)
The Umbrella Section	160	(2)
Organizational Choices	162	(3)
Dispositive Issues	162	(1)
Important Issues	162	(1)
Threshold Issues	163	(1)
Familiar Order	164	(1)
Check Subsection Lengths and Revise Headings	165	(1)
Insert a Thesis Paragraph	166	(1)
Completing the Draft of the Office Memo	167	(18)
Drafting the Heading	167	(1)
Drafting the Question Presented	168	(4)
Content and Format	168	(2)
Generic Versus Specific References	170	(1)
Degree of Detail	171	(1)
Role	172	(1)
Exercise 1 Drafting a Question Presented	172	(1)
Drafting the Brief Answer	172	(3)
Content and Format	172	(1)
Generic Versus Specific References	173	(1)
Degree of Detail	173	(1)
Degree of Certainty	173	(2)
Drafting the Fact Statement	175	(4)
Fact Selection	175	(1)
Organization	176	(1)
Remembering Your Role	177	(1)
Exercise 2 Critiquing Fact Statements	177	(2)
Drafting the Conclusion	179	(6)
Checklist for an Office Memo	179	(6)
Stage Four Revising to Achieve a Final Draft
Citations and Quotations	185	(28)
Citation in Legal Writing	185	(2)
Exercise 1 Recognizing Ideas that Need Citations	186	(1)
Citation Form	187	(18)
Using the ALWD Citation Manual	188	(1)
Sections of the Manual	188	(1)
How to Locate the Rules You Need	189	(1)
Using the Bluebook	190	(1)
Sections of Bluebook	190	(1)
How to Locate the Rules You Need	190	(1)
Several Key Concepts	191	(1)
Introduction to Citation Form	192	(2)
Matching the Citation to the Text	194	(1)
Exercise 2 Identifying the Text the Citation Supports	195	(1)
Citing with Style and Grace	196	(1)
Exercise 3 Editing the Placement of Citations	197	(1)
Editing Citation Form	198	(1)
Checklist for Editing Citations	198	(6)
Exercise 4 Editing for Citation Form	204	(1)
Quotations	205	(8)
When Quotation Marks Are Required	205	(2)
Choosing to Use Quotation Marks	207	(1)
Overquoting	208	(1)
The Mechanics of Quoting	209	(1)
Editing Quotations	210	(3)
Revising for Usage and Style	213	(20)
Professional Tone and Level of Formality	214	(1)
Legal Usage and Customs	215	(2)
Gender-Neutral Writing	217	(4)
Techniques for Nouns: Elimination or Substitution	218	(1)
Techniques for Pronouns (He, She, His, Hers)	219	(2)
Techniques for Proper Names and Titles	221	(1)
Focus on Strong Subjects and Verbs	221	(5)
Avoid Wordiness	226	(2)
Miscellaneous	228	(5)
Checklist for Language and Usage Errors	230	(3)
II. The Process of Writing Persuasively: The Brief	233	(130)
Stage One Structuring for Persuasion: Outlining the Working Draft
Ethics, Judges, and Briefs	237	(12)
The Ethical Responsibilities of a Brief-Writer	238	(3)
Judges as Readers	241	(2)
An Overview of the Brief	243	(6)
Formulating and Structuring a Favorable Rule	249	(22)
Formulating a Favorable Rule	250	(6)
Structuring a Favorable Rule	256	(4)
Subparts	256	(1)
Choosing Subheadings for Emphasis	257	(1)
Subheadings as a Tallying Mechanism	258	(1)
Example: Structuring a Favorable Rule from Fox and Clein	258	(2)
Rule Formulation and Structuring in a Responsive or Reply Brief	260	(2)
Responsive Brief	260	(2)
Reply Brief	262	(1)
Exercises in Formulating and Structuring a Favorable Rule---Ethics and Strategy	262	(9)
Exercise 1 Formulating and Structuring a Favorable Rule	263	(1)
Exercise 2 Formulating and Structuring a Favorable Rule	264	(7)
Stage Two Drafting for Persuasion: Writing the Working Draft
Drafting Working Headings	271	(16)
Organizing Arguments Under Working Point Headings	271	(5)
Identifying Working Point Headings	271	(2)
Drafting Working Point Headings	273	(2)
Exercise 1 Identifying Working Point Headings	275	(1)
Exercise 2 Evaluating Working Point Headings	275	(1)
Identifying and Drafting Working Subheadings	276	(2)
How to Identify a Single-Issue Discussion	276	(1)
Drafting Working Subheadings	276	(1)
Exercise 3 Drafting Working Point Headings and Subheadings	277	(1)
Identifying the Appropriate Standard of Review	278	(9)
Categories of Trial Court Decisions	279	(1)
Questions of Law	279	(1)
Questions of Fact	280	(1)
Mixed Questions of Law and Fact	281	(1)
Questions Within the Trial Court's Discretion	282	(1)
Advocating a More Favorable Standard of Review	283	(1)
Editing Headings to Conform to the Standard of Review	284	(2)
Exercise 4 Identifying Categories of Trial Court Decisions	286	(1)
Writing the Working Draft	287	(20)
Umbrella Section	287	(3)
Exercise 1 Labeling the Components of the Umbrella Section	289	(1)
The Paradigm for an Argument	290	(4)
Exercise 2 Labeling the Components of the Paradigm	292	(2)
The Paradigm for a Pure Question of Law	294	(1)
Persuading Using Policy-Based Reasoning	295	(2)
Rule Application for Rules with Permissive Subparts: Advanced Techniques	297	(5)
First Organizational Option: By Factor	297	(2)
Second Organizational Option: By Party	299	(1)
Third Organizational Option: By Theme	300	(2)
Citations to the Record	302	(1)
The Strategy of Counterargument	303	(1)
Variations on the Paradigm	304	(3)
Exercise 3 Writing Out a Working Draft	304	(3)
Stage Three Converting the Working Draft to a Brief
The Argument and the Format of the Brief	307	(16)
Choosing an Order for the Arguments	307	(3)
Ordering Point Headings	307	(1)
Order by Strength on the Law	307	(1)
Order by Strength on the Equities	308	(1)
Order by Your Reader's Priorities	309	(1)
Order by Familiarity	309	(1)
Ordering Subheadings	309	(1)
Converting Working Headings to the Brief's Point Headings	310	(6)
Adding the Key Facts	310	(2)
Exercise 1 Evaluating the Content of Point Headings	312	(1)
Editing for Persuasion	313	(1)
Editing for Readability	314	(1)
Exercise 2 Editing Headings for Readability	315	(1)
Question Presented	316	(5)
Content and Format	317	(3)
Drafting Hints	320	(1)
Exercise 3 Critiquing Questions Presented	320	(1)
Exercise 4 Writing a Question Presented	321	(1)
Formatting the Brief	321	(2)
The Statement of Facts	323	(22)
Fact Ethics, Readers, and the Conventions of Fact Statements	324	(3)
Reminders About Fact Ethics	324	(1)
Reminders About Readers	325	(1)
The Conventions of a Statement of Facts	325	(2)
Developing a Theory of the Case and Selecting Facts	327	(2)
Developing a Theory of the Case	327	(2)
Selecting Facts	329	(1)
Organization	329	(2)
Formats	329	(2)
Subheadings	331	(1)
Procedural History	331	(1)
Techniques for Persuasion	331	(14)
General Principles	331	(1)
Large-Scale Organization	332	(1)
The Beginning	332	(1)
The Middle	333	(1)
The End	333	(1)
Paragraph Organization	333	(1)
Techniques with Sentences	334	(1)
Other Small-Scale Techniques	335	(3)
Checklist for Statement of Facts	338	(1)
Exercise 1 Critiquing the Statement of Facts	339	(6)
Stage Four Revising to Achieve a Final Draft
Editing the Brief	345	(6)
Persuasive Style	345	(3)
Degree of Formality	345	(1)
Competence and Clarity	346	(1)
Tact and Good Judgment	347	(1)
Final Checklist	348	(3)
Oral Argument	351	(12)
The Purpose of Oral Argument	351	(1)
Formalities and Organization of Oral Argument	352	(3)
The Content of Argument	355	(2)
Preparation	357	(1)
Handling Questions from the Bench	358	(3)
Presentation	361	(2)
Appendices	363	(70)
Appendix A. Sample Office Memorandum	365	(6)
Appendix B. Sample Office Memorandum	371	(6)
Appendix C. Sample Trial-Level Brief	377	(6)
Appendix D. Sample Appellate Brief	383	(10)
Appendix E. Sample Appellate Brief	393	(16)
Appendix F. Cases Used in the Text's Examples and Exercises	409	(24)
Coffee System of Atlanta v. Fox	409	(3)
Goldman v. Kane	412	(2)
Clein v. Kapiloff	414	(1)
Jacobson v. Kamerinsky	415	(2)
Lucy v. Zehmer	417	(3)
Barton v. Mitchell Company	420	(1)
Boulevard Shoppes v. Pro-1 Realty, Inc.	421	(1)
Hankins v. Smith	422	(1)
Richards v. Dodge	423	(2)
Kaplan v. McCabe	425	(2)
Bermuda Avenue Shopping Center Associates v. Rappaport	427	(1)
Stinson, Lyons, Gerlin & Bustamante v. Brickell Building 1 Holding Company	428	(5)
Index	433