Aspen Coursebook Series The Legal Writing Handbook Analysis, Research, and Writing Sixth Edition Laurel Currie Oates Professor of Law Seattle University School of Law Anne Enquist Director, Legal Writing Program Professor of Lawyering Skills Seattle University School of Law &. Wolters Kluwer Law & BusinessCopyright © 2014 Laurel Currie Oates and Anne Enquist. Published by Wolters Kluwer Law & Business in New York Wolters Kluwer Law & Business serves customers worldwide with CCH, Aspen Publishers, and Kluwer Law International products. (wwwavolterskluwerlb.com) No part ofthis publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or utilized by any information storage or retrieval system, without written permission from the publisher. For information about permis request permissions online, visit us at www.wolterskluwerlb.com, or a written request may be faxed to our permissions department at 212-771-0803. ‘To contact Customer Service, e-mail customer.service@wolterskluwer.com, call 1-800-234-1660, fax 1-800-901-9075, or mail correspondence to: Wolters Kluwer Law & Business Attn: Order Department PO Box 990 Frederick, MD 21705 Printed in the United States of America. 1234567890 ISBN 978-1-4548-4155-5 Oates, Laurel Currie, 1951- author. The legal writing handbook : analysis, research, and writing / Laurel Currie Oates, Professor of Law, Seattle University School of Law; Anne Enquist, Director, Legal Writing Program Professor of Lawyering Skills, Seattle Uni- versity School of Law. -- Sixth Edition. pages em Includes bibliographical references and index ISBN 978-1-4548-4155-5 (alk. paper) 1. Legal composition. 2, Legal research~-United States. 1. Enquist, Anne, 1950- author. Il. Title KF250.018 2014 808,06'634--de23 2013049507Introduction to Legal WritingMaking the Transition veryone comes to law school with some writing experience. Whether you were an undergraduate or graduate student at a university, a business person, scientist, poet, paralegal, student, or attorney from a country other than the United States, you have come toa U.S, law school with a range of writing skills and experi- ence that shape who you are as a writer. For example, if you are coming to law school immediately after receiving your undergraduate degree, you have undoubtedly been shaped as a writer by the expectations of your undergraduate professors, particularly those in your major. Consciously or subconsciously, you have absorbed some of the ‘customs and conventions of academic writing and the specific conventions of your major’s discipline Similarly, if your most recent writing experiences have been from work, whether it be as a businessperson, social worker, police officer, or other pro- fessional, you too have absorbed the writing conventions of your field. The various writing projects and reports you wrote and read for work have shaped your beliefs about what is “good writing” and how it is done. Even if you wrote for a living—as a novelist, journalist, poet, technical «writer — or perhaps we should say, especially if you wrote for a living, you have been shaped as a writer by the work you did before law school. As a writer, you ‘are more likely to be consciously aware of the conventions of the genre in which you were writing before entering law school, and you have undoubtedly honed the writing skills necessary to write successfully in that genre. The challenge, ‘of course, will be to adapt those writing strengths to a new genre, legal writing, and to new readers, lawyers and judges in the U.S. legal communityBook 1 Introduction to Legal Witing out Whatever you were doing before law school, you were part of a spec culture—whether it be the world of health care, the world of school children, the world of wildlife biologists—and the writing that was done in those cultures was tailored for specific purposes and specific readers, The change to legal ‘writing will require an adjustment Those of you who are coming to a U.S. law school from another country ay have a more obvious cultural adjustment to make when it comes to writing. In some cases it wll include the challenge of learning the writing conventions of another language, but even in cases in which the language of your home country is English, there will undoubtedly be cultural differences in what your new readers will expect from your written work Inshort, everyone coming to law school is making a transition from the writ- 1g he or she did before law school to the writing of the U.S. legal community. ‘The trick will be to figure out what are the obvious and subtle similarities and differences between the writing culture you are coming from and the writing culture you are joining. Even if you were a paralegal before law school, you will have to figure out what was specific to the firm or legal setting in which you worked and what is generally true about writing forthe larger, more generic legal community. At the very least, your specific role asa writer will have changed from paralegal to attorney, and that change alone will make a difference in the expectations your readers will have for your writing, ‘This chapter is designed to help law students make the transition to legal «writing as smoothly and painlessly as possible. Several concepts are the keys to a successful transition: (1) understand the purpose of the new type of writing you are learning; (2) know what your new readers want and need from what you write; (3) understand your role as the writer in this genre; and (4) learn the specific conventions of the new type of writing you are adding to your writing repertoire § 1.1 Understanding the Purpose of a Piece of Legal Writing Here's an important truth that will help you make effective choices as you work as a writer: Once you understand what a piece of writing is supposed to accomplish —its purpose — you will have a sound basis for the many decisions yous the writer will make in creating a document. Put another way, you have about 90 percent of the information you need for creating a document once you know why you are writing something, what the document is supposed to do, and what the reader hopes to achieve by reading it. Like other types of writing, legal writing exists to communicate. Lawyers write because they want to communicate information to their readers. But the broad term “communicate” is not specific enough to be particularly helpful as you transition to the new genre of legal writing. Most legal writing exists for one or more of these three specific reasons: (sia Chapter 1 Making the Transition 1. to explain, 2. to persuade, 3. to memorialize. Whether you are writing a letter to a client, an office memo for a senior partner, ora brief for ajudge, you will undoubtedly have as one of your primary purposes the goal of explaining. You might be explaining to the client that the law is on her side and therefore she is likely to be successful if she sues her employer. You might be explaining to a partner how the courts have interpreted a statute and why that interpretation means the firm’s biggest client should not include a particular term in a contract. You might be explaining to a judge why an application of the law to your client’ facts would lead to a just result If clear explanation isthe first goal of most legal writing, then the goal of effective persuasion is not far behind. Sometimes the persuasion is subtle. In writing an opinion letter, you may be persuading a client to see the strengths and weaknesses of his or her legal position. You may also be subtly persuad- ing that client to see not only the limitations of his or her options but also the wisdom of adopting one particular option. Persuasion is also part of legal memoranda. Although you will see in Chap- ters I-14 that an office memorandum should be an objective assessment of the law and its application to a case, a good office memo also includes persuasion in the sense that it anticipates the arguments each side is likely to make and, in doing so, showcases which ones will be more or less persuasive. The goal of persuasion is most obvious, and important, in brief writing When writing to a court, you will be working to get a judge or justice to see the lav, precedent, the facts, and the arguments from your side’s point of view: You will want that judge or justice to view the case from your perspective so he or she will rule in your favor. When you write for a court, you will have clear-cut evidence of whether you succeeded or failed in your goal to persuade, and that will be what the court decides as a result of reading your writing ‘The third goal of most egal writing —to memorialize—is especially evident in documents like contracts and wills. The document exists as a statement of what the contracting parties agreed to or how the deceased person wanted his or her assets distributed. Opinion letters, office memos, and briefs also have a goal of memorializing the work an attorney has done. Because the work is, preserved in writing, the client can go back over a letter and review the advice. An office memo written for one client’s case may be used by other attorneys in the office working on that case, Undoubtedly, it will be filed for future consideration, and it might be reviewed and used again, at least in part, if the client has a similar problem or even if another client has a similar problem. In litigation, a brief written in support of or opposition to a pretrial motion can become part of the record on appeal, recording what the parties did, or did not argue, tothe trial court too Temvng tee of perpen lel wring Lehi pan aot the transition most new law students are making from writing they did before they came to law school to writing they will do as lawyers. Note how different the purposes of student writing are fiom the purposes of “real world” legal ‘writing, Student writers write to prove that they have learned something. They ‘write to demonstrate knowledge and mastery of a subject, and quite frankly, to get a good grade. As a general rule, readers of student writing (professors)Book 1 Introduction to Legal Writing sit do not read student essays, reports, and research papers to gain information or learn anything new. Because professors are already experts in the subject matter, their purpose in reading is to evaluate how well the writer has learned the material. This differenee between student writing and real world writing is actually a rather profound one, and one that accounts for many of the other differences between writing that is done for class and writing that is done for professional reasons. Keep in mind, then, as you work on the assignments for your legal writing and research classes that, even though the assignments are part of alaw class, in almost every case, the writing tasks are intended to simulate real world practice situations. In other words, you are not supposed to be writing like you are a student with the purposes of a student writer. You are supposed to be writing as if you are a practicing lawyer with one or more of the real world goals of explaining, persuading, and memorializing. Even though you are still a student learning how to write like a lawyer (and hoping for a good grade), stay focused on key concept number I: Know your purpose for writing, PLLVEILIN some students in tegal writing courses mistakenly FS PNG 2) | assume that their legal writing professors will be PAT reading and evaluating their papers as though they, the professors, are the real readers. Consequently, these students leave things out of the writing on the assumption that “my professor already knows that.” While itis true that your professor undoubt- edly researched the problem and knoves the analysis inside out, he or she will be evaluating your writing from the point of view of a “real world” reader— someone who is depending on the writers research and analysis and who was ‘notin class and participating in the class discussions on the issues. Some new legal writers make the “undergraduate mistake" when they are writing their first office memos: They want to make sure their legal writing professor or their supervising attorney knows how much work they did and how thoroughly they researched the problem. Con- sequently, they include far more cases than are necessary to understand the analysis or make the arguments. This mistake often comes directly from their undergraduate experience. As undergraduates, many of us were rewarded for writing papers that showed how much work we had done. Length often translated into high grades. Law school and law firm writing is different. Legal writers should adopt the real world readers point of view about length, which is “Ym busy. Tell me what I need to know and then stop writing.” §1.2 Writing for Legal Readers Closely related to understanding your purpose in writing is understanding who your reader or readers are. In legal writing, the goal is not just to explain512 Chapter 1 Making the Transition or persuade in the abstract. Instead, you are writing to real readers, readers who need your writing with all ofits esearch, analysis, arguments, citations, conclusions, and insights in order to do their jobs. Real legal readers include both lawyers and nonlawyers. When writing for areadet who is not a lawyer, keep in mind how much or how little experience that person may have with law and legal matters. For example, clients who are not lawyers and are not experienced in matters related to law may need explanations in lay terms. Other nonlawyer readers may have a sophisticated understanding of law and their legal issues and would find a watered down. explanation condescending. The point, of course, is that an effective writer will adjust his or her approach accordingly. ‘To some extent, you may have to make similar adjustments for readers who are lawyers! All lawyers do not have the same background or practice experience, In some situations, a senior partner who is the reader for a given memo about a tax issue may be the firm’s tax expert. In such a situation, the writer can assume much more knowledge and start the discussion further into the law and analysis. Weiting a memo for a different reader, maybe someone who hasn't looked at tax law since law school, would require an adjustment. In this second situation, the smart writer will give a quick refresher and enough background to get that kind of reader up to speed quickly so that he or she is, ready to follow the analysis. ‘Anticipating your reader's knowledge base is only the beginning of wait ing for legal readers. Most legal readers, whether they are senior partners or judges, tend to have a few common characteristics, and these characteristics have shaped their notions of what is good legal writing. First, they tend to be very busy, Consequently, they appreciate writing that gets to the point quickly and lays out information clearly. They don’t want writers to take them down every blind alley the writer had to explore before figuring out that information, was irrelevant. They don’t give extra credit for discussing additional cases or extra arguments if those eases or arguments aren't needed. They are annoyed, not impressed, if they think the writer is padding the document. Therefore, before including something in a piece of legal writing, ask yourself, “does my reader need to know this?” Notice that this question is different from “did I need to know this in order to analyze the problem?” Legal readers will expect, legal writers to be selective about what they include in the document and to synthesize the relevant material. They will expect legal writers to understand that their time is valuable and to write, and edit, with that in mind. Second, legal readers appreciate —actually demand —clear organization. ‘They want the information they need laid out in a well-structured, easy-to- follow fashion. They appreciate roadmaps that give them an overview of the analysis and signposts that guide them through it, all the while focusing their attention on “where the fight is.” ‘They like transitions that help them see the connections between ideas and follow the writer’s line of reasoning. They appreciate mini-conclusions that summarize a section and macro conclusions that summarize all the main pieces of a large document. In short, it is hard to over-emphasize how important a clear and explicit organization is to most legal readers 1. The generalizations inthis section about legal readers refer to U.S. legal readers1 Introduction to Legal Writing $12 The fact that experienced, sophisticated attorneys want such explicit orga- nization and analysis may come as a surprise to some new legal writers. After all, not all cultures value explicitness in the same way the U'S. legal culture does. In fact, leaving things unsaid and for readers to figure out is a mark of sophisticated writing in some academic cultures and in some Asian and Middle Eastern cultures, Stating one’s point so directly may be considered not just ‘unsophisticated but also brash and even rude. For writers coming from these backgrounds, it may feel unnatural at first to spell out points so clearly and explicitly, but over time it will become second nature as these writers better understand how writing works in the U.S. legal culture Third, because legal readers need the writing they read in order to do their jobs wel, they insist on the highest levels of professionalism. This means that accuracy and precision are critical virtues in legal writing —no playing loose with the facts or the law. Legal readers depend on their writers to get the facts and law right and to be strictly accurate in how they are represented. The emphasis on professionalism also means that mistakes such as poor citation form; the misspelling, especially of aname; and grammar, punctuation, and proofteading ertors matter more than they do in other kinds of writing Being accurate, precise, and polished in written documents are all critical parts of being professional that legal readers expect. Ifaccuracy, brevity, clarity, precision, and professionalism are high priori- ties for legal readers, then the next obvious question is what isn’t such a high priority for them? Unlike a great deal of undergraduate writing, legal writing places less emphasis on creativity. While the professor reader in an undergradu- ate course in poetry or creative writing might reward an unusual approach to atopic of a novel twist ina plot, readers of legal writing tend to prefer writing that is far more conventional. Creativity is nice, especially if a creative argu- ‘ment turns out to be a winning argument, but remember that legal readers are not reading to be entertained, The writing is all about work and getting a job done, so creative introductions or unusual analytical approaches take a back seat fo accuracy, brevity, and clarity for legal readers. Similarly, legal readers resent unnecessary complexity. Consequently, when mes to things like sentence structure and word choice, the acronym KISS for “keep it simple stupid” is useful advice. Legal readers do not want to puzzle over a sentence or word. For them, the sign of a well-written sentence is one that can be understood the first time they read it. For them, the well-chosen word is, more often than not, one they already know. If an unfamiliar word is required in a given instance, they expect the writer to define it immediately within the writing, Legal writers don’t need to worry that they are “dumbing down” the writing when they present information as simply as possible. For legal readers, clear communication is the goal; they don’t want to be dazzled by the writer's vocabulary or convoluted syntax. Does this mean that legal readers are incapable of handling complexity or that they have weak vocabularies? Certainly not. The appreciation for simplic- ity goes back to the initial point about how busy legal readers are. The legal issues ate often so inherently complex that no one wants added unnecessary compleaity that will simply take up time and attention.513 Chapter 1 Making the Transition PeP Weds My Some new legal writers make the mistake of FV sae Wate) |. “dressing up their ideas’ They fear that if they state things simply they will seem unsophisti- cated. Here again, the mistake may be the result of an undergraduate writing experience that rewarded students for making simple ideas seem complex. The opposite is true in legal writing: You will be rewatded and appreciated if you can make complex ideas seem simple. §1.3 Understanding Your Role as a Legal Writer When a junior associate or a legal intern is assigned to research and write a client letter, office memo, or brief, the expectation i that the associate or intern will spend many hours researching and analyzing the legal problem and then write up that work in a document that will take the client, assigning attorney, or judge approximately fifteen minutes to read and understand. ‘An underlying assumption of the U.S. legal culture, then, is that the reader's time is more valuable than the writer’s time. Legal readers, including supervising attorneys, partners inlaw firms, and judges, tend to have positions of authority over the writers of legal memos. Consequently, writers are expected to expend their time and energy writing clearly so that readers do not have to spend extra time and energy understanding what they are reading, This does not mean, then, that the writer’ role is unimportant —far from it, As the writer, your role is to become the expert on a given case. Through careful study ofthe facts and thorough research, you will be the one who knows what law is the controlling law and which cases are the key cases. In addition, after reading the arguments set out in the cases and the courts’ evaluation of those arguments, you will be the one who is in the best position to predict what each side will argue and how the court will view those arguments. Ultimately, your role as the writer of a client letter is to be the one who advises the client about what he or she should do next and why. Your role as the writer of an office memo is to give your educated opinion about what the court is likely to do in the current case and be clear about how you reached that opinion. Your role as the writer of a brief is to figure out what approach and arguments will persuade the court to rule in your client's favor. In short, your role is to exercise expert judgment, and in fact, that is exactly what you are paid to do when you are assigned to write a client letter, office memoran- dum, or brief. You need to exercise judgment & about what are the legally significant facts, ® about what statute(s) oF common law doctrine will gover, © about which cases are the key analogous cases, and ® about which arguments the court will find persuasive.10 Book 1 Introduction to Legal Writing s13 ‘As new attorneys or law students, many find the legal writer's role a bit intimidating, It can be hard enough to be confident that you have found the right law and key cases without trying to create brand new, never-seen-before arguments, of worse, predicting what a court will do or convincing a court what it should do, Take heart, though. Many of the arguments will be varia tions of ones you see in the cases (no one is expecting you to make this all up from scratch), and law school is exactly the right place to learn and practice these skill, Akkey part of your role as well will be to cite authority (at least in office memos and briefs) to support each of the points you make. The citations show that you have the support of the law, other courts, and other legal minds behind your analysis. Furthermore, by including the source for the facts and correctly citing the record, statutes, cases, books, law review articles, and other secondary sources, you create a document in which everything about the case comes together. Thus, one major aspect of your role as a legal writer is to be the synthesizer—the one who brings all the relevant material together and presents it in a way that gets the job done. One final point about your role as a legal writer: Every piece of writing you create in your role as a lawyer reflects on your professionalism. Words are the tools of your trade, so how you use words represents how seriously you take your work. In the heat of the moment or in the thick of an argument, it can be tempting to slip into a sarcastic or denigrating tone. Resist the temptation. Be particularly careful to maintain a professional tone in all the writing you do. Asa lawyer, your writing, including the tone you use, isa big part of how you are representing your client and yourself. §1.4 Learning the Conventions of Legal Writing In the earlier discussion of the purposes of legal writing, legal readers, and the writers role, a number of the common practices and conventions of legal writing have already been mentioned 1. ahigh priority on clarity, brevity, precision, and organization 2, an appreciation for explicit roadmaps, signposts, topic sentences, and transitions 3. an expectation for easy-to-read sentences and paragraphs, but not ballet points or charts 4, a requirement for citations to authority 5. an expectation about professional tone In addition, new legal writers may be struck by a number of other conven- tions of legal writing. For example, specific formats are often expected and sometimes required in legal writing. Legal readers expect an office memo to have an issue statement, sometimes called a Question Presented, which seems to be an artifact from an carlier time. Briefs have required cover pages, tables of authorities, argumentative headings, and page and paragraph numbering systems. Therefore, when you are assigned a new type of legal writing, checkusa Chapter 1 Making the Transition to see whether there are court rules governing the format and review some samples or models of that type of writing, Knowing format requirements before starting to write is more efficient than spending a lot of time creating a format only to find it docs not meet expectations. Less surprising is the convention to set out a rule before applying it to the facts or making an argument using the rule. Also not surprising, at least for some, is the custom of setting out general rules before more specific rules. In fact, throughout legal writing the convention is to organize material from general to specific. Writers of academic prose may be immediately comfortable with other conventions, such as the tendency not to use contractions or the use ofthe third person rather than the frst person “I” or “we” or the second person “you.” The practice of staying inthe third person means that language such as“I think," “T believe,” or “I feel” is not typically used in legal writing. Rather than write “I think the court is unlikely to find,” most lawyers write “the court is unlikely to find.” Some firms do make an exception and use the first person “our” when referring to “our client” or “our case,” but others maintain the more formal “the client” or the client's name when referring to the case §1.5 Advice for Specific Groups Even though it can be a bit risky to generalize about the customs and con- ventions of any given community of writers, knowing about some patterns in different writing cultures can ease a writer's transition into legal writing. Making that knowledge more explicit can help a writer look at his or her assumptions about “good writing” and see which assumptions apply and which do not apply to legal writing. Below isa list of different communities of writers and some of the common assumptions those communities have about writing and how those assumptions are similar to or different from the underlying assumptions that shape legal writing. In creating this list, however, we do not mean to suggest that legal writ- ing is somehow “right” in its assumptions about what makes good writing and these other fields or cultures are somehow “wrong,” In fact, we would argue that the differences make sense given the differences in readers, purpose, and culture. Nor do we mean to suggest that writers need to erase and replace what they know about how to write for the communities they were part of before joining the legal community. Instead we would suggest that writers think of the experience of learning to do legal writing as adding a new category or genre of writing to their writing repertoire. One final point; Although we cannot discuss every undergraduate major, previous profession, or culture, we hope that the insights about how different disciplines and cultures view writing will help you make a smooth transit into legal writing. §1.5.1 English Majors Most English majors come to law school believing that they will do excep- tionally well in theit legal writing classes. In most cases, this proves to be true, n2 Book 1 Introduction to Legal Witing gust but their success tends to happen more toward the end of the course rather than at the beginning. Early in the course, English majors may resist what they consider the formulaic and restrictive nature of legal writing. They complain that it “stifles their creativity,” and they are frustrated because they cannot show off their vocabularies and sophisticated writing style. Once they accept the idea that they are learning a new genre, in much the way a poet would adapt when learning to write sercenplays, they stop resisting, start adapting, and then gradually see how they ean channel some of their earlier skis into legal writing. ‘Their storytelling ability helps them write the facts; they apply their creativity to constructing arguments; and they bring the close reading skills they developed for literature and poetry to their reading of statutes and rules, 1.5.2 Philosophy Majors Like English majors, philosophy majors are likely to feel that their creativity is stifled and their analytic ability tightly restricted by the standard modes of legal analysis. In their doctrinal courses, they may be initially surprised by the heavy emphasis on precedent and the layers of doctrine, as well as disappointed by what may appear to them to be the law’s emphasis on rhetoric As they learn to write office memos, philosophy majors are likely to find the construction of rules paragraphs to be arbitrary; their natural instinct will be to think about the validity of the rules rather than simply lay them out for the readers. Once they get to the arguments, philosophy majors are likely to feel at home, and itis here that their background in logic can give them an edge § 1.5.3 Journalism Majors and Journalists Like their “cousins” the English majors, journalism students and journal ists bring an interesting combination of advantages and disadvantages to legal writing, Perhaps most important is the simple fact that they have fresh writing skills. They come to law school and the practice of law with their writing skills honed by lots of practice. In addition, journalists are already well schooled in the concept of writing for a specific audience. Many of them have learned to adjust their style to the varying demands of straight news reporting to the spe- cific conventions of the sports page, the op-ed page, the lifestyle and feature sections, or a blog, Initially some journalists may resent having to tone down their style a bit for legal writing, particularly if they have grown accustomed to writing “zinger” sentences or writing with vivid language and extended metaphors for the sports page. Yet another advantage that journalists bring to legal writing is their thor- oughness and accuracy with the facts. They are used to answering the questions “who,” *what,” “when,” “where,” and “how,” and they are also used to being required to state the source for the facts. Organization and paragraph length are usually the two areas in which journalists will have to adjust. The typical journalism piece is written in an inverted-pyramid, front-loaded style so the editors can cut the piece from the end to fit space limitations and, if a reader loses interest and stops reading midway in a story, he or she stil will have gotten the key ideas in the opening sentences. While much of legal writing also puts key points (rules, the best cases,5154 Making the Teansiion and arguments) up front, the organizational structure is shaped by very different considerations and reader expectations. A threshold issue will almost always be treated first, even ifit is relatively easy to resolve. Even though legal readers are busy, most will read a memo through to the end and not treat the last pages or lines as optional. For the most part, true paragraphs do not exist in journalism, Because of the narrow width of many newspaper columns, the convention in journalism is to write mostly one-sentence paragraphs. Journalists transitioning into writing about law have to learn to write longer paragraph Finally, most journalists have learned to be extraordinarily careful with spelling, particularly the spelling of proper names, which isan asset that carries into legal writing, Punctuation, however, may be a different matter. Journalism prefers “open punctuation,” which means using as ittle punctuation asthe rules will allow; legal writing, by contrast, tends to used “closed punctua- tion,” which means that lawyers lean in the other direction and use commas when the rules give them the option to do so. The serial comma, for example, is generally omitted in journalism (no comma before the “and” in “ted, white and blue’) but is included in legal writing "red, white, and blue”) §1.5.4 Science Majors and Scientists Science majors and scientists bring a strong set of skills in critical thinking and formal analysis that individuals in many other professions or disciplines, may lack. The ability to evaluate evidence, make logical connections, and draw plausible conclusions forms the very basis of substantive legal analysis. However, legal writing diverges from scientific writing in several ways that may prove challenging or even frustrating. In terms of writing style, legal writing favors active voice sentences, not the passive voice sentences used asthe professional standard in scientific writ- ing, Formal organization of various legal writing projects requires a different organizational structure than scientific writing (e.g, title, hypothesis, materials, methods, observations, results, conclusion), although experience working with any formal structure will be of help in legal writing. In terms of substantive analysis, deriving governing rules and tests from case law precedent or statutory language is similar to formulating the hypoth esis and methods sections of a scientific paper. However, on a practical level jurisprudence has little in common with scientific laws and validity studies. Science majors and scientists may find their experience similar to the frastra~ tion experienced by philosophy students. “Law” is not created by systematic application of the scientific method in order to discover logically necessary, objective truths with universal application that can be repeated and verified by any scientist in a variety of conditions. Rather, “law” is created by a con lual circumstances, public policies, concepts of fairness, tradition, emotion, credibility, economic realities, political considerations, and persuasive argument, among other factors In fact, legal reasoning and persuasive argument may represent the greatest challenges to science majors and scientists engaged in legal writing. Although persuasive argument skills have a subtle use in the results and conclusion parts of a scientific paper, the rhetorical strategies and skills necessary for legal writing will likely draw on a legal writer’s experience in non-scientific areas B4 Book 1 Introduction to Legal Writing 51.54 of life. Consequently, science majors and scientists transitioning into writing about law should be prepared to merge an “objective” approach with a more subjective “relational” approach. $1.5.5 Writers from Other Cultures Each of us absorbs the writing preferences of our first language and our native culture. Those preferences are often so deeply embedded in the many aspects of writing that they are hard to see and even harder to articulate. Often ‘we ate unaware that different cultures (and different professions) have different ideas about what makes something “good writing.” ‘The US. culture, and specifically the U.S. legal culture, is no different from any other professional culture. It has expectations and preferences that have developed over time about how something should be written. Students who come to U.S. law schools wanting to learn U.S. legal writing may find it useful to begin by examining the cultural preferences related to writing from their native cultures and languages and then compare those preferences with those of the U.S. legal culture Chapter 31 at the end of this book is designed specifically for English- juage law students who want to learn about the subtle and not-so-subtle differences between their native cultures and languages and the USS. legal culture and its use of English. Although the first half of the chapter focuses on grammatical challenges for ESL law students, the second half explores the thetorical preferences in a wide variety of cultures and compares those preferences with those of the U.S. legal culture. Exhibit 31.5 in Chapter 31 shows the contrasting rhetorical preferences of the U.S. legal culture and of a number of different languages, including Chinese, Japanese, Korean, French, Spanish, Arabic, and Russian.Reading and Analyzing Statutes and Cases hen you think about becoming a lawyer, what image comes to ‘mind? Do you see yourself cross-examining a witness? Making an impassioned argument to a jury? Hugging your client when the jury returns the verdict in his or her favor? Although some lawyers do these things, these are more likely the images of TV lawyering than they are of real lawyering, Real lawyers spend much of their time reading and writing. Consider the following quota- tion from an associate at a major law firm. My view of lawyering has changed dramatically ince I entered law school. [n my frst ‘year of law school, I saw myself a atrial lawyer. I thought that most of my time would be spent either preparing fr trial or in trial. The truth of the matter is that have been inside the courthouse only three or four times during the last year and that was to look through court files Instead, most of my time is spent reading and preparing documents, doing legal research, and writing memos and brief, Don't get me wrong, The work that 1 do is extremely interesting, I is ust that I never saw myself spending seven or eight hours day reading and writing Second year associate a a large law firm ‘The way in which lawyers read is not, however, the way in which most in viduals read. Therefore, part of learning how to think like a lawyer is learning hhow to read like a lawyer. In this chapter, we describe some of the strategies that lawyers use in reading statutes and cases, 3132 Book 1 Introduction to Legal Writing 53. §3.1 Good Lawyers Are Good Readers Good lawyers ate good readers. When they read a document, statute, or case, they read exactly what is on the page. They do not skip words, read in words, oF misread words. In addition, they have good vocabularies. They rec- ognize and understand most of the words that they read, and the ones they do not recognize or understand they look up in a dictionary. There are a number of good, free dictionaries online. For example, Merriam-Webster Online dictionary is at Attp://www.m-w.com; JURIST's legal dictionaries are at http://urist.faw.pitt edu/dictionary.htm; and FindLaw’s® legal dictionary is at http://dictionary Ip.findlaw.com. Poor reading skills can significantly affect your ability to understand what it is that you are reading. For instance, in Example 1, which is taken from the transcript of a law student reading a case aloud, Jackie, a first-year student, mispronounced and apparently did not recognize the word “palatial.” EXAMPLE 1 Transcript of a Student, Jackie, Reading a Case Aloud ‘Some months priortothealleged imprisonment, the plintif while in Jaf, announced her inten- tion to leave the sect. The defendant, with the help ofthe plant's husband, persuaded the pl toretun tothe Unite States aboard the sect’ patil scl yacht, the Kingdom, James, another student who read the same case, misread the following sen- tence. Example 2 shows how the sentence appears in the casebook. Example 3 shows how James read it when he read the sentence aloud.! EXAMPLE 2 Sentenceas It Appears in the Casebook ‘According tothe uncontradicted evidence, at no time did anyone physically restrain the plaintiff ceacept for the defendant’ refusal once the plaintiff announced her decision to quit the yacht tole the plaintiff usea small boat to take herself her children and her belongings ashore. EXAMPLE 3 HowJames Read the Sentence ‘According tothe uncontradicted evidence at no time dd anyone physicaly restrain the plaintiff ‘except forthe defendant’ [pause] defendant’ refusal once [pause] defendant’ refusal once [pause] ‘he plant announced her decison tothe quit the yacht to let the plaintif use a small boat to take hese her children, an her belongings shore. 1. The examples in this section come from the following article: Laurel Currie Oates, Beating the Odds, Reading Strategies of Law Students Admitted Through Special Admissions Programs, $3 Towa L. Rev 39 1997).32 Chapter 3 Reading and Analyzing Statutes and Cases When questioned about what the court was saying in this sentence, James stated that the defendant had, on one occasion, refused to let the plaintiff take the boat. In fact, the court said that the refusal came once the defendant announced her decision to quit the yacht. Although at first these errors may seem insignificant, in each instance they resulted in the student misunderstanding the case and thus the rules and the court's reasoning. In addition, in both instances, the errors were a harbinger of things to come. Both students ended up doing poorly on their exams. At the end of the first year, Jackie was in the bottom 20 percent of her class, and James had flunked out, ‘To determine whether you may be misreading cases, make two copies of ne of the eases in your casebook, Keep one copy for yourself and give the other toa trusted classmate or teaching assistant. Then read aloud from your copy while your partner follows along on his or her copy, highlighting any words or phrases that you mistead and any words that you mispronounce or do not appear to understand. After you have finished your reading of the case, compare your understanding of the case with your partner's. Did you both read the case in essentially he same way? If your partner noted more than one or two problems or if your understanding of the case is substantially different from your partners understanding of it, try the following, Firs, try reading more slowly. You may be trying to read the material too quickly. Second, take the time to look up any words that you do not recognize or are not sure that you understand. Third, if the problems appear to be serious, ask your school’s learning center if it can provide you with a more thorough evaluation of your reading skills, §3.2 Good Legal Readers Read and Reread Material Until They Are Sure That They Understand It While in some types of reading you can skip sections that you do not com- pletely understand, such a strategy does not work when you are doing legal reading. Ifthe document, statute, or case isone that is relevant to your problem, you need to read and reread it until you are sure that you understand it Example | shows how a student, William, stayed with a case until he was sure that he understood it. The material in the regular typeface isthe text of the case, The material in italies is what William said after he had read that section of the text EXAMPLE 1 Transcript of a Student, William, Reading a Case Aloud Whittaker v. Sanford 110 Me. 77, 88 5.399 (1912) Savage, Acton fr false imprisonment. The plant ecovered a verdict for $1100. The ase comes up on defendant’ exceptons and a motion for anew ti. Sothe defendants the appellant ands appeaing the verdict of $1100. 3334 Book 1 Introduction to Legal Writing 532 ‘The plait had been a member of a religous set which had colonies in Maine and in Jaffa, ‘Sia, and of which the defendant was a leader. Some months prior tothe alleged imprisonment, the plaintif, while in Jaffa, announced her intention to leave the sect. ‘need to reread this again. [Reread sentence} Sus prior tothe alleged imprisonment the paitiff wasn Jatfa and expressed an intention to leave the sect. At his point, lam abt confused about who the partis are. need trereod this to make sure that have he facts staight. [Reread from the beginning] (OK. Thisisan action for faseimprsonment. The plaintifrecovered a verdict for $1100. The case came up (on the defendant’ exceptions The plaintfis a member ofthe ect and the defendant i the head of the sectso Whittaker isthe member ofthe sect and Sanfordsitseade. Although it took William more time to read the case than it took some ‘of the othcr students who read the ease, the payoff was substantial. Although his undergraduate GPA and LSAT placed William in the bottom 10 percent of his entering law school class, at the end of his first year, he was in the top 10 percent. ‘There are several things that you can do to make sure that you understand the eases that you are reading, First, see if you can diagram the action. At the trial court level, who sued whom and what was the cause of action? Who “won” at trial, who filed the appeal, and what is the issue on appeal? EXPEL tn some instances, you may be able to compare Pde PX paky | your chart showing the cases prior and subse- ‘quent history with the chart that is on KeyCite® under ‘Direct History (Graphical View) For more information about this KeyCite feature, see section 10.3.2 in the electronic supplement. Second, do not underestimate the value of preparing your own case briefs While it may be faster and easier to highlight sections of a statute or case, highlighting does not ensure that you understand the material you are reading. Infact, there is some evidence that students who highlight remember less than students who do not highlight: In highlighting a section, some students focus their attention on the process of highlighting and not on the material they are highlighting. As a result, when they are asked to recall what iti that they just highlighted, they are unable to do so. Finally, after reading a section, test yourself to make sure that you under- stood what itis that you have just read. Aiter you have finished reading a statute or case, close the book or your computer and summarize what the statute or case said §3.3 Good Legal Readers Engage in Both Analysis and Synthesis In addition to reading accurately and until they understand the materials, good legal readers analyze and synthesize the material that they read933 Chapter3._ Reading and Analyzing Statutes and Cases Analysis is the process of taking a statute or case apart. In reading statutes, you analyze each section and subsection, making sure that you understand each, In reading cases, you identify the issue that was before the court, the rule or rules that the court applied in deciding that issue, the facts that the court considered in applying those rules, and the court's reasoning or rationale. When you “brief” a statute or case, you are engaging in analysis. In contrast, synthesis is the process of putting the pieces together. You take ‘each of the statutory sections and cases you have read and try to make sense of them, Ate they consistent? What are the steps in the analysis? How do they fit into your existing conceptual frameworks? Example I shows how a law professor engaged in both analysis and syn- thesis. Note both how she analyzes the case she is currently reading and how she tries to reconcile what the court says in that case with the Restatement seetion that set out the elements of false imprisonment. The text is set out in regular type and the professor's comments are in italics “EXAMPLE 1 Transcript of a Professor Reading a Case Aloud ‘There was evidence that the plaintiff had been ashore a number of times, had been on numerous out- ingsandhad been treated as guest during her sty aboard the yacht. According tothe uncontradicted ‘evidence, at no ime did anyone physically restrain the lant exept forthe defendant’srefusal, once ‘theplaintitfannouncedher decision to qutthe yacht, tole the plaintiff usea small oat to take herself, her children, and her belongings ashore, ‘mot of geting a vsualimage ofthe boat that she was in and outof...utm... the plaintiff had been ashore. thinking about the elements that just ead [aeference tothe Restatement section that had been set out immeciately before the case and im trying tose how, ques frankly how I would decide the case ona certain lev! before leven want o know what Judge Savage thought. [Pause } need tolook at the Restatement section. [Looks back tthe Restatement section. the defendant ating to or With the intent to confine the paint? She got off the boa. Tha kind of bothers me. That results directly ‘or indirectly in confinement. Maybe thats relevant here. The other i conscious ofthe confinement ors ‘harmed by it. Given the fot, that bothers me too, Doing analysis and synthesis is both time-consuming and hard work. You are no longer reading just for information. Instead, as you are reading, you are either placing new information into existing conceptual frameworks or constructing completely new frameworks. If you ate like most law students, at some point you will argue that law school would be a lot easier if your professors put the pieces together for you, if they just gave you their conceptual frameworks, If you had come to law school just to learn the law, you would be right. It would be easier for both you and your professors if they just gave you the law. There is, however, a lot more to law school than just learning the law. Although you will learn some law while youre in law school, the teal reason that you came to law school was to learn to think like a lawyer. Accordingly, the primary skills that you will need to teach yourself while you are in law school are how to do legal analysis and synthesis. You need to be able to look at a statute and a group of cases and determine what the law is and how it might be applied in a particular situation. 3536 Book 1 Introduction to Legal Writing 534 §3.4 Good Legal Readers Place the Statutes and Cases They Read into Their Historical, Social, Economic, Political, and Legal Contexts Good legal readers understand that statutes are usually enacted to solve a problem or to promote certain interests and that judicial decisions reflect, at Teast in part, the time and place in which they were written. As a consequence, in reading statutes and cases, good legal readers place them in their historical, social, economic, political, and legal contexts. They note the date that the statute was enacted and amended and the year in which the case was decided. They think about the social and economic conditions during those periods and about the political issues that were in the headlines when the statute was enacted or the case was decided. Finally, they place the case in its larger legal context. They determine how the particular issue fits into the broader area of law, they note whether the decision is from an intermediate court of appeals, or the highest court in the jurisdiction, and they read the court's decision in light of the standard of review that the court applied. Was the court deciding the issue de novo, or was it simply looking to see whether there was sufficient evidence to support the jury's verdict? If you do not know what the phrase “de novo” means, look it up in a book or online dictionary. In reading the case that was described earlier in this chapter, the professor placed the case in its historical, social, and political context. First, she noted that the ease was an old one. Itwas decided by the Supreme Court of Maine in 1912. Second, she noted that in 1912, $1,100 would have been a substantial sum_ cof money. Third, she considered the social climate in 1912: the role of women. and their rights and the public’s attitudes about “religious cults.” She knew that in 1912 women had far fewer rights. For instance, it was often the husband who determined where the couple lived and what religion they practiced. What she did not know is how religious cults were viewed. In 1912 did people view religious cults in the same way that most people view them today? Were cults seen as a problem? How did these factors influence the court's decision and the way the judge wrote the opinion? You need to think about the cases that you read in similar ways. When you are reading cases, pay close attention to the dates of the decisions and the courts that issued them, If you read the cases in chronological order, can you discern a trend? Over the last fifty, twenty-five, or five yeas, have the rules or the ways the courts apply those rules changed? If the answer is yes, what social, economic, oF political events might account for those changes? In contrast, if you arrange the decisions by jurisdiction, does a pattern appear? For example, do industrial states tend to take one approach and more rural states another? Are some jurisdictions more conservative while others are more liberal? As you read between the lines, what do you think motivated the judges and persuaded them to decide the case in one way rather than another?S35 Chapter 3 Reading and Analyzing Statutes and Cases §3.5 Good Legal Readers “Judge” the Statutes and Cases They Read As a beginning law student, you may be tempted to accept everything, you read. Who are you to judge the soundness of a Supreme Court Justice's ‘analysis or Congress's choice of a particular word or phrase? Do not give in to this temptation. Ifyou are going to be a good legal reader, you need to question and evaluate everything you read. In judging the cases you read, make sure you do more than evaluate the facts. Although in Example | William engages in some evaluation, its the evalu- ation of a nonlawyer. William evaluates the witness’ testimony, not the eourt’s choice of rule, application of the rules to the facts, or reasoning. Once again, the text of the case is set out in a regular typeface and William's comments ane in italics EXAMPLE 1 Transcript of a Student, William, Reading a Case Aloud There wasevidencethat the plaintiff hadbeenashorea numberof times, had been on numerous outings ‘and had been treated as a guest during her stay aboard the yacht, ‘So at ths point Im geting o picture of what happened... mn nat sure though Theres evidence ‘that the plaintif had been ashore so at this point Im thinking was she realy held against her wil? So 1 Ihave doubts, doubts about the plait’ story at his point. According othe uncontradicted evidence, at no time did anyone physically restrain the plaintiffexcept forthe defendantrefusal, once theplaintiff announced her decision to quit the yacht, tolettheplintif ‘sea smal oat to take herself, her children, and her belongings ashore. Wel... the defendant by this point seal stopping the paint from leaving Throughout the entre episode the plaintfs husband was with her and repeatedly tried to persuade her to change her mind and remain withthe sect. ‘Atthispoint, mental, thn, dont thnk the plaints stry doesn hold water... thas what Jam thinking. Because her husband was thereso maybe you, tere’ inmy mind that he story doesnt hold water So am thinking at his point thatthe court mightendup reversing her poston In contrast, the professor evaluated the court’s conclusion and reasoning, Alter she finished reading the case, the professor made the following com- ments. Note how the professor talks about the elements of the tort and how she poses a hypothetical. EXAMPLE 2 Transcript of Professor's Comments | mnot sure thatthe plant proved al of the element of false imprisonment. For example, m not sure that the plant proved that the defendant intended o confine the plaintiff remember corecty, Ipouse] ona number of ocasons he allowed her to go ashore. He just would ether use the smal boat38 Book 1 Introduction to Legal Writing 3s {o take her children and thelr things ashore It would have been interesting to know what would have happenedifa boat had come to get the lant Would the defendant have let her go ithe would have there wouldn'thave been false imprisonment. [Pause] The facts may, however, support ofinding thatthe defendant’ ction resulted in confinement In those days, the plaintiff ma not have hada way to contact “anyone on shore to ask them to came get er. Although the court may have reached the right esl wish that udge Savage had done more analysis Pause} ge the feeling that head made uphsrmind maybe §3.6 Good Legal Readers Read for a Specific Purpose ‘The reading that you do for your law school classes is very different from the reading you will do in practice. In law school, you read so that you will be prepared for class. Consider the following comment made by James. When | read cases, | usually ead them not for briefing cases per se, but more out of {ear of being called on in class. don't want to look like a fool so I just want to know the basic principles. In contrast, in practice you will read for a specific purpose. For example, you will read to keep up to date in an area of law, to find the answer to a ques- tion that a client has posed, to find statutes or cases to support your client's position, or to find holes in your opponent's arguments. Inteading the statutes and eases for your legal writing assignments, read not asa student, but as a lawyer. Initially, ead to find out what the law is. Analyze the statutes and cases that you have found, and then put the pieces together. ‘Then read the cases as the parties and the court would read them. Begin by putting yourself in your clients position. How can your client use the statutes and cases to support its position? Put yourself in the other side's shoes. How could the opponent use the same statutes and cases to support his or her posi- tion? Finally, put yourself in the court's position. If you were the judge, how would you read the statutes and cases? §3.7 Good Legal Readers Understand That Statutes and Cases Can Be Read in More Than One Way Different people have different beliefs about text. While some people believe that there isa right way to read each statute or case, others believe that ‘most statutes and cases can be read in more than one way. For those inthe first group, the meaning of a particular testis fixed. For those in the second group, the meaning of a particular tent is “constructed” by juries and judges and by the attomeys who talk to them. ‘As a general rule, the students who seem to have the easiest time in their first year of law school are those who believe that statutes and cases can be537 Chapter 3 Reading and Analyzing Statutes ané Cases read in more than one way, that the meaning of a particular text is socially constructed, These students have an easier time seeing how each side might interpret a particular statute and stating a rule so that it favors their client's position. When they talk about a cours holding, they refer to it as “a holding,” not “the holding,” Ifyou are a student who believes that meaning is fixed, be aware of how your belief system affects the way in which you read statutes and cases and the way in which you make arguments. In reading cases, can you see how both the plaintiff and the defendant might be able to use the same case to support, their arguments? In making arguments, are you able to see what the other side ‘might argue and how you might be able to respond to those arguments? Are you spending too much time looking for the correct answer and not enough time creating that answer? In contrast, if you are a student who believes that ‘meaning is socially constructed, be careful that you do not become cynical or only a hired gun, Although there may be many ways of reading a particular statute or case, not all of those readings will lead to a “just” result, Reading and thinking like a lawyer are not skills that you can learn over- night. There are no crash courses, shortcuts, or magic wands. Instead, you will Jearn to read and think like a lawyer through trial and error and by observing how real lawyers, not TV lawyers, read and think about statutes and cases.