Legal Writing

1. Legal Writing Professor Gary Chodorow Beijing Foreign Studies University 2006-07 Semester II

2. Sources of Law & Their Hierarchy

3. Overview of Ct Systems

4. Stare Decisis

5. Is Stare Decisis a Good Doctrine? Strengths: • Stability & certainty in the law • Certainty in the law • Promote fairness • Judicial efficiency and credibility Weaknesses: • Bad precedent is binding. • Common law evolves too slowly. • Law is not neatly stated.

6. Exercise: Hierarchy of Authority

7. II. TYPES OF LEGAL REASONING • See LW Mindmap

8. Class 4: BRIEFING CASES OFFICE MEMORANDA

9. I. BRIEFING CASES Why? • Improve comprehension. • Helpful for analogizing or distinguishing cases • Cheat sheet for Qs in class. • Helps study for exams in common law class.

10. Process of Writing a Case Brief • Read case once for “big picture” • Make margin notes (e.g., “F” for facts). Facts (or other parts) may be scattered in various places throughout opinion. • Write brief. Be concise. Paraphrase. • Revise your brief based on class discussion.

11. Parts of a case brief: • Caption • Parties • Procedural History • Facts • Issue • Holding • Reasoning • Judgment • Separate Opinion • Analysis

12. Writing the Case BriefCaption Costanza v. Seinfeld(N.Y. Sup. Ct. 1999) Parties Court Date Decided

13. Writing the Case BriefParties E.g.: guy (pl) v comedian allegedly using his likeness in sitcom (def)

14. Writing the Case BriefProcedural History E.g.: Motion to dismiss claim for damages under NY common law & NY Civil Rights Law sec. 50 & 51.

15. Writing the Case BriefFacts • Pl alleges character George in Seinfeld sitcom is based on him w/out his permission (same last name; short, bald, fat; friend of Seinfeld from college; from Queens) • Pl alleges this portrayal is humiliating (George is a self-centered loser)

16. Writing the Case BriefIssue I • Format: Under [specific law], is [specific legal issue] where [important facts]?

17. Writing the Case BriefIssue I (cont’d) I. Under NY common law, does a person have a valid claim for breach of the right of privacy, where his name and likeness are used in a sitcom without his written consent?

18. Writing the BriefHolding I Format: [Decision]. [Rule]. [Rule Application].

19. Writing the BriefHolding I (cont’d) Issue: Under NY common law, does a person have a valid claim for breach of the right of privacy, where his name and likeness are televised without his written consent? Holding: No. NY doesn’t recognize a common law right to privacy. [RA obvious].

20. Writing the BriefReasoning I • Rule: NY doesn’t recognize common law right to privacy. • Rule Proof: • Roberson held so (rejecting Harvard L. Rev. article theory) • In reaction, NY Civil Rights Law sec. 50 & 51 enacted. • [RA obvious]

21. Writing the BriefIssue II II. Under NY Civil Rights Law sec 50 & 51, does a person have a valid claim, where his name and likeness are used in a sitcom without his written consent?

22. Writing the BriefHolding II Issue: Under NY Civil Rights Law sec 50 & 51, does a person have a valid claim, where his name and likeness are used in a sitcom without his written consent? Holding: No. The statute only covers use of a living person’s name or likeness for “advertising” or “trade.” In contrast, this is a fictional comedic presentation.

23. Writing the BriefReasoning II • Rule: Statute only covers use of a living person’s name or likeness for “advertising” or “trade.” • Rule Proof: • “Advertising” and “trade” are limited to solicitation for patronage. Delan. • Works of fiction and satire outside bounds. Hampton. • Rule Application: Sitcom is fictional comedic presentation so analogous to Hampton.

24. Writing the BriefJudgment Judgment: Dismissed.

25. Writing the BriefAnalysis Your questions and critical evaluation, such as: • ID argument type (Rule-Based, Case-Based, Normative, Institutional, Narrative)--consider counterarguments.

26. Writing the BriefAnalysis (cont’d) ASK QUESTIONS: • How is problem identified? (Bias? Over-simplified? Are there other ways to characterize the problem? Are terms defined fairly?) • Are the facts presented accurately? • Is authority characterized properly? • Is reasoning clear & logical? (False dichotomy? Are there unstated reasons for the decision, perhaps related to the identity of the parties? Could other arguments be made? Are questionable assumptions made? Are counter-analyses made?) • Are the conclusions justified? What other conclusions could be reached? • What are the likely consequences of this decision to parties? As precedent? • Has the majority answered all the dissent’s arguments?

27. Writing the BriefAnalysis (cont’d) READ FOR JURISPRUDENCE--imagine how different approaches would affect the outcome: • Formalism • Legal Realism • Legal Process • Fundamental Rights • Law and Economics • Critical Legal Studies • Feminist Jurisprudence

28. Writing the BriefAnalysis (cont’d) READ FOR RHETORIC & STYLE: • Tone (assertive, objective, humorous, angry) • Word choice (bias)

29. Writing the BriefAnalysis (cont’d) • Examine the Legal Context: • Legislative: • Look at purpose of statute. • Look at predecessor statute. • Look at other legislative activity on subject. • Court decisions: • Look at lower court decisions. • Compare your case to cases raising analogous issues in related areas. • Probe the Broader Context: Do history, sociology, economics, psychology, etc. illuminate the subject?

30. OFFICE MEMOS

31. Format:Discussion Tidbits: • Order elements discussed (see discussion below).

32. Is your memo written in an appropriate style? • Avoid referring to yourself: Don’t say, “according to my research” or “in my analysis” or “according to my research” because the reader knows the memo is based on your research and analysis. • Avoid words like “obviously,” “clearly,” and “definitely,” especially where the point you are making is not. • Keep a neutral and objective tone. • Avoid informal style in the text of your memo: • Edit out inappropriate abbreviations. For example, don’t refer to the state as “Ill.” and don’t refer to the plaintiff as “pl.” • Write out numbers requiring just one or two words (e.g., “thirty-three apples” but “183 students”). • Edit out contractions such as “couldn’t” or “isn’t.” • Refer to parties in case law by role not name. • Do not use proper names when discussing case law. Refer to the parties in a published case generically; characterize them in terms of their real-life roles (father/son; landlord/tenant; purchaser/seller; plaintiff/defendant). • Sinclair discussion (p.444) • Discuss case law in past tense. E.g., “The Court held . . . .” (same Sinclair discussion). • “Here” refers to client’s case. “There” refers to precedent. (top p.446).

33. Class 5: • Structuring Proof of a Conclusion of Law

34. CRuPAC Structure C: Conclusion. Ru: Main rule. P: Prove & explain rule by (a) citing authority, (b) describing how authority stands for rule, (c) discussing subsidiary rules, (d) analyzing policy, (e) counter-analyses. A: Apply rule’s elements to facts with aid of (a) subsidiary rules, (b) supporting authority, (c) policy, (d) counter-analyses. C: Restate conclusion if discussion complicated.

35. Conclusion • “Conclusion of law” = a determination of how law treats certain facts. • In predictive writing, it can be expressed as a prediction (e.g., “Washburn is not likely to be convicted of robbery”). • In persuasive writing, it can be expressed as a recommendation (e.g., “Washburn should not be convicted of robbery”).

36. Rule • Rule = The main rule on which you rely in reaching your conclusion.

37. Rule Proof • Rule Proof = Explanation of the rule and reasons given by the court for why this rule is the law in the jurisdiction.

38. Tools for Rule Proof A. Citation to Authority B. Describe How Authority Stands for Rule. C. Discuss Subsidiary Rules. • Subsidiary rule = Rule that guides application of main rule or works with it in some way.

39. Tools for Rule Proof (cont’d) • Policy (normative & institutional arguments): Use policy discussion to justify or clarify rule. • Counter-Analysis = Evaluation of reasonable contrary arguments that different rule is the really the law in the jurisdiction.

40. Rule Application • Rule Application = Demonstrate how rule applies to facts of this case.

41. Tools for Rule Application • Subsidiary Rules: Apply them to facts (rule-based reasoning). • Authorities: Analogize or distinguish facts of authorities (case-based reasoning).

42. Tools for Rule Application (cont’d) C. Counter-analysis: Evaluate reasonable contrary arguments that the rule should be applied to the facts in a different way.

43. Tools for Rule Application (cont’d) D. Policy (Normative and Instrumental Analysis): Explain how your suggested rule application is best because it advances the policies the rule is designed to advance.

44. Relationship between RP & RA Always complete the rule proof before beginning the rule application.

45. Relationship between RP & RA (cont’d) For each point you make about the rule in the RP, show how that point applies to the facts in the RA.

46. Relationship between RP & RA (cont’d) Exercise: • Re-read Buckley sub-issue A (Buckley’s unintentional misrepresentation of her age probably is insufficient to establish fraudulent misrepresentation) (pp. 2-3). • List each point made in the RP. Does the RA apply that point to the facts?

47. My Eyes Only

48. How Organize Analysis of Issue with Multiple Elements? Give an Overall Conclusion & CRuPAC Each Element Issue: Will ct likely impose constructive trust? Conclusion: Yes (No) … Element 1: Confidential or Fiduciary Relationship [CRuPAC] Element 2: Promise by the Transferee [CRuPAC] Element 3: Transfer in Reliance on Promise [CRuPAC] Element 4: Unjust Enrichment [CRuPAC]

49. What order should the elements be discussed in? • If not all elements are satisfied, discuss the most dispositive first. • If all elements are satisfied, follow order mentioned in rule, unless confusing or one element vastly more complex.

50. How Organize Analysis of Multiple Issues? Give Overall Conclusion for Each Issue & CRuPAC Each Element Issue I: Will a ct likely impose constructive trust? Conclusion: Yes (No) … CRuPAC each sub-issue Issue II: Will a ct likely find a b/k by nephew? Conclusion: Yes (No)… CRuPAC each sub-issue