Washington State Paralegal Association CLE: Effective Legal Writing

1. Washington State Paralegal Association CLE: Effective Legal Writing Professor Mimi Samuel Seattle University School of Law

2. Today’s Program • What does your writing say about you? • Small-scale organization: Making your organization explicit for the reader • Writing effective sentences • Avoiding common grammar problems

3. What does your writing tell your reader about you?

4. For each of the following letters, consider these questions: • What does the author look like? • What does his office look like? • How does he treat the staff in his office? • Would you hire the attorney to represent you?

8. Small-Scale Organization

9. Roadmaps

10. A roadmap is just what the term implies: a "map" providing the reader with an overview of the document. • In more complicated pieces of writing, include a separate roadmap in which you outline the steps in the analysis.

11. Example 1: Writer uses a roadmap to set out the steps in the analysis In deciding whether New Mexico will allow a cause of action in nuisance, the New Mexico courts will look first at whether EMFs constitute a public nuisance and then at whether they constitute a private nuisance.

12. Example 2: Roadmap that tells the reader what is important To claim a prescriptive easement, the Oregon Wilderness Watchers will have to satisfy four elements by clear and convincing evidence: 1) that its use was open and notorious; 2) that its use was continuous and uninterrupted; 3) that its use was adverse to the right of the owner; and 4) that its use of the property met each of the other requirements for over ten years. See Thompson v. Scott, 528 P.2d 509, 510 (Or. 1974). Although OWW should have no difficulty satisfying the first and fourth elements, the second element and especially the third element will be difficult to satisfy.

13. Example 3: Rule acts as a roadmap In a criminal case, the prosecution must prove each element of the crime beyond a reasonable doubt, even in a case such as this one, where the defense evidence is weak. [citations] Toprove robbery, the prosecution must prove each of the following elements: (1) that there was theft; (2) that the theft was accompanied by violence; (3) that a deadly weapon was used; and (4) that the defendant participated.

14. Signposts

15. If the roadmap provides the reader with a “map” of the discussion, signposts are the directional signs. Good signposts signal each change in direction.

16. Example 1 • There are four exceptions to the Statute of Frauds, but three of them are not applicable. The first of these inapplicable exceptions, §4-2-201(2), applies only to transactions “between merchants.” In an earlier section, §4-2-201(1), a merchant is defined as “a person who deals in goods of the kind or otherwise holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be . . . .”

17. Example 1 (continued) The second inapplicable exception, §4-2-201(3)(b), provides that a contract that does not satisfy the requirements of subsection (1) is still enforceable if the party against whom enforcement is sought admits in his or her pleading, testimony, or otherwise in court that a contract for sale was made. Because we are not at the litigation stage of this case yet, this exception does not apply

18. Example 1 (continued) The third inapplicable exception, §4-2-201(3)(c), provides that a contract is enforceable with respect to goods for which payment has been made and accepted or which have been received and accepted. The McKibbins made no payment for the rugs, and they never received the rugs, so this exception also does not apply. The exception that may be applicable is the exception for specially manufactured goods. ...

19. Example 2 First, the prosecution has proved that a theft occurred. The prosecution presented uncontested testimony that Jonathan Wazimbe put money in an envelope to take home for the funeral rite. . . . Second, the prosecution has proved that the theft was accompanied by violence. Violence is the use of unlawful force. Here, both assailants used unlawful force against the witnesses. . . .

20. Note: Once you set up a set of signposts, do not change terminology. For example, if you stated that there were “three questions,” do not switch and use the phrase “the second issue.”

21. Topic Sentences

22. Myth: All well-written paragraphs have a topic sentence. • However, and this is a big “however,” most well-written paragraphs do have topic sentences, and those that do not have an explicit topic sentence have an implied topic sentence.

23. Explicit Topic Sentence. • An explicit topic sentence is a sentence that tells the reader what to expect from the paragraph. • In addition, many good topic sentences explain the relationship between the prior paragraph and the new paragraph.

24. Implied Topic Sentences: • A sentence has an implied topic sentence when there is not a sentence that explicitly tells the reader what to expect, but the topic of the paragraph is clear. • For example, in setting out the facts you may not need an explicit topic sentence.

25. Good Topic Sentence • In determining whether service was proper under Fed. R. Civ. P. 4(d)(1), courts have considered several other factors. First, the courts recognize that “each decision proceeds on its own facts.” Karlsson, 318 F.2d at 668. Second, the courts consider whether the defendant will return to the place where service was left. Id.Third, the courts look at whether service was reasonably calculated to provide actual notice to the defendant. Minnesota Mining & Mfg. Co. v. Kirkevold, 87 F.R.D. 317, 323 (D. Minn. 1980).

26. Transitions

27. Transitions are words or phrases that state the relationship between the ideas. Without transitions, the reader must mentally make the connections that the writer has left out.

28. Generic transitions • Generic transitions are transitions that are commonly used in all kinds of writing and are, therefore, familiar to the reader. Generic transitions are used for contrast, for comparison, for cause and effect, for addition, for examples, for emphasis, for evaluation, for restatement, for concession, for time, for place, for sequence, for conclusion.

29. In addition Also Moreover Therefore Thus As a consequence Similarly Likewise In contrast On the other hand However Commonly Used Generic Transitions

30. “Also’’ suggests that whatever has been added is of equal weight to what has come before. “Moreover’’ means something beyond what has already been said. In addition, “moreover’’ tends to stress the importance of the additional element. In selecting a transition, select the word that best explains the relationship between ideas.

31. Orienting Transitions Orienting transitions provide a context for the information that follows. They locate for the reader -- physically, logically, or chronologically -- the ideas or points in the rest of the sentence.

32. Examples of Orienting Transitions • In this case, . . . • According to the witness, . . . • On January 1, 2006, . . .

33. Quick Tip When you are driving down a road, it is helpful to have highway signs to indicate where you are going and what is coming. If you spot an arrow curving to the right, you anticipate that the road will, fairly soon, begin a curve to the right. It would not be helpful to have the curved arrow sign after the road started the right-hand bend. The same is true for transitions. Place them right at the point where the reader needs them, which is right before “the bend,’’ or shift in the line of reasoning.

34. Substantive Transitions • The third type of transition, substantive transitions, can best be compared to the interlocking links of a chain. • Like the links of a chain, substantive transitions serve two functions: they make a connection and they provide content.

35. Substantive Transitions: Dovetailing • Dovetailing is often the technique used to make a “substantive transition.” Most sentences are made up of old information and new information -- use dovetailing to make the connections between the old and new information clear and explicit. • In general, put old information at the beginning of a sentence and new information at the end of the sentence.

36. ______________________. __________ Idea A Idea B Idea B _________________. _______________ Idea C Idea C _______________________. Idea D

37. Example • In Esser, four people agreed to share costs and build a road. After the road was built, each person used the road under a claim of right.

38. Example: Which sounds better? • Second, the prosecution has proved that the theft was accompanied by violence. The is the use of unlawful force is violence. • Second, the prosecution has proved that the theft was accompanied by violence. Violence is the use of unlawful force.

39. A slightly more complicated dovetail requires the writer to find a word or phrase to use in the second sentence that sums up the idea of the previous sentence.

40. Example • Search and seizures are governed by the Fourth Amendment to the U.S. Constitution and Article I, Section 7 of the Washington Constitution.Both of these provisions have been interpreted as requiring that search warrants be valid and that searches and seizures be reasonable.

41. Often the summarizing noun or phrase will be preceded by a hook word such as “this,’’ “that,’’ “these,’’ “those,’’ or “such.’’

42. Example • Realizing that she would not be able to stop in time to avoid hitting the bus, Mrs. Long swerved her vehicle around the bus and into the parallel lane of traffic. This evasive action resulted in her sideswiping another vehicle in the oncoming lane.

43. Summary To form an effective dovetail, try using one or more of the following techniques: 1. Move the connecting idea to the end of the first sentence and to the beginning of the second sentence. 2. Repeat key words from the first sentence in the second sentence. 3. Use pronouns in the second sentence to refer back to nouns/ideas in the first sentence.

44. 4.State the connecting idea in a specific form in the first sentence and the restate it in a summarizing noun or phrase in the second sentence. 5. Use words such as “this,” “that,” “these,” those,” and “such” before a repeated key word or summarizing noun or phrase.

45. Writing Effective Sentences

46. Active and Passive Voice

47. When you use the active voice, the subject of the sentence is doing the action described by the verb. In contrast, when you use the passive voice, the subject of the sentence is having the action done to it. Active Voice: The judgeoverruled the objection. Passive Voice: The objectionwas overruled by the judge. The objectionwas overruled.

48. Why should you use the active voice for most of your sentences? • The active voice is more concise. Active voice: The police officerpulled the accused off the victim. (9 words) Passive Voice: The accusedwas pulled off the victim by the police officer. (11 words)

49. Sentences written in the active voice have a stronger verb. Passive voice: It is admitted that the court has jurisdiction. Active voice: The defendant admits that the court has jurisdiction.

50. Sentences written in the active voice are easier to understand. Passive voice: The documents must be offered into evidence by the defendant’s attorney. Active voice: The defendant’s attorney must offer the documents into evidence.