legal writing: march 3 2010 class notes.

writing an appellate brief.

see legal writing textbook p. 523, sample brief.
see the brief assignment. 
n.b. = "facts" means fact finding and "hold" = conclusions of law

the facts for our appellate brief. 

when drafting procedural history, ensure you mention only a motion to supress after a hearing. this was on a motion, not on a hearing.

has been expedited.
we don't know if the drugs taken off reyes person can be submitted as evidence.
we don't have a final judgment yet. we're well before this point. what's being appealed is the court's order denying the motion. 

you're an advocate! the procedural history should be written for the party you represent. it's all in how the facts are represented.

reyes should assert that he made a motion under his 4th amendment rights, and those rights were violated.

legally significant facts, emo significant facts, and background facts.

legally significant facts must be included:
- flyers were posted in the mass transit system 2 wks before (one of the factors of the test).
- reyes never saw the posters (not necessarily determinative but does exhibit the subjective mindset of the individual).
- the search yielded drugs, and several arrests were made on the drug charges.

techniques you can use in writing a persuasive statement of facts (p. 467)
(a) create a favorable context.
(b) tell the story from the client's POV
(c) emphasize the facts that support your theory of the case and de-emphasize those that do not:
    - airtime (giving the emphasis and detail more attention/time)
    - detail
    - positions of emphasis
    - sentence length
    - sentence construction
    - active and pasive voice
(d) choose words carefully

version 1 (from the maj opinion).
james dale entered scouting in 1978 at the age of eight by joining monmouth council's cub scout pack 142 (n.b. -- numbers are neutralizing clutter. cub scout is a powerful term, and so it's downplayed here). dale became a boy scout in 1981 and remained a scout until he turned 18. by all accounts, dale was an exemplary scout. in 1988, he achieved the rank of eagle scout, one of scouting's highest honors. dale applied for adult membership in the boy scouts in 1989. the boy scouts approved his application for the position of assistant scoutmaster of troop 173.

version 2 (from the dissent).
james dale joined bsa as a cub scout (here cub scout is played up, to humanize his loyalty to the organization) in 1978, when he was eight years old. three years later, he became a boy scout, and remained a member until his 18th birthday. along the way, he earned 25 merit badges, was admitted into the prestigious order of the arrow, and was awarded the rank of eagle scout -- an honor given to only three percent of all scouts. in 1988, bsa approved his application to be an assistant scoutmaster.

boy scouts v. dale 530 US 640 (2000) 

firms may re-use their language, but its a reuse of their own language. you can't re-use someone else's language though; that's plagarism. 


advocacy (using the seaview yoga case).
representing seaview yoga: begin with the founding of seaview yoga center and any available facts that established santangelo's goals for the center.
representing o'gara: paul o'gara was working out at seaview yoga center on the treadmill when the machine gave out. he was thrown forward, he was injured, etc. no one saw the accident, because no one employed by seaview facility was there.

argumentative headings (p. 477) provide the court with an outline of the argument to help persuasion.
write arguments as positive assertions:
example of negative assertion -- the trial court did not act properly when it denied mr. strong's motion to suppress.
example of positive assertion -- the trial court erred when it denied mr. strong's motion to suppress, or the trial court erroneously held a denial of mr. strong's motion to suppress.

keep in mind that you are addressing a panel of three federal judges, who will not be swayed by good prose, only by great arguments.

main headings (p. 479) should be written with roman numerals and in all caps. make the headings as specific as possible and detailed, but not too long and specific.
subheadings set out the support.

I. THE TRIAL COURT PROPERLY HELD THAT THE RELEASE SIGNED BY THE PLAINTIFF IS A COMPLETE BAR TO THE PLAINTIFF'S CLAIM

want advice and inspiration? judges (posner, even!!!) give their advice on briefs and oral argument...

citations:
parentheticals are needed to disclose authority of cases/opinions.
for example (from reyes case)

Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring)).