legal writing: march 30 2010 class notes.

briefs. 

current events, such as the bombings in russia, change the framing of the issues... last week, we would have probably written this argument very differently!

issue statement: try to create a framework that tells the court "what's happening? where are we going?" reference the 4th amendment!
picks and frames and describes facts with a careful eye to the persuasive effect

statement of facts:
1. bring in facts about the mass transit system
from reyes' point of view, the scale of the transit system is important to make the point that this program was not effective because it was conducted in the wrong place, etc. 

defined term: is it to our advantage to use them or not?
*** do not use them in the issue statement! it creates clutter

the search officers. for reyes', call them "officers"
dog -- call it a "dog" because it sounds a lot less formal and scientific

avoid statements that are sarcastic (such as "the drug-sniffing dog was a ruse)
avoid any "purple prose" that proses or praises or incorrectly trumps our constitutional rights: the court is aware of these things and is really just interested in what the case law on this matter will permit.

oral argument. you gotta know which case did what.
dog is a limit to the search. since the explosives are so hard to find, the amount of search that you would have to do on everyone that someone sniffed/barked at then
there is case law holding that much longer cases have been upheld.
they may hold you longer at the airport if you pass through a magnometer at the airport
, but the difference is that there are no heightened steps for scrutiny.
we can't question the means used by the government
REYES: the dog is searching continuously, and thereby the officers are using their discretion in who they want to search how. the search is no longer non-discretionary
is this kind of discretion overly intrusive?
why don't we want officers to be able to use discretion? because it is prejudicial and discriminatory
if the dog is exercising discretion, is this the same issue?

why is notice important?
is notice as important as it used to be?

notice:
the notice was not reasonable. use edwards, mc wade,
notice should have been enough to reasonably notify persons who regularly take public transportation that these searches would begin and they would need to make different travel arrangements?
rely on a combination of common sense and case law arguments to support your side: collect the cases that show greater notice, and then be prepared to show cases where there was equal/less notice where notice was deemed to be sufficient.
temporary flyers only: no audio, no big signs, no other methods for disseminating the information.
ambiguity of the search: a conflict to the messages of the program (one says take another method, one says it's voluntary. and so you argue that this is then not sufficient because it's not at all clear)

the court will be troubled with both side's needs. be ready to think through

e.g. in support of propositions of law. for example, factors courts look... "courts look at sufficiency of notice etc. DON'T USE E.G. because what you're communicating is that this is an established point of law and this is a case that cites it.

use e.g. if the message is "courts have done this all the time"
don't use e.g. if it's "this is the law"
if at the beginning: E.g.... if using See, e.g. (lower case)....
See id (lower case after see)

legal writing: march 24 2010 class notes.

"reading as an adversary"

pronouns, modifiers, punctuation.

ex. 27.3-A: s/v agreement.
1. all of the justices were in favor of reviewing the case.
    all of the members of the court were in favor of reviewing the case.
    all of the court was in favor of reviewing the case.

2. there were no further unexecuted acts to be performed by the landlord.
    this sentence is passive and the subject is weak. 

3. the finch case, as well as the nellington case, is distinguishable from sullivan's situation.

4. not at issue in this case are those parts of section 16-6-2 criminalizing sodomy by force.
    we would find this type of sentence in the introductory section of the memo/brief.     

5. a majority of the panel has found that smith possessed sufficient standing to pursue the action.
   
6. all of the evidence in this case is circumstantial.

7. the respondent, in seeking declaratory and injunctive relief, claims that the statute violates his right to privacy under the first, third, fourth, fifth, ninth and fourteenth amendments to the constitution.

8. your problem is seven employees who want a cost of living adjustment added to their retirement benefits.

9. "known and unknown, foreseen and unforeseen bodily and personal injuries" was added to the updated version of the medical release form.

in legal writing we are usually writing about individuals. but more often we are writing about institutions (new arcadia, 9th circuit), and about corporations/ business entities. these figures are collective and act as a single unit. additionally, in the generic antecedent (a person who files a tax return...), the modern solution in lay, spoken english is to say "they/their" but we don't do that in legal writing...

exercise 27.4: pronoun agreement
1. the appellate court upheald the trial court's verdict, stating that they found no manifest abuse of discretion.
2. under cross-examination, a witness may suddenly realize that his or her earlier testimony was inaccurate.
3. someone who makes an obscene telephone call is unlikely to use his or her real name.
10. in snowadzki, the IRS successfully argued that it had nothing to do with where or how the records were going to be created.

exercise 27.5-A: ambiguous pronouns.
1. howard davis claims that the apartment manager yelled, "stop!" but never made an effort to interfere.
10. clyde reeves and his son, daryl, were both injured in two automobile accidents that occured within two months of each other. the first accident occurred on october 8, 2003, when clyde was injured in a rear-end collision with a vehicle driven by melvin made. clyde immediately received medical care for the injuries from dr. santino, his family physician. later, clyde was still involved

write a sentence that's clear and then a sentence that uses "this" to summarize:

the rain in spain stays mainly in the plains. this is a good rhyme, which makes me happy. 

exercise 27.6-B: misplaced modifiers
1. the deputy marshal testified on march 12, 2004, that a copy of the complaint was served on the defendant at his chicago residence.

dangling modifiers: modify thoughts in the writers head, but not on paper.
1. in order to answer this question, the rule that governs service of process must be examined.

commas.
use a comma for anything that is supplementary to the main sentence, and without which the sentence would still make sense.

phrases:
the white house, well for its hospitality, is hosting a dinner for ambassadors.
well known for its hospitality, the white house is hosting a dinner for ambassadors.
the white house is hosting a dinner for ambassadors, where really tasty food will be served.

coordinating conjunctions of the caribbean (FAB SOY)
we searched for treasure; we searched high and low.
we would find the treasure, or we would die trying.
we found no gold, but we found silver.
it wasn't much, yet it weighed a ton.
we hauled it to our ship, for we were worried that others would take it.
we had found what we came for, so we sailed away.

green gables is the house i grew up in, and green gables is old.
i grew up at green gables, but it is not where i currently live.
i decided to stay in green gables, or i would move to manhattan. 
i love manhattan, and yet, sometimes i miss green gables.

legal writing: march 10 2010 class notes.

.... um.... i have no book today. 

LL-03 questions and answers session for legal writing tomo, 3:30 - 5:30.
questions by email will be taken through the day on friday.

oral arguments will be discussed next class.

formatting template assignment.

you will have to create a 4 digit anonymous number.

class notes, chapter 18.

we are using existing rules. and we are using a de novo review.

see p. 485 -- option 6 is the best for our organization.

assertions.
does the rule favor your position, or does the rule maybe favor the position though the facts are good? would it be better to put the facts out first then the rule, or the rule first and then the facts?

the test.
stating it favorably though accurately. the fourth amendment can only be said one way, but different interpretations over the years can be given in different ways (see p. 489)


"seizure is unlawful when..."
technique of not emphasizing the burden of proof is favorable context -- start with a vantage point to put in a positive response to paint an image of the resultant circumstance...


we have wiggle room because 1. rules of law are not soooo black and white and 2. balancing tests are built on ambiguity

see p. 413 for examples of how to use the language

under the main categories of the tests, there are additional factors the court would likely look at:

notice
             opportunity to decline: not taking the mode of transport, declining

methods/scope
             discretion of officers in deciding who to search
             how intrusive were the methods and did they become more intrusive?
             did the scope meet what the officers were supposed to be looking for?

duration -- how long did the whole process take?

we have flexibility in how many factors we break out and how we order them!!
you can also meld factors that are less favorable, but logically related.

see p.493 for analogous cases.
use general terms for similar cases, and specific terms for unsupportive cases
avoid beginning a paragraph with citation to a case: use the position of emphasis and take advantage of the reader's heightened attention.

don't give airtime to the opposition! 

signals in citation.

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)). 

legal writing: feb 3 2010

writing for a judge.

handbook chapter 14: writing for our audience (i.e., writing for the court)

what will a judge want to know?

- WARN act

- see jan 27 class notes

what will a judge not need to know?

- summary judgement motions

- waiver of defense

organizational form

- again, see jan 27 class notes: what courts have considered under the subj and obj parts

- organization won't be as the court requested, because that doesn't make sense for the way the *rule* works

- see p. 342 for ideas for roadmaps/signposts:

"there are three factors a court considers"

"there are two elements to the test"

"there are five factors..."

in determining whether 18 US s.2339B requires specific or general intent, the courts first look to the plain language of the stattue. if the plain language of the statute is ambiguous or would produce an absurd result, the courts then look at the statute's legislative history, the policies underlying the statute, and how other jurisdictions have interpreted the statute.

the roadmap is laid out by the "if --> then" language

the signposts are laid out by the overarching concepts/areas of exploration

what makes a sentence strong?

1. keeping the subject and verb close.

2. keeping the verb a status verb (looked, reversed, considered vs. is, has, was)

3. put old info in the beginning and new info at the end of a sentence (to link like a chain)

4. varied sentence length in a paragraph.

5. using the actor as the subject of the sentences.

6. parallelism

effective example of combination of active, passive and parallelism

"this court (active voice) does not believe this burden is that great in the typical case. often such an intent will be easily inferred (combination of parallelism and passive voice). for example, a jury could infer a specific intent (combination of parallelism and active voice) to further the illegal activities of a FTO when a defendant knowingly provides weapons, explosives, or lethal substances to an organization that he knows is a FTO because of the nature of the support...."

remember there's a word limit. so - how do we go about getting rid of surplus words?

see p. 346 for word limit revision

sentence 1

a. "the initial focus of statutory analysis is the plain meaning of the language of the statute itself." (17 words, 'focus' is weak subject, active voice but weak construction because not a status verb, 'statute itself' is an unnecessary intensifier)

b. "in analyzing a statute, the courts look first at the plain meaning of the statute's language." (16 words, but now 'courts' is a stronger subject, still active voice and 'look' is a status verb)

sentence 2

a. "as written, the plain meaning of 18 USC s.2339B does not require the gov't to demonstrate that a defendant possessed the mens rea of specific intent to support illegal terrorist acts." (31 words, 'mens rea' has a kind of legalese effect that doesn't convey information, nominalization of the verb 'intent' by saying "possessed the intention",

b. "in the present case, 18 USC s.2339B does not require the gov't to prove that a defendant intended to support illegal terrorist acts." (23 words, replaced 'to demonstrate' with prove, which is a better word because it is a precise word choice, )

sentence 3

a. "instead, the defendant violates the statute only if he or she "knowingly provided material support or resources to a foreign terrorist organization" with the "knowledge that the organization is a designated terrorist organization" or that the organization engages in terrorist activities."

b. "instead, the gov't need only prove that the defendant "knowingly provided material support or resources to a foreign terrorist organiation with the "knowledge that the organization is a designated terrorist organization" or that the organization engages in terrorist activities." (engages parallelism to the argument in explaining what the gov't must prove instead of focusing on the defendant's actions)

sentence 4

a. "the language does not state a requirement that the defendant must intend for the material support to contribute directly to a criminal terrorist act by the FTO."

b. deleted (is superfluous to the content of the revised version)

see conciseness beginning p.657

proofreading

see p.347

1. incorrect use of apostrophes.

2. dangling modifiers.

3. misplaced modifiers.

4. pronouns that don't agree with the noun.

5. lack of parallelism for items in a list.

6. comma splices

7. typos that result from relying on spell check.

8. overuse of "clearly"

9. incorrect or missing pinpoint citations!

10. incorrect or misusing citation signals

suggestion for parallelism practice -- line up the parts of the argument!

1. the trial court concluded that the agreement was

not only fair economically

but also procedurally fair

change to not only economically fair

but also procedurally fair

2. mr. park claims that the trial court's actions resulted in a property distribution that was

neither fair

nor was it equitable

change to neither fair

nor equitable

3. the jury is not to consider this evidence as

either proof of negligence

or as an admission of negligence on the part of the city

change to either proof of negligence

or an admission of negligence

4. heller did not object to the use of medical records evidence at

either the board hearing

or during the trial de novo

change to at either the board hearing

or at the trial de novo

memo

construction example

b. op purpose

courts have recognized that "shared purpose" is vague but that it must mean more than just shared business. cited case. in cited case, the employer operated several coal mines **should have explained how business was operated, and operated independently at each site**. etc. according to some courts, op purpose "may imply that non-contiguous sites have same op purpose"

citing bankruptcy cases

see rule 10.2.1(a)

roeder v. united steelworkers (in re old electralloy corp.), 162 B.R. 121 (Bankr. W.D. Pa.)

n.b. - see union names rule at 10.2.5

abbreviations review

D. Ct. 2004 --> D. Conn. 2004

see table T10

E.D.Mo. 1996 --> E.D. Mo. 1996

why? need a space between D and Mo

D.C. Cal. 1993 --> C.D. Cal. 1993

see table T6, or any other table on court names

why? there are multiple district courts in CA and the geographical initial modifies the district court, not the other way around

3rd Cir. 1996 --> 3d Cir. 1991

Bkrp. S.D.N.Y. 2001 --> Bankr. S.D.N.Y 2001

Bankr.D. Conn. 1994 --> Bankr. D. Conn. 1994

352 F.Supp. 1292 --> 352 F. Supp. 1292

15 F. 2nd 332 --> 15 F.2d 332

spacing rule is R6.1(a) on p. 72

circuit courts = F., F.2d, F.3d (must have Cir. for circuit in court name)

district courts = F. Supp., F. Supp. 2d (must have D for district in court name)

finally,

don't get confused about the good faith exception in the faltering company exception

don't make the mistake of quoting editorial content as a use of authority

counsel - not council, or use lawyer/attorney