The Writing Process

1. The Writing Process Drafting the Discussion (pt. 1 Rule Explanation) - Professor Mathis Rutledge

2. Today’s Goal: The Discussion • But first, some pointers . . .

3. The Assignment Process • Get the necessary details • Timing is Everything – plan well • What’s the deadline • What is the format • Desired length (billable hours) • Any special information (case, file, contact person) • Consider an Outline or just write

4. Timing • Goal is to produce a professional document that is • Well written • Well reasoned • Well edited

5. Clean-up (Editing) • After analysis & drafting don’t forget check citation & the PUGS • P – punctuation • U – usage • G – grammar • S – spelling

6. Quoting • Common problem –excessive • Distracting • Limits your own reasoning • When to quote • Rarely • When you have THE perfect passage that is especially well written

7. But • Keep legal terms of art • Don’t rephrase just to avoid redundancy • Consistency is important for legal terms • Keep the “phrase that pays” • Use quotation remarks around first instance only • Statutory language should be precise • Quote the pertinent information early (usually in the overview section)

8. Language of the Law • Found – finding of fact: • the jury found the purse was worth more than $200 • Ruled – the court’s decision: • the court ruled that the evidence was admissible • Held – the court’s holding: • the appellate court held that the trial court had not erred in granting the plaintiff’s summary judgment motion. • See course handout H-80

9. Tense • Present tense – current rules of law • Past tense – actions of courts and parties • Keep formality • Don’t refer to client or other parties by first name. Don’t confuse plaintiff & defendant • Stay away from colloquial language

10. The Memorandum • To • From • Re • Question Presented • Brief Answer • Statement of Facts • Discussion • Conclusion

11. Organizing - the Big Picture • Overall organization is by topic - the claim • Your entire discussion is an analysis of the claim, organized by issue • If the client has 2 claims, discussion has 2 main sections • I. Introduction - overview paragraph (CR) • II. Body (discuss claim) • A. Thesis Paragraph - CR • B. Issue One - EAC • C. Issue Two

12. The Big Picture • Organize around the issues the claim raises, not individual cases • Issues found • court opinion, statute, synthesized rule, vague rule extracted from factors

13. Organizing the Discussion • Paragraph on Rule of Law - CR (overview or thesis paragraph) • Paragraphs on Case Law - Explanation • Paragraphs on Application Precedent - Analysis/Application • Paragraphs on Counter-arguments • Conclusion

14. Memo Discussion Template • Overview Paragraph (elements) • Thesis Paragraph • Conclusion about an element • Rule determining when element satisfied • Explanation (rule support) paragraphs • Application/Analysis paragraphs (case comparisons) • Restate Conclusion

15. Discussion Blueprint • A. (CR) Introduction - Overview Paragraph • ultimate conclusion or prediction, law - elements; undisputed issues, disputed issues • B. (CR) Body - Thesis Paragraph - first issue • conclusion or prediction, rule for first issue, factors or legal definitions used for the element, (1 transition/application) • (E) Disputed Element 1, topic sentence • explain prior cases dealt with issue and applied element; • give facts, reasoning relevant to that issue • (A) topic sentence - How analogous cases relate to your case (case comparisons) Discuss opposing arguments • (C) - tie it together, restate & give prediction • C. (CR) Thesis Paragraph - second issue

16. Overview Paragraph • State your conclusion • Some writers prefer starting with the rule of law and stating the conclusion at the end of the overview paragraph. Either approach is acceptable, but for this assignment, begin with the conclusion. • Describe the elements or components of the rule of law • Identify elements that do not present issues under the client’s fact situation • Identify elements at issue

17. Overview/Umbrella Paragraphs • Describes the rules components • Unnecessary if rule only has one element • If dealing with a law that has a single element, write a thesis paragraph that includes a description of the rule

18. Give the conclusion and rule • Dorfman has a successful claim against Bonn for intentional infliction of emotional distress (IIED). To state a cause of action for IIED, the plaintiff must allege facts proving these three elements: 1) the conduct involved must be truly extreme and outrageous; 2) the defendant either intended to inflict severe emotional distress or knew that there was a high probability that its conduct would do so; and 3) the defendants conduct actually caused severe emotional distress.

19. Undisputed Elements • Dealing with Non-Issues: Get them out the way early • Explain why the element is not in dispute • Not always necessary, depends on the complexity of the issue • Can be accomplished in a few words • Provide a transition to discuss the disputed elements

20. Examples • There is no real dispute that Arnold “knowingly” entered the Stripe’s garage, or that his entry was “without authority.” Whether the garage is a “dwelling place” is more problematic.

21. Non-Issues & Issues • The second element of intent is met in this case. Liability extends to situations where there is a high probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it. Public Finance Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976). Bonn knew eating Dorfman’s fish would cause him severe emotional distress because Dorfman suffered a nervous breakdown after Bonn had eaten his fish years before. The first and third elements, proving Bonn’s conduct was extreme and outrageous, and that Bonn caused Dorfman to actually suffer severe emotional distress are still in dispute.

22. In our case, both sides will agree that the first element, that the person giving consent be a party to the communication, is not in dispute. In each of the phone calls at issue, Johnson was one of the parties involved in the call. Thus, the only element that is in dispute is whether Johnson gave prior consent.

23. CR – thesis paragraph • Overview paragraph for a particular issue or element • State the conclusion, and BRIEFLY explain why • Summarize the rule of law and factors the court will consider

24. Thesis Paragraph • Thesis paragraph is a roadmap for a specific issue • answer the question: how the issue will affect your client • Why is your conclusion sound • Summarize the rule of law, factors the court will consider • The rules of law and factors will serve as a roadmap for the reader

25. In determining the severity of the emotional distress, the courts consider factors such as the intensity and duration of the distress. McGrath, 533 N.E.2d at 812. Dorfman has suffered an intense nervous breakdown. He has been in the hospital since the day of the incident and a prominent psychologist has concluded that Dorfman shows signs of serious depression. The court will likely find Dorfman’s emotional distress sufficiently severe.

26. Using Roadmaps & Transitions • A roadmap gives the reader an overview of the document. • Transitions tell the reader where they are, what to expect, and how the pieces are connected. • Example: Ms. Johnson can make four arguments. First, she can argue that . . Second, Ms. Johnson can argue that . . .

27. Thesis Paragraph Exercise

28. Topic Sentences • Topic sentences are roadmaps and can serve as transitions • You can use a court’s holding to develop a topic sentence. • Topic sentences • Introduce the topic • Assert something about the topic • Ex: In determining whether service was proper under Fed. R. Civ. P. 4(d)(1) courts have considered several other factors. • Compare to: The next thing I am going to discuss is . . .

29. Drafting Topic/Thesis Sentence • Why are you using that particular case? • What principle are you using the case to illustrate? • The answer to these questions should be reflected in your topic sentence • Roadmap, gives the main point of the paragraph

30. CREAC – an improved IRAC • Conclusion – state your conclusion about the issue • Rule – state the applicable rule of law • Explanation – Explain the rule • Application – Apply the rule to client’s facts • Conclusion – Restate your conclusion

31. CREAC Discussion • CR- Paragraph(s) on Rule of Law - (overview or thesis paragraph) • E- Paragraph(s) on Case Law - Explanation • A-Paragraph(s) on Application Precedent - Analysis/Application • Paragraph(s) on Counter-arguments • C- Conclusion

32. CReac – conclusion/rule • Overview Paragraph • Your choice – start with rule or conclusion • Describe rule components or elements • Identify non-issues • Identify elements at issue • Thesis Paragraph • Conclusion about specific element • Relevant factors

33. crEac- Rule Explanation • Two parts: State the Rule & Explain It

34. Rule Explanation pt. 1 – State the Rule • Most basic sense – set forth the rule – the “black letter law” • Where it comes from – jurisdiction, court • Can be from several sources (synthesized) or from one source (one case or statute)

35. Pt. 2 – Explain the Rule • Case description • Show how applied to a set of facts • Include essential facts, holding and reasoning

36. Goals in Rule Explanation • Educate reader about prior cases • Give detailed case description • Provide foundation for your analysis

37. Primary Components of Rule Explanation • Thesis sentence • Legally relevant facts of the case • Court’s rationale and holding

38. Component 1-Thesis Sentence • A sentence that presents the main point. Sentences that follow explain this sentence in some way. Example • The owners must use a structure for activities associated with living quarters for the structure to be classified as a dwelling. [Cite] One of the factors from the synthesized rule

39. Rule Explanation • Where analogous cases introduced • Before describing, set out the rule or point the case is illustrating • The proximity of the structure to the primary residence is also a relevant factor. In McIntyre, for example, when holding that the porch • In the cases in which the courts have held that the plaintiff consented to the interception, the defendant had told the plaintiff that all of his or her phone calls would be intercepted. For example, in Griggs-Ryan v. Smith, the defendant

40. Component 2-Legally Relevant Facts Select the facts that relate to that particular factor and give only as much information as necessary to understand the court’s holding – • In McIntyre, the owners used a screened porch for “sitting, eating and cooking.” They ate their meals on the porch in the summer and cooked meals there during the winter. [cite]

41. Component 3 – Rationale & Holding Give only the part of the holding and rationale that relates to that particular factor • The court held that the porch was a “living quarters” under the Statute, reasoning that the owners’ use of the porch for “sitting, eating and cooking” made it “part of the living quarters” of their home. [cite]

42. Rule Explanation • Focus on the rule, not individual cases • Cases are just examples of how the rule was applied • They show when the rule’s requirements were met or not

43. Common Mistakes in Rule Explanation • Mixing explanation with application • Do NOT discuss client facts in the rule explanation section • Focus on the rule itself

44. Length of Rule Explanation • Coverage should match coverage in rule application section • Length varies • Could be single paragraph explaining a few simple cases • Could be multiple paragraphs, using a case to explain a different aspect of the rule • Paragraph number is irrelevant

45. Choosing Cases for the Explanation • Which case (cases) best illustrates the rule or factor • Seminal cases may be needed to cite the general rule, but may be unhelpful in explaining the rule

46. creAc- Rule Application/Analysis • Analyze the client’s issue in light of the precedent • Make an argument (both sides) based onfacts, precedent, policy concerns, and common sense • Also 2 parts: Lawyering Part • Why a court may rule in client’s favor • Why a court may rule in opponent’s favor • (legitimate reasons)