Legal Writing and Analysis in a Nutshell
Authors:
Bahrych, Lynn / Merino, Jeanne / McLellan, Beth
Edition:
5th
Copyright Date:
2017
22 chapters
have results for Legal reasoning
Appendix A. Sample Legal Materials and Documents 16 results (showing 5 best matches)
- Reasoning (also called Rationale).
- You may note any rules that the court applied to decide the case (sometimes called “inherited rules”) either in a separate section here or in the reasoning section below. You may also include any legal principles coming out of the case (sometimes called “processed rules”).
- What do you think was really going on? Was anything missing from the court’s explanation of its reasoning? Was the court’s reasoning persuasive? Why or why not? Is the case good for your client? How would the rule in this case be applied to the case you are analyzing?
- A formal case brief typically includes these elements: (1) case name and citation; (2) procedural history; (3) facts; (4) issues; (5) holdings; (6) rules; and (7) reasoning. You may add your own notes and observations. Include page numbers to avoid duplicating your efforts at a later stage.
- Reasoning
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Appendix D. Selected Sources 24 results (showing 5 best matches)
- Legal Reasoning and Legal Writing: Structure, Strategy, and Style
- A useful source of inspiration for synonyms and associated legal concepts for more than 5,000 words in legal contexts.
- Association of Legal Writing Directors & Coleen M. Barger,
- A concise and widely used paperback guide to general writing. Useful as an introduction to popular discourse; parts of the style section not helpful for legal writing.
- Reviews the history of plain language in legal writing, explains the cost-savings to the profession, and makes a convincing case for simplicity.
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Chapter 2. Legal Analysis 58 results (showing 5 best matches)
- Legal readers typically expect an analysis of the law to proceed deductively, but lawyers often reason inductively. Inductive reasoning draws a general rule from specific cases. If the rule is not clearly stated in a case or a statute, you may be able to glean a principle of law inductively by inferring from multiple cases a rule that is difficult to see from just one case. Some judicial opinions are written inductively. Instead of leading with the general principle of law (the rule), the courts reason by explaining individual cases and then telling the rule that it infers from the cases at the end.
- Deductive reasoning is sometimes referred to as top-down reasoning because it starts with a general rule and then draws a conclusion using the specific facts of a case. In law, this deductive analytic structure is referred to by the commonly-used acronyms “IRAC” and “CRAC.” As discussed in more detail in the next chapters, IRAC stands for Issue-Rule-Application-Conclusion and CRAC stands for Conclusion-Rule-Application-Conclusion. In this text, we generally recommend the CRAC paradigm, which tells your reader the legal conclusion that you reach first, before setting out the rule and the facts.
- The legal writing process starts with legal analysis. Before you start writing, you must decide what legal issue or issues you need to analyze to solve a particular problem. Lawyers don’t usually analyze the law in the abstract. More commonly, a lawyer must understand what legal remedies or defenses are available to address a client’s case, how the law would answer a specific legal question given a particular factual situation, or how a change in the law might affect the rights and responsibilities of a client or a class of people.
- Law students and lawyers also use shorter, informal variations on the classic case brief. Highlighting and annotating opinions in casebooks—so-called “book briefing”—readily translates to judicial opinions printed out on a hard copy or in an electronic format. Some legal readers compile annotated case lists that organize short squibs of pertinent cases. Distilling key information, case squibs may include material facts, specific holdings, and the most important aspects of the courts’ reasoning. An annotated case list may be
- When you’re in law school or working as a summer intern or associate in a law firm, your supervising attorney may tell you what specific legal issue to analyze. But clients don’t usually consult a lawyer for an answer about a particular legal issue. They consult a lawyer to solve a problem. The lawyer’s job is to figure out the legal issue.
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Chapter 7. Advocacy Writing 40 results (showing 5 best matches)
- The purpose of a legal brief is to win your case or your motion. A winning brief will (1) demonstrate that your argument is either required or permitted by the law, (2) motivate the judge or clerk by showing that the result you seek is fair, (3) engage the reader with a succinct, precise, and compelling style, and (4) follow the conventions of legal writing unless there’s a good reason to depart from them.
- The most significant difference between a legal memorandum and a legal brief is the tone. You will argue forthrightly in a legal brief. The purpose of the brief is to argue for your client. You shouldn’t be shy about stating your position.
- The major point headings should each be stated in terms of the standard that the court will use to decide the question and should include the conclusion you want the court to reach and the supporting reason. If a point heading that includes these three parts would be too long, consider stating the supporting reason in a subheading.
- Start by reviewing the record of the case and your legal research. Follow the process outlined in Chapters Two and Three to decide which facts in the record are significant and which legal arguments to advance. Then outline the Argument section of the brief.
- When you write a brief, all of your choices are rhetorical, aimed at convincing a judge to adopt the position of your brief. Thus, when you describe the law, you will focus your discussion of the law to elaborate on the issues in your case. Indeed, a brief is about a concrete legal dispute, not about the law in the abstract. And that’s a good thing, because reading about a concrete legal dispute is more interesting than reading about a legal abstraction.
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Preface 4 results
- Professor Marjorie Rombauer was a celebrated founder of the field of Legal Writing in the law school curriculum. She combined the specialized discipline of legal writing with legal research and analysis to create a new approach to teaching basic legal skills to first-year law students. Her pioneering work and popular legal textbooks have made her an icon in the fields of legal research, analysis, and writing. We have followed in her footsteps, building on her legacy to our profession, by adding legal analysis to this edition of the Nutshell.
- In addition to Lynn Bahrych, the authors of the current edition are Jeanne Merino and Beth McLellan, legal writing instructors at Stanford Law School. Jeanne Merino is Lecturer in Residence and Director of the First-Year Legal Research and Writing Program. Beth McLellan is Lecturer in Residence. Jeanne and Beth are indebted to all former and current colleagues who have taught Legal Research and Writing and Federal Litigation at Stanford. Each of them so generously shared ideas about legal writing that their insights have become our own. Many thanks also to the participants of the 2015 West Coast Rhetoric workshop hosted by UNLV.
- reflected the combined efforts of the late Professor of Law Marjorie D. Rombauer, Emerita, and Legal Writing Associate Lynn Bahrych Squires, Ph.D., now Lynn Bahrych, attorney at law. Published in l982, the first edition grew out of their collaborative efforts teaching legal writing and research at the University of Washington School of Law from l978 until l982.
- Legal Writing and Analysis in a Nutshell
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Appendix C. Glossary of Words Commonly Misused in Legal Writing 33 results (showing 5 best matches)
- is often superfluous in the statement of a reason, as in this sentence:
- This word accounts for much fuzzy legal writing. It has been used to refer indefinitely to entire paragraphs of a preceding discussion. It has been used to refer to ideas, arguments, reasoning, or things not previously mentioned. Avoid such indefinite references by following the simple rule never to use “this” without adding a word that
- in relation to a civil fault is incorrect. In non-legal usage charge with a fault or an offense.” In legal usage it has been limited to charging a crime.
- is spelled without the middle “e” in American legal materials, although use of that “e” (“judgement”) is an accepted variant spelling in English legal materials and in other settings.
- is an adjective meaning “dull, insensitive in perception or imagination, slow to understand.” A lawyer’s reasoning may be
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Chapter 6. Advisory Writing 32 results (showing 5 best matches)
- Tailor the level of formality to your client and maintain that level throughout the letter. Don’t begin with “Dear Charlie” and close with “Very truly yours, Bickerstaff, Edgewater, and Ransom.” Don’t try to impress your client by using obscure reasoning, legal jargon, or hyperbolic expressions, like “preposterous on its face.” Eliminate stilted or verbose language, like “a date certain,” “purports to know,” or “with matters in this recumbent posture.” Remember that your client is paying for this letter and expects to have his or her time and intelligence respected. Here are some examples.
- Identifying the questions presented (or “the issues”) is the key to analyzing any legal problem. Sometimes the legal questions will be specified by the person who requests the memorandum. But more often, you must slowly identify these key questions as you research, analyze, and reflect about the problem.
- Generally, the Discussion’s rule statement is comprised of the legal principles for an area of law, moving from broad to narrow. You will extract or synthesize these legal principles, also referred to as “rules” or “subrules,” from the range of legal authorities, including statutes, regulations, and case law. See, for example, the sample memorandum’s first umbrella paragraph at the beginning of the Discussion that describes the broad rule for false imprisonment.
- You also must prove that the law is what you say it is with legal citations. Follow the practice in your law school or office. See more about using legal authorities and citations in Chapters Two and Ten.
- . Unless you are writing a formal opinion letter, leave out analytical details, like case analysis, and legal citations. For most clients, citations will be indecipherable. Before including this technical legal information, ask yourself whether your client will want or will understand it.
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Chapter 10. Final Steps: Editing, Proofreading, Formatting Citations and Quotations 29 results (showing 5 best matches)
- You came to law school from another academic discipline with an existing set of writing skills, including the editing process you used to polish the essays in your successful application. Now you must elevate that process to satisfy your new and demanding audience. Your quest will begin almost immediately in your first-year legal writing class where, for pedagogical reasons, your teacher will often ask you to play the difficult role of self-editor. Ideally, when you practice law, a colleague will also have reviewed your documents and suggested edits before they are sent out to your ultimate audience. Meanwhile, here are some tips to help you find the editing process that will work best for you.
- are 560 and 608 pages long, so we can’t begin to cover the details here. Although the vast majority of legal research is now done electronically, the content of most legal citations still reflects the way legal research was done “back in the day”—in paper books. Furthermore, the rules in these guides aren’t limited to legal citations. They also contain rules about how to style a document’s text and how to cite to other materials like court records. With these caveats, some basics should help you think about the process for formatting documents.
- Does the quotation state key legal language that articulates an important part of the legal rule?
- Law students typically must provide a sample of their legal writing when they apply for jobs in both the public and private sectors of our profession.
- The golden rule for when to quote in legal writing is the same rule that governed the writing you did before law school. When you use language that is not your own, you must communicate that fact to your reader by putting that language in quotation marks and by supporting that quoted language with a citation. For practitioners’ documents, including memoranda and briefs, the golden rule applies to language in the full range of legal materials, including cases, statutes, regulations, and secondary sources like law review articles. In using case law, this rule is not limited to the court’s legal analysis. It also applies to the court’s statements about the procedural history and facts.
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Chapter 3. Large-Scale Organization 13 results (showing 5 best matches)
- Legal readers expect legal analysis or argument to follow certain patterns. Legal readers are smart, but they are busy and often must read quickly. They must have enough information to exercise an independent judgment about whether your conclusion is sound. Following expected analytical patterns helps a legal reader know where she is going and keeps her on track. Knowing where a Discussion or Argument is going also helps your busy reader absorb and scrutinize your analysis or argument after reading it once.
- Some legal writing teachers don’t use the terms IRAC or CRAC to refer to the expected patterns in legal writing. But we do agree that, more often than not, legal readers expect you to begin an analysis or argument with a conclusion and to explain the law before you analyze or argue how that law applies.
- Within the Discussion or Argument, legal issues and sub-issues will typically suggest a logical structure. We recommend that you use legal issues as large-scale organizing principles rather than cases or other individual authorities. Organizing case-by-case is usually not effective because that structure makes your reader work harder to understand how the pieces of your analysis or argument fit together.
- Ordering legal issues, or sub-issues, by following the structure of the pertinent legal rule or test can provide a logical analytical framework for a Discussion. Our sample research memorandum in Appendix A applies this principle.
- For issues that require applying law to facts, the expected pattern begins with either a statement of the legal issue or conclusion, followed by a summary of the pertinent legal rule and by an analysis of how that rule applies to the facts. The pattern ends with a short legal conclusion. The basic pattern is sometimes referred to as IRAC (issue-rule-application-conclusion) or CRAC (conclusion-rule-application-conclusion). If you follow the CRAC paradigm, your organization will be syllogistic in which you “prove” your conclusion from major premises (the rules) and minor premises (the facts).
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Chapter 5. Language in the Legal Setting 21 results (showing 5 best matches)
- For new legal writers, reading the Glossary will be a good way to become sensitive to language in the legal setting. Experienced legal writers will also find useful explanations for frequently misused words, such as “affect” and “effect,” discussed in the Glossary.
- Clear, precise, and effective use of language is fundamental to legal writing. As Justice Scalia observed, “Lawyers have only one tool: language.” To use language effectively, each word must be intentional and precise. Each word must be necessary. Brevity is not only the soul of wit, but also essential in every form of legal writing.
- Legal writing must serve a variety of audiences, from lay readers to appellate judges. The tone, style and extent of analysis must be varied to serve each reader’s needs. Often legal writers collaborate with others, requiring that styles and tones be matched in the final document.
- In the Appendix, we have provided a glossary of words commonly misused in legal writing. It contains specific advice about using common legal terms precisely. For example, the Glossary begins with the common word “above”:
- Concrete words such as “split decision” are easier to understand than abstractions such as “judicial dichotomy.” Legal writers are likely to use abstract, overblown language in part because many of the cases that law students read during their first year reflect an older, overstuffed style that is relatively easy to imitate. Legal writers must resist the old style.
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Chapter 1. Basic Steps to Legal Writing and Analysis 14 results (showing 5 best matches)
- This chapter describes our step-by-step method of legal writing and analysis, as illustrated in the flow chart below. The chart describes the process of legal problem solving for the legal writer. The individual steps are more fully explained in the chapters to follow.
- For excellent guidance on legal research, see Morris L. Cohen & Kent C. Olson,
- Depending on the possible outcomes, you may need to do further legal research or fact gathering. Fact gathering and legal research is often an iterative process. The more you understand, the more you may need to know.
- Conclusions normally come first because most types of legal writing provide answers to legal questions. Most readers want to know the answers immediately. This includes clients reading opinion letters and judges reading briefs. Therefore, answers should usually be given first, before supporting analysis or discussion.
- Your first task is to identify your goal. This seems easy and self-evident, but it is surprising how often we begin a writing project with only a vague idea of our goal. Write down your goal or goals. This first simple step will give you clarity and focus, providing a touchstone throughout the writing and analysis process. Are you communicating legal advice to a client? Are you summarizing current legal authorities for an attorney? Are you crafting a settlement agreement? Are you persuading a court to do something specific? Know precisely what your goal is before you begin.
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Introduction 3 results
- The Fifth Edition offers legal writers a practical step-by-step method of both analyzing and writing clearly, precisely, and effectively about the law. Although, as we have noted, the means of written communication continually change, the basic elements of effective legal writing have not changed. Whether the legal writer is crafting an email, a letter to a client, or a brief for a trial court, the same fundamental principles apply. Legal writing requires attention to accuracy, attention to the reader’s needs and expectations, and attention to the craft of writing precisely, concisely, and effectively.
- The chapters that follow will guide the legal writer to a reliable set of practices that will insure successful written communication about the law. Chapters One to Ten explain the traditional elements of written composition, from organization of a legal document to individual word choices. The most common forms of legal writing, the research memorandum, client letter, and persuasive brief, are discussed in Chapters Six and Seven. Guidelines for writing emails are included in Chapter Six. Tips for editing and polishing your documents are given in Chapter Ten. You will find sample documents in Appendix A, including a case brief, a research memorandum, and a brief for a trial court. Appendix B provides you with a simple method of analyzing and improving your personal writing style. For readers wishing to improve their understanding of the structure of the English language, diagramming of sentences is also included in Appendix B. A glossary of words commonly misused in legal writing is...
- Legal Writing and Analysis in a Nutshell
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Appendix B. Individual Writing Analysis and Microgrammar 11 results (showing 5 best matches)
- Identify the topic sentences in each paragraph. Count the number of paragraphs that begin with the topic sentence. Ninety percent of your paragraphs should begin with the topic sentence. For those paragraphs that do not open with the topic, identify the reason for delaying it. Is the reason sufficient given the reader’s expectation and need to know the topic immediately?
- As discussed in Chapter 8, the average sentence length for legal writing should be 20–25 words per sentence. This is longer than the recommended sentence length for general expository writing because legal writing is inherently more detailed than non-technical forms of writing.
- For each use of passive voice, identify the actor or agent. Determine the reason for removing or subordinating the actor or agent. For a review of active and passive voice, see Chapter 8.
- Count the number of sentences containing negative statements. Count any double negative structures, for example, “not without reason.” Determine the percentage of sentences containing one or more negative statements or structures. Whenever possible, write in positive terms. Avoid double negatives, which slow your reader’s comprehension and may be misread.
- Identify the reason for each paragraph break: logical division, rhetorical effect, or visual effect. If you have no rhetorical or visual paragraph breaks, try using them for emphasis.
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Chapter 9. Punctuation and Grammar 23 results (showing 5 best matches)
- Legal writers must have full command of punctuation and grammar. Punctuation tells the reader how to read a sentence or paragraph. Thus, the legal writer must punctuate precisely in order to control meaning. A misplaced comma, for example, can result in misreading by a judge, another lawyer, or a client.
- The most common punctuation questions in legal writing are addressed here. For a complete review of by William Strunk and E.B. White, which may be used with a few caveats. For technical writing, such as legal writing, a few of Strunk and White’s rules of usage must be modified, as discussed below.
- Use a semicolon to separate two independent clauses if you have a good reason to keep them in the same sentence. Separate, shorter sentences are often more effective than a longer one stitched together with a semicolon.
- (1) date of entitlement or (2) month following 6-month absence for medical reasons.” (emphasis added)
- There is no reason to try this case.
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Copyright Page 1 result
Chapter 8. Sentence Design 23 results (showing 5 best matches)
- The reader expects the subject to come first. If it does not, then the reader must remember all the words that precede the subject until the subject appears. Non-legal professional writers place something before the subject in only 25 percent of their sentences. Legal writers do so 50 percent of the time. Try to limit the number of non-subject sentence openers that you use.
- In general, passive voice is more useful and customary in legal writing than in other forms of professional or technical prose. In persuasive forms of legal writing, passive voice provides a useful tool for shifting emphasis.
- Keep this general rule in mind: If a reader must reread a sentence in order to determine what modifies what, then the sentence is poorly constructed and should be rewritten. A charitable reader will be able to sort out most ambiguous modifiers. The legal writer cannot, however, rely on the charity of legal readers. If any two lawyers are asked the meaning of a sentence with an ambiguous modifier, they may give the same interpretation if they consider the sentence in the abstract. Their answers may differ, however, if they must consider the sentence from the viewpoints of clients with conflicting interests.
- Subject and verb should be kept as close together as possible. As English speakers, we understand the subject and verb only as a unit, that is, neither subject nor verb is fully processed until the other is discovered. Keep verbs and objects close together for the same reason. Help with identifying your verbs and objects may be found in the Micro-grammar in the Appendix.
- If the ideas are closely related, identify the relationship and choose the right connecting word. The conjunction “and” is almost never the right connecting word because it has no specific substantive meaning. It functions like a plus in mathematics: it adds two things together without giving a reason.
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Index 10 results (showing 5 best matches)
Outline 15 results (showing 5 best matches)
Chapter 4. Small-Scale Organization 11 results (showing 5 best matches)
- A third reason for paragraph breaks is for visual effect. We can deliberately vary paragraph length or location to draw our reader’s eye to particular points in our analysis or our arguments.
- for two reasons
- Like the design for a Discussion or an Argument at the large-scale level, legal readers expect certain patterns at the paragraph level. For example, they expect each paragraph to be unified around a single topic, theme, or thesis that will be clearly stated in that paragraph’s first sentence.
- We design paragraphs to create: (i) logical divisions, (ii) rhetorical effects, and (iii) visual effects. These purposes often overlap. In legal writing, paragraphing typically should reflect logical divisions. Our analysis or arguments depend on
- This paragraph’s unifying topic is the legal issue regarding the length of time that Sarah Student’s client was confined. The topic is introduced in the paragraph’s first sentence, stating Student’s conclusion. Each additional sentence develops the topic, following the order of the CRAC paradigm. Like a period that ends a sentence, the last sentence of the paragraph closes the topic.
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Dedication 1 result
- Publication Date: February 17th, 2017
- ISBN: 9781634602815
- Subject: Legal Writing
- Series: Nutshells
- Type: Overviews
- Description: This book provides a ten-step guide to clear, precise, and effective legal writing and analysis for both law students and experienced lawyers. It gives the keys to writing legal memoranda and briefs, organizing analysis, crafting clear and concise sentences, using legal language accurately, using grammar and punctuation properly, writing persuasively using classical rhetorical techniques. The book describes a method for analyzing and improving individual writing style includes a sample analysis. It also includes new material on using plain English and new legal documents to illustrate effective writing techniques.
