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.
- Legal Writing and Analysis in a 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.
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Chapter 2. Legal Analysis 56 results (showing 5 best matches)
- If you have more than one issue in the case or problem you are addressing, you will need to decide the logical relationship of those issues. Committing your analysis to an outline may help ensure that your analysis is correct and comprehensive. Once you know the legal conclusion or conclusions to your issues, you are ready for large-scale organization of your legal document.
- Legal culture is conservative. Principles of legal analysis restrain the pace of evolution in the law. Our legal system grew out of the English Common Law in which the law was developed by judges deciding individual cases, not by legislatures writing statutes.
- 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.
- First, to understand what legal avenues will further your client’s interests, you must consider a question of law in a specific factual context. A solid grasp of the objective factual circumstances is an essential first step to legal analysis. Writing, outlining, or even simply listing the facts will help you keep them in mind as you research the relevant law.
- Consider downloading a complicated statute before you try to analyze it, then formatting it to make the chapters and sections of the statute more obvious. As you read the statute, highlight its different components. Strike through sections or paragraphs that are not relevant to your analysis. Annotate relevant components in track changes, putting the statutory language in your own words. This will help you to thoroughly understand the statute, an essential step in legal analysis.
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Chapter 3. Large-Scale Organization 18 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.
- The rule section of the paradigm can be several sentences, several paragraphs, or several pages, depending on the law’s complexity. You may extract or synthesize the law from primary legal authorities, likes statutes, cases, or regulations, and, in some instances, from secondary authorities, like treatises. The rule section may include statements, explanations, and illustrations of rules and legal principles. The rules and principles must be supported with citations to legal authorities. The application section includes your analysis of how the law applies to your matter or case and will take into account the arguments for all the parties to the dispute. Your analysis or argument will typically end with a brief conclusion.
- 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 1. Basic Steps to Legal Writing and Analysis 17 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.
- 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.
- The application of the law as you have synthesized it to the facts as you have assembled them will reveal the possible outcomes. There is never just one possible outcome. At this stage, you will need to identify the most likely outcomes, without ignoring any significant facts or relevant law. Chapter Two, Legal Analysis, discusses this step in more detail.
- When you have the facts in order and the law analyzed, the next step is a rough outline or synthesis chart. The details of this are discussed in Chapter Two, Legal Analysis, and Chapter Three, Large-Scale Organization.
- 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
- Legal Writing and Analysis in a Nutshell
- 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...
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Chapter 5. Language in the Legal Setting 20 results (showing 5 best matches)
- 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.
- You have now considered the word choices you will make as you draft your legal document. This is part of Step Five in the legal writing and analysis process. Your next task, as you write your first draft, is to write effectively in either an objective, advisory style or in a persuasive style, as an advocate. Chapters Six and Seven address advisory and persuasive writing conventions and techniques.
- 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.
- : The court may not abandon the traditional termination-at-will analysis for non-employment contracts in order to apply the reasonableness analysis.
- 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.
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Chapter 6. Advisory Writing 40 results (showing 5 best matches)
- . 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.
- This section contains your objective analysis of how the salient law applies to the specific facts of a problem. The senior lawyer who has requested the memorandum will most likely use it to make a decision about that problem. Therefore, while exploring the law in a general or abstract way may be appropriate in an academic paper, that approach is rarely the right one in an office memorandum. Instead, your analysis must be tailored to the particulars of the problem you have been asked to research and evaluate. Lawyers and other legal readers will also expect you to present your analysis by using certain conventions for structure and style.
- This section should be short. Answer each question in one sentence if possible. Cite legal authorities only if they are the crux of the problem. Even though the Brief Answers precede the Discussion, you often will wait to write these answers until after the Discussion is finalized, or nearly finalized, when you fully understand the problem’s analysis and conclusions.
- The purpose of an office memorandum is to explore the possible solutions to a legal problem. Exploration requires objectivity. In your role as an objective writer, you must explain the strongest and most likely arguments for each party in the dispute and then assess their relative strengths. You should express your analysis and conclusions objectively.
- In writing for a lawyer, you can take advantage of many shortcuts. Your reader will be familiar with the forms of legal analysis. See Chapter Two. She also will be familiar with many legal terms of art, freeing you from explaining or defining those terms. As you gain experience in law school and practice, you will develop a sense for how much you can assume your reader knows. But this shared knowledge isn’t a license to use obscure jargon, wander off on tangents, or fail to explain or provide logical connections between ideas because they seem obvious to you after your research. Your reader will expect you to communicate your analysis directly, clearly, and concisely in plain English.
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Appendix B. Individual Writing Analysis and Microgrammar 12 results (showing 5 best matches)
- This Individual Writing Analysis is designed to identify your writing habits based on a 500-word writing sample. For the exercise to work, you must choose a typical sample, not an unusually well- crafted one or an unusually poor one. Ideally, the writing sample will be from the discussion section of a legal memorandum or the analysis section of a brief. To begin, select a 500-word writing sample (roughly two typed pages) that reflects your normal, substantive writing style. Use a worksheet to record your analysis. A sample worksheet is shown below. This method of analyzing an individual writing style was developed to help practicing attorneys improve their writing.
- 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.
- INDIVIDUAL WRITING ANALYSIS AND MICROGRAMMAR
- INDIVIDUAL WRITING ANALYSIS
- The goal of this analysis is to identify writing habits. We often write automatically, using the same sentence structures and favorite forms of punctuation. Becoming aware of these habitual choices is the first step to greater control over clarity, precision, and effectiveness in your writing.
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Appendix A. Sample Legal Materials and Documents 11 results (showing 5 best matches)
- The legal rules included in the umbrella paragraph or section typically apply broadly to the Discussion’s analysis.
- Summarize and break down the court’s reasons for its holdings so that you can review the decision critically. The court’s analysis may be based on statutes, mandatory or persuasive case law, administrative regulations, legal principles or tests, analogies from other areas of the law, claims of fairness and justice, pragmatism, logical reasoning, intuition, morals, or other policy considerations. Identify dicta in the court’s reasoning. Concurrences or dissents may be listed here or in a separate section.
- Analysis of Second Issue or Sub-Issue
- (stating rules applying throughout Discussion’s false imprisonment analysis)
- SAMPLE LEGAL MATERIALS
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Index 13 results (showing 5 best matches)
Outline 17 results (showing 5 best matches)
Chapter 4. Small-Scale Organization 16 results (showing 5 best matches)
- 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
- Unlike place-fillers, simple enumeration, such as “First,” “Second,” or “Third,” provides useful information to your reader. For example, this device can identify the elements of a legal rule and help your reader see how those elements connect to the related points in your analysis or argument.
- In the single paragraph example in § 4.2.B above, the analysis was relatively simple, only requiring a sentence or two for each part of the paradigm. But a more complex analysis may require you to use multiple paragraphs or multiple paragraph blocks, especially in CRAC’s rule and application components.
- 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.
- Sarah Student’s analysis of Scott’s intent to confine Artie illustrates how CRAC can be used to organize a two-paragraph block. This sub-section’s opening sentence serves a dual function. First, the sentence states a conclusion that introduces the CRAC paradigm. Student could have styled that conclusion as a one-sentence paragraph.
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Chapter 10. Final Steps: Editing, Proofreading, Formatting Citations and Quotations 29 results (showing 5 best matches)
- Many of us edit by trying to tackle a wide range of writing problems at the same time. We simultaneously try to revise a section’s structure, fine-tune its legal analysis, hunt down extra words, tweak the parallelism in one sentence and the word choice in another, scan for typos, and format or reformat the citations.
- Finally, you have revised with an eye to brevity, clarity, and readability; edited to improve word choice, sentence structure, and overall effectiveness; and proofread to catch errors and ensure that your finished document is polished and meets all judicial or other requirements. Congratulations for meeting the exacting standards of our profession for legal analysis and writing.
- In practitioners’ documents, once you have quoted key legal language and supported that language with an appropriate citation, then you typically may incorporate that language into the analysis or argument without repeating either the quotation marks or the citation. However, you may choose to quote that language again or to repeat its citation. Adding quotation marks can remind the reader that the language is not your own, and adding a citation can remind the reader that the language came from a potentially controlling case. Follow the practice in your law school or legal office.
- You have now completed the Seven Steps we outlined for a clear, precise, and effective legal document. You have achieved your stated goal. You have addressed the appropriate audience. You have gathered the necessary facts and analyzed the relevant law. You have applied the law to the facts to reach logical conclusions. After outlining and organizing your analysis, you have written an objective or persuasive legal document that is clear and precise.
- 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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Appendix D. Selected Sources 25 results (showing 5 best matches)
- LEGAL RESEARCH AND ANALYSIS
- Legal Writing and Analysis
- Legal Problem Solving: Analysis, Research and Writing
- A useful source of inspiration for synonyms and associated legal concepts for more than 5,000 words in legal contexts.
- Legal Reasoning and Legal Writing: Structure, Strategy, and Style
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Chapter 7. Advocacy Writing 34 results (showing 5 best matches)
- Because legal readers—including judges—are busy and impatient people, and do not want to wade through the law before getting to the point of your brief, tell the reader the conclusion that you want the judge to reach up front. Then explain the law and apply the facts of your case to the law. This mode of analysis attends to the needs of the audience of the brief—the busy lawyer or judge—to understand the determinative issues first.
- 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.
- 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.
- If you need to include background information about the law, start the Argument section of your brief with an umbrella section. Explain the standard of review, the general legal test of the legal issue that is the subject of your brief, and ancillary rules such as which party bears the burden of proof, to provide a legal context for your arguments. You may also want to include background information about the law to persuasively frame your argument. For example, telling about the purpose of a statute or just a bit of history of the law, or including a particularly apt quote from the cases, might open your reader up to your arguments.
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Chapter 8. Sentence Design 18 results (showing 5 best matches)
- You are now ready to finish revision and editing of your first draft. You have a detailed outline, based on legal analysis of the issues and on an application of the principles of both large-scale organization and small-scale organization. You have guidelines for making effective word choices and sentence structures. You know how to construct the type of document you need, whether it will be advisory or persuasive.
- 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.
- To analyze the sentence structures and possible ambiguities in your own writing, see the Individual Writing Analysis in the Appendix.
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Chapter 9. Punctuation and Grammar 22 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.
- : Washington’s interest-analysis approach to choice of law problems result in the following holdings.
- : Washington’s interest-analysis approach to choice of law problems results in the following holdings.
- The punctuation section in this chapter covers those rules most commonly needed in legal writing. The rules receiving greatest emphasis are those that prevent ambiguity and that save the reader from having to reread for comprehension.
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Appendix C. Glossary of Words Commonly Misused in Legal Writing 22 results (showing 5 best matches)
- 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.
- Analysis of the idea suggests that the Washington court would allow disclosure
- GLOSSARY OF WORDS COMMONLY MISUSED IN LEGAL WRITING
- Every legal writer should regularly consult a standard usage text. This glossary is not intended as a substitute. Rather, it is intended as a law-oriented supplement to standard references such as those cited in the Selected References at the end of this
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Copyright Page 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.