Gilbert Law Summary on Legal Research, Writing & Analysis
Authors:
Honigsberg, Peter Jan / Ho, Edith
Edition:
13th
Copyright Date:
2019
17 chapters
have results for writing
Chapter Eleven. Legal Writing and Analysis—Basic Guidelines 111 23 results (showing 5 best matches)
- You are writing for a particular reader. You may be taking an exam, writing a memorandum of law for an attorney, or writing a memorandum of points and authorities for a trial judge. The paper may be on the same subject in all three cases, but the writing will be different. Keep in mind the purpose of your writing and your audience.
- Good writing is a result of good thinking. Fuzzy writing means fuzzy thinking. Unless you have thought it through you begin writing, your writing will likely be more fuzzy than clear.
- In all professional areas, and perhaps especially in law, people can be so involved with using professional jargon in their writing that they pay more attention to terms than to meaning. A knowledge of terms is certainly helpful, but it is never a substitute for clear and precise writing habits.
- Many people think as they write. They work on the assumption that they will “revise” their draft afterwards. After all, how difficult will it be to just move a few paragraphs around on the computer? The problem is that people often find themselves revising their draft over and over again. And in many situations, no matter how many drafts you work through, you can never really transform a poorly written document into a well-written one. So finally, with time pressing, you just accept what you have and move on.
- If you identify with this experience, you might want to try outlining the problem before you begin writing. No matter how much you hated it in school, outlining is really quite simple, and once you become comfortable with it, you’ll be amazed at how easy it is. Just think and outline first; then write. You’ll see the difference.
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Chapter Three. Cases 17 6 results (showing 5 best matches)
- After a federal or state appellate court or supreme court decides a case, it usually issues a written opinion explaining the decision. (Trial courts may also issue a written opinion, but usually only federal district courts do.) Our system of precedent depends upon these written opinions. In an attempt to maintain the illusion of consistency, judges need to compare their reasonings with those of other courts dealing with similar factual situations. Lawyers, too, in preparing their cases, need to know how other courts have dealt with similar problems.
- Another reason for including every principle of law is to minimize the chance of error by a West editor who, in writing the headnotes, may have erred in understanding the case. It happens. Lawyers often argue over the holding or meaning of a case, one or perhaps both attorneys misunderstanding it. Moreover, it may not even be the editor’s fault. Judges themselves at times do not comprehend what they are writing; certainly few, if any, are masters of all the legal matters appearing before them. Nor do judges always make themselves clearly understood.
- Unfortunately, people do not always use these headnotes for the purpose designed. They sometimes rely on them for an understanding of the case. Rather than read a decision to determine what a case said, the person will read only the headnotes preceding the case. This can be disastrous. The editors who wrote the headnotes do not discriminate between those principles of law that are directly involved in reaching the decision and so become precedent, and those that are merely advisory or helpful to the judges in analyzing and discussing the case. The first set of principles are
- Official reports, state or federal, also publish summaries and headnotes. These are usually written or supervised by judges or clerks of the court but are not keyed into the West system. (Occasionally, an official report will have headnotes linked to a digest published by the same publisher.) More importantly, these headnotes do not try to include every principle of law stated in the case. The writers tend to stick more closely to those that are directly related to the actual facts and decision of the case, but here too the headnotes will include dicta. So with official reports, we also advise you to read the entire decision and take nothing for granted.
- Each reporter has an accepted abbreviation. There are two proper sources for citing any legal authority, the Association of Legal Writing Directors’
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Chapter Fourteen. Writing a Memorandum of Points and Authorities or Brief 133 13 results (showing 5 best matches)
- A summary of the argument or brief answer is designed to provide the reader with a quick review of the points and arguments that you will be making. It is usually written in terms of the facts of the problem. It essentially has the same purpose as a brief answer in a memo of law, and like the brief answer, it is prepared after you have written your argument. The summary of the argument or brief answer is sometimes omitted.
- An argument is prefaced by a heading or “point” written in capital letters. The heading should be written as a complete sentence and should be stated in terms of the facts of your case. In effect, it answers your question presented. A point heading is basically a statement of the principle of law that you want the court to adopt for the facts of the situation. It should also include a reason in support of the principle. (Headings to each argument also appear in the table of contents, if you write one.)
- If you are writing a memorandum of points and authorities or a trial brief, the facts have not yet been established by a court and, therefore, you have more flexibility in choosing which facts to include and emphasize. After you write the argument (
- (This memorandum of points and authorities was written and edited by members of the Legal Research, Writing and Analysis Program at the University of San Francisco School of Law. Special thanks to Stuart Sutton, Cristina Morris, Ellyn Moscowitz, and Rochelle Wirshup.)
- This memorandum of points and authorities was written and edited by members of the Legal Research, Writing and Analysis Program at the University of San Francisco School of Law. Special thanks to Stuart Sutton, Cristina Morris, Ellyn Moscowitz, and Rochelle Wirshup.
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Chapter Nine. Reading and Understanding a Case 83 12 results (showing 5 best matches)
- No matter how long and detailed the facts are in a case, you can usually filter them down to a few sentences. People who begin writing briefs usually write too many facts. Remember, a brief is only an outline; someone who is interested in every detail can always go and read the case.
- There are several times when you should brief a case. The first and most important is to help you understand what is going on. It is to this concern that we have written this chapter.
- To help illustrate the writing of a brief, we will work with a simple set of facts from a fictitious case:
- The issue is presented as a question of law. It may be written in terms of the particular facts of the case, or in general terms. In our example, the issue in specific terms would read: Can the tenant withhold his rent until the landlord repairs the toilet? In general terms it might read: Can a tenant withhold his rent until the landlord brings the place up to a habitable condition?
- The problem with writing an issue in general terms is that it may reach too far. For example, in our case what is habitability? Does a broken stove mean the place is uninhabitable? What about a broken shelf or broken drawer? Because cases are interpreted in different ways by different lawyers and judges, a general issue has much more chance of being inaccurate or misleading.
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- You should begin your client letter with a short introduction. The introduction would indicate that you are writing to keep the client abreast of the case, or that you are writing in response to a question or concern raised by the client. You can also set out the issue or issues that you will respond to or analyze in this letter.
- The tone of a client letter is very important. Since it is written to a layperson (unless your client is an attorney), your tone will be more informal than it would be if you were writing the same information to a supervising attorney. You do not need to cite any legal authorities in your letter, although sometimes attorneys will cite relevant statutes. If you have an attorney for a client, or perhaps a client who likes to research the law, you may want to refer to cases and other authorities as well.
- Often, attorneys will provide informal opinions to their clients over the phone, in conference calls, or in person. However, there are times when attorneys will write opinion letters to their clients. The purpose of a client or opinion letter is to inform and advise the client about the case. The letter may respond to a particular concern raised by the client, or it may be a more general assessment of the situation. The letter may offer strategy as well as an opinion on the law.
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Introduction and Approach xiii 6 results (showing 5 best matches)
- In reassessing their law school curricula, many law faculties have upgraded their legal research and legal writing classes by adding more serious writing exercises and offering more oral presentation programs. Many of these courses are now given equal unit weight with such basic building blocks as contracts and torts.
- The writing and analysis skills section begins with Chapter Eleven. You will find chapters discussing how to brief a case, how to use legal indexes and tables of contents most efficiently in searching through legal sourcebooks, and how to organize the fruits of your research in a systemized way using the Honigsberg Grid. We have also provided suggestions for writing a clear, well-presented paper—a paper that a grader, lawyer, or judge would appreciate reading. Chapters Thirteen and Fourteen present formats for analytical and persuasive writing pieces and provide examples of each.
- However, in the past decade, law school administrators have been reevaluating the needs of law students and have begun instituting more practice-oriented programs. The law faculties have come to realize that law schools have an obligation to effectively instruct their students in basic lawyering skills, including: (i) researching and drafting objective writing pieces such as a memorandum of law or client letter; (ii) researching and drafting persuasive writing pieces such as a memorandum of points and authorities, brief in support of a motion, demand or negotiation letter, trial brief, or appellate brief; and (iii) presenting an oral argument before a judge or jury.
- We trust that you will find this book a useful contribution to your understanding and development of basic legal research and legal writing skills.
- Law schools have also supplemented their basic research, writing, and analysis courses with more advanced practical classes such as those in client preparation and counseling, mediation and negotiation, trial litigation, and appellate advocacy. Clinical courses in family law, criminal law, environmental law, immigrant rights and refugee law, and civil liberties and civil rights are offered in many schools. Many law teachers have also adopted more creative teaching methods utilizing computers and audiovisual tools.
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- A memorandum of law is designed to provide a “neutral” or “balanced” approach to the law. It is an analytical document often written for a partner, senior associate, or single practitioner by an associate or law clerk. The attorney receiving the memo then uses it in preparing a case. The memo may be written in preparation for a meeting with the client, for negotiating with a party, or for a settlement conference. Thus, the writer needs to provide a clear presentation of the
- (This memorandum of law was written and edited by members of the Legal Research, Writing and Analysis Program at the University of San Francisco School of Law. Special thanks to Stuart Sutton, Cristina Morris, Ellyn Moscowitz, Rochelle Wirshup, and Jean Allen.)
- Are the questions written in a neutral tone?
- Since there are usually two sides to a legal problem, your evaluation will probably not be written in absolute, certain terms. Rather, it will be an educated judgment of the issue(s) involved and the resolution of the issue(s). If you think the opposing party has a stronger case
- facts that may be of use later when writing a memorandum or brief to a judge (
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- Have you ever wondered how an index is written? Probably not. However, a good indexer—one with organization, imagination, and insight—can make the difference between an inadequate index and one that successfully foresees how people will be using it and the keywords they will be considering.
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- Finding all the appropriate authorities relevant to your case is not all there is to effective legal research. You need to organize the fruits of your research—the cases, statutes, regulations, and other authorities—in a coherent, easy-to-review manner. The more efficiently you organize, the sooner you will be able to begin writing.
- After you have filled in the squares, you will be able to see at a glance which issues are discussed in which cases and how the cases size up with each other. You can then write your memorandum or brief working right off the grid.
- the reporter, you would write in the appropriate box a few keywords reflecting what
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Index 181 11 results (showing 5 best matches)
Capsule Summary 6 results (showing 5 best matches)
SummaryofContents 5 results
Chapter Five. Secondary Sources 49 4 results
- Treatises may be one volume, but most often they are multivolumed. They may review a broad tract of law like contracts or torts, or just one aspect of the law like landlord-tenant issues, insurance law, or medical malpractice. They may be written to cover the entire country or just one state. A local treatise will naturally be more precise and complete, being fitted to your state’s law. Examples of the various kinds of treatises are included in the Appendix. Also be sure to check the library catalog under the subject you are researching.
- Law reviews and journals are largely published by law schools. The articles and notes are written by professors, attorneys, and students. Private companies and associations may also publish legal journals and periodicals (
- Legal blogs may provide the most up-to-date legal commentary available. Thousands of law blogs (often referred to as “blawgs”) are online, with many focusing on a specific area of the law or on practice in a particular jurisdiction. They may be produced by law professors or practitioners and can be hosted by a law school or firm, but note that not all are written by experts. The best use of a law blog is to check for recent developments in the field you are researching. To find one, try the
- The attorneys general of the United States and the states write opinions interpreting statutes and giving other legal analysis. Usually, a state official or a legislator has requested the opinion. The opinions are only persuasive, but courts often follow them. You can find references to attorney general opinions in the annotations to the codes. Most of the states and the federal government publish the opinions. Both LexisNexis and Westlaw have databases with federal and state attorney general opinions. Also, for the United States Attorney General opinions and comments check the Department of Justice website (
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- The annotations are written by editors of the publishing company. They are sentences or short paragraphs similar to (and often the same as) the headnotes to cases. The advice given earlier not to rely on headnotes to tell you what the case held also applies to annotations. The annotations are helpful only in leading you to the cases; they cannot accurately show you how the statute was applied to the factual situation in the case. You must read the case for that.
- Since constitutions write of broad matters in general terms, most of your everyday research will not involve constitutional provisions. But you should always keep the possibility in mind, since a constitution takes precedence over a statute. If, for example, you were interested in the federal law on jury trials in criminal cases, you would check both the federal statutes and the Sixth Amendment to the United States Constitution from which the right originated, as well as the accompanying annotations.
- ...and people who draft legislation do not always foresee all the problems the legislation as written might raise, it is not uncommon to find people disagreeing on the interpretation of a statute. For example, assume Congress had passed a law saying that gasoline can contain no more than 0.5 of a gram of lead in each gallon. An oil company executive might interpret this to mean that the level of lead can be as high as 0.549 grams per gallon, for when rounded off to the nearest tenth, it is still 0.5. A consumer advocate concerned with the health of children will, however, argue that the level may not be higher than 0.500. If a case concerning this issue arose in a court, the judge would have to decide what Congress actually had intended when it adopted the law. The judge might draw upon the “plain meaning rule” and interpret 0.5 as it is generally understood. But more likely she would research the legislative history of the Act. The types of questions the judge will want answered...
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- ...a principle of law stated in a certain headnote, whether dicta or holding, you need only check those citations in the citing material that have the same superior number. Shepard’s editors will only include the headnote number when the reference made to the principle stated in the headnote is clear. Thus, sometimes the superior number is more helpful as an elimination device of those principles in the case with which you are not concerned, rather than as an exact finding device. Be wary when using superior numbers to narrow your search. Editors who wrote the headnotes may have misread the case, or the judge who cited the case as authority may have erred in understanding the problem. Also, a case may imply more than it says—it may, for example, overrule an earlier case by implication—and an editor needing to keep a conservative interpretation will not be able to provide an appropriate notation to signal this situation. When in doubt, read the citing case to be sure it does or...
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- Publication Date: June 24th, 2019
- ISBN: 9781642426724
- Subject: Legal Writing
- Series: Gilbert Law Summaries
- Type: Outlines
- Description: This outline covers court systems, precedent, case reporting system (including regional and state reporters, headnotes and the West Key Number System®, citations, and case finding), statutes, constitutions, and legislative history, and secondary sources (including treatises, law reviews, digests, and restatements). Also discussed are administrative agencies (including regulations), Shepard's Citations®, KeyCite, legal research using computers, including Westlaw, Lexis, and other online sources, reading and understanding a case (including briefing a case), using legal source books, basic guidelines for legal writing, organizing your research, writing a memorandum of law, writing a brief, and writing an opinion or client letter.
