What Are You Trying to Say? A Guide to First-Year Legal Writing

Claire C. Robinson May ©2006-2018

Part I. Orientation to the Study of Law

A. Orientation to the Law School Environment

Welcome to law school. Your past experiences and accomplishments have,

one way or another, led you to this place, where you will study the law and learn to

think like a lawyer. Congratulations! Your next great accomplishment will be

learning how to survive – and even thrive – as a law student.

The law school environment may be unlike any academic environment you

have previously encountered.1 In college, for at least some classes, you could

probably just do the reading and then sit back and relax in the lecture hall. As you

may have gathered, law school is not like this. You are expected to participate

actively in your own education.2

The following are some characteristics typical of law school instruction.

1 Then again, at times it may remind you of high school. When was the last time you had a locker for your books? 2 This is not to say that undergraduate education does not require active involvement. Usually, however, students

find that the level and type of participation required of them in law school is unique.

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1. Socratic method

In the Socratic method, the professor uses questions to elicit analysis

and learning by the students, rather than presenting the materials through a

pure lecture format. The professor usually calls on students at random or

based on a prearranged system, rather than relying on volunteers. Some

professors tell their students ahead of time when they will be “on call.”

Others do not. Some professors permit students to “pass” if they are not

prepared, but passing may carry a penalty.

A great deal of law students’ anxiety can be attributed to the Socratic

method. Everyone is nervous at the prospect of being called upon in front of

his or her peers (it helps to remember that you are all in the same boat).

However, the Socratic method is highly effective because it requires students

to become actively engaged in the material they are studying. Research

shows that active learning results in greater retention of information than

passively listening to a lecture. Responding to a professor’s questions on the

spot also teaches the important lawyering skill of being able to think on

one’s feet. In addition, paradoxically, shyer students may actually become

more comfortable participating in class when they do not have to volunteer

in order to join the discussion.

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2. Grading students on a curve in relation to each other

Grading on a curve is another source of law student stress. Law

school and many legal employers emphasize the importance of class rank,

that is, one’s academic standing among his or her classmates at the end of

the academic year or upon graduation. Professors often assign individual

exam and course grades based upon a predetermined grade distribution,

rather than a straight scale. These unfortunate facts of law school life cause

some students to become overly concerned with how their classmates are

doing in school, instead of focusing on doing their own best work.

3. Voluminous reading assignments

Simply put, law school coursework requires a lot of reading. Not only

is the reading voluminous, but also students must read closely, carefully, and

critically in order to be prepared to participate in class and perform well on

exams. This type of reading involves more time and effort than a quick late

night perusal of the assigned pages.

You will learn to engage in active studying, whether alone or in a

study group, in which you really analyze what you read and apply it. You

will be reading primarily cases in your other classes. Your professors will

expect you to understand the cases you read and be able to apply the rules of

law you find in those cases. You may be asked to discuss what a better rule

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of law might be, or the greater implications of the rule as it stands. It is a

good idea to practice this type of analytical reading of the cases yourself or

with your study group.

4. Exams worth a large percentage (sometimes 100%) of

course grade

In the traditional law school model, the final exam is worth 100% of

the course grade. Although many professors now incorporate smaller

assignments, quizzes, midterms, and projects into their syllabi, exams still

usually count for the largest percentage of a course grade in most cases.

Some professors will give a sample exam to allow students to test their

knowledge and to allow the professor to explain his or her expectations for

the graded midterm or final. Academic support personnel and others will

provide workshops on how best to prepare for exams and minimize exam

stress.

5. Outlining as study method

Outlining is a method used by law students to review their courses and

study for exams. An outline is a summary, in outline form, of the legal

concepts and cases covered in a particular course. Commercial outlines

(those prepared by various publishers) are available, but there is no

substitute for creating your own outline. Preparing the outline is part of the

study process. Students may type or handwrite, include examples and

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sketches, and otherwise personalize their outlines to best fit their individual

learning styles.

The usual recommendation is to begin outlining sooner rather than

later in the semester. Individual students may differ in when and how they

choose to outline. Once a student creates her outlines, she studies those

outlines to prepare for her exams. Academic support personnel at your

school can provide more information and suggestions about outlining.

6. Study groups

Many, but not all, law students choose to join a study group. Study

groups, of course, are groups of students who choose to meet regularly to

study for one or more of their law school courses. Many students find an

advantage in sharing different perspectives and insights on their courses.

Some students prefer to study on their own, and that is a perfectly acceptable

approach to law school as well.

7. Time consuming and challenging legal writing assignments

First-year law students everywhere would probably agree that their

legal writing and research course requires the greatest time commitment of

all of their classes.3 At first glance, the large amount of time consumed by

3 At some schools, the credit hours for legal writing reflect the greater input of time required, but at others,

the credits do not accurately reflect the time commitment needed to succeed in a legal writing course.

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legal writing does not make sense. Why should this class take so much time

when there are other courses that are actually about the law itself?

The answer (biased, perhaps) is that legal writing is easily one of the

most important and practical law school courses you will take. Every year,

lawyers in practice tell my students that the skills they learn in legal writing

are the skills they will actually use. Not every lawyer becomes a contract

lawyer or a criminal attorney. Not every lawyer deals in real estate matters

or torts. But every attorney communicates in writing, whether she drafts

wills, contracts, motions, or appellate briefs. Nearly every attorney performs

legal analysis of some kind, using the skills he or she first practiced in legal

writing class.

Legal Writing poses a particular challenge to the first-year law

student. In Legal Writing, you will learn the language and methods of the

law. You will learn to research in legal sources, and analyze and apply the

law. You will learn to write about the law, both to predict how a particular

situation will come out under the law and to advocate for the result you

want. You will learn to cite to legal sources in a format unlike the citation

used in undergraduate or other graduate fields. Unlike many of your other

classes, in Legal Writing you have to produce finished written products long

before you have exams in your other courses. Put bluntly, Legal Writing is a

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lot of work. (Ask any second, third, or fourth year law student who has been

through it.)

You will need a strong work ethic and good study practices to get

through all of this. Take advantages of the resources available to you. Go

see your professors and ask questions. Join a study group if you like

working with others and think it will help you better understand the

materials in your classes. Use the mentoring and academic assistance

programs available to you. Set time aside for Legal Writing projects,

without sacrificing your performance or attendance in your other classes.

A healthy attitude is essential. Half of surviving law school is

attitude. If you know law students who are overly competitive or try to

undermine your confidence, avoid them and find better friends. Don’t go in

for the competition. You’re all in this together. Each one of you should

focus on doing the best you can do. Don’t worry about anybody else.

Finally, remember your life outside of law school. Remember your

family and friends outside of law school. Success in law school may be

important to you, but don’t forget the other things, because sometimes they

are more important.

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Discussion Exercise

Please be prepared to discuss your answers in class.

Think about your personal work and study habits. For example, are

you a procrastinator or do you plan ahead? Do you prefer to work with other

people or by yourself? Make a list of ways in which you can optimize or

improve your studying in law school. (For example: Join a study group, or

set aside an hour before work each day to review yesterday’s class notes.)

What kinds of scheduling adjustments will you need to make? How can you

make sure that the rest of your life does not fall by the wayside? What

resources - at school or in the outside world - might you be able to take

advantage of in order to make your plan work?

B. U.S. Legal System and Sources of the Law

1. Branches of Government

The United States government has three branches, the legislature, the

executive, and the judiciary. Through a system of checks and balances,

these three branches share the power of our government. Most state

governments follow a similar structure. Note that the United States

constitution reserves certain rights of self-government to the states under the

principles of federalism.4 Thus, when studying law, you must be aware that

4 As you progress in law school, the importance of federalism will become clear. One of the first questions

you are likely to ask yourself for any research project is whether the issue is governed by state or federal

law.

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there are two parallel legal systems: the federal government with federal

courts, and the state governments with state courts.

a. Legislature

The role of the legislature is to create the laws. Article I of the

Constitution of the United States establishes the legislative branch of our

government, known as Congress. Congress is made up of two parts: the

Senate and the House of Representatives. Each state elects two senators to

the Senate. Therefore, in the Senate, each state has equal representation.

The House of Representatives is made up of representatives elected from

each state. The number of representatives each states is allotted is based

upon population. Therefore, the more populous states have more

representation in the House than less populated states.

Bills first introduced in either the House or the Senate may become

law if enacted by both chambers. The President may veto legislation passed

by Congress, but Congress may override his veto with a two-thirds majority

vote.

b. Executive

As established in Article II of the Constitution, the President is the

executive of the United States government. The executive branch also

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includes executive agencies established by the President, such as the

Department of Labor and the Department of Homeland Security.

The role of the executive branch of government is to execute and

enforce the laws. The President also has some law-making powers, through

executive orders and entering into international treaties.

In addition, Congress delegates some of its rule-making powers to

federal agencies, giving agencies the task of drafting the regulations

necessary to put complex federal laws into effect. Some federal

administrative agencies also have their own courts, giving them a judicial

role as well.

c. Judicial

Article III of the Constitution establishes the Supreme Court. The

Constitution also grants Congress the power to create such other courts as it

deems necessary. Congress has done so by creating the federal district and

appellate courts. Federal judges are appointed by the President, and must be

confirmed by Congress.

The judicial branch’s role is to interpret the law. As one of the first

Constitutional law cases you will read memorably states, the court’s role is

to say “what the law is.”5 Recurring debates in U.S. politics about “activist

5 Marbury v. Madison, 5 U.S. 137, 177 (1803).

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judges” reflect disagreements about whether judges are interpreting existing

law or overstepping into a legislative role.

While the legislature makes law, it is the courts’ responsibility to

determine whether enacted laws are constitutional – that is, whether they

comply with the U.S. Constitution as the supreme law of the land. However,

federal courts only decide cases actually before them and do not issue

advisory opinions. Therefore, a federal court will not announce that a law is

unconstitutional unless a case challenging that law is properly before the

court. As part of the Constitution’s system of checks and balances, if the

Supreme Court of the United States declares a law unconstitutional, only a

constitutional amendment will allow such a law to stand.

2. Organization and Hierarchy of Federal Courts

Article III states, “The judicial power of the United States shall be

vested in one supreme Court, and in such inferior courts as the Congress

may from time to time ordain and establish.” Congress has seen fit to

establish other courts, of course. In the federal system, the lowest level

court is federal district court. There are 89 federal districts in the 50 states,

plus additional districts in U.S. territories and possessions. There are a total

of 94 U.S. judicial districts.6 In some states, such as Vermont, there is only

6Source: uscourts.gov

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one district for the entire state. In other states, such as Ohio, there is more

than one district.

Congress also established federal courts of appeals. Federal courts of

appeals are divided by circuits. There are thirteen judicial circuits. They

are the numbered circuits: the First Circuit, Second Circuit, and so on up to

the Eleventh Circuit. Congress also established the District of Columbia

(D.C.) Circuit as well as the Federal Circuit. Each Circuit has a court of

appeals. For example, Ohio is in the Sixth Circuit. That means that the

losing party in a decision of the United States District Court for the Northern

District of Ohio can appeal to the United States Court of Appeals for the

Sixth Circuit (presuming there are grounds for appeal).

The highest court in the federal system is the United States Supreme

Court. The United States Supreme Court only consents to hear a small

fraction of the appeals made to the Court. When the Supreme Court agrees

to hear a case, it grants certiorari. If the Supreme Court declines to hear a

case, it has denied certiorari, and the ruling of the lower court stands. Cases

from the U.S. circuit courts of appeal can be brought before the Supreme

Court. In addition, the Supreme Court has original jurisdiction over limited

categories of cases. The Supreme Court may also hear appeals from state

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courts, but only if the state court decision encompasses a federal question,

such as whether a state law is constitutional under the federal constitution.

Discussion Exercise

Please be prepared to discuss your answers in class.

Long before the United States Supreme Court decision in Obergefell

v. Hodges7 in 2015, granting the right to same-sex marriage under the

federal Constitution, the issue of same-sex marriage arose in state court

proceedings. When the Supreme Court of Massachusetts ruled in 20038 that

the Massachusetts constitution would not allow gay couples to be denied the

right of civil marriage, why didn’t traditional marriage advocates appeal that

particular ruling to the U.S. Supreme Court? Do you think such an appeal

would have been successful? Why or why not?

3. Sources of the Law - Common Law and Statutes

Law can be categorized as either statutory or common law. Statutory

law includes enacted law such as constitutions, administrative regulations,

and statutes.

Constitutions are the most authoritative statutory law. When you hear

that a law is unconstitutional, that means that it does not comply with the

U.S. Constitution. Since the Constitution is the highest statutory law, an

unconstitutional law cannot stand. 7 135 S. Ct. 2584 (2016). 8 Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

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Administrative rules and regulations are another form of statutory law.

Administrative agencies pass rules and regulations based on the authority

they have to do so under statute. Administrative agencies are generally

contained within the executive branch and engage in rulemaking with

authority granted by the legislative branch. Administrative rules and

regulations also exist on both the state and federal levels.

When we think of statutory law, we usually think of the laws passed

by the legislature, both on the federal and state levels. These statutes are

compiled into codes, which are organized by topic. When you hear non-

lawyers talk about "the law," they are often referring to statutes. Certainly, a

great deal of law is contained in statutes. But much of our law is not

created by the legislature at all.

The other source of the law is court cases or court opinions. Court

opinions form what is known as common law. The United States has a

common law legal system. Under a common law system, the opinions

written by courts become part of the body of law. Every time a court writes

an opinion, that opinion becomes law, and may influence not only the parties

in that case, but the parties in future cases as well.

Generally speaking, most of the cases you will read in law school will

be appellate court cases. There are a couple of reasons for this. First of all,

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appellate court opinions carry more weight - they have more precedential

value - than trial court opinions. Second, trial courts often do not write

opinions. A trial court has to write an opinion in certain cases, for example

when ruling on a motion for summary judgment. Usually, however, trial

court proceedings do not result in a written opinion.

In a common law system, court opinions become part of the law. In

some instances, courts interpret statutory law - constitutions, administrative

regulations, or statutes. In those cases, the court's interpretation of the

statute becomes part of the body of law that may be referred to by future

litigants concerned with that law.

Other cases present pure common law doctrine. For example, in most,

if not all states, the statute books will not include a statute for ordinary

negligence. If it is not in the law books, where did this law of negligence

come from? Negligence is a court-created doctrine, the result of common

law. Common law builds on itself, through the principles of precedent and

stare decisis.

C. Precedent and Stare Decisis

In order to understand the common law system, it is important to

understand precedent and stare decisis.

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1. Precedent

Precedent is the case law that came before - the cases preceding your

case.9 Since we live in a common law system, each court must look to the

relevant precedents in order to decide the case before it. Likewise, when

you are researching and analyzing a legal issue, you will have to look to the

precedent cases to predict how they might apply to your case. Again, this is

true even if you are operating under a statute, because there will be case

precedents interpreting the statute. Those cases become part of the relevant

body of law. That case law builds on precedent is a defining characteristic

of the common law system.

2. Stare Decisis

The whole common law system rests on a principle called stare

decisis. Stare decisis is Latin for “to stand by things decided.”10 Decisions

stand and become part of the law. Courts in their decisions must follow

what earlier courts did.

Thus the law is predictable and when change does occur, it is intended

to be well reasoned and deliberate, not haphazard. Think about how stare

9 Note the spelling: precedent or precedents, not precedence. 10 BLACK’S LAW DICTIONARY 1443 (8th ed. 2004). Black’s Law Dictionary defines stare decisis as, “The

doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the

same points arise again in litigation.” Id.

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decisis contributes to a stable society. What if every judge could just do as

he or she pleased?

Of course, the decision does not always stand, and sometimes

decisions are overruled, such as when the court determines that the earlier

decision was wrong. But the underlying principle of stare decisis means that

those instances should be rare. To preserve the rule of law in a common law

system, the decision must stand.

Discussion Exercises

Please be prepared to discuss your answers in class.

Think about historic or groundbreaking U.S. Supreme Court cases you

may have learned about in your previous education or by following the

news. Can you think of any instances in which the Supreme Court overruled

a previous decision? If you have trouble thinking of any cases, ask a

librarian to help you brainstorm or perform internet research. What were the

cases about? Why do you think the Court changed its mind? Under what, if

any, circumstances do you think the Court should overrule precedent?

Should stare decisis be absolute? Why or why not?

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D. Understanding a Case Through Briefing

A law school case brief is a special type of summary of a case.11 Law

students create case briefs in order to understand the cases they read. Case

briefing serves a number of valuable purposes. First, briefing the cases you

read will help you focus on the structure of the opinion and the thought

processes used by the judge. Briefing teaches you to read a case carefully

and critically. Second, case briefing will help you prepare for classes in

which your professors may call upon you to discuss a case. Your case brief

will serve to refresh your memory about the case. Third, case briefs are

useful when the time comes to create a course outline and study for semester

exams. Fourth, case briefs, although generally for your eyes alone, are a

form of legal writing. You can practice making your briefs clear and

concise, while making sure to include all of the relevant information needed.

A case brief usually includes the following components, with some

variation depending upon your professor or personal preference. As you

gain experience briefing cases, you will likely develop your own style of

briefing. Upper level law students often “book brief” their cases, meaning

they do not draft a separate brief, but instead write notes about the case and

11 A case brief is not the same as a brief that a lawyer files with a court. The second use of the term “brief”

means a memorandum of law and argument, in which an attorney advocates for his or her client’s position

to the court. You will have the opportunity to draft such argument briefs later in this course.

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its components in the margins of their textbook. While you may eventually

choose to do book briefs, it is important to learn and practice preparing full

case briefs before trying to take any shortcuts. (In addition, full briefs are

much more likely to be useful to you at exam time than notes in the margins

will be.)

A word of caution: Make sure that you are reading the majority

opinion of the court. The majority opinion precedes any concurring or

dissenting opinions, and usually states that it is the opinion “of the court,”

even if it is authored by a single judge. In contrast, concurring and

dissenting opinions are not the opinion of the court as a whole, and cannot

be binding precedent. You will want to note any concurring or dissenting

opinions in your brief, but the issue, holding, rule, and rationale must all

come from the majority opinion.

Case Brief Components

1. Case Name

For example, Brown v. Board of Education, or Bush v. Gore.

2. Citation

The citation of a case tells where a case may be found. Here is an

example of a citation, including case name:

Bowers v. Hardwick, 478 U.S. 186 (1986).

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As you will learn, this citation tells you that the case entitled Bowers v.

Hardwick may be found in volume 478 of the case reporter called the United

States Reports, beginning on page 186. The citation also informs the reader

that the U.S. Supreme Court decided the case in 1986.

Don’t worry about understanding every part of a citation just yet. The

rules for legal citations are set forth in The Bluebook: A Uniform System of

Citation (now in its 20th edition).12 As you progress in legal writing, you

will become expert at deciphering citations. For now, remember to include

the citation in your case briefs.

3. Court

Include the name of the court that decided the case. For example:

U.S. Supreme Court.

4. Date of Decision

Include the date the case was decided, not when it was argued.

5. Parties to the Case

What individuals, groups, or entities are parties to the case? Also,

include the party designations: who is the plaintiff and defendant?

Party designations can be tricky. In a civil case, the person or entity

bringing a lawsuit is called the plaintiff. The party defending against a civil

12 Some law schools use the ALWD Manual instead of the Bluebook. This is another recognized citation

manual for legal writing. Use the citation manual your legal writing professor advises you to use.

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lawsuit is called the defendant. In a criminal case, the party bringing the

case is the state, meaning the government. The party defending is still called

the defendant.

Once a case is on appeal, courts refer to the parties as appellant and

appellee. The appellant is the party who brought the appeal. That means

that either the plaintiff or defendant could now be known as the appellant.

The appellee is the party against whom the appeal has been brought. In

simple terms, the appellant lost and the appellee won in the lower court case.

When briefing cases, it is a good idea to note which party was the

plaintiff and which was the defendant in the original case. Then determine

which party brought the appeal.

6. Nature of the case: civil or criminal

You may wish to note whether the case is a civil matter, where

damages or an injunction is sought, or a criminal case, in which penalties

such as imprisonment are available.

7. Procedural history

The procedural history is the story of the case’s journey through the

courts. How did it get here? What motions and court rulings have occurred

in the case so far?

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8. Facts

Include a brief summary of the facts of the case relevant to the court’s

decision. It is not necessary to include every fact mentioned in the opinion.

Try to determine which facts are most important to the case.

9. Issue

The issue is the question that was before the court in the case you are

briefing. What question was the court asked to answer? Try to state the

issue as clearly as possible.

10. Holding

The holding of a case is the court’s answer to the specific issue. How

does the court answer the question in relation to these parties in this

situation?

11. Rule

The rule of a case is the general rule or overarching principle served

by the holding. It is a more generalized statement of the holding. If you

state the holding in a way that could be applied more broadly – beyond the

parties to this case – that is the rule.

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12. Rationale

The rationale is the reasoning employed by the court in making its

decision. Do not overlook the importance of understanding the court’s

rationale. For every case you read and brief, you should be able to

communicate the issue, its resolution (holding and rule), and the rationale

leading to the court’s decision.

13. Concurrence (if any)

A judge files a concurring opinion when she agrees with the result of

the majority opinion, but not with its rationale. Note any concurring opinion

and the concurring judge’s reasoning.

14. Dissent (if any)

A judge files a dissenting opinion when he disagrees with the majority

opinion. Note any dissenting opinion and the dissenting judge’s reasoning.

15. Other Comments

If you wish, include any of your own thoughts, comments, criticism,

or policy concerns raised by the case.

For all the above explanation, most briefs really should be only one or

two pages long, at the most. Try not to rewrite the entire case in your brief.

Instead, create a summary you can easily use. After briefing the case, test

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your own understanding of the case by explaining the case out loud to

someone.