The Writing Process

Drafting the Discussion (pt. 1 Rule Explanation)

- Professor Mathis Rutledge

Today’s Goal: The Discussion

But first, some pointers . . .

The Assignment Process

Get the necessary detailsTiming is Everything – plan well

What’s the deadlineWhat is the formatDesired length (billable hours)Any special information (case, file, contact

person)Consider an Outline or just write

Timing

Goal is to produce a professional document that is

Well writtenWell reasonedWell edited

Clean-up (Editing)

After analysis & drafting don’t forget check citation & the PUGS

P – punctuationU – usageG – grammarS – spelling

Quoting

Common problem –excessiveDistractingLimits your own reasoning

When to quoteRarelyWhen you have THE perfect passage that is

especially well written

But

Keep legal terms of artDon’t rephrase just to avoid redundancyConsistency is important for legal terms

Keep the “phrase that pays”Use quotation remarks around first instance

onlyStatutory language should be precise

Quote the pertinent information early (usually in the overview section)

Language of the Law

Found – finding of fact: the jury found the purse was worth more than $200

Ruled – the court’s decision: the court ruled that the evidence was admissible

Held – the court’s holding: the appellate court held that the trial court had not

erred in granting the plaintiff’s summary judgment motion.

See course handout H-80

Tense

Present tense – current rules of lawPast tense – actions of courts and

partiesKeep formality

Don’t refer to client or other parties by first name. Don’t confuse plaintiff & defendant

Stay away from colloquial language

The Memorandum

To From Re

Question PresentedBrief AnswerStatement of Facts

DiscussionConclusion

Organizing - the Big Picture

Overall organization is by topic - the claimYour entire discussion is an analysis of the

claim, organized by issue If the client has 2 claims, discussion has 2

main sections I. Introduction - overview paragraph (CR) II. Body (discuss claim)

A. Thesis Paragraph - CRB. Issue One - EACC. Issue Two

The Big Picture

Organize around the issues the claim raises, not individual cases

Issues foundcourt opinion, statute, synthesized rule,

vague rule extracted from factors

Organizing the Discussion

Paragraph on Rule of Law - CR (overview or thesis paragraph)

Paragraphs on Case Law - ExplanationParagraphs on Application Precedent -

Analysis/ApplicationParagraphs on Counter-argumentsConclusion

Memo Discussion Template

Overview Paragraph (elements)Thesis Paragraph

Conclusion about an elementRule determining when element satisfied

Explanation (rule support) paragraphsApplication/Analysis paragraphs (case

comparisons)Restate Conclusion

Discussion Blueprint A. (CR) Introduction - Overview Paragraph

ultimate conclusion or prediction, law - elements; undisputed issues, disputed issues

B. (CR) Body - Thesis Paragraph - first issue conclusion or prediction, rule for first issue, factors or legal

definitions used for the element, (1 transition/application) (E) Disputed Element 1, topic sentence

explain prior cases dealt with issue and applied element; give facts, reasoning relevant to that issue

(A) topic sentence - How analogous cases relate to your case (case comparisons) Discuss opposing arguments

(C) - tie it together, restate & give prediction

C. (CR) Thesis Paragraph - second issue

Overview Paragraph

State your conclusion Some writers prefer starting with the rule of law and

stating the conclusion at the end of the overview paragraph. Either approach is acceptable, but for this assignment, begin with the conclusion.

Describe the elements or components of the rule of law

Identify elements that do not present issues under the client’s fact situation

Identify elements at issue

Overview/Umbrella Paragraphs

Describes the rules componentsUnnecessary if rule only has one

elementIf dealing with a law that has a single

element, write a thesis paragraph that includes a description of the rule

Give the conclusion and rule

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

Undisputed Elements

Dealing with Non-Issues: Get them out the way early

Explain why the element is not in disputeNot always necessary, depends on the

complexity of the issueCan be accomplished in a few words

Provide a transition to discuss the disputed elements

Examples

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

Non-Issues & Issues

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

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

CR – thesis paragraph

Overview paragraph for a particular issue or element

State the conclusion, and BRIEFLY explain why

Summarize the rule of law and factors the court will consider

Thesis Paragraph

Thesis paragraph is a roadmap for a specific issue

answer the question: how the issue will affect your client

Why is your conclusion sound Summarize the rule of law, factors the court

will consider The rules of law and factors will serve as a

roadmap for the reader

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

Using Roadmaps & Transitions

A roadmap gives the reader an overview of the document.

Transitions tell the reader where they are, what to expect, and how the pieces are connected.Example: Ms. Johnson can make four

arguments. First, she can argue that . . Second, Ms. Johnson can argue that . . .

Thesis Paragraph Exercise

Topic Sentences

Topic sentences are roadmaps and can serve as transitions

You can use a court’s holding to develop a topic sentence.

Topic sentences Introduce the topic Assert something about the topic Ex: In determining whether service was proper

under Fed. R. Civ. P. 4(d)(1) courts have considered several other factors.

Compare to: The next thing I am going to discuss is . . .

Drafting Topic/Thesis Sentence

Why are you using that particular case? What principle are you using the case to

illustrate?

The answer to these questions should be reflected in your topic sentence

Roadmap, gives the main point of the paragraph

CREAC – an improved IRAC

Conclusion – state your conclusion about the issue

Rule – state the applicable rule of lawExplanation – Explain the ruleApplication – Apply the rule to client’s

factsConclusion – Restate your conclusion

CREAC Discussion

CR- Paragraph(s) on Rule of Law - (overview or thesis paragraph)

E- Paragraph(s) on Case Law - Explanation

A-Paragraph(s) on Application Precedent - Analysis/ApplicationParagraph(s) on Counter-arguments

C- Conclusion

CReac – conclusion/rule

Overview ParagraphYour choice – start with rule or conclusionDescribe rule components or elements Identify non-issues Identify elements at issue

Thesis ParagraphConclusion about specific elementRelevant factors

crEac- Rule Explanation

Two parts: State the Rule & Explain It

Rule Explanation pt. 1 – State the Rule

Most basic sense – set forth the rule – the “black letter law”Where it comes from – jurisdiction, courtCan be from several sources (synthesized)

or from one source (one case or statute)

Pt. 2 – Explain the Rule

Case descriptionShow how applied to a set of factsInclude essential facts, holding and

reasoning

Goals in Rule Explanation

Educate reader about prior casesGive detailed case descriptionProvide foundation for your analysis

Primary Components of Rule Explanation

Thesis sentence

Legally relevant facts of the case

Court’s rationale and holding

Component 1-Thesis Sentence

A sentence that presents the main point. Sentences that follow explain this sentence in some way. Example

The owners must use a structure for activities associated with living quarters for the structure to be classified as a dwelling. [Cite]

One of the factors from the synthesized rule

Rule Explanation

Where analogous cases introducedBefore describing, set out the rule or point

the case is illustrating

The proximity of the structure to the primary residence is also a relevant factor. In McIntyre, for example, when holding that the porch

In the cases in which the courts have held that the plaintiff consented to the interception, the defendant had told the plaintiff that all of his or her phone calls would be intercepted. For example, in Griggs-Ryan v. Smith, the defendant

Component 2-Legally Relevant Facts

Select the facts that relate to that particular factor and give only as much information as necessary to understand the court’s holding –

In McIntyre, the owners used a screened porch for “sitting, eating and cooking.” They ate their meals on the porch in the summer and cooked meals there during the winter. [cite]

Component 3 – Rationale & Holding

Give only the part of the holding and rationale that relates to that particular factor

The court held that the porch was a “living quarters” under the Statute, reasoning that the owners’ use of the porch for “sitting, eating and cooking” made it “part of the living quarters” of their home. [cite]

Rule Explanation

Focus on the rule, not individual casesCases are just examples of how the rule

was appliedThey show when the rule’s requirements

were met or not

Common Mistakes in Rule Explanation

Mixing explanation with applicationDo NOT discuss client facts in the rule

explanation sectionFocus on the rule itself

Length of Rule Explanation

Coverage should match coverage in rule application section

Length variesCould be single paragraph explaining

a few simple casesCould be multiple paragraphs, using a

case to explain a different aspect of the rule

Paragraph number is irrelevant

Choosing Cases for the Explanation

Which case (cases) best illustrates the rule or factor

Seminal cases may be needed to cite the general rule, but may be unhelpful in explaining the rule

creAc- Rule Application/Analysis

Analyze the client’s issue in light of the precedent

Make an argument (both sides) based on facts, precedent, policy concerns, and common sense

Also 2 parts: Lawyering Part

Why a court may rule in client’s favor Why a court may rule in opponent’s favor

(legitimate reasons)