United States Law/Legal Writing

Introduction to Legal Writing, Cases, and Case Briefs

What is legal writing

Law could be either oral or written. But in most cases, we assume that law is written.

There are many types of legal writing.

Legal Documents

• Treaties
• Statutes
• Contracts

Documents About Law

• Closed Memo

Written analysis of a legal problem or issue with the case authority given.

• Open Memo

the open memo you have to find the case law on your own.

• Memo
• Legal Brief
• Casenote
• Law School Outline
• Opinion letter

Legal writing is a specialized form of writing. Legal writing emphasizes logic and clarity. It also follows the fabled "IRAC" method- Issue, Rule, Application and Conclusion.

Law and Legal Writing

Legal Research

Legal research is unlike the research you have done in high school and college. They look similar and certainly they both require a firm grasp of good analytical ability. Legal research can be boring and mind numbing to many because of the huge amount of material and strict rules that you must follow.

The lawyers heavily rely on the commercial electronic databases such as Westlaw or LexisNexis. Other important references used in legal research are Black's Law Dictionary, The Bluebook: A Uniform System of Citation,. Law schools have a huge library of books and material to help.

Some alternative and free electronic databases are available such as Justia, Findlaw, etc.

At the very minimum you need to familarize yourself with using the electronic databases since they are becoming quite popular.

Sources of the Law

In the common law system, the judicial precedences are the main sources of the law. Simply put, the judges make the law by making decisions. This contrasts with the civil law system in which the codified statues prescribe what the judges should do. In today's world however, this distinction is not black and white. For instance, the Uniform Commercial Code and the Restatement of the Law are a good example of the civil law approach taken by the U.S. legal system. Another example is the Model Penal Code.

Still, unlike the civil law jurisdictions, the U.S. lawyers are expected to read the cases (prior judicial decisions) and discern "common law" from it. The legal education in the U.S. and some parts in Canada is focused on building this skill- ability to identify the common rule or principle underlying in the apparently dissimilar cases.

Because there are 50 states in the U.S. and nearly 1 million lawyers with a natural obsession of litigation, you would expect that there would be many lawsuits and judicial decisions. To keep track of them all is quite daunting. Moreover, because there are not always a well summarized and neatly codified body of law to refer to but a vast sea of cases which sometimes conflict with each other, legal citation takes a great importance in legal writing. The reader of your legal writing wants to know which case you are referring to. Because there are so many of them, they will find it difficult to locate it unless you cite it properly.

Stare Decisis and the Doctrine of Precedent

Stare decisis, from the Latin for stand by the decision, is a crucial concept in common law. Common law, in this context, refers to the practice of deriving principles of law from judicial opinions, rather than following statutory authority such as the United States Code. The doctrine of stare decisis binds judges to precedent and ensures that the common law develops in a reasoned, consistent manner.

Judicial opinions are written to explain why a judge has ruled as they have in a given dispute. By describing the arguments of the parties and explaining why they are persuasive, or why the facts of the case make an argument correct or incorrect, judges hope to aid those who will be faced with similar disputes in the future. The opinion written for the case becomes known as precedent - it precedes any cases that may arise in the future out of similar facts, and articulates rules of law that can be applied to those facts. Stare decisis ensures that judges adhere to those rules, by requiring that similar issues be resolved in the same way as they were in the previous cases in that "line of precedent." Judges rely on precedent to support their reasoning, and borrow the authority of the court issuing the precedental opinion by citing to the previous opinion when writing their own. Stare decisis is not absolute; if a change can be justified, justices may overturn settled precedent, creating new rules of law to govern similar disputes in the future. Furthermore, judges may "distinguish from precedent," using a crucial difference in the facts of the current case to explain why the rulings of the previous cases should not control the current decision. This does not overturn the settled precedent, but still creates a new line of precedent to be followed in the future.

Stare decisis clearly binds lower courts to the authority of higher courts; trial courts must rule as the courts of appeals have ruled, and intermediate courts of appeals must rule as appeals courts of higher authority have ruled. However, the highest courts of appeals are bound only by the supreme law as expressed in the Constitution (or, for state courts, the Constitution of that state). Because these highest courts also have the power of judicial review - that is, the power to interpret the law, including the Constitution - these judges are theoretically free to rule as they wish on the case at issue, without regard to precedent and with no real check on their decision-making. In this way, stare decisis is something of a "gentleman's code"; even the justices of the Supreme Court of the United States follow precedent unless they can clearly articulate why that authority should be overturned, even though they are not required to by any authority save for tradition. Though the people have no control over the selection of federal judges, the judges demonstrate their trustworthiness by adhering to stare decisis, thus giving no reason to subject their appointment to the political process.

Briefing a Case

The most popular method of briefing a case is called IRAC.

Issue: The first step in legal writing is to identify the issue. To do this, read the facts of the case and find the part that is controversial. The controversial part is called the issue. The issue should be stated (another name for this is articulated) concisely in the first part of your brief.

Rule

Analysis

Conclusion

Case Brief, Casenotes, Memorandum

Case Analysis Case analysis is the most important class for lawyers. It determines what is the question of law that the court is trying to decide (The key facts). As a researcher you have to spot the issue. Ex. Did the defendant show a evil mind that is required for punitive damages when he; a. Drank 10 beers within a hour b. Took valium c. Got in his car and speed

Punitive damages- on top of compensatory, defendant not just careless, he was reckless. Defendant knew the risk and did it anyways. “Evil mind”

Elements for a negligence claim for relief Negligence (money) a. The law imposes your duty. You owe a duty of care to all the people whom you may foresee ably injure by your actions. b. Defendant breached duty by careless conduct. c. That careless conduct caused harm.

Types of Reasoning 1. Inductive- follow precedence, looking at the facts (rule) 2. Deductive- take the rule and apply it to the facts 3. Slippery slope- as a practical matter we will not go there. It will open a floodgate. A decision might change a rule. Ex. A man and a woman The woman left Man follows her She told the police Police say in till he harms you there is nothing we can do The guy hires someone to throw lye in her face She is disfigured She sues the police The court says sorry the cant specially protects everyone.

4. When the court is trying to define an ambiguous term. (Could have different meanings) 2 cars - 1 man, 1 woman Hand gestures are exchanged Man shoots the woman She is pregnant Her and the baby die He is charged twice This is the unlawful killing of a human being, is the fetus a human? The court decides to not include the fetus in this.

The different sources of law In the correct order 1. Primary authority- (the law itself) A. Constitutions- state and federal B. Statutes- (law passed by the legislature) Legislature- a group of people elected to pass laws

State North Carolina general assembly Makes -North Carolina general statues

Federal United States Congress Makes - us code

State and federal Each has two houses House of representatives (lower) Senate (higher)

Proposed law- bill

2. Administrative rules and regulations- laws passed by government agencies IRS Social security Administration Before certain government agencies a layperson can represent someone. It doesn’t have to be a lawyer. 3.Case law- judicial opinions written usually by appellate courts to explain their decision to either affirm, reverse, or remand (send it back to the trial courts with instructions) the trial courts decision. 4. Secondary authority- things that discuss the law, sources

Conflict of law- as a general rule if there is a conflict between a constitution and any other source of law the constitution wins. Conflict of administrative rules and case law the rule will win. Which ever is higher on the list will win.

But, case law, which is judge made law interprets the words in constitutions, statutes and administrative rules and regulations.

Amending- the legislature doesn’t like the courts interpretations of a statute. They amend it to make in more clear.

You have to interpret every judicial opinion in the context of its facts. Ex. Man comes home and wife is in bed with someone else He goes to the kitchen get a knife He kills the wife’s lover The question is there premeditation because he had to go to the kitchen to get the knife The answer probably will be yes.

Or

Man comes home and wife is in bed with someone else He has a gun on his side due to his job He takes the gun and shoots and kills The question is there premeditation because he already had the gun on him. Probably no premeditation

All Federal District Court judges are appointed by the President and confirmed by Senate for life terms. They are the only Court that exercises the right to write judicial opinions (federal Supplement) This is different from state judges in NC who, as a general rule are elected. However if a state judge dies or retires while in office the Governor appoints a replacement for a 4 yr term. NC Superior Court (appeals or supreme) judges are elected for 8 yr terms but if they can’t complete the term, the Governor replaces them untill the next general election which is held every 2 yrs. Judicial Opinion for North Carolina - South Eastern Reporters The opinion doesn’t actually begin instill you see the judges name. Appellate courts, at either levels or trial court judges only at state level, write judicial opinions.

Appellate courts 1. Also called review courts 2. Always have more then one judge, always an odd number of judges. For ex. (State and fed. Level) they sit in panels of three. On North Carolina Supreme Court we have 7 justices that sit as a group. On the US Supreme Court, 9 justices sit as a group. 3. Appellate courts must accept the “findings of fact: of the trial court even if they disagree with it. The reason is that they weren’t there to hear the testimony. All they can do is read transcripts. 4. Appellate courts can correct errors of law made by the trial court only if the issue was presented to them by one of the parties. 5. Once an appellate court has reviewed a case the judges will vote as to whether to affirm, reverse the trial courts decision. They can also remand the case back to the trail courts with instructions for the new trial. How a Case gets appealed 1. Always starts at the trial court level A. Witnesses testify B. Other evidence is considered C. Questions of fact are decided I. Where fibers from the defendant’s jacket found at the crime scene. Ii. Jury will decide the questions and there is one (Will be decide if there is no jury) 2. Law applied to the facts A. Judge tells the jury what the law is B. Jury applies the law to the facts

It is often said that the trial judge decides questions of law because he chooses: 1. What evidence will be admissible 2. What motions are granted / denuded 3. Before the jury goes to deliberate the judge instructs them on the law. Even if the jury doesn’t like the law they still have to apply it. Special Verdict- judge gives the jury questions to answer General verdict- just a plain decision for the plaintiff or the defendant Because the trial judge is the king of the trial and makes decisions regarding questions of law its usually the trial judge who is cited on appeal. Sometimes the issue statement begins with “Did the trial judge err (commit a error) when he denied the for direct in verdict, instructed the jury?

The party who loses is the one who wants to appeal. He has 10 days in North Carolina to file a notice of appeal.

Appellate brief- same as a trial brief but for a higher court

Appellate Procedure  The trial usually begins and ends at the trial level because it is so expensive to file an appeal. If the loser believes a mistake was made to a question of law (prejudicial error) that was so big it could affect the outcome of the case he files a notice of appeal and then becomes the appellant. . He then files an appellate brief that states what errors and mistakes were made at the trial. It must include the result of legal research to back it up. To find the back up he will refer to authority. The appellant may have been either the defendant or the plaintiff in the trial, he is just the one who was not happy with the decision and filed the appeal. Appellee is the person whom against the case is filed and he is the one who won at the trial court level. He likes the trial court decision and now must defend it. The appellate court reviews both briefs and listens to oral arguments, which usually last about 30 minutes each side. Several months later the appellate court hands down a decision to reverse, affirm or remand the trial courts judgment. Quite often the appellate court writes a judicial opinion to explain its decision. Case law is mandatory authority in its jurisdiction.

The question is why does the courts reasoning for deciding the way it did help the researcher predict the outcome of their case? There is a prior decision in your jurisdiction to disclose to a buyer that there is a hidden defect that will affect the homes value, the buyer can cancel the contract. This refers to termite damage but does it apply to a murder? You represent the buyer who recently moving to town finds out the home he bought had a terrible murder that affects the property’s value. It will not control this case because the murder was not hidden and anyone could do the research and find out about it.

Types of authority I. Primary authority - the law itself (constitution, statutes, case law, and administrative rules and regulations) A. Mandatory Authority - if it is in your jurisdiction it is binding (it must be followed) B. Persuasive Authority - Persuasive primary authority - the law outside your jurisdiction because there is no primary authority that covers these facts in your jurisdiction the court can look at this (a case of first impression) C. No effect II. Secondary Authority- it is not the law. It just discusses the law. Usually written by legal scholars, can be used by the courts at the most to be persuasive authority, if there is no primary Authority in that jurisdiction.

1. Legal treatises (these are written by legal scholars who are experts in their field ex. The leading legal scholar in torts is Prosser, on contracts it is Williston these are often law professors) 2. Restatements- a group of legal scholars who review the law and discuss it. Ex. There is a restatement on contracts and a restatement on torts. Restatements often look at trends of where the law is going. 3. Law review articles - law schools have magazines that are called law reviews. People in the top 10 % of the class are asked to write articles for this magazine in which they discuss a particular area of law. 4. Legal Encyclopedias

Legal encyclopedias for North Carolina (Strong’s North Carolina index)                                     National legal encyclopedia’s

1. American Juris Prudence- Lawyers call it am jur

                                2. Corpus Juris Secundum- Lawyers call it CJS

1. When they vote, the majority of judges A. the majority opinion becomes precedent for later cases in that jurisdiction. 2. The judges then pick one of the majorities to write the judicial opinion.

Different kinds of opinions (in order) 1. Majority opinion 2. When one judge disagrees with the majority of judges so strongly he may write a Dissenting Opinion. This doesn’t establish precedent but reading it may help you to understand the issues better. ONLY MAJORITY OPINION ESTABLISHES PRECIDENT. 3. Concurring opinion- one judge agrees with the majority opinion but for other reasons so he writes this. 4. Percuriam Opinion- Sometimes no judge will take credit for writing an opinion. In place of the judges name you will have the word percuriam. Majority percuriam opinions establish precedent but they are not as strong as the one a judge taking credit for the opinion. One main reason is a law clerk probably wrote the opinion. Typically every appellate court judge has a law clerk. This is typically a new lawyer who works for one year to do legal research for that judge.

Generalizing- in order to convince a jury that an accident was foreseeable the plaintiff’s lawyer will describe the accident in general and broad terms. The less detail the more foreseeable it will become.

Particularizing- The defendant will describe the accident in great detail because he doesn’t want it to be foreseeable. Therefore, he doesn’t owe the plaintiff a duty of care. The more details you give the less foreseeable it will become.

Steps to briefing a case A case brief is usually a page long The 1st paragraph of a brief is called the syllabus. This is a summary of the entire case. From this paragraph you will find the procedure. i. Tells the important issues and where to locate them. They are like an index for the opinion they are numbered. The numbered corresponds to the same Bracketed number in the opinion. ii. Problem with head notes is that you can never rely on them alone. Without reading the opinion because of the problem of using dicta for precedent. The only part of an opinion that establishes p0recednent that must be followed is the part that deals with the actual facts. Sometimes the court will get off track and will say something like if the facts were different we would hold this way. That is only dicta. It doesn’t establish precedent. Precedent only involves the issues created by the facts of this case. Courts can only rule on the case before them, the so-called cases in controversy. Only what they decided on the actual facts establishes precedent everything else establishes dicta. (Dictum for singular) It is unethical for a lawyer to argue dicta as precedent. 1. Procedure- starts when the courts get involved, the filing of the case (civil) arrest or search etc. In criminal court, it starts with the official charge, when you trace a case you go back to the beginning and go up to the court that is writing the opinion. A. Prior- all the courts has gone thru until now B. Current- When or what court it is in now?

2. Facts- what lead up to the lawsuit? What leads up to the filing of the complaint or charge of the Defendant in criminal court? From incident up to arrest. A. Insignificant facts- they are unimportant, take them out and the case doesn’t change. They are usually eliminated and not placed anywhere in a case brief because they don’t help you understand the dispute. (ex. WFOX, name of the radio station) no names, relationships and dates (unless it involves the statute of limitations) are unimportant B. Significant facts- helps you understand the nature of the dispute. If taken out it doesn’t change the case. C. Essential facts- (key Facts) facts that are so important if they are changed or left out the out come of the case could be changed. The more times mentioned the more important they are. Key Facts- Start when procedure ends. What happened up to the filing of defendants charge? They can be found in; I. In the fact section of a case brief II. Facts that is so important they show up in the issue statement To Identify Essential facts  They can be adjectives the judge may use to describe the fact. Ex. Determinative, which means crucial or very important or note worthy.  Repetitive reference to the fact- continually stating that fact, especially in the analysis.  When the court says:” if this fact were different we may have decided otherwise…”  The courts reaction to how a lower court viewed or stressed the fact. Ex. Rape case, the lower court may have stressed sexual history of the victim when the appellate court will say that wasn’t important, or this courts reaction to how one of the lawyers characterized a fact.

Facts and issues relate to each other

When you are writing the fact section of your brief, you must be clear in your heading as though what facts led up to the dispute. When you finish briefing the opinion, and you still don’t understand this tells you your brief is no good. Sometimes its good to make a time line to understand the chain of events.

3. Issue- The question before the court Issue statement- the question of law that the court is trying to answer that is embedded (surrounded) by the essential facts. The issue is determined by the court that is writing the opinion.

Ex. Did the radio station owe a duty of care to 3rd parties on the road when it broadcast a contest to a bunch of teens, that encouraged the kids to chase the DJ from one location to the next? Sometimes the court will tell you what the issue is right in the opinion…. DON’T OVERLOOK IT!!! 4. Holding- (the courts answer) Usually yes or no Radio station -yes 5. Rationale- how the court explained itself Where the court explains it answer and the reasoning the court gives for their answer. Helps the researcher to be able to predict whether this will control the case. The rationale in this case is the radio station owed a duty of care to others on the road because it was foreseeable that if you broadcast a contest that encourages teens to chase someone on the highway, there is a great risk of injury to others. The court relied on precedent for its reasoning.

Precedent (stare decisis)- if there is a prior case in your jurisdiction, that has similar facts to yours, the court must follow the rules established in this prior case. The purpose of precedent is to make the law predictable, and to treat people in the same situation the same way. But, the problem is that it is rare that you will ever find a case that is identical to yours. Form the courts reasoning you can predict whether this case will control yours.

If a prior judicial opinion is presented to the court as precedent for your case then the court has a choice: A. Choose to follow the precedent, each time this is done it makes the prior opinion stronger. B. Distinguish the facts from the present case by saying they are slightly different from the facts in the prior case. C. Overrule the prior opinion- this is not done often

Shepardize means the process of seeing what happened to this opinion. Was it overruled since it was decided or distinguished a lot of times?

Shepard’s citations- helps you make sure the law is still valid.

Citation -(a road map as to where you can find a particular case or statute)

Legal Memorandum- tells the lawyer what the law are - cases to agree, cases to disagree. You are impartial, just writing facts

Trial brief- your lawyer presents this to a trial judge to argue different points of the law in his favor

Syllabus- the 1st paragraph (syllabus of the case) summary of the entire case, from this you can find the procedure.

Procedure- can be prior or current

Head notes are small summaries of different parts of the opinion. Head notes tract the opinion. They assign a topic and key number. They are assigned numbers the numbers correspond to the numbers in brackets found in the opinion. Written by lawyers hired by the publisher to go thru the opinion and summarize what the court has said they help;

Head notes are helpful for 2 reasons

1. They tell you where to find it in the opinion through numbers and the numbers correspond to the same number in the opinion. 2. The problem with head notes is you can never solely rely on what is in them because without reading the actual opinion for this reason you come with the problem of using dicta as precedent. The only part of an opinion that establishes precedent that has to be followed is that part of the opinion, which deals with actual facts of the case. Sometimes the court will get off track and will say “IF this had happened, we would have said this….”that is dicta and it doesn’t establish precedent because precedent only involves the issues created by the facts of the case.” Courts can only rule on a case before them…. In other words, the case that is in controversy. Only what they decide on actual facts establishes precedent and everything else is dicta. It is unethical for a lawyer to state dicta as precedent. Reporters- The book that contains judicial opinions witching a particular jurisdiction

Digests- The digest system is a huge outline of the law and divides into topics and subtopics. Every opinion that is written by the court within a particular jurisdiction will be gone thru and assigned topics and key numbers. Topics and key numbers are a part of a companion set of books that go with reporters. In the digest, after each topic and key number there is a squib.

Every opinion that is written by the court within a particular jurisdiction will be gone thru and assigned a topic and key number. In the digest after each topic and key number there is a

Squib- it has a thumbnail summary of what a court said on this particular topic and subtopic and it contains the citation of the case it came from.

The heading of a judicial opinion is called the caption. It is in all caps: Ex. LAST NAME V. LAST NAME

Bluebooking: Legal Citations

How to Cite

This program follows ALWD Citation Manual published by Association of Legal Writing Directors.

• United States Supreme Court Wikipedia v. Wikiversity, 541 U.S. 509 (2009).

• United States Court of Appeals Wikia, Inc. v. Wikiversity Co., 321 F.3d 656 (6th Cir. 2004).

• United States District Court Wikitravel v. Wikiquote, 71 F. Supp. 2d 475 (E.D. Pa. 1999).

• State Supreme Court (not using the local rule) Wikimedia, Inc. v. Wikiversity, 123 A.2d 223 (VT. 2005).

• State Appellate Court (not using the local rule) Main v. Page, 929 So.2ㅇ 214 (Miss. App. 2005).

• Parallel Citation Recent v. Change, 159 Ohio App. 3d 234, 252 N.E.2d 921 (2d Dist. 2008).

Abbreviations for Reporters

Exercise

Try to guess what each abbreviations mean.

• United States Reports U.S.
• Supreme Court Reporter S. Ct.
• United States Supreme Court Reports, Lawyer's Edition L. Ed.
• United States Law Week U.S.L.W.
• Federal Reporter F.
• Federal Reporter 2nd Series F.2d
• Federal Reporter 3rd Series F.3d
• Federal Supplement F. Supp.
• Federal Rules Decisions F.R.D.
• Bankruptcy Reporter B.R.
• Atlantic Reporter A.
• Atlantic Reporter, 2nd Series A.2d
• California Reporter Cal. Rptr.
• California Reporter, 2nd Series Cal. Rptr. 2d
• New York Supplement N.Y.S.
• New York Supplement, 2nd Series N.Y.S.2d
• North Eastern Reporter N.E.
• North Eastern Reporter, 2nd Series N.E.2d
• North Western Reporter N.W.
• North Western Reporter, 2nd Series N.W.2d
• PPacific Reporter P.
• PPacific Reporter, 2nd Series P.2d
• Pacific Reporter, 3rd Series P.3d
• South Eastern Reporter S.E.
• South Eastern Reporter, 2nd Series S.E.2d
• South Western Reporter S.W.
• South Western Reporter, 2nd Series S.W.2d
• South Western Reporter, 3rd Series S.W.3d
• Southern Reporter So.
• Southern Reporter, 2nd Series S.2d

How to Cite

Case

• See Wiki v. Britannica, 265 U.S. 503, 512 (2008).
• See Wiki, 265 U.S. at 512.

State Case

• See Wikiversity v. Harvard, 123 P.2d 500, 508 (Okla. Crim. App. 2010).
• See Harvard, 123 P.2d at 508.

Office Memorandum

The general rule is that an agent must perform the work or duties required by the principal. Taylor Association v Southern Metropolitain Partnership association, 547 U.S. 165, 172-176 (2010). these duties may be set forth in the agency agreement or it may be implied from the nature of the agency relationship. Id. at page 180.

Client Opinion Letters

• One Ls: Resources for Writing Client Letters and Opinion Letters