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LEGAL UPDATE - 11/02

LEGAL WRITING SEMINAR
  1. There is no point more important in persuasive and analytical writing than how you frame your "deep issue."
    1. Most legal writing makes the reader feel stupid and makes the reader go to the middle of the paper to understand the point. Given the fact that most judges have a very heavy case load and often do not have the time to read the entire brief, by putting the main points in the middle of the brief, you are being less effective and less persuasive.
      1. Opening paragraph "For all of the reasons stated below"
      2. Closing paragraph "For all of the reasons stated above"
    2. Any piece of persuasive or analytical writing must deliver three things; 1) the question; 2) the answer; and 3) the reason for that answer. The legal stylist should insist that the writing lead the reader to have those things well in mind within 90 seconds of picking up the document. How?
      1. The writer should open the discussion with a factually specific deep issue that captures the essence of the problem.
        1. The two main goals in framing the issue is brevity and clarity; as between those two, of course, clarity is paramount.
        2. The issue should be concrete, contain some facts and sum up the case in a nut shell.
        3. The issue should be framed in less then 75 words. Why? Garner says, because whenever an issue exceeds 75 words or so, the writer loses focus and the reader loses interest. If you can't frame your issue in 75 words, you probably don't know quite what the issue is.
        EXAMPLE: Assume that a defendant is moving for summary judgment. Which of the following statements is more helpful?
        1. Can Jones maintain an action for fraud?
        2. To maintain a cause of action for fraud under California law, a plaintiff must show that the defendant made a false representation. In his deposition, Jones concedes that neither Continental nor its agents or employees made a false representation. Is Continental entitled to summary judgment on Jones's fraud claim?[49 words]
        The shorter version sends the reader elsewhere to learn what, precisely, the issue is; the longer version asks the reader to do considerably less work. Whereas the surface issue says next to nothing about what the court is really being asked to decide, the deep issue explains precisely what that something is.
  2. How do deep issues work in Briefs?
    1. How you frame the deep issue in the beginning of your brief could determine whether you will prevail. You want to state the issue fairly, to be sure, but also in a way that supports your theory of the case. A good persuasive issue should answer itself. Karl Llewellyn, a lecturer on appellate advocacy made this point: "The first thing that comes up is the issue and the first art is the framing of the issue so that if your framing is accepted the case comes out your way. Second, you have to capture the issue, because your opponent will be framing an issue very differently….And third, you have to build a technique of phrasing your issue which will not only capture the court but which will stick your capture into the Court's head so that it can't forget it." EXAMPLE: Take Eisenstadt v. Baird, in which the plaintiffs attacked a state law that prohibited the sale of contraceptives to unmarried people. Here is how the Supreme Court framed the issue: Winning version: If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Richard Posner has observed that the decision might not have seemed so clear-cut and the outcome might have been different if the issue was framed differently: Posner's version: We must decide whether the state is constitutionally obligated to allow the sale of goods that facilitate fornication and adultery by making those practices less costly. How do the premises differ? The court's premises is that the prohibition is an "unwarranted governmental intrusion; Posner's hypothetical premise is that contraceptives "facilitate fornication and adultery."
WITH YOUR DEEP ISSUE PULL THE COURT TOWARD YOUR CONCLUSION AND MAKE THE COURT ANSWER THE QUESTION YOU POSE/FRAME. Try and Begin your memo's or briefs with a "DEEP ISSUE'
  • Consist of separate sentences.
  • Contain no more than 75 words.
  • Incorporate enough detail to convey a sense of story.
  • End with a question mark.
  • Appear at the very beginning of a memo or brief --- not after a statement of facts.
  • Be simple enough that a stranger, preferably even a nonlawyer, can read and understand it.