fmtc p Page i legal writing by design

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3 fmtc p Page iii legal writing by design A GUIDE TO GREAT BRIEFS AND MEMOS Teresa J. Reid Rambo and Leanne J. Pflaum Carolina Academic Press Durham, North Carolina

4 fmtc p Page iv Copyright 2000 Teresa J. Reid Rambo and Leanne J. Pflaum All Rights Reserved ISBN X Carolina Academic Press 700 Kent Street Durham, North Carolina Telephone (919) Fax (919) Printed in the United States of America

5 fmtc p Page v DEDICATION To our families for their love and support, Keith Thomas Thomas Matthew Matthew Parker Lorraine (Mom) Mary Ella (Mom) Carlyn And to our Dads, always Sylvester

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7 fmtc p Page vii contents section I: chapter 1: chapter 2: chapter 3: chapter 4: chapter 5: chapter 6: chapter 7: the design of legal reasoning introduction to reasoning reasoning: deductive, inductive, and analogical language and relevancy from reasoning to writing: organizing our thoughts reading and interpreting cases using cases in writing a memo or brief examples of using cases in writing a memo or brief section II: chapter 8: chapter 9: chapter 10: chapter 11: chapter 12: chapter 13: the basics: designing clear and effective writing brevity artistry: choosing the right word or phrase simplicity: avoiding confusion impact: making every word count cohesion: the power of transitions style: writing with elegance section III: designing the legal memo chapter 14: the legal memo: preliminary matters chapter 15: question presented and brief answer chapter 16: the facts chapter 17: the discussion chapter 18: the conclusion and authorities cited vii

8 fmtc p Page viii viii Contents section IV: designing the brief chapter 19: introduction to appellate advocacy chapter 20: the appellate brief chapter 21: statement of the case and facts chapter 22: standards of review chapter 23: questions presented chapter 24: argument headings chapter 25: summary of argument chapter 26: the argument chapter 27: the other parts of the brief chapter 28: oral argument section V: beginning, middle, and ending chapter 29: the blank page: tips on getting started chapter 30: making it shine: editing tips for the memo and brief chapter 31: chapter 32: sample analytical brief of a case ethics and professionalism: the practice of law section VI: the samples chapter 33: court opinion chapter 34: legal memo chapter 35: lionell s (appellant s) brief chapter 36: walker s (appellee s) brief chapter 37: lionell s reply brief

9 fmtc p Page ix acknowledgments For their help and en co u ra gem en t, we thank Lorraine Rei d ; Ma r ge Ba ker; G l enda Saw yer; Hen ry Wi h nyk ; Betsy Ru f f ; Pa tricia Th om s on ; Diane Tom l i n- s on ; Jeannine Ra m bo ; and stu dents John Gifto s ; Bri d git Wen z ; L a ra Pa rk i n ; David Maier; and Doron Weiss. We also thank our students and teaching assistants for en co u ra ging us to wri te this boo k, and all owing us to learn from them. ix

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11 intro autoc p Page 1 introduction section I: section II: the design of legal reasoning the basics: designing clear and effective writing section III: designing the legal memo section IV: designing the brief section V: beginning, middle, and ending section VI: the samples Th ere was a man who disliked se eing his footprints and his shadow. He d e ci d ed to esc a pe from them, and began to ru n. But as he ran along, m o re footprints appe a red, while his shadow easily kept up with him. Thinking he was going too slowly, he ran faster and faster wi t h out stop - p i n g, u n til he fin a lly coll a p sed from ex h a u s tion and died. If he had stood still,there would have been no footprints. If he had rested in the shade, his shadow would have disappeared. Benjamin Hoff, The Tao of Pooh The goal of our book is to help you rest in the shade, at least wh en it com e s to legal re a s oning and wri ti n g. It s to remind yo u, in easily unders t a n d a bl e term s, that you alre ady know how to re a s on and argue. Yo u ve been doing it since you could speak. We are by natu re logical cre a tu re s, m eeting situ a ti ons with the mem ory of h ow we ve acted in the past and proj ecting how we might act in the futu re. As children, we learned the value of precedent: Well, Matthew got to stay up this late when he was my age, so why can t I? We also learned that there were rules and then there were RULES. Just as it was when we were kids, as lawyers, our goal in em p l oying re a s oning is simple: i t s to make a poi n t ; i t s to get what we want. Through hypotheticals, samples, and commentaries in the upcoming chapters, we ll remind you how to design a legal argument. In Section I, we ll discuss l egal rules and re a s on i n g ; and ex p l ore how to sel ect, f rom an almost limitless 1

12 intro autoc p Page 2 2 Legal Writing by Design number of possibilities, an orderly sequence of statements that lead logically to a con clu s i on. We ll talk a bit abo ut logi c, and we ll use terms like s yll o gi s m, premises, analogy, induction, and deduction, but we won t delve too deeply into a ny other logic con cept s. We ll keep our book user- f ri en dly. Our purpose in discussing the logical underp i n n i n gs of the argumen t is simply to rem i n d us of how we think. In stu dying legal re a s on i n g, we ve got to keep one paramount principle in m i n d : wri ting and re a s oning are joi n ed at the hip. We can t wri te ef fectively without reasoning effectively. Writing is just a by-product of reasoning. Af ter revi ewing the re a so n i n g proce s s, we ll see how to tra n s form our t h o u ghts into wri ti n g. In S ecti on II, we ll revi ew the basics of clear and ef fective wri ti n g. Th en in S ecti ons III a n d I V, re s pectively, we ll see how to de s i gn and wri te a pred i ctive memo and a persu a s ive bri ef. In S ecti on V, we ll discuss wri ting and ed i ting ti p s. F i n a lly, in S ecti on V I, we ll show how all of these pri n- ciples come toget h er in a sample memo and three sample bri efs. In all Secti on s, we ll go step - by - s tep thro u gh each su bj ect and ad d ress stra tegies that work. (After teaching thousands of students, and writing memos and briefs ourselves as practicing lawyers, we ve seen what works and what doesn t.) Our approach, of co u rs e, i s n t the o n ly w ay to de s i gn a well - re a s on ed legal memo and bri ef, but we think it s an effective way of doing so. The ton e of our book is convers a ti on a l ; i t s how we te ach our stu den t s. We don t pre ach, we discuss. An d, as yo u ll see, we also like a good laugh every now and then. Let s now ex p l ore the natu re of an argument and the process of re a s on i n g. We ll begin by ad d ressing ru l e - ba sed or d edu ctive re a s on i n g, bri efly to u ch on i n - ductive reasoning, and then explore the hybrid process (part inductive, part dedu ctive) of a rguing by analogy. By the end of S ecti on I, we ll see how understanding the design of the legal argument helps us transform our thoughts into great briefs and memos.

Resistance Training. The Total Approach. Lewis Bowling

Resistance Training. The Total Approach. Lewis Bowling Resistance Training Resistance Training The Total Approach Lewis Bowling Copyright 2007 Lewis Bowling All Rights Reserved Library of Congress Cataloging-in-Publication Data Bowling, Lewis. Resistance