TEN TIPS FOR INTERNATIONAL STUDENTS * © 2004 The Writing Center at GULC. All Rights Reserved. U.S. legal research and writing can seem full of strange conventions, especially if you have practiced law in another country. Methods of research may be different and accepted formats for documents may be different. Even legal analysis may be different. This handout offers you ten tips to help you understand U.S. legal documents by making you familiar with what U.S. readers will expect to see in your legal documents. The handout includes references to other books that will provide more detail about these topics. Getting Started 1. Some Different U.S. Legal Documents In the U.S., lawyers frequently communicate through the written word. It can be helpful in understanding the U.S. legal community to have an idea of some of the most common U.S. legal documents and their uses.
· Memo: Memos are usually written by one lawyer for another lawyer. Memos may be circulated within a law firm so that several attorneys can analyze a case and try to advise a client or make strategic decisions, or they may be given to a client to help her understand the law that applies to her case. The purpose of the memo is to explain how the relevant law affects a client's situation, not to persuade the reader to adopt a particular position. Thus, when writing a memo, the writer is recommending, advising, and predicting. The writer usually is not arguing. Memos present all sides of an issue without trying to portray any one position more favorably than another.
· Brief: Lawyers submit briefs to courts. The purpose of a brief is to communicate a client's position and to convince the court to adopt that position. Consequently, the brief writer is an advocate. She uses the law to argue rather than to advise.
· Scholarly Paper: Students or professors usually write scholarly papers, and they can be directed at academics, practitioners, or students. U.S. scholarly papers assert an argument that has not been made before and analyze the issue * Jennifer Pogue and Kate Mayer
1 comprehensively. These papers are heavily researched and footnoted to convey the exhaustive research the author has done. Scholarly Writing for Law Students by Elizabeth Fajans and Mary R. Falk is an excellent resource for learning more about scholarly writing.
· Judicial opinion: Judges write judicial opinions to explain to the legal community the reasons for their decisions. Judicial opinions should describe the legal bases or policies that led the judge to arrive at the conclusion she did. Judicial opinions become precedents that must be followed by certain courts in the future. 2. Formatting U.S. Legal Documents In the United States, legal documents are generally formatted with 1.5 to 2.0 inch margins. The document should be double­spaced and written in 12­point font to ensure easy readability. Preferred fonts include: Times New Roman and Arial. Finally, each new paragraph should be indented. U.S. legal documents also include headings (also referred to as point headings). Headings separate the document into its major parts. Headings should be concise and easy to understand; yet they should also be descriptive. The reader should get a feel for what information is contained in each section from its heading. For example, consider the following headings: 1. 2. The Environmental Statute. The Clean Water Act Does Not Apply to Our Client's Activities. Heading one gives the reader some idea of what the subject matter of the section will be. However, heading two not only gives an idea of the subject matter, but it also gives the reader a preview of what the conclusion of the section will be. Heading two aids the reader in reading your document by allowing the reader to anticipate your arguments and reasoning. Headings are formatted using letters and numbers. In general, the main headings will use Roman numerals. Subsections of the main headings will use capital letters. Subsections of capital letter sections will use Arabic numerals. Finally, subsections of Arabic numeral sections will use lowercase letters. For example: I. Roman Numeral Heading A. Capital Letter Heading 1. Arabic Numeral Heading a. Lowercase Letter Heading
2 The Writing Process 3. Articulating a Theme Whether you are writing a law review article, a memo, or a brief, your document should have one central theme that you are expressing to the reader. The theme is a statement, offered in one sentence, of why your document was written and what you are trying to tell the reader. It is the implicit message of your document. The theme will unify all parts of your legal document and should tie together all of the facts, law and policy you discuss. Some example themes include: 1. Our client is not guilty of an intentional tort because his actions do not satisfy all of the elements of the tort of battery. (For a memo on whether your client might be found guilty of battery.) 2. The Patriot Act should be repealed because it takes too many liberties without guaranteeing security. (For an article discussing your views on The Patriot Act.) Once you develop your theme, you can begin planning the other parts and aspects of your document. Think about your theme in terms of why you are writing the document; who will be reading your document; what aspects of the issue your document will cover; and how you will present you analysis. How can you answer each of these questions to advance your theme? Next consider more concrete things such as your structuring and word choice. Is there a way to advance your theme using your structure or your word choice? For example, if you are discussing in a memo whether your client committed a tort, you might choose to structure your document so that you are discussing the elements of the tort in order, so that the reader will not be confused. You might also choose to use neutral language so that your reader will think you are delivering an unbiased view of the law. But if you are discussing your views on The Patriot Act, you might want to structure your document based on your different arguments for or against The Patriot Act and use passionate language to motivate your reader to accept your view. 4. Show Every Step of Your Analysis In the United States, writers show their readers every step of their analytical process. Writers need to do more than find the relevant law and state a conclusion about how the law applies to a particular case. This is because American readers expect you, the writer, to show why you conclude as you do. The writer of Example 1 did not show the reader each step of her analysis. Instead, she cited the law and stated her conclusion, leaving the reader to figure out how she reached the conclusion that the Forest Service’s decision was arbitrary.
3 Example 1: The Administrative Procedure Act authorizes courts to overturn agency decisions if they are arbitrary or capricious. 5 U.S.C. 706(2)(A). The Forest Service's decision to allow Loggers Anonymous to build a road through the forest was arbitrary, and therefore the court may set it aside. A U.S. reader would probably be frustrated with Example 1 because it leaves a lot of questions unanswered. What counts as arbitrary? What factors do the courts consider? Did the Forest Service have a good reason for allowing Loggers Anonymous to build a road? You can avoid confusing your reader like Example 1 does by explaining all the analytical steps you took to reach your result. State your assumptions explicitly and describe your reasoning to make sure your reader understands your analysis. Read Example 2; see if you have a better understanding of why the writer concluded as she did. Example 2: The Administrative Procedure Act authorizes courts to overturn agency decisions if they are arbitrary or capricious. 5 U.S.C. 706(2)(A). An agency must state a satisfactory explanation for its action that includes a rational connection between the available data and the choice made. See Motor Vehicle Mfgrs. Ass’n of the United States v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983). For example, the Department of Transportation rescinded a rule requiring car manufacturers to use automatic seat belts even though studies showed that the seat belts improved car safety. The rescission was arbitrary and capricious because the agency ignored the studies about safety and failed to state a connection between the studies and its decision to stop requiring automatic seatbelts. Id. Like the Department of Transportation, the Forest Service in this case did not examine relevant studies. The studies showed that the road would harm rare species of plants and irreparably alter the forest's ecology. Also like the Department of Transportation, the Forest Service did not state a connection between the studies showing harm to the forest and its decision to allow the road to be built. Because the Forest Service ignored relevant data and failed to state a rational connection between that data and its decision, the Forest Service's decision to allow Loggers Anonymous to build a road through the forest was arbitrary. Therefore, the court should set aside the decision. Example 2 describes the relevant law and then takes the reader step by step through the reasons that the Forest Service's decision was arbitrary. The writer provides an example of an arbitrary decision so that the reader knows what kinds of decisions are arbitrary. The writer then compares the facts of her case to precedent to show why the Forest Service’s decision is arbitrary. The reader has few questions after reading this paragraph. Usually, a writer would use more than just one precedent to analyze the law, but for the sake of simplicity, this example uses only one. Your analysis will be more complete if include several precedents.
4 American Analytical Patterns Although there are many ways to analyze the law, American legal writers frequently use what is sometimes called the “Neo­classical” analytical paradigm. The first step is to tell your reader what the rule of law is. Sometimes a statute will state the rule, but usually a legal writer must do more than restate a statute. Typically, you will need to combine cases, statutes, regulations, or other sources to synthesize a rule of law. For more information, see the Writing Center’s handout entitled, "What Do You Mean 'There’s More Than One Way to Do It'?: Selecting Methods of Legal Analysis That Work Best." After a writer has determined the rule, she compares her case to previous cases in which the rule of law has been applied. If the current case is similar to previous cases, the writer can explain that the rule of law probably will be applied in a way similar to those cases, and the outcome also will be like those cases. If, on the other hand, the current case is different from previous cases, then the rule of law will produce an outcome that is different from those cases. Comparing your client’s case to previous cases allows you to conclude what the result of your case will be or to make an argument about what the result should be. As noted in this Tip, American readers will expect you to show them why you think your case is like or unlike previous cases, and also how you synthesized your rule of law. Analysis is the heart of American legal writing, and it is very hard. To learn more about other ways to analyze, you might refer to Chapter 5 in The Law as Architecture: Building Legal Documents, by Jill J. Ramsfield. You may also want to read Chapter 11, Explaining the Analysis, in A Practical Guide to Legal Writing & the Legal Method by John C. Dernbach et al, which provides several examples of effective analysis. 5. Determining Whether a Case is Mandatory or Persuasive Even when a case addresses the precise issue you are analyzing, the court before which you are practicing may not have to follow the case. Stare decisis is the common law principle that requires courts to follow precedents set by other courts. However, because the United States is a federal system with both state and federal courts, each court is obliged to follow only certain precedents. The precedents a court must follow are determined by 1) whether the legal issues in the case are state or federal, and 2) whether court is federal or state, trial, mid­level appeals, or supreme. A complete discussion of how to determine which cases a court must follow is beyond the scope of this handout, but more detail is in the Writing Center handout, "Which Court is Binding? Mandatory vs. Persuasive Authority." Keep in mind the following general rules and you should be able to determine whether your court must follow a given precedent.
· Higher courts generally bind lower courts within their state or circuit. Thus, supreme courts bind mid­level appeals courts and trial courts. Appeals courts bind trial courts. Trial courts do not bind other courts at all. The binding
5 effect of a court's decision is limited to the lower courts in its state or circuit. So, an Arizona Supreme Court decision binds Arizona state appeals courts, but not Texas state appeals courts. Similarly, a 10th Circuit Federal Court of Appeals decision binds 10th Circuit federal trial courts, but not 9th Circuit federal trial courts.
· Federal courts usually bind other federal courts; state courts bind other state courts. For example, an Arizona state Supreme Court decision does not bind federal courts anywhere. A 10th Circuit Federal Court of Appeals decision does not bind Arizona state courts. Sometimes federal courts must hear state law issues and state courts must hear federal issues. A federal court binds other federal courts only on issues of federal law; a state court binds other state courts only on issues of state law. So, if a federal court is hearing a state law issue, it is not bound by other federal court’s interpretations of that law. The federal court must apply the state courts’ interpretation of the law. Similarly, if a state court must decide an issue of federal law, other state courts or even most other federal courts do not bind it. The state court, however, must follow the U.S. Supreme Court’s interpretation of federal law. 6. Courts are Not Required to Follow Secondary Sources Secondary sources are not the law. Therefore, courts are never required to follow them. Secondary authority analyzes or describes the law and includes sources such as treatises, legal encyclopedias, U.S. Law Reports, law review articles, and Restatements of the law. The law itself—Constitutions, statutes, cases, agency decisions, and regulations—is all that a court must apply. No matter how prominent the author of a secondary source, a court need not follow the source. So, while you might use secondary authority when you research or even cite it in a brief or memo, remember that it is not binding law and should not be discussed as though it were. The writer of the following example used secondary authority incorrectly because she described the authority as though it were the law. Example: Battery is found when a person intends to cause harmful contact with another person and when harmful contact with the other person directly or indirectly results. Restatement (Second) of Torts § 13 (1965). Bob intended to hurt Sally, and, as a result, he punched her and gave her a bloody nose. Therefore, Bob is liable for battery. If you filed a brief that used this example, the court would not need to find Bob liable for battery—even though the facts and Restatement indicate that Bob probably committed battery. The source cited here, Restatement (Second) of Torts, is not law. It is just a secondary source that describes the law. Therefore, a court is not required to follow it, even if what it says is true. The writer of the above example should find cases
6 from her jurisdiction that explain when a person is liable for battery. If she cited those cases, the court would be bound to follow them because they are binding law. For more discussion of how to use secondary authority, see the Writing Center Handout, "Can I Cite to Examples & Explanations in a Brief? How to Use Mandatory and Persuasive Authority." Final Considerations 7. Attributing Material and Bluebooking † In U.S. legal writing, you must tell the reader when you incorporate an idea into your paper that you have taken from another source. In other words, if an idea or thought in your paper is not your own, you must tell your reader where you took the idea from. In the U.S., ideas are attributed to their original sources using citations in the text (for memos, briefs, and court documents) and footnotes (for scholarly papers). In order to format these attribution citations, you should use The Bluebook. The Bluebook is an unfamiliar concept and tool for all novices to U.S. legal writing. The Bluebook provides the guidance for citing any type of source you might use in legal writing. In order to get you started in using The Bluebook, this tip will walk you through the citation of a case. You should first determine if you are writing an article or a court document. If you are writing an article, the front cover of The Bluebook provides a quick reference for citations in an article. If you are writing a court document, the back cover of The Bluebook provides a quick reference for citation in an article. The following example assumes you are writing a court document. Steps 1) Look up "case" on the back cover­the back cover refers you to Rule 10. 2) Rule 10 begins on page 55 of The Bluebook 3) From the back cover and Rule 10 you can see that the basic format of a case citation is: Case Name, Reporter Volume Reporter Name Page Number (Court Name Year). 4) Case Names are discussed in Rule 10.2 (beginning on page 56 of The Bluebook). In general you will use the names of the first parties named on each side of the case. If the party is a person, use only the last name. Finally you should abbreviate the parties' names using table T6. 5) The Reporter Volume will be found at the beginning of the case. 6) The Reporter Name is discussed in Rule 10.3 (beginning on page 62 of The Bluebook). In general you will look to table T1 in The Bluebook to find the proper reporter name for your jurisdiction. 7) The Reporter Page Number is found at the beginning of the case. † Using the Seventeenth Edition of The Bluebook
7 8) The Court Name is discussed in Rule 10.4 (beginning on page 64 of The Bluebook). In general, you can look up the proper court name for your jurisdiction in table T1. 9) Finally, the Year the case was issued can be found at the beginning of the case. 8. Style Besides just getting your thoughts on paper, crafting legal documents also requires you to consider style, or how you present your thoughts in prose. Careful consideration of the different style elements not only makes your writing more interesting, it will also make your writing more convincing to your readers. Some specific style elements that you can consider include:
· Order­When you craft a legal document you must decide which arguments or discussions you want to place at the beginning of the document and which arguments or discussions you want to place at the end of the document. You can use a variety of different ways to order your arguments or discussions. For example, you could decide to order your arguments or discussions from simplest to most complex to ease your reader into your complex arguments or discussions. Alternatively, you may want to strategically place your weaker arguments or discussions at the end of your paper to bury them behind your stronger arguments or discussions. Conversely, you might decide to place them at the beginning of the paper to have the reader forget them quickly.
· Proportion­Another thing to consider when writing a legal document is how much space you will spend on each argument or discussion in your document (i.e. how you will proportion your document). Your reader will assume that longer discussions are more important, so you don’t want to spend a lot of time discussing a trivial issue. Presenting analytical elements in appropriate proportions also involves a similar strategy to the strategy you used to order your arguments or discussions. For example, you may want to minimize the impact of a weaker argument or discussion by devoting less time to it.
· Rhetorical Questions­In many forms of writing rhetorical questions are considered useful devices. However, they are very rarely used in U.S. legal writing. Legal readers in the U.S. expect you to present your ideas in a clear and straightforward manner. It is often said that U.S. legal writers are in a hurry to get to the point, and to some extent this is true. This being the case, many U.S. readers will not appreciate the use of many rhetorical questions in your legal writing; they would prefer instead to just get the answer.
· Paragraph Length­There is no set rule for how long a paragraph should be in U.S. legal writing. However, U.S. legal readers do not expect to see paragraphs that are very short (1­2 sentences) or very long (1­2 pages). When you use very short
8 or very long paragraphs, they may distract the U.S. legal reader, and as a result the U.S. legal reader may not follow your writing very easily. 9. Use Quotations Sparingly Knowing when and how much to quote is a skill. On one hand, quoting a source ensures accuracy. On the other hand, quoting too much can make a document cumbersome and difficult to follow—especially if the quoted material is not well written. U.S. legal readers expect you, the writer, to select the relevant portions of the law and describe them in a way that is easy to understand. Quoting often frustrates those expectations. Generally, it is best to quote only when the specific language is legally significant. For example, terms of art or language from a binding statute or an important case may need to be directly quoted. Even then, be careful to quote only the part of the statute that is relevant to your document. Your reader wants you to select the important part and edit out the rest. Otherwise, paraphrase the law accurately and precisely, but do not quote unless the exact language is critical to your analysis. Your job as the writer is to sort through the language of a case and provide the reader with enough information to understand the issue, but not more than she needs. Compare the following two examples, describing the same case. The first quotes too much. The reader cannot determine which part of the quotation is important. The second example accurately describes the law without quoting too much. It highlights the relevant portions of the law for the reader but excludes a lot of information that the first example quotes, such as the part about affording an attorney, because it is not relevant to this case. Example 1: The defendant’s Fifth Amendment privilege against self incrimination was violated because he was not told that he had the right to remain silent when he was questioned in the police station. When “an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self­incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of the right to silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation.” Miranda v. Arizona, 384 U.S. 436, 478­79 (1966). Example 2: The defendant’s Fifth Amendment privilege against self­incrimination was violated because he was not told that he had the right to remain silent when he was questioned in the police station. When a person is interrogated and in custody,
9 he must be told that he has the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 478­79 (1966). 10. Commonly Confused Words Even for native speakers, English can be a confusing language. In particular, there are many words that are commonly confused because they are often used incorrectly. Both native English speakers and non­native English speakers often confuse these words. Legal writing requires precision, so it is necessary to use words correctly. Here is a list of some commonly confused word pairs that you many encounter in legal writing: ‡ It's­a contraction of "it is" Its­a possessive adjective; it means­belonging to it There­in that place or position Their­a possessive adjective; it means­belonging to them You're­a contraction of "you are" Your­a possessive adjective; it means­belonging to you Aggravate­to increase the seriousness of Annoy­to cause slight anger or mental distress Anticipate­to deal with or use before the proper time Expect­to regard as likely Anxious­mentally troubled Eager­enthusiastic; keen Blackmail­to extort payment for not disclosing a secret Coerce­to persuade or restrain by force Cohort­band of warriors Consort­spouse Comprise­include Constitute­to be the components of essence of Continuous­going without pause or interruption Continual­constantly or frequently recurring Disinterested­not influenced by one's own advantage Uninterested­not interested ‡ Adapted from STYLE, TEN LESSONS IN CLARITY AND GRACE, JOSEPH M. WILLIAMS 23­24 (2003).
10 Enormity­extreme wickedness Enormous­very large; huge Fortuitous­due to or characterized by chance Fortunate­favored by fortune; lucky; prosperous Notorious­well­known, especially unfavorably Famous­celebrated These ten tips should help you begin to understand some of the conventions of U.S. legal writing. As you can see, the primary thing to remember is that the U.S. legal Reader s used to and expects your U.S. legal writing to follow certain conventions. Once You become familiar with these conventions, you will find that your U.S. legal writing Will improve and your U.S. legal reader will respond more enthusiastically to your writing.
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