Legal Rhetoric
Handbook
Washington College of Law
Fall 2013
Table of Contents
On line version of this Handbook is available on TWEN Legal Rhetoric Main Page: reading
assignments are hyperlinked.
Syllabus ................................................................................................................................1
Course Requirements and Policies.....................................................................................12
Introduction to Legal Rhetoric........................................................................................... 17
Legal Rhetoric Style Sheet..................................................................................................21
Planning Strategies.............................................................................................................24
The Basic Principles ..........................................................................................................25
Revision Checklist .............................................................................................................28
The Legal Process ..............................................................................................................30
Using CREAC ....................................................................................................................31
Umbrellas ...........................................................................................................................33
Who Teaches the Course?...................................................................................................34
Clumsy Words and Phrases.................................................................................................38
Syllabus
Fall 2013
Overview of the Semester
Weeks 1-7: Writing a closed office memorandum: (Client 1).
Students write a mini-memo (which serves as an “umbrella” for the full memo) and three drafts
of the closed memo for Client 1 (final version due Week 7).
Learning Goals: memo format and purpose, basic writing strategies (Basic Principles),
knowledge of (but not doing) basic research (statutes and cases), basic citation form, analyzing a
statute, writing legal analysis (CREAC; using strong topic sentences; organizing around topics),
synthesizing rules from cases, professionalism.
Weeks 7-12: Writing an office memorandum: (Client 2).
Students research and write three drafts of an office memorandum for Client 2 (final version due
Week 12); they also prepare a basic research plan (due Week 8) and an annotated outline (due
Week 9) and an advice letter to Client 2 (due Week 13).
Learning Goals: preparing a research plan, researching, preparing an annotated outline, and
reinforcing skills from Weeks 1-7.
Weeks 12-13: Introduction to advocacy writing.
Students write one draft of the facts and argument for a Trial Court Memorandum (opposing
or supporting a Motion to Dismiss) for Client 1 (due Week 13).
Learning Goals: learning format and purpose of a Trial Court Memorandum, writing strategies
for persuasive writing (characterizing facts and law, analogizing and distinguishing cases, etc.).
Research Workshops in Weeks 2, 4, and 6.
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Syllabus
Legal Rhetoric Orientation
August 22, 23
Overview of the Legal System
The Legal Discourse Community
What Lawyers Write and What Makes It Good Writing
Overview of the Legal Rhetoric Course
Using the Online Course Materials
Read for Week 1:
Legal Rhetoric Handbook (TWEN Main page);
Evans Sample Memo (TWEN Main page);
Teaching Law:
Legal Documents:
LD2: Memorandums of Law
LD3: Formal Requirements of a Memo
Writing Process:
WP2: Writing Process
WP3: Creating Your Own Effective Writing Process
WP13: Plagiarism and Ethics
Editing and Citation:
EC2: Strategies for Editing Grammar
Teaching Law abbreviations: RS-Research Sources; RSt-Research Strategies; LD-Legal
Documents; LA-Legal Analysis; WP-Writing and Rewriting; EC-Editing and Citation
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Week 1: August 26
In class: Introductions; review of course requirements and policies; using Planning Strategies;
overview of a Legal Memorandum (Office Memo).
DF presentation: Writing Professional Emails; Overview of Bluebook.
Read for Class 2:
Reread in Legal Rhetoric Handbook, “Basic Principles,” “Legal Rhetoric Style Sheet,”
“Using CREAC,” and “Umbrellas.”
Teaching Law:
Legal Documents:
LD4: Memos--Headings
LD5: Memos—Questions Presented
LD6: Memos—Brief Answer
LD7: Memos—Statement of Facts
LD8: Memos—Discussion
LD9: Memos--Conclusion
Legal Analysis:
LA2: Legal Analysis—Introduction
LA3: Understanding Legal Rules
LA6: Statutory Language
LA7: Statutory Interpretation
Editing and Citation:
EC4: Active v. Passive Voice
EC22: Nominalizations
EC28: Sentence Fragments
EC30: Short Sentences
EC32: Strong Subject-Verb Combinations
Write for Week 2:
Draft of fact section for office memo.
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Research in Week 2: Research Workshop: Statutory Research
Read for Workshop 1:
Teaching Law:
Research Sources:
RS2: Importance of Legal Research
RS3: Overview of Types of Legal Authority - Primary Law
RS4: Overview of Types of Legal Authority - Secondary Sources
RS6: Overview of Process and Strategy
RS9: Federal Congress and Federal Statutes
RS16: State Legislatures and Statutes
RS45: Quick Reference - Statutes
Research Strategies:
RSt6: Primary Law v. Secondary Sources
RSt7: Stare Decisis
RSt8: Binding Law vs. Persuasive Law
RSt44: Quick Reference - Binding vs. Persuasive Law
RSt22: How a Bill Becomes a Law
RSt11: Book Research vs. Online Research - Strategies for Book Research
RSt12: Book Research vs. Online Research - Strategies for Online
Research
RSt19: Finding Constitutions and Statutes
RSt49: Quick Reference - Finding Statutes
RSt49a: Checklist - Strategies for Researching Statutes
Assignment:
Research Assignment 1 (will be assigned in Workshop 1; due at beginning of regular
class, Week 4).
In library: DF-arranged library tour.
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Week 2: September 2 (Labor Day classes will be rescheduled for later in the week.)
In class: Basic Principles and Revision Checklist; the legal system; writing an office
memorandum; structured peer review of fact section; analyzing a statute; introduction to
CREAC; umbrella sections.
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DF presentation: Statutory Citation; Active v. Passive; Subject-Verb-Direct Object Order;
Controlling Sentence Length; Five-minute editing quiz.
Read for Class 3:
Bluebook, Rule 10.
Teaching Law:
Editing and Citation:
EC7: Apostrophes
EC11: Colons and Semi-Colons
EC12: Commas
Legal Analysis:
LA8: Understanding Common Law
LA9: Case Analysis
Write for Week 3:
Mini-Memo (due week 3).
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Week 3: September 9
Mini-Memo due at beginning of class; bring two copies (or submit one electronically and
bring one copy for use in class—follow instructor’s directions).
In class: Discussion and peer review of Mini-Memo; discussion of predictive writing and
research strategies; learning to write rule-based reasoning; synthesizing Rules from cases;
relationship of statutory and case law; organizing the Discussion; CREAC structure using cases.
DF presentation: Case Citation I: Rule 10: Case Names; Five-minute editing quiz.
Read for Class 4:
Teaching Law:
Writing Process:
WP8: Managing Your Time
WP9: Overcoming Writer’s Block
WP15: Rewriting
WP16: Rewriting—Content
WP17: Large-Scale Organization
WP18: Paragraph Organization and Legal Analysis
WP19: Sentence Structure
WP20: Conciseness
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Write for Week 4 : Expand and revise Mini-Memo into full memo adding cases (and
synthesized Rules) and using full office memorandum format; complete draft due week 4.
Research in Week 4: Workshop 2: Case Research
Read for Workshop 2:
Teaching Law:
Research Sources:
RS10: Primary Law – Federal Law – Federal Courts and Cases
RS11: United States Supreme Court
RS12: Federal Courts of Appeals – Circuit Court Map
RS13: Federal District Courts – District Court Map
RS17: Primary Law – State Law – State Courts and Cases
RS42: Quick Reference – Courts and Cases
Research Strategies:
RSt20: Finding Cases
RSt10: Book Research vs. Online Research – Topic and Key Number
Searches
RSt25: Updating the Law
RSt45: Quick Reference – West Key Number System
RSt51: Quick Reference – Finding Cases
RSt46: Quick Reference – Updating the Law
RSt51a: Checklist – Strategies for Researching Cases
Assignment: Research Assignment 2 (will be assigned in Workshop 2; due in regular Rhetoric
class in Week 6).
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Week 4: September 16
Draft 1 of Memo 1 due at beginning of class.
Research Assignment 1 due at beginning of class.
In class: Peer review of drafts using Revision Checklist and self-grading guidelines; discussion
of strengths and weaknesses of drafts; more work on reading and synthesizing cases/rules; focus
on Synthesized Rules from cases; umbrella section; CREAC structure; topic sentences.
DF presentation: Case Citation II: Reporters, Date Parentheticals, Court Information; Common
Writing Errors (Legal Rhetoric Style Sheet); Five-minute editing quiz.
Write for Week 5:
Second draft of Memo 1 (due in conference Week 5.)
Learning Goals for Memo 1: memo format and purpose, basic writing strategies (Basic
Principles), knowledge of (but not doing) basic research (statutes and cases), basic citation form,
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analyzing a statute, writing legal analysis (CREAC; topic sentences; organizing around topics),
synthesizing rules from cases, professionalism.
Sign up for conferences (review preparation for conferences; see Week 5).
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Week 5: September 23: No regular classes—mandatory conferences.
Individual conferences: prepare for your conference by writing a complete revised second draft
of Memo 1, writing a list of questions (see “Using Drafts” in Course Requirements and Policies
for kinds of questions) for your instructor, and highlighting portions of the draft that you want to
discuss. Follow your professor’s instructions for submitting these materials. Conferences should
last about twenty minutes. Failure to write and deliver a complete draft or to show up for the
conference will result in the lowering of your grade in the course.
Blackout Period: There is a 24-hour blackout period before your final version of Memo 1 is
due, during which you may not consult with instructors, the DFs, or the Writing Fellows.
Write for Week 6:
Third draft of Memo 1 (due at beginning of class Week 7).
Research in Week 6: Workshop 3: Secondary Sources
Read for Workshop 3:
Teaching Law:
Research Sources:
RS19: Secondary Sources
RS20: Secondary Sources - Legal Encyclopedias
RS21: Secondary Sources - American Law Reports
RS22: Secondary Sources - Hornbooks and Treatises
RS23: Secondary Sources - Law Reviews
RS24: Secondary Sources - Restatements
RS44: Quick Reference – Secondary Sources
Assignment: Research Assignment 3 (will be assigned in Workshop 3; due Week 8).
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Week 6: September 30:
Draft 3 of Memo 1 due at beginning of class; Research Assignment 2 due at beginning of
class.
DF presentation: Alterations, Omissions, Block Quotations, Context Paragraphs.
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In class: Structured in-class peer review of drafts—come to class with specific questions: focus
on umbrella sections, synthesized Rules (R of CREAC), Explanation (E of CREAC) sections
organized by topics (rather than by cases) with strong topic sentences, specific analogizing and
distinguishing in Application (A of CREAC) sections; deeper reading of cases.
Write:
Final version of Memo 1; due at beginning of Class 7.
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Week 7: October 7
Final version of Memo 1 due at beginning of class.
In class: Self-evaluation of performance on Memo 1—set goals for improvement; meeting with
Client 1 to report results and give advice; write in-class email response to client email; Client 2
interview; review of memo format and requirements; CREAC structure.
DF presentation: Signals and Explanatory Parentheticals; Review of Revision Checklist.
Write for Week 8:
Basic Research Plan and preliminary results that must include any
statute(s) and at least two case briefs (due in writing in class week 8).
Draft of Fact Section for Memo 2.
Read for Class 8:
Teaching Law:
Writing Process:
WP12: Organizing Before You Write
DF Workshop on Research offered this week (DF will announce time and place).
Research Plan (Week 8):
Read for Research Plan:
Teaching Law:
Research Strategies:
RSt42: Checklist – Initial Research
RSt43: Checklist – Continuing Research
RSt16: Research Strategies – Taking Notes
RSt17: Research Strategies – Deciding When to Stop
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Week 8: October 14
Basic Research Plan and case briefs for Memo 2 due at beginning of class; submit two
copies (or per instructor).
Research Assignment 3 due at beginning of class.
In class: Discuss draft of facts and preliminary research; refine basic research plan; revise basic
research plan into annotated outline; draft issues; discuss law–strengths and weaknesses of
client’s case; in small groups, work on Discussion (CREAC) and counter-analysis.
DF presentation: Secondary Sources; Avoiding Clumsy Words and Phrases.
Research for Week 9: Complete research for Client 2’s problem.
Write for Week 9: Annotated Outline of Memo 2 (it must include all research for memo) due
at the beginning of class week 9. Bring two copies.
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Week 9: October 21
Annotated Outline due at beginning of class. Bring two copies (or per instructor).
In class: Role-playing: meeting with supervisor to discuss research (research must be complete
at this point); discuss forms of reasoning and how to use them; reading cases thoroughly;
recognizing forms of reasoning; review rule synthesis.
DF presentation: Review of Short Citation Forms; Bluebook Problem Areas.
Write for Week 10: Draft 1 of Memo 2.
Learning Goals for Memo 2: Reinforcing all Learning Goals from Memo 1, finding and
using research materials, using research plans and annotated outlines to prepare drafts, using
drafts effectively.
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Week 10: October 28
Memo 1 returned.
Draft 1 of Memo 2 due at beginning of class; bring two copies (or per instructor).
In class: Structured self-revision in class and peer review; working on Question Presented and
Brief Answer; rule synthesis; CREAC structure.
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Write for Week 11: Draft 2 of Memo 2; turn in with focused questions.
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Week 11: November 4
Draft 2 of Memo 2 due at beginning of class.
In class: Instructor and peer review of Draft 2.
Write for Week 12: Final version of Memo 2 (due at beginning of class week 12).
DF Workshop on Citation offered this week (DF will announce time and place).
Review for Exam:
Teaching Law:
Research Sources – Quizzes:
Congress and Federal Statutes
Federal Courts and Federal Cases
Secondary Sources
State Courts and State Cases
State Legislatures and Statutes
Blackout Period: There is a 48-hour blackout period before your final version of Memo 2
is due, during which you may not consult with instructors, the DFs, or the Writing Fellows.
··································
Week 12: November 11
Final version of Office Memo 2 due at beginning of class.
In class: Advice letter format; introduction to advocacy writing: reconsidering audience and
purpose; characterizing facts and law; introduction to a Trial Court Memorandum; reflect on
personal use of strategies for improvement from week 6.
Read for Week 13:
Evans Annotated Advice Letter (on TWEN)
Evans Trial Court Memos Supporting and Opposing a Motion
Teaching Law:
Legal Documents:
LD56: Motions
LD57A: Formal Requirements of Motions
LD57C: Memorandum of Points and Authorities (Memo to the Court)
LD59: Client Letters
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Writing Process:
WP21: Persuasive Writing
WP22: Moving from Objective to Persuasive Writing
WP23: Designing the Theory of the Case
WP24: Crafting the Fact Section
WP25: Drafting the Argument Section
WP26: Using Effective Sentence Structure and Word Choice
Write for Week 13: Advice Letter to Client 2 (with a partner);
Statement of Facts for Trial Court Memorandum on Closed Memo case;
(both due in class week 13).
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Week 13: November 18
Advice Letter and Statement of Facts due at beginning of class.
In class: More advocacy writing: reading cases to make an argument; characterizing the law;
writing persuasive topic sentences; arguing a motion.
Write in class: Argument section of Trial Court Memorandum in Client 1’s case (working
in groups with a sample Office Memo 1 selected by professor).
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Research, Citation, and Writing Exam–November 22 (day students);
November 23 (evening students).
Monday, November 18
Legal Rhetoric professors argue the motion for the parties in Memo 1.
Graded Memo 2 will be returned at the end of the first class next semester. If you would like the
memo returned sooner, you may give your instructor a stamped self-addressed large envelope by
December 12. No memos will be mailed or returned in any way until after the last 1L final exam.
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Monday, November 25
Showcase Argument for Motion in Closed Memo case.
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Course Requirements and Policies
Attendance
Students must attend all classes. Absences will adversely affect the grade and can result in failing
the course. Any absence from a research workshop will require the completion of an extra makeup assignment in order to pass the course.
Class Preparation
Students are expected to do all the reading assigned for class and to come to class prepared to
discuss it. The on-line syllabus has hyperlinks to many of the reading assignments.
Assignments
Timeliness
Students must turn in all assignments, including drafts, on time. Failure to turn in an assignment
will result in failure in the course. The due dates for the assignments are listed in the syllabus,
and assignments are due at the beginning of class or they will be considered late. All late
assignments that are not turned in during class must be turned in at the Legal Rhetoric Office.
Late assignments that are turned in within 24 hours are penalized 10 percent. Late assignments
that are turned in after 24 hours receive no credit, but must be turned in to pass the course.
Proofreading
Students must thoroughly proofread all assignments, including drafts, before handing them in.
Any assignment that contains more than four proofreading errors will be returned without further
assessment and will not be counted as handed in until it is corrected (students are responsible for
checking their email after an assignment is turned in to be sure that it is not returned for
proofreading errors). The paper must be resubmitted within 24 hours to receive credit for the
course. You may not make substantive changes if your paper is returned for proofreading errors.
The paper will be penalized 15 points each time it is returned for proofreading.
Drafts
A “draft” that you submit is not a “rough draft”—it is your best effort, including on citation
forms, at that point in time. It should not, in fact, be your very first draft, but rather the first draft
that you are showing to someone else. All drafts must be complete or they will not be counted as
turned in and will be returned for completion and counted as late. Drafts will be checked for
sufficiency immediately during the class. Students must turn in all assignments to pass the
course.
Texts
The reading materials for the course are found at teachinglaw.bna.com. You need to log on to
the site and purchase the program. You also need to purchase The Bluebook: A Uniform System
of Citation, 19th edition (2010).
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The following books are recommended if you want a style manual that helps with usage,
grammar, and punctuation beyond that available on Teaching Law (the books are available on
Amazon; also you may find a few copies in the small Rhetoric library in the Rhetoric conference
room that you may consult):
Richard C. Wydick, Plain English for Lawyers, 5th ed. (2005).
Ian Gallacher, A Form and Style Manual for Lawyers (2005).
Strunk and White, The Elements of Style (paper, 2008).
Anne Enquist and Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the
Legal Writer, 3d ed. (2009).
Research Curriculum
The research portion of the class has several different facets. First, we will assign readings in
teachinglaw.com to present concepts and search strategies. These are mandatory and essential to
your developing understanding of legal research and completion of the required exercises.
Second, we will have three mandatory Research Workshops in Weeks 2, 4, and 6. The specific
room, date, and time information is on TWEN; the Workshops are arranged according to
doctrinal sections. At the Research Workshops, we will guide you in small groups as you work
on a set of exercises designed to practice strategies learned in the readings. Bring your laptop and
passwords (teachinglaw/Lexis/Westlaw) to each Research Workshop. Third, after each
Workshop you will get a problem set. The problem sets are designed to reinforce your
understanding of research strategies. You will have two weeks to complete each problem set and
must work independently on the assignments. Fourth, you must complete mandatory Lexis and
Westlaw training before October 18, 2013. Lexis and Westlaw representatives will set up
several different live and webinar training options so that you can attend the training at your
convenience. Finally, the exam in November will have a significant research component in order
to ensure that you have mastered the material. Our approach – present, practice, reinforce, and
test – is designed to equip you both for Rhetoric assignments in the months ahead and for the
actual practice of law.
Using Drafts
The Legal Rhetoric course is designed to teach students how to use drafts on their own. To that
end, students are introduced to a variety of tools: Planning Strategies, Revision Checklist, Basic
Principles, checklists in the texts, handouts, etc. Peer review and in-class global comments about
drafts in general can also be fruitfully used in the revision process. In law practice, drafts are
used by the writers themselves to improve the final product. One, but only one, source of input
(in the class, but obviously not in practice) is the instructor’s comments. These comments come
on some drafts, after students have redrafted at least once, on the grading sheets that accompany
graded papers, and in conferences. It is never the instructor’s job to read line-by-line and revise
and edit a student’s work, just as it would not be the job of a supervising attorney in a legal job.
That responsibility resides with the student, including the responsibility to transfer comments
from one section of a draft to another. Instructors respond to drafts on a macro level and respond
to specific questions and uncertainties that a student may have. The Dean’s Fellow, as well, can
respond in a macro fashion to drafts.
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In any case, the quality of the draft and the questions a student poses about it will greatly
determine the quality of the feedback. No one can do much with a hastily written, incomplete
draft or vague questions, such as “is this okay?” Good questions are along the lines of these: “I
am struggling with how many facts I should put in the Question Presented. Have I struck the
right balance?” “I’d like to discuss the difference between the Brief Answer and the Conclusion.
Mine seem repetitive.” “I know from class exercises that I’m struggling with the active/passive
voice. Can we work through a few examples?” Notice that these questions demonstrate that the
student-writer has thought about drafting choices. Self-editing and conscious selection of writing
strategies are the hallmarks of good legal writing.
Grading
The course grade is determined by grades on the individual assignments, the overall quality of
the other assignments, the grade on the research and writing final, and class participation: Memo
1 (closed), 20%; Memo 2 (open), 35%; Research, Citation, and Writing Strategy Exam, 15%;
Advice Letter, 10%; Class Participation and Professionalism, 10%; Other Assignments, 10%.
Failure to complete both the Lexis and Westlaw training units will result in a 5% deduction from
the student’s cumulative score (e.g., a score of 92.3 will be reduced to 87.3). Grading criteria
forms that all instructors use for the graded assignments–the two memos and the second advice
letter--are available on TWEN Main Page.
TWEN
TWEN is our on-line classroom support system and is one of the principal ways we
communicate with students and distribute assignments. Students will receive a password at
orientation and should immediately register on Westlaw’s TWEN so that they do not miss
information. All students should check TWEN (both the Main Course page and their own small
class page) and email regularly for class information.
Material on TWEN Main page: Handbook (including syllabus and course requirements and
policies); Evans sample office memo, advice letter, and memos supporting and opposing a
motion; research materials for Closed Office Memo 1; schedule for mandatory Research and
optional Supplementary Workshops; Writing Fellow hours and policies;
Material on Class page: Classroom DF power points; any individual instructor materials
How to get Extra Help
Aside from one mandatory conference with the instructor that will occur during the semester, we
encourage students to meet with instructors and Dean’s Fellows whenever they feel they need
additional guidance or instruction. All instructors and Dean’s Fellows have office hours that they
will announce at the first class. All students may also meet with Professor Phelps, the Director of
the Legal Rhetoric Program, or any of the full-time Rhetoric professors, even if these are not
your classroom teachers. Call or e-mail for an appointment or drop in during posted office hours
(posted in the Legal Rhetoric Office and on TWEN). Additionally, there are several Dean’s
Fellows whose full-time job is to provide Rhetoric students with additional assistance, including
some Fellows who specialize in ESL. These Writing Fellows have regular hours that are posted
in the Legal Rhetoric Office and on TWEN. The sign-up procedure is also posted on TWEN.
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Students may not meet with Rhetoric Writing Fellows during the blackout periods.
In addition to this crucial one-on-one work, the Legal Rhetoric Program puts on a series of
supplemental workshops during each semester. The workshops complement the classroom
lessons by addressing the material in a light-hearted way and from a slightly different
perspective.
Fall Semester Workshops
•
•
•
•
•
Understanding CREAC Workshop (Professor Figley)
Shows how to use CREAC to analyze a different problem.
Writing Strategy Workshop (Professor Spratt)
Demonstrates the “do’s and don’ts” of effective writing.
Understanding Rule Synthesis Workshop (Professor Figley)
Examines how Rule Synthesis works.
Citation Workshop (Professor Spratt)
Reviews citation rules needed in every day practice.
Exam Review Session (Professor Spratt & Professor Beske)
Provides a supplemental review for the Research, Citation, and Writing Strategy Exam.
Students will receive a schedule of the supplemental workshops early in the semester; the
schedule is also posted in the Legal Rhetoric Office and on TWEN. Some students may be
required to attend some of the workshops; all are welcome to attend them.
In short, we see our job as helping students become the best legal writers and researchers
possible and are willing to provide whatever it takes to accomplish that end. USE the resources!
WCL Honor Code
Like an exam or any other law school assignment, all work you do in the Legal Rhetoric course
must be your own and you must have observed the WCL Honor Code and Legal Rhetoric course
requirements in preparing it. Any course-specific requirements outlined in the course materials
come under the Honor Code.
You may not work with other people, students, or resources, including peer review,
proofreading, and research, outside of class unless your instructor explicitly permits you to do so.
Although we discuss the assignments extensively in class and work together on them, such
discussions and work are not permitted outside of class and violate the WCL Honor Code. You
may not review or consult any other student’s actual written work (including outlines, drafts, and
results of research), give or solicit advice as to how a document should be written (its substance
and writing), or discuss the facts of an assignment or how the law applies to those facts. If, in
exceptional circumstances, you request and receive permission to use the assistance of a typist,
the typist may not correct spelling, grammar, citation form, or any other aspect of the
assignment.
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Any material taken from another source must be acknowledged with quotation marks (if directly
quoted) and a citation.
You may work on any Legal Rhetoric matter with your instructor, your Legal Rhetoric Dean’s
Fellow, other Legal Rhetoric instructors, other Legal Rhetoric Dean’s Fellows, Legal Rhetoric
Writing Fellows, and WCL reference librarians. Do not discuss assignments outside of class.
Professionalism
Legal Rhetoric, like many other law school classes, not only teaches the substance of the course,
it also helps to shape students as professionals. Therefore, in Legal Rhetoric students are
expected to practice the traits of professional responsibility, including civility; attention to detail
in work products on which clients, other lawyers, and judges rely; effective time management;
promptness and timeliness in completing and submitting work; honoring all commitments and
attending all scheduled meetings and conferences; honesty and candor in the use of legal
materials and in writing; truthfulness; respect; and a sense of responsibility to peers and to the
profession.
A Word About Next Semester. . . .
Although the semesters are graded independently, the second semester of Legal Rhetoric
continues the first. Your first assignment in the Spring semester will be based on Memo 2 from
the Fall semester.
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Introduction to Legal Rhetoric
The Legal Discourse Community
Welcome to Washington College of Law and to the Legal Discourse Community (LDC). By
entering law school, you have become a fledgling member of the LDC, and you may have
already noticed that language is sometimes used in ways that are unfamiliar to you: meanings
and language conventions that are different and, consequently, confusing. The LDC is the world
of language that lawyers inhabit. Many, many discourse communities exist. If you came to law
school directly from undergraduate school, you were a member of the academic discourse
community. You learned to read, write, and speak using the conventions that are successful
there. If you came from the business world, you were a member of the business discourse
community, from the military, the military discourse community, and so forth. Discourse
communities are everywhere and you may, in a single day, move from one to the other without
even noticing. Think about the ways that these words are used in the overlapping discourse
communities portrayed below: battery, briefs, ERA.
Baseball
Military
Law
You?
Each discourse community has its own conventions and rules. Some words have particular and
specific meanings; arguments are made using certain things as proof; specific kinds of
documents are used. Members of it read, write, and speak in a particular way that is
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“acceptable.” Entry into a new discourse community requires some initiation, some guidance,
and much, much practice.
That’s the purpose of the Legal Rhetoric course: to introduce you to the rules and conventions of
the LDC and to provide an environment in which you can become a full-fledged member of that
community by reading and writing as a lawyer. This initiation also occurs in your other courses,
of course, as you learn to “brief” cases, to answer “hypotheticals” from a professor who is using
the “Socratic method,” and to introduce yourself as a “1L.” In the Legal Rhetoric course you will
practice reading and writing in the LDC, making the mistakes that are always inevitable in the
learning process, without risking your job or your client’s welfare. Our contract with you is that
if you give us your best effort, we will work just as hard to guide you, and by the end of the
semester, you will be reading and writing confidently and competently in the Legal Discourse
Community.
What is “Good” Legal Writing?
The Communication Triangle helps us to hone in on what kinds of writing lawyers do and to
begin to develop ways by which we can judge whether writing is “good” or not.
Reality (Objective writing)
Language
(Literature)
Reader
(Persuasive writing)
Writer
(Expressive writing )
Every act of writing involves the four elements portrayed on the triangle: the writer, the reader,
the “reality” (the things being written about), and the language in which it is embedded. A
18
particular act of writing and the document that is produced may be classified according to which
of these four receives primary attention; that is, which of the four is the primary goal or purpose
of the writing. For example, if you are taking notes or keeping a diary, you are writing for
yourself; the document, such as it is, is written for you, the writer. We call this kind of writing
“expressive” writing (the lower, left point of the triangle). If the reality, the thing about which
you are writing, is most important, we call that “objective” writing (the upper point of the
triangle); if the primary purpose of the document is to bring about a change in the reader, we call
that “persuasive” writing; if the primary purpose of the document is to create beautiful language,
we call that “literature.” All four elements are present and receive attention in any act of writing,
but one of them takes preeminence in a particular document.
You can probably begin to see that any “rule” for writing falls apart under this analysis. Take
one of the first writing rules you learned: “spell words correctly.” Does that rule apply to all four
kinds of writing described above? Perhaps not all of them all the time. If we can’t use rules to
judge whether writing is “good” or not, what can we do? We can judge whether a document is
good by whether the writing strategies (not rules) used in it achieve the desired goal of the
document for the designated audience. In other words, you have to ask yourself before and while
writing any document, “who is this for and what do I want it to achieve?” That’s the approach
taken in the Legal Rhetoric course: strategies, not rules, and strategies based on analyzing
audience and purpose for any document. The “Planning Strategies” form on page 20 will assist
you in doing this analysis. Also “The Basic Principles” on pages 21-23 give you some strategies
that have proven effective in the Legal Discourse Community.
What Kinds of Writing Do Lawyers Do?
The Communication Triangle also helps to clarify what kinds of writing lawyers do and the
kinds of writing that you will be learning and practicing in the Legal Rhetoric course. The first
semester of the course focuses on written legal discourse; in the second semester, you will begin
also to use spoken legal discourse (of course, you are learning to “talk like a lawyer” every day
in law school, in classes, and elsewhere). So what is it that lawyers write and what special
characteristics does legal discourse have?
Legal discourse functions in distinctive ways and has some special qualities. First, legal writing
tends to be either objective or persuasive (the top and bottom right angles of the triangle); it is
rarely creative or expressive (at least not in the workplace). Second, legal discourse occurs in
different kinds of documents. Lawyers write in various forms and with various voices: analyst,
strategist, counselor, advocate, for example. They also write to different audiences and for
different purposes: to inform another lawyer, to counsel a client, to persuade a judge, to name
some of the most frequent purposes and audiences. “The Legal Process” chart on page 26
delineates some of the documents that lawyers write and shows when these documents arise in
the legal process. Third, legal documents often give rise to other legal documents. Finally, legal
discourse has a significant impact beyond the confines of the legal discourse community. The
way lawyers use language matters. Legal discourse not only interprets the law; it also creates the
law. Lawyers’ writing affects people’s lives.
19
Writing as a Process
The Legal Rhetoric course will treat writing as a process, rather than as a product. For a long
time, writing was taught using the product approach: teachers gave students a writing
assignment, the student wrote it (the product), and the teacher graded it, perhaps with comments
in the margins. Then there would be another assignment, and so on. The student’s writing might
improve, or not; it was all rather serendipitous. It wasn’t clear that writing could be taught at all.
A few decades ago, composition theorists at some major universities (Carnegie Mellon, Purdue,
and Southern Cal, among others) began to investigate what good writers did in the process of
producing good documents. By taking protocols (taped monologues) from “expert” and “novice”
(good and bad) writers as they worked on a document, the researchers were able to detect some
patterns: good writers did certain things in the process of writing. Now there was something to
teach novice writers.
One broad pattern that emerged from the protocols looked something like this:

Planning←→



Drafting←→ Revising→ Final Editing
 


Expert writers engaged in more planning activities in the writing process than did novice writers;
they asked themselves some specific questions before, during, and after drafting (notice that
some of the arrows go in both directions; the process is not linear, but recursive). These
questions included information about the reader and the purpose of writing. The questions are
adapted for legal documents in “Planning Strategies” on page 20 of this Handbook. In addition,
the expert writers engaged in substantial revision (re-vision = re-seeing) of the document, writing
context paragraphs, topic sentences, changing sentence structure, etc. Many of the revising
techniques are included in the “Revision Checklist" on pages 24-25. Then they did a final edit–
fixing spelling, etc. Some expert writers planned a great deal before drafting; others planned
loosely, but always moved back into planning after an initial “zero” draft (getting ideas down).
As a novice legal writer, you will more easily become expert by being attentive to the process of
producing legal documents. We will work on various aspects of the process in class, sometimes
in small groups, as you become familiar with it.
20
Legal Rhetoric Style Sheet
Common Writing Errors
Pronoun referents: Pronouns must match in number and gender the noun to which they
refer; the referent noun must also be clear and not ambiguous.
Wrong: Neither Susan nor Jane felt that they had been treated fairly.
Right: Neither Susan nor Jane felt that she had been treated fairly.
Wrong: JMart frequently changed their security guards’ routines.
Right: JMart frequently changed its security guards’ routines.
Wrong: Each student must hand in their assignment on time.
Right: Each student must hand in his or her assignment on time.
Right: All students must hand in their assignments on time.
Wrong: The testator and the Defendant were in a confidential relationship because he received
financial advice.
Right: The testator and the Defendant were in a confidential relationship because the testator
received financial advice.
Subject/verb agreement when verb is separated from subject.
Wrong: The profits earned by the pharmaceutical industry is too high.
Right: The profits earned by the pharmaceutical industry are too high.
Comma splices: Independent clauses may not be joined together by a comma (“however” is
not a conjunction and may not be used to join independent clauses).
Wrong: The explosion was loud, it could be heard a mile away from the construction site.
Wrong: The explosion was loud, however it could not be heard a mile away.
Right: The explosion was loud; it could be heard a mile away from the construction site.
Right: The explosion was loud, and it could be heard a mile away from the construction site.
Even Better: The loud explosion could be heard a mile away from the construction site.
Semi-colon use: Semi-colons have two uses—to join independent clauses instead of starting
a new sentence (see above) and to join items in a series if the items have internal commas.
Right: The court considered whether the defendant, who was a minor at the time of the contract,
could be held responsible for his actions; whether the plaintiff, who knowingly sold to a minor,
could be seen as negligent; and whether the defendant’s parents, who knew nothing of the
transaction, could be held liable.
21
Colons: A colon is only properly used when the syntax comes to a full stop; a colon should
not interrupt the natural flow of a sentence.
Wrong: The factors that the court considered are: whether the testator suffered from an insane
delusion, and whether the will was a product of that insane delusion.
Right: The court considered two factors: whether the testator suffered from an insane delusion,
and whether the will was a product of that insane delusion.
Commas: Commas are properly used to indicate grammatically separate parts of a
sentence: (1) two independent clauses, (2) an introductory clause, (3) items in a list, and (4)
extra explanatory words, such as appositives and some transition words. Commas should
not separate a subject and a verb, even when the verb is the second in a compound verb.
Right: (1) The mascot asked the spectator if she would like to dance on the dugout roof, and
the spectator agreed to do so.
Right: (2) If the defendant knowingly consented to dancing with the mascot, he should not be
permitted to sue the baseball club for his injuries.
Right: (3) The plaintiff had seen others dance with the mascot at previous games, saw the
warning sign at the entrance, and willingly agreed to dance.
Right: (4) The plaintiff, however, did not expect a hip bump.
Right: (4) The plaintiff, Terry Mason, did not expect to be injured while at a baseball game.
Wrong: Terry Mason attended the game, and danced on the dugout.
Its/it’s: “Its” is a possessive pronoun; “it’s” is a contraction for “it is”; they are not
interchangeable.
Right: A leopard cannot change its spots.
Right: It’s probably going to rain today. (Note: contractions should not be used in formal
writing—that is, most of the kind of legal writing you will encounter.)
The floating “this”: “this” should nearly always have a noun following it.
Wrong: Lavelle suffered the insane delusion that he had a magical guitar pick, and Allenby
suffered the consequences of that delusion when he accused her of stealing the guitar pick. This
is similar to the situation in Benjamin in which the testator’s wife was drawn into and suffered
the consequences of her husband’s delusion.
Right: This effect on making a will is similar to . . . (or some other noun or phrase that sums up
what the writer means)
Comparing like to like: in comparing facts in cases, compare people to people, situations to
situations, not to case names:
Wrong: Unlike Moore, Lavelle did not depend financially on Jellico.
22
Right: Unlike the testator in Moore, Lavelle did not depend financially on Jellico.
Bluebook rules: The Bluebook has particular rules for things like spelling out numbers and
capitalization. For example, sometimes “court” is capitalized and sometimes not, but the
capitalization is not random: it follows particular rules. Always look up the rules and do not
assume or copy from cases you are reading.
Format
For memoranda and briefs:
• Use Times New Roman, 12-point font, regular typeface only;
• Use 1-inch margins on all sides; justify left only;
• Number all pages (unless specific rules say otherwise) in the bottom center;
• Double-space except for headings, subheadings, footnotes, and block quotes;
• Underline and use all caps for major section (not substantive) headings: i.e.
INTRODUCTION;
• Observe all page limits: office memoranda do not have page limits, but most
documents submitted to a court do; page limits do not include the Certificate of
Service;
• Do not orphan a heading or subheading at the bottom of a page;
• Check and follow Bluebook capitalization rules; don’t assume or copy from cases;
• Number and block all headings and subheadings with the numerals and letters
indicated in the samples (see below):
Example below of how headings should be blocked:
I.
Students should format all memoranda submitted for Legal Rhetoric according
to the Style Sheet because professionalism and attention to detail are essential
for effective legal writing.
A. Effective writing requires attention to detail so that the reader is not distracted.
1. Overlooking even small details, such as correct spacing, undermines the final
product.
2.
23
Planning Strategies
Before you begin any writing assignment, answer the following questions as well as you can.
Return to the questions as you draft the document and refine your answers. The answers will
help you decide what to write about and how to write it. They also will help you decide what
language to use, what to include, and what to omit.
1.
What question(s) should this document answer?
2.
What is my answer to each question (no more than a few words)?
3.
Who is my reader?
4.
What is my reader's relationship to me?
5.
How much does my reader know about the subject and my answer?
6.
What is my reader's attitude about the subject and about my answer?
7.
What does my reader need to know to understand my answer? List in "need to know"
order.
8.
Why am I writing this (to inform, to persuade, to accomplish some other end)?
9.
What constraints do I have?
24
The Basic Principles
What makes a “good” document?
Why do some documents succeed and others fail? The difference between a “good” document
and a “bad” one is more than spelling, punctuation, and grammar (although these certainly count
in the equation). If we can pin down the qualities of successful documents, we are well on our
way to producing them and to helping others produce them.
A. A good document achieves its designated purpose for its specific audience.
To achieve this quality, a writer should ask certain questions before and during drafting and
revising:
1. For whom is this document written (audience)?
2. What will that person do with it (purpose)?
3. What question(s) is the document supposed to answer?
4. What is the answer?
In the world of legal discourse, documents are “working documents,” not academic exercises.
Real people need and use the documents you write to answer significant questions. However
perfectly it may be written, a legal document fails if it does not achieve its designated purpose
for its designated audience.
B. A good document immediately gives its reader an overall picture of what the document
is about, including the question it is answering and the answer. It also leaves the reader
with a clear answer.
5. Does the document immediately (i.e. on page one) and clearly present the question or
questions it addresses, the answer(s), and a brief explanation of the answer(s)?
6. Does the final sentence or paragraph (conclusion) make the answer crystal clear?
Documents are more useful to readers if they supply context–that is, if they tell the reader
what the document is about right away and give the reader an overall picture of what the
document will do. Legal documents, in particular, should not be “mystery stories.” Give both
the question and the answer in the first paragraph.
25
C. A good document is easy to follow; a reader can tell immediately what a paragraph is
about and how paragraphs fit together.
7. Does the first sentence in each paragraph contain the topic of that paragraph?
8. Are all the sentences in that paragraph related to that topic?
9. Is the relationship between paragraphs shown by the effective use of transitions?
10. If appropriate, are subtitles used to guide the reader through the document?
Paragraphs and “white space” in a document are useful organizational tools for a reader, as a
reader struggles to understand the meaning. Well-organized paragraphs in which the topic is
quickly identified makes the struggle for meaning easier. Effective transitions create “flow”
and act as signposts through the document. Subtitles also act as signposts. (Picture the reader
on a hike through unfamiliar terrain.)
D. A good document is easy to read.
11. Do sentences rarely exceed twenty-five words (2 ½ typed lines)?
12. Are long sentences controlled with parallel structure?
13. Is sentence length and type varied?
14. Are the first and last words in each sentence the most important?
15. Are important ideas in main clauses and less central information in subordinate clauses or
phrases?
Many studies have shown that readers comprehend shorter sentences more easily. At the same
time, a document comprised entirely of short sentences is tedious and droning, and sometimes
long sentences are useful, as long as they are controlled and not sprawling. Other studies
show that readers pay the most attention to the last and first words in sentences (“impact”
positions). Also, grammatical structures carry meaning: if information is in the main or
independent clause, it is read as important information; if it is in a subordinate or dependent
clause, it is seen as less important–dependent or contingent on the important information.
16. Are verbs in the active voice unless you have a specific reason for using another structure?
17. Are “to be” verbs with nominalizations kept to a minimum?
18. Are sentences generally in subject-verb-direct object order?
26
The clearest, shortest and most direct sentence structure is subject-active verb-direct object.
Readers comprehend this structure most easily. Active verbs give your writing clarity and
crispness. Nominalizations in the place of active verbs make the writing sound stiff, abstract,
and bureaucratic.
19. Are all pronoun referents clear and accurate?
20. Are modifiers kept to a minimum?
21. Are modifying phrases next to the nouns they modify?
22. Is “legalese” eliminated, unless critical to the meaning?
23. Are “clumsy words and phrases” revised?
In legal documents, ambiguity can be deadly. To avoid any chance that the meaning is not
clear, use pronouns only when there can be no doubt as to the referent. When in doubt, repeat
the noun. Inaccurate use of modifying phrases can also change the meaning. Strong nouns
and verbs should carry the writing without the use of many modifiers. Moreover, legal
documents are difficult enough to read without the use of unnecessary legalese and four
words instead of one (see list of “clumsy words and phrases” on pages 35-37).
27
Revision Checklist
After you have completed a draft of your document, review it with these questions in front of
you. Use this checklist to revise the document. This checklist focuses on strategies that have
proven most effective for clarity and economy of language and should be used in writing
objective documents.
Verbs
1. Are the verbs in the active voice unless I have a specific reason for using another
structure?
2. Are verbs generally next to subjects and sentences in subject, verb, and direct object
order?
3. Have I eliminated “there is” (was, are, were) and “it is” from the beginning of
sentences?
Nouns
4. Are my nouns precise?
5. If I use synonyms, is my meaning clear?
Pronouns
6. Are all pronoun referents clear and accurate?
Modifiers
7. Have I kept adverbs and adjectives to a minimum, allowing strong nouns and verbs to
carry my prose?
8. Are modifying phrases next to the nouns they describe?
Generally
9. Is every word necessary?
10. Is every legal term necessary and defined (if required)?
Sentences
7.
8.
9.
10.
11.
12.
Are most sentences in subject, verb, direct object order?
Do sentences rarely exceed twenty-five words?
Are long sentences controlled with parallel structure?
Do I vary sentence length and type?
Are the first and last words in each sentence the most important?
Are important ideas in main clauses and less central information in subordinate
clauses or phrases?
Paragraphs
13. Have I written a context paragraph telling the reader what the document is about and
providing a road map?
28
14. Does the first sentence of each paragraph contain not only the topic but also the
paragraph’s major assertion (if I read only the first sentence of each paragraph, can I
understand the point of the document?)?
15. Does information in each paragraph move from familiar (to the reader) to
unfamiliar?
16. Are paragraphs linked with transitions or echoing words and phrases?
Organization
17. Have I provided my reader with signs along the way by effectively using titles,
subtitles, etc?
18. Have I avoided the mystery story syndrome by telling my reader what the document
is about in the first paragraph?
Overall
19. Have I proofread several times?
20. Am I proud of the finished product? Knowing that my written work gives an
irrevocable impression of me, can I sign it without reservation?
*You may also use “The Basic Principles” as a checklist.
29
The Legal Process
Client with a
problem
Opinion letter
Facts
Issues
Law
Legal analysis
Conclusion
Recommendation
(Audience: Client)
Office memorandum
Facts
Issues
Law
Legal analysis
Conclusion
Recommendation
(Audience: Lawyer)
Complaint
Facts A
LawA
(Audience: Judge,
Opposing Counsel)
Judge’s decisions on
pretrial motions
Facts
Law
Analysis
Conclusion
(Audience: Parties,
Attorneys, Higher Courts,
Public)
Answer
Facts B
LawB
(Audience: Judge,
Opposing Counsel)
Decision
(Audience: Parties,
Attorneys, Higher Court,
Public, Law Students)
Trial*
Appellate briefs
Facts (including trial procedure)
Law
Argument
Conclusions
(Audience: J udges, Opposing
Counsel, Public)
Appeal
Pretrial motions and
supporting
memoranda
Facts
Law
Argument
(Audience: Judge)
Appellate opinions
Facts
Law
Reasoning
Decision
(Audience: Parties, Attorneys,
Higher Court, Public, Law
Students)
= Legal Discourse
* Although the trial is enacted, everything that occurs is transcribed and becomes the trial record.
30
Using CREAC
Written legal analysis has a structure that reflects the structure of legal reasoning itself. The
acronym that we use for the written structure is CREAC, which stands for Context/Conclusion,
Rule, Explanation of the Rule, Application of the Case Facts, and Conclusion. 1 CREAC provides
a frame on which we can hang legal analysis, which proceeds by finding and articulating the
rules on which a case turns, applying those rules to the facts at hand, and concluding a likely
outcome (sound familiar from the hypotheticals in your other classes?). This piece alone would
be RAC (Rule, Application, Conclusion). CREAC fills in the gaps to make the basic structure
both thorough and readable. So, for the reader, we give some Context for the Rule and we say up
front what we will conclude. Then, after we have articulated the Rule, we also give an
Explanation of why that is the Rule and how it is synthesized from and played out in significant
cases (if appropriate). A caveat: legal reasoning is not simple and CREAC (the acronym itself) is
deceptively so. Remember it’s a framework.
Here’s an example from the Discussion section of the Evans Sample Office Memorandum. The
big, overall question that this memo is designed to answer is whether Tom Evans, the client, will
be liable for Daniel Jones’ injuries. The first six paragraphs under I—“Under the Washington
recreational use statute, Evans is likely immune from liability for Jones’ injuries”-- and before
the subheading A create the umbrella section (an introductory section that introduces the reader
to the whole problem). The umbrella section sets up the problem, gives some background legal
standards, focuses on the big overall Rule that will govern the case, lays out the elements of the
Rule, and finally gives the reader a roadmap of the organization that follows. Then the basic
CREAC structure begins. The umbrella itself also uses the elements of CREAC in that the first
paragraph provides Context for the statute and gives the Conclusion; the second paragraph gives
the Rule; the third paragraph provides a clear Explanation of the Rule and pulls out the required
elements; the final three paragraphs Apply the facts to the Rule, Conclude on the issues that will
not be in contention, and lay out a roadmap for the issues that are in contention and will be
discussed in depth in the subsections.
Context/Conclusion
Heading A gives the Conclusion for the first sub-Rule (first element of the overall Rule that is in
contention) that will be discussed: “The loose railing was not latent because it was readily
apparent to the general class of recreational users in that Evans marked it with duct tape.”
Rule
“A condition is latent if it is not readily apparent to the general class of recreational users; what a
particular user who examines the condition as a whole sees or does not see is immaterial” (first
sentence after subheading A). The writer has synthesized this Rule from relevant cases:
Ravenscroft, Widman, and Tennyson. The writer has researched in the relevant jurisdiction
1
Different legal writing programs and different legal writing textbooks may use slightly
different acronyms; they all refer to the same structure.
31
(here, Washington state), read the cases and holdings carefully, and synthesized from those cases
what the writer believes will be the Rule that a Washington court will apply in Tom Evans’ case.
Put an R in the margins next to this single sentence.
Explanation of the Rule
The next two paragraphs are all the Explanation of the Rule (E of CREAC). In other words, the
writer is laying out for the reader the relevant facts, holdings and reasonings from the applicable
cases so the reader can see and understand why the writer thinks the articulated Rule is what the
court will use. Put an E in the margins next to of paragraphs 3 and 4.
Application of the Case Facts
“In Evans case . . . ” Every case turns not on Rules alone, but on the specific facts of the case at
hand and the Rule. The writer is using the foundation established in the E section and comparing
Tom Evans’ facts to the facts in the relevant cases so the reader can see how the writer reaches
the Conclusion (that the railing is probably not latent) articulated initially in Heading A and
again at the beginning of this Application section and in the final paragraph of this subsection.
Put an A in the margin next to paragraphs 4-6.
Conclusion
“As a result, the loose railing was not latent, and a court will likely find that Evans is immune
from liability because Jones cannot prove every element of the exception to the recreational use
statute.” That sentence in the last paragraph of subsection A is the final C in CREAC. It’s quite
short because the CREAC structure is like a syllogism with the Rule the major premise, the
application of the case facts the minor premise. Then, as with a syllogism, the Conclusion
follows naturally and does not require additional defense. Put a C in the margin next to the
referenced sentence.
Subsection B of the sample memo is similarly organized. See if you can identify the parts. Notice
that the Rules that section A and B discuss (latency and conspicuous sign) were set up (given a
roadmap) in the umbrella section. Also notice that some of the same cases are revisited, but
discussed differently because they are now being used for the Explanation of different Rules.
The tricky parts of CREAC are synthesizing and articulating the Rule and its Explanation.
Learning to do that is what “thinking like a lawyer” means. The Legal Rhetoric course will help
you in learning to write down the Rule and its Explanation in a way clear to a reader who must
use the information.
Rules sometimes come from a case or series of cases as they did in the subsections of the Evans
memo. They can also come from a statute or constitution if the language is crystal clear. If
there’s some ambiguity in the statute (as is typical), the Rule then comes from the statute and
cases that clarify or interpret the language of the statute: the situation in the Evans case. Or,
clarification can come from legislative history or another source (these possibilities will be
discussed in your research readings and workshops).
32
Umbrellas
An “umbrella” or introductory section of a document such as an office memorandum or a brief
makes reading the document much easier. Ideally, it provides the basic underlying law on which
the case turns, such as a statute, a constitutional provision, or a common law definition; it pulls
out the elements required for a cause of action; it applies the specific case facts to the requisite
uncontested elements; it shows the reader which of the elements will not be in contention; it
focuses in on the elements that are at issue and shows the order in which they will be discussed
in the document; and it may provide the conclusion to those contested elements with a brief
reason why. Thus, it has the basic CREAC structure, while at the same time giving the reader an
overall view of the case (a kind of executive summary) and a roadmap for the rest of the
document.
The Evans sample memo also provides an example of the umbrella section; see the section in the
Discussion that precedes the A. subheading. In this umbrella, several elements (in possession of
land, etc.) are obvious from the facts; three elements (known, dangerous, and artificial) are
obviously present and are being conceded, but require a brief legal explanation, so the
reader/partner can see why the writer has conceded them; and, finally, two elements (latent and
conspicuous sign) need in-depth analysis that will be taken up in the subsections.
All of this section constitutes an initial overall CREAC for the case that is sometimes called an
“umbrella section.” The writer then proceeds to demonstrate in sections A and B how the facts fit
the elements. Some are clear (he owned the land) and need no development; some are not (latent)
and need a full explanation because those will be the points that the parties are likely to dispute.
In the middle are necessary parts of the statute that won’t be in dispute (known, dangerous,
artificial), but the partner (reader) will want some law so she or he can understand why the writer
doesn’t think they will be in dispute. Remember that an office memo prepares the reader to
handle the case in an informed and intelligent way.
33
Who Teaches the Course?
Unlike the other first semester first year courses, Legal Rhetoric is taught in small sections by
many different teachers. Some students will be taught by full-time faculty, others by adjuncts.
Both full-time faculty and adjuncts bring experience, training, skill, and dedication to the course
and to the students. Here’s a look at some of them:
Full-time Legal Rhetoric Teachers
The full-time faculty of the WCL Legal Rhetoric Program ranks among the best in the country
with a combined over sixty years teaching legal writing and research and over forty years
practicing law. They publish widely in the discipline of legal writing, give presentations
nationally, and give writing workshops to government agencies, law firms, and courts. They are
active participants in the national legal writing community and serve on prestigious boards and
committees.
Professor Teresa Godwin Phelps, Director
Professor Phelps joined the WCL faculty in 2006 after 26 years teaching legal writing and
directing the program at the University of Notre Dame Law School. She has three degrees from
the University of Notre Dame and one from Yale Law School. She is considered a pioneer in the
field of teaching legal writing: she was a founding member of the Legal Writing Institute; she
published a seminal article, “The New Legal Rhetoric” that helped to shape the way that legal
writing is taught across the country; she is on the Editorial Board of Legal Communication &
Rhetoric; she serves on the Board of Directors of the Association of Legal Writing Directors; she
has lectured and consulted nationally on legal writing for over 30 years; and she has taught as a
distinguished visitor at other U.S. and international law schools. In addition, she has published
three books and over thirty articles: on legal writing, women and the law, law and literature, and
international human rights, including the recent well-reviewed Shattered Voices: Language,
Violence, and the Work of Truth Commissions. She is the recipient of the Legal Writing
Institute’s 2010 Courage Award.
Professor Paul Figley
Prior to coming to WCL in 2006, Professor Figley was a U.S. Department of Justice litigator for
thirty-two years. During his last fifteen years he served as Deputy Director in the Torts Branch of
the Civil Division. At Justice, Professor Figley represented the United States and its agencies in
appellate and district court litigation involving torts, national security, and information law. His
expertise is in motions practice. His success in that practice is reflected in his more than seventyfive reported decisions. Professor Figley is a graduate of Southern Methodist University School
of Law, where he was Leading Articles Editor for the Journal of Air Law & Commerce, and
Franklin & Marshall College. Since joining the WCL faculty, Professor Figley has given writing
workshops to government agencies and national organizations and written for national legal
writing publications. He has also published articles in scholarly journals and a book, A Guide to
the Federal Tort Claims Act (ABA, 2012). He was named Washington College of Law
Professor of the Year for academic year 2012-13.
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Professor David H. Spratt
Professor Spratt received a B.A. degree in Government and Psychology from The College of
William and Mary and graduated summa cum laude from American University, Washington
College of Law. In 2001, Professor Spratt was a founding partner of Schwartz & Spratt, PLC, a
family law firm in Fairfax, Virginia. Previously, Professor Spratt worked as an associate at the
Law Office of Betty A. Thompson, Ltd., and at The Lewis Law Firm, both in the area of family
law. Prior to joining the WCL faculty in 2006, Professor Spratt taught Legal Writing and
Research at the George Washington University School of Law, Legal Analysis and Writing at
Concord School of Law, and Legal Methods at the Washington College of Law. He is a past
chair of the Virginia Bar Association, Domestic Relations Section and the Northern Virginia
Regional Advisory Committee. Professor Spratt regularly writes a column, “Writer’s Block,” in
the Virginia Bar Association News Journal.
Professor Elizabeth Keith
Professor Keith joined the WCL faculty in 2008. Prior to joining WCL, she taught both firstyear and upper-level courses in Legal Research, Writing, and Analysis program (“LRWA”) at
the George Mason University School of Law, where she later served as Assistant Director and
Acting Director of the LRWA program. Prior to becoming a law professor, she practiced law
with Odin, Feldman & Pittleman, P.C. in Fairfax, Virginia, specializing in civil litigation. She
has a B.A. with distinction from the University of North Carolina at Chapel Hill and a J.D. cum
laude from George Mason School of Law, where she was Editor-in-Chief of the George Mason
Law Review and a member of the Moot Court Board and Inns of Court. She is a member of the
Legal Writing Institute, the Virginia State Bar, and the American Bar Association.
Professor Heather Ridenour
Professor Ridenour joined the WCL faculty in 2008 as Director of the Legal Analysis Program
and Legal Rhetoric professor. Prior to joining the WCL faculty, she worked with the Academic
Support Program at Texas Wesleyan Law School where she was Instructor of Academic Support
and Legal Writing Specialist. Before taking that position, she had a probate and guardianship
practice. From 2005 to 2007, she was the guardianship auditor at the Tarrant County Probate
Court, working under Judge Patrick Ferchill. She graduated cum laude from the Texas Wesleyan
University School of Law in 2004, where she was Associate Editor and Articles Editor on the
Texas Wesleyan Law Review. She remains active in taking pro bono guardianship cases. She is a
member of the Legal Writing Institute.
Professor Elizabeth Beske
Professor Beske joined the WCL Legal Rhetoric faculty as a full-time instructor in 2010, after
serving two years as an adjunct instructor in the Program. Professor Beske graduated from
Princeton University and from Columbia University Law School, where she was Editor-in-Chief
of the Columbia Law Review and received the Ordronaux Prize on graduation for highest
academic achievement in her class. After law school, she clerked at the United States Court of
Appeals for the D.C. Circuit for Judge Patricia Wald and at the United States Supreme Court for
Justice Sandra Day O’Connor. She was an associate in litigation at Munger, Tolles & Olson LLP
in San Francisco, with particular emphasis on appellate work, First Amendment, and
35
copyright/trademark. Professor Beske administers the ABA Media Alert Project for the D.C.
Circuit and recently was appointed to the Board of Directors of the D.C. Circuit Historical
Society.
Professor Bianca Garcia
Professor Garcia joins the Legal Rhetoric faculty as a 2013-2014 Graduate Teaching
Fellow. She graduated cum laude from the Washington College of Law in 2013. During her
time at WCL, she served as a Note & Comment Editor for the American University Journal of
Gender, Social Policy & the Law and as a Legal Rhetoric Classroom Dean's Fellow. Professor
Garcia also interned at the Superior Court of the District of Columbia with Magistrate Judge
Seoane López, the Disability Rights Section of the U.S. Department of Justice, the Washington
Lawyers' Committee for Civil Rights and Urban Affairs, the law firm of DLA Piper, and the
Congressional Coalition on Adoption Institute. She received her undergraduate degree in art
history from the University of Illinois at Chicago.
Adjunct Legal Rhetoric Faculty
The adjunct faculty brings a wealth and variety of practice experience to the Legal Rhetoric
Program. Some have taught Legal Rhetoric at WCL for many years; all are experienced teachers
and practitioners. Because Washington College of Law is located in the nation’s capital, it is able
to draw on a particularly deep pool of legal talent to supplement its full-time faculty. The
Adjunct Professors who teach in the Legal Rhetoric Program bring to their students practical
experience from a wide range of practice areas. One is the Legal Editor of BNA's Privacy and
Security Law Report. Another is an associate general counsel for one of the nation’s largest and
fastest growing labor unions. Several are in private practice in partnerships ranging from
specialized boutiques to the largest, most prestigious firms in the country. Many served in
clerkships, including at the Supreme Court of the United States.
The Adjunct Professors are also recruited from all three branches of government. In the
legislative branch one works for the Committee on Education and the Workforce in the U.S.
House of Representatives. Those in the judicial branch include clerks and staff attorneys for the
United States Court of Appeals for the Armed Forces, the District of Columbia Court of Appeals,
and the United States District Court for the District of Columbia. Others work in federal agencies
ranging from the Office of the Legal Adviser in the Department of State, to the Office of
Inspector General of the Department of the Interior, to the Litigation Division of the Office of
the Comptroller of the Currency. Many practice in the Department of Justice in places such as
the U.S. Attorney’s Office for the District of Columbia, the Counterespionage Section of the
National Security Division, the Civil Frauds Section of the Civil Division, and the Executive
Office for Immigration Review of the Board of Immigration Appeals. One long-time adjunct
professor was recently appointed to the bench.
The Adjunct Professors meet as a group with the Program’s Director and full-time instructors
several times throughout the year, including Orientations before the start of both semesters. Each
also belongs to one of four smaller Instructor Teams headed by a full-time instructor. The
Program provides the Adjunct Professors with bench memos to give background on each
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problem and weekly teaching notes to insure that key material is covered in each classroom
during the same week. These materials are supplemented with a weekly Adjunct Message email.
The Adjunct Professors are encouraged to communicate with each other, the Director, and the
full time instructors, and they do so regularly in person, on the phone, and through a Program
website.
37
Clumsy Words and Phrases
*From Academic Legal Writing by Eugene Volokh
1. Generally
a bad thing...............................bad
a good thing............................good
a large number of ...................many
a number of.............................some or several or many or something more precise
at present.................................now
at the place that.......................where
at the present time...................now
at this point in time.................now or currently or at this point (rarely) or some such
at this time..............................now or currently or some such
concerning the matter of........about
does not operate to.................does not
during the course of...............during
during the time that................while
excessive number of..............too many
for the duration of.................during or while
for the reason that..................because
had occasion to......................omit
I would argue that..................omit
in a case in which..................when or where
in accordance with.................by or under
in an X manner......................Xly, e.g. “hastily” instead of “in a hasty manner”
in circumstances in which.....when or where
in close proximity..................near
in point of fact.......................in fact (or omit all together)
in reference to.......................about
in regard to............................about
in the course of.....................during
in the event that.................... if
is able to................................can
is cognizent of.......................knows or is aware of
is lacking in...........................lacks
is unable to............................cannot
it could be argued that..........replace with an argument for why the argument is sound (if
that's what you mean)
it has been determined that...omit
it is apparent that..................clearly or omit
it is arguable that .................replace with an argument for why the argument is sound (if
that's what you mean)
it is clear that.......................clearly or omit
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it should be noted that..................omit
most of the time............................usually
negatively affect...........................hurt or harm or decrease or some such
on a number of occasions.............often or sometimes
on the part of ................................by
piece of legislation........................law or statute or bill
referred to as.................................called
serves to X....................................Xs (e.g. exchange “this only serves to strengthen the
opposition” to “this only strengthens the opposition”)
sufficient number of.....................enough
the case at bar...............................this case
the manner in which.....................how
this case is distinguishable...........all cases are distinguishable; you probably mean “this
case is different”
to the effect that...........................that
under circumstances in which…..when or where
with regard to...............................about
2. Verbs turned into nouns or adjectives
accord respect to...........................respect
during the pendency of X.............while X was pending
for the purpose of doing...............to do
has a deleterious effect on............hurts or harms
has a negative impact on..............hurts or harms
is aware that.................................knows
is binding on................................binds
is desirious of..............................wants
is dispositive of...........................disposes of
made negative reference to.........criticized or disagreed with
render assistance..........................help
was aware that.............................knew
with regard to..............................about
3. “The Fact That”
The phrase “the fact that” adds an extra conceptual level; you’re not just talking about an
event or condition (“John sold the land to Mary”), but rather about the fact that the event or
condition occured (“the fact that John sold the land to Mary”). Sometimes this extra complexity
is necessary--but rarely. The phrase can usually be omited entirely (perhaps with some
grammatical adjustment of the following clause, e.g. “John’s selling the land to Mary”), or
replaced with “that.”
because of the fact that..............because
despite the fact that...................despite or though
due to the fact that.....................because
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in light of the fact that.............because or since
the fact that..............................that
4. Redundancies
These are phrases in which one word simply repeats what is already embodied in another;
this is sometimes worth doing for emphasis, but only rarely. If you replace the phrases with their
simpler equivelants, you'll find that the result is usually clearer, and no less emphatic.
any and all...............................all
cease and desist......................stop (except in “cease and desist order” or “cease and desist
letter”)
consensus of opinion..............consensus
each and every........................every
null and void...........................void
period in time..........................time or period
point in time........................... time or point
provision of law......................law
rate of speed...........................speed
still remains............................remains
until such time as...................until
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