lecture for the georgian bar association october, 17, 2014 professor edward c. harris chicago-kent...
TRANSCRIPT
Introduction to U.S. Style Legal Writing
Lecture for the Georgian Bar Association
October, 17, 2014Professor Edward C. Harris
Chicago-Kent College of LawCopyright © 2014
Sources of Law in the U.S. Primary vs. SecondaryMandatory vs. PersuasiveWeight of a source is dependent on position
of law making body in the hierarchy of authority.
Sources of Law in the U.S. Legal Systems in the U.S.
50 State Systems plus Washington, D.C. 1 Federal SystemMilitary Legal System (not important for our
purposes)
Sources of Law in the U.S.Each system contains the obvious branches
of government: Legislature (creates constitutional and
statutory law)Executive (executes the law – but executive
orders)Judicial (interprets law, but may make case
law)
Sources of Law in the U.S. Primary – the law! Constitutions
Federal and stateStatutes
Federal and stateAdministrative RegulationsMunicipal Ordinances Case Law
Priority in the order above!
Sources of Law in the U.S.Constitutions
Highest sourceGeneral in characterDescribes the relationship and powers of each
of the branches of government, but also includes important human/civil rights
Sources of Law in the U.S.Statutes (Fed and State)Laws on specific subjects
Process – two houses of congress/state legislature, plus approval of the President/Governor
May be still too general on the subject for people and businesses to know what the law requires; May need the further source of administrative
regulations for specifics
Sources of Law in the U.S.Administrative Regulations (Fed and State)Municipal Ordinances
All of the above are ENACTED sources of law
Sources of Law in the U.S.Case lawRule of common lawStatutory interpretation (or of an
Administrative Regulation). How does it apply and how does it bind other
courts??? The rule vs. the reasoning
Reasoning by analogy – analogous vs. distinguishable
Sources of Law in the U.S.Secondary sources…
Not the law; commentary about the lawLots of different secondary sourcesUsed to:
Aid understanding Find other primary sources
Sources of Law in the U.S.Sample of secondary sources:
Legal encyclopediasTreatises / hornbooksRestatements (common law areas)Uniform laws and commentaryLaw review and journal articlesLegal dictionariesDigests (not really a secondary source – a
finding tool)
Analytical ParadigmsIRAC
Typical for law school exams, but some lawyers use this in various forms of analysis
Issue, Rule, Application, ConclusionCRuPAC
Analytical ParadigmsThe paradigm that you use (whether IRAC or
CRuPAC or something else) will change slightly and the language you use will change based on whether you are writing predictively or persuasively
Predictive “Likely”Need to hedge to avoid having your words
being interpreted as absolute
Analytical ParadigmsCRuPAC
Conclusion: Start with this, and you may need to wait until you
know the answer to write this portion. Your reader wants to know the result at the
beginning.
Analytical ParadigmsCRuPAC
Rule Here you want to state the relevant portions of the
rule or rules that govern your facts. You may need more than one rule Move logically through this section by stating
general rules first, then more specific rules, and exceptions to the rules
Analytical ParadigmsProof of the rule:
Your reader needs to know that the rule really is the rule in your jurisdiction.
How? Citation to the applicable authority (simple) Explanation of the rule (more complex)
Could be discussion of legislative record, case law, how the law has been applied to similar situations, etc.
By the time your reader has read this information, he or she feels confident that the law is in fact the correct law, her or she understands it and how it applies
Analytical ParadigmsApplication of the rule to the relevant facts.
In your application of rule to facts, you need to make it obvious to your reader that the application of the rule leads to the conclusion that you mentioned at the beginning (and again at the end).
Don’t leave out facts that could have an impact on the conclusion.
Don’t leave out aspects of the rule that might be relevant to your prediction.
Here is where you might also hint at information that you do not have and need to know.
Analytical ParadigmsAlso in the application of rule to facts, you
might want to also compare how the rule has been applied in the past to similar situations by the court (or relevant decisional body). This helps your reader see that your application of rule to facts is consistent with how the decisional body has previously applied the rule.
This type of comparison is typically reserved for lengthier legal analysis, e.g., a full-length office memo.
Analytical ParadigmsConclusion:
Restate your conclusion and perhaps add something that indicates what you think the result means… such as, “the employer should consider a settlement negotiation with the former employee rather than take a risk of losing at trial…”
Language and OrganizationThe overall piece
Section to section… (1) Intro/issue/background; (2) analysis (1, 2,3, or 4
parts); (3) do each of your main parts to the analysis need to be further divided into subparts? (4) conclusion
Subsection to subsection – logical pathUse headings and subheadings to guide the
readerParagraph to paragraph – logical path - one
main idea leading to the next main ideaSentence to sentence – same
Analytical ParadigmsUse of transitional words and phrases to show
the logical flow of ideas: In addition,…Further,…On the other hand, ….However,… Although,…. there is nevertheless….
These words mean something very specific and demonstrate the logical relationship between the idea that comes before and the one that follows. They give clear signals to your reader.
Analytical ParadigmsA few other language basics:
Articles – definite and indefiniteVerb form and agreementActive voice vs. passive voice
Transactional Drafting (Contracts)“Legalese” vs Plain EnglishOrganizing a contract (see course materials
Section 4)Definitional terms or terms of art: how to
define, how to use, and consistency, consistency, consistency!
Transactional Drafting (Contracts)Parts of a typical contract – what they are
and what they do: Title Introductory ParagraphRecitalsTransitional clauseTransactional provisions (substantive)
Definitions Key elements of the transaction – this is the “what”
and “how” of the transaction
Transactional Drafting (Contracts)Transactional provisions (continued)
Representations and Warranties Covenants Term, termination, and breachAnything else??? Notices
Transactional Drafting (Contracts)Miscellaneous provisions:
Severability Choice of lawChoice of forumAttorneys feesModificationAssignment No waiver Merger clause – Parole Evidence Rule