Professional Documents
Culture Documents
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The gem cannot be polished without friction, nor man perfected without trials.
~ Chinese Proverb
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Copyright
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5. The Unbroken Spirit- A Story of the Enduring African Spirit, Libra Publishers 2013
(Celebrating Kenyan Golden Jubilee)
NOTE
Look Out for the forthcoming The Quick Law Series covering a wide range of law modules.
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Dedication
This book is dedicated to all those who have made or are aspiring to make the pursuit of
Justice, Equality, Fairness and Freedom their vision and mission in life.
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INTRODUCTION
So you want to be a lawyer? Its easy. Heres a problem. Go out and do the research.
Then come up with some arguments. Then write them down in a brief. And argue
them
Dear Reader
The fundamental lawyering skills are: problem solving, legal analysis, legal research, factual
investigation, communication, counselling, negotiation, litigation and alternative disputeresolution procedures, organization and management of legal work, and recognizing and
resolving ethical dilemmas. These are the skills and competencies that make great lawyers.
Learn this well and you are ready to become a capable lawyer. A law degree or reading of
law books has very little to do with lawyering. As a matter of fact most law books are meant
to be consulted not read. Comprehend the blueprint and the entire edifice becomes a
childs play. The book summarises in clear and simple language, the principles of great
lawyering.
This book is meant to give you a roadmap to developing these skills of top lawyers. The book
is designed to help law students; law students can use this book independently to learn legal
skills. It is written in such a way that students can progressively build their reasoning,
researching and analytical skills. It is further intended as a text for legal methods and legal
writing courses. The section on how to tackle problem and essay problems is section
specifically written for the students.
For the student, I have this to say: The first step in mastering law is to become a dynamic
learner. And this book will help you to develop as a dynamic learner. A dynamic learner does
not settle for the first answer, but always considers alternatives. A dynamic learner
recognises when a skill is needed and has the willingness to apply it. It is hoped that with
this book on your side, as you pursue your dream of becoming a great lawyer, you will avoid
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becoming a lawyer in the sense that you have a law degree. You will be a lawyer in the
sense that you will be ready to be a provider of services.
The book is also written with new advocates, law lecturers and the general public in mind.
For the new advocate who want to improve their legal reasoning, advocacy skills and
analytical skills, the book is indispensable, most of its ideas might seem obvious, but that
may be the very reason you need the book, because the ideas are obvious, your professors
might have taken them for grated and thus neglected to impress upon you minds that, this
skills are what make great lawyers. As for the law professors, I hope you will use the book as
a supplement to your core texts on the introductory modules of law. The book also contains
a comprehensive bibliography that can be used as a catapult to further research.
As for the general public, if you have ever been fascinated with the mysterious workings of
the monolith that controls most of our lives from the womb to the tomb (in other words the
law); this book will clear a few things on how the law and lawyers work. If you have ever
been spellbound by the sleights of hands performed by the great lawyers on our television
screens, then this book will let you in on some of those tricks. Above all, if you are ever in a
legal fix and you do not have the money to pay the services of a great lawyer, actively
reading this book and concertedly applying its principles in your case will go a long way in
tilting the scales of justice on your side.
There is a chapter on Logic, logic being the lifeblood of law. In case after case, prosecutors,
defence counsel, civil attorneys and judges call upon the rules of logic to structure their
arguments. Thinking like a lawyer means employing logic to construct arguments. This
chapter offers a primer on the fundamentals of logical thinking. It endeavours to explain, in
broad strokes, the core principles of logic. The reasoning being that; a person familiar with
the basics of logical thinking is more likely to argue effectively than one who is not.
The chapter on legal research: Legal research instructors seldom have adequate class time
to teach students the print and online sources needed to complete a research task
successfully. The chapter on research will offer research tips that will improve ones legal
research. Everyone in the legal professionlaw students doing research for a paper or as a
faculty research assistant, summer associates and new attorneys doing research for more
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senior attorneys, and law professors and seasoned attorneys researching for themselves
can benefit from the ideas covered in this chapter.
The chapter on legal writing: The chapter has two main purposes. The first is to explain how
lawyers construct legal arguments. In this regard, the chapter is meant to be a purely
practical guide to the seemingly mysterious process by which lawyers take the raw materials
of litigation cases, statutes, testimony, documents, common sense and mould them
into instruments of persuasive advocacy. The chapters second purpose is to explain how to
take a well-constructed legal argument and present it, in writing, in a way that legal decision
makers will find persuasive. The chapter, in other words, is concerned with how to (1) build,
and (2) present winning legal arguments.
Like any legal writing, good drafting requires knowing the law and the substance first,
followed by clear organization and by writing appropriate to the audience. It also requires
an artist's touch, to ensure that the design of the contract document will aid in its usability
and clarity. Finally, good drafting requires critical evaluation, reading the document through
the eyes of bad faith or hostile readers, and periodic review to assure that the document
continues to meet the parties needs.
The chapter on advocacy offers guidance on making opening and closing speeches; planning
and delivering examination-in-chief and cross-examination; questioning witnesses. Oral
advocacy chapter: oral advocacy remains a critical skill for law students to learn and
cultivate, no matter which facet of law practice they enter upon graduation. This chapter is
targeted at oral argument novices. It discusses how a beginner to appellate oral argument
may effectively prepare and deliver an argument. It offers a comprehensive set of
instructions that will help you become an adept advocate. Only those advocates who are
well-prepared are capable of delivering an effective oral argument that functions as an
educational dialogue between attorney and bench.
The chapter on alternative dispute Resolution is written with the following entreaty of
United States Supreme Court Chief Justice Warren Burger in mind:
The entire legal profession lawyers, judges, law teachers has become so mesmerized with the
stimulation of the courtroom contest that we tend to forget that we ought to be healers healers of
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conflicts. Doctors, in spite of astronomical medical costs, still retain a high degree of public confidence
because they are perceived as healers. Should lawyers not be healers? Healers, not warriors? Healers,
not procurers? Healers, not hired guns?
No claim to originality is made. Most ideas contained in this book have been expressed
elsewhere (for example, consult bibliography) and have been practised by great lawyers
since the dawn of time. The authors value addition has been to do the grunt work and
collate some of these timeless and exclusive ideas under one roof.
As you engage with the ideas postulated in this book in the road to becoming a healer,
remember that it takes time to develop expertise in legal problem-solving, legal drafting,
legal advocacy and legal research. The skills can be developed only by actually working
through the process of practice. Developing expertise requires repetitions of training as
against the hard world of consequences, of repeated success and failure, and some
inductive efforts at understanding what works and what does not, what seems important
and what does not.
Good luck.
Charles Mwaura Kamau
(Advocate High Court of Kenya and Lecturer in Law, based in London UK)
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Table of Contents
The Art of Great Lawyers ........................................................................................................... 1
INTRODUCTION ...................................................................................................................... 7
LEGAL DRAFTING.................................................................................................................. 15
Initial Stages ..................................................................................................................... 15
Writing the brief............................................................................................................... 18
Contents of A brief ........................................................................................................... 19
Reply briefs ...................................................................................................................... 23
Addendum........................................................................................................................ 24
LEGAL OPINIONS .................................................................................................................. 26
The formula of a legal opinion ......................................................................................... 26
Majority, Concurring & Dissenting Opinions ................................................................... 29
The case method .............................................................................................................. 33
Published Opinions .......................................................................................................... 34
Opinion Writing Guidelines.............................................................................................. 35
IRAC & CRARC .................................................................................................................. 37
DRAFTING GOOD CONTRACTS ............................................................................................. 45
Determine the substance of the contract. ...................................................................... 45
Analyse the audience ....................................................................................................... 48
Draft the contract ............................................................................................................ 54
Design the Document ...................................................................................................... 57
Evaluate the document .................................................................................................... 57
LOGIC FOR LAWYERS............................................................................................................ 60
Deductive Reasoning ....................................................................................................... 60
Inductive Reasoning: Generalisations.............................................................................. 64
Analogy ............................................................................................................................ 66
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ADVOCACY ........................................................................................................................... 69
Preparation ...................................................................................................................... 69
Identifying a Theme ......................................................................................................... 72
Preparing Your Argument ................................................................................................ 77
Using technology in courtroom ....................................................................................... 88
Golden Rules for the Examination of Witnesses ............................................................. 89
Presenting Evidence ......................................................................................................... 96
LEGAL RESEARCH ................................................................................................................. 98
Understanding research assignment ............................................................................... 98
Core principles of legal research.................................................................................... 101
Library catalogues .......................................................................................................... 102
Practical tips ................................................................................................................... 104
Free online legal databases: .......................................................................................... 106
ALTERNATIVE DISPUTE RESOLUTION ................................................................................. 109
Arbitration ...................................................................................................................... 109
International Law Governing Arbitral Agreements ....................................................... 114
Constructing the Arbitration Clause .............................................................................. 114
Mediation ....................................................................................................................... 117
Negotiation .................................................................................................................... 120
Conflict Resolution ......................................................................................................... 121
Priming-legal negotiation............................................................................................... 123
The art of negotiation .................................................................................................... 124
PROFESSIONALISM AND INTEGRITY .................................................................................. 129
EXAMINATIONS .................................................................................................................. 136
Essays ............................................................................................................................. 136
Referencing and avoiding plagiarism ............................................................................. 141
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LEGAL DRAFTING
(the) test of good writing is whether you can convey to your readers exactly what you
intend to convey. The Complete Plain Words by Sir Ernest Gowers
The goal of this chapter is to share some practical tips for improving your brief writing.
Many of these tips will seem obvious. Yet it is surprising how often lawyers overlook them.
Please note there is no one right way to write a brief, however, there are some general
themes of line, form, and colour that characterize a well-executed brief, even though much
must be left to the style and imagination of the craftsman.
As drafters, lawyers not only litigate, but they also seek to avoid litigation. In litigation
practice, they draft pleadings, Motions, interrogatories, jury instructions, settlement
agreements, and orders, among other documents. In practice that seeks to avoid litigation,
they draft contracts, public and private legislation, wills, trusts, and other documents. Here
we shall concentrate on briefs, opinions and contracts.
In the course of reading this chapter, you should always keep it in mind that, Legal argument
and legal writing are inseparable. You should also remember that, the underlying purpose of
all legal writing is communication and persuasion.
Initial Stages
Preparing to write a brief:
A brief is a legal document prepared by a party to the Court. It contains information on the
facts of the case, the legal issues to be decided, the law the Court ought to apply, and the
decision the party desires the Court to reach.
The goal of a brief is to convince the Court that one's position is correct, logical and
reasonable. To be compelling, a brief must also be understandable and concise. The Court
will read many briefs throughout the session, so it is important to write in a clear and
interesting manner.
Read and digest your instructions
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Be careful of forming strong views at the initial stage, or you may prejudice the depth and
width of your analysis at the later stages. In reading instructions the point is to avoid
labelling the case, for example; breach of contract or negligence, too early. At the initial
reading your goal is to absorb as much of the factual background as possible.
At this stage your mind should be asking questions about what has happened. Concentrate
on the clients central problem, rather than starting to take decision.
Clarify your clients objectives
The instructions will never ask you to write all you know that is vaguely legally relevant, but
will set you specific tasks, which are normally set out at the start or the end of the
instructions.
Having understood the instructions, you need to clarify your objectives. Write the
instructions down and send it to the client, ask that he confirms you understood his
instructions. Now it is time to construct your opinion on the matter.
Analyse the facts
Before you form views on the appropriate legal solution you will need to carry out a
thorough fact management exercise. The legal argument must be based on the facts, not
twisted to fit your preconceived legal theory.
Having analysed the basic facts, three further stages of factual analysis are important in
preparing to write an opinion, because they are all closely related to exercising your
judgement on the chances of the case succeeding.
(a) Identify any gaps in the facts.
Almost certainly your instructions will not give you all the facts, as it would be very
expensive and time consuming for instructing clients or your boss to collect everything
before sending a case to you. Your opinion will have to be based on the facts that are
available. Gaps in the facts are important first because they may prove a weakness in
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developing a legal case, and secondly because in your opinion you will need to indicate to
instructing solicitors what extra information should be sought.
(b) Identify which facts are probably agreed, and which are probably in dispute.
The point is that a case can be most firmly founded on facts that are agreed. Where facts
are in dispute, your case is open to challenge and is less strong. Again this will be directly
relevant to exercising your judgement on the case.
(c) Identify which facts you have evidence of
This is especially important in relation to facts in issueif you have a fact in issue on which
you have little or no evidence your case is very weak. Again this will be important when you
come to exercise your judgement. Also, your opinion should indicate to instructing clients
where evidence is required.
(d) Identify which facts you need evidence for
Where there are facts which are disputable and you have no evidence, one way or the
other, you need to carry some detective work and gather the evidence.
Construct a legal framework
Once the facts are fully analysed it is safe to start analysing the legal issues. This is where
the professional ability of the barrister begins to come into play, deciding what legal
possibilities there are, and which is strongest. The first step is to identify the possible causes
of action.
If they are many causes of action it is important to consider them separately.
Carry out any necessary research
From the analysis you have done so far you have identified several matters that require
research. Now is the time to carry out that research, a more focused way: remember, you
are looking for answers to questions that you have identified, not researching the law for its
own sake.
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Before writing your opinion, you should draw up a skeleton plan. It is a false economy to
start by going straight into writing an opinion without drawing up a skeleton, as you will
often find that you miss something out or get confused and have to start again. You should
never have to waste time writing an opinion out twice. The properly planned opinion will be
right on first attempt. However, this does not preclude the necessity of editing.
The broad structure of your opinion, and therefore your skeleton, should by now be clear to
you. However, the value of a skeleton plan is that it tells you not just what you are going to
write about, but what you are actually going to say. In other words, it contains your
conclusions and opinions within the structure of issues.
The skeleton should present your case in logical, persuasive fashion. Break your analysis into
parts. Readability is enhanced by headings and subheadings that tell a logical story. Use your
plan to make topic headings for each major point in your brief.
Remember:
There is no correct way to create a skeleton plan. Use whichever method suits you.
Contents of A brief
Briefs must contain the following elements:
1. Title Page: The title of the case shows who is opposing whom. The name of the person
who initiated legal action in that particular court will always appear first.
2. Table of Contents: Because the Argument is the most complex part of the brief, the
headings and subheadings used within the argument section should also be listed in the
contents with the corresponding page number.
3. Table of Authorities: This list not only verifies the sources used by the attorney, but is
useful for the Court and for other attorneys to quickly determine what cases, statutes or
other materials are being cited, and to easily locate these references in the original research
materials used in preparing the case.
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4. Statement of the Issues: This is a very short introductory statement of the legal issues or
points of law involved in the case. It tells the Justices precisely what legal issues the attorney
team wants the Court to decide. These statements should be phrased to help one argue for
a particular conclusion rather than simply against the other side.
NOTE
When noting issues, it may help to phrase them in terms of questions that can be answered
with a precise yes or no.
There is no substitute for taking the time to carefully frame the questions. The questions
must actually incorporate the key provisions of the law in terms capable of being given
precise answers. It may also help to label the issues, for example, procedural issues,
substantive issues, evidentiary matters and so on.
5. Statement of the Facts: The Statement of the Facts is a retelling of the facts from your
clients point of view.
Lawyers explain the situation in a way that helps their client. This is a very important part of
the brief that sets the stage for the argument, and should be presented both to help the
court understand the case and show your client in the best possible light. But, remember
not to assume facts not given, and do not distort, change, or add to the facts.
The Statement of Facts is for telling the court what the case is about. The Statement of Facts
should never be argumentative in tone. The argument portion of the brief is for contention
about the significance of those facts. Nothing impairs a brief writers credibility more than
an emotional, sarcastic, plaintive, or visibly one-sided Statement of Facts.
In appellant briefs, you should be especially careful how you refer to the court or
administrative tribunal below. If you are the appellant or the petitioner, you are, of course,
asking the appellate court to reverse the lower courts decision and the appellate court
knows that already. It knows you disagree with the outcome thus far. It will reverse in an
appropriate case. But its initial inclination, almost always, will be sympathetic to the fellow
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judge who had to sit through the trial or to the tribunal that had to sift through the entire
record now being selectively quoted on appeal.
Criticism of the lower tribunal therefore should be stated carefully and objectively.
Remember:
The statements of fact section of a good student brief will include the following elements:
c)A summary of the complaint (in a civil case) or the indictment (in a criminal case) plus
relevant evidence and arguments presented in court to explain who did what to whom and
why the case was thought to involve illegal conduct.
d) A summary of actions taken by the lower courts, for example: defendant convicted;
conviction upheld by appellate court
e) Argument: This is the core of the brief. Students may find the argument to be somewhat
like writing a persuasive essay with lots of research references. It presents support for the
issues presented earlier. Solid research is used to back every part of the argument.
Arguments must be well-organized and convincing; lawyers will win or lose their case based
on the quality and substance of what is said.
Each point the team wants the court to consider in deciding the case must be described, and
the reasons explained with appropriate references to research materials used, and text
citations inserted as frequently as needed. Make sure to follow the citation format
applicable in your jurisdiction.
Structurally, each part of the argument ought to be first directed at supporting the various
issues of one's own case, then also opposing the contentions anticipated to be brought up
by the opposing party.
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Stylistically, the argument ought to be written in forceful, active and positive language.
NOTE
In appellant courts staying within the rules is very important. The rules are the first thing
you must consider before writing your brief. Familiarise yourself with the rules of the court
in your jurisdiction. Follow to the letter matters such as, length, formatting and binding of
the brief.
When a court does have rules governing the format of a brief, obey them to the letter.
Remember:
There are two primary determinants of the quality of the argument section of a brief:
(1) the quality of the arguments available and
(2) the analytical and writing skills of the lawyers involved.
Editing
Ideally, editing is something that should be done on paper, not on a computer. Print the
brief out and read it (preferably aloud), with a sharp red pencil.
Guidelines
1) First focus on the organization, the flow of the brief as a whole. Have you developed your
arguments first -- that is, demonstrated why you should win as opposed to whats wrong
with the other sides argument.
Check out the following
a) the paragraphs, themes, and thoughts must flow from one to next
b) your thoughts must be in sequence and your transition clear
c) your central point ought to emerge clearly and quickly
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logic in the reply brief, and it is far more acceptable in a reply than in an opening brief to
concentrate on sharply focused (but polite) debate.
Addendum
Never forget the importance of organization. It is vital to organize, not only the writing, but
also the theory of the case.
Do not quote snippets from one precedent after another without fitting those precedents
into an overall pattern.
Explain the clients position in a way that makes sense from a policy (or common sense)
perspective. Judges are concerned about both the institutional and the real-world
consequences of the rules they adopt.
Heated rhetoric and overstatement are harmful. Perhaps the most common flaw in
appellate briefs is writing in emphatic, unequivocal, and conclusory terms. Such briefs,
overconfident, even cocky, in tone and uninformative in content, are likely to obscure what
the judges must really decide and what analytical steps are needed to reach a sound
decision especially if the weakness in the argument has been glossed over in an effort to
make the position seem stronger than it is.
Do not include false statements in your brief. It is stupid to lie to the court because it will
sooner or later destroy your career. Just about the only function that you, the lawyer, servefrom the perspective of a busy judge with many controversies to resolve is to be a conduit
of useful and accurate information. Your function is to pull together the facts, apply them to
the law, and explain your analysis to the judge in a helpful way.
Dont brief the case until you have read it through at least once. Dont think that because
you have found the judges best purple prose you have necessarily extracted the essence of
the decision. Look for unarticulated premises, logical fallacies, manipulation of the factual
record, or distortions of precedent. Then ask, how does this case relate to other cases in the
same general area of law? What does it show about judicial policymaking? Does the result
violate your sense of justice or fairness? How might it have been better decided?
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Do not expect your judges to know your subject. Some education is inevitably necessary,
and you need to start doing so at the start of your brief. Group your common themes
together.
Tell your reader at the beginning of the brief where you are going and how you will get
there. Provide a roadmap to the reader in advance, through an introduction or opening
paragraphs.
Use transition to let the reader know you are moving to a new point.
The brief should march across the page. It wont unless your transitions are clear. Topic
sentence at the start of each paragraph should provide both transition and mapping. (A
topic sentence is a sentence that sets out the meaning or main idea of the paragraph).
Headings and sub-headings do so as well. Your headings should be argumentative and
explanatory.
Know the order of your authority. If your point on appeal rests on a statute, quote the
statute first, and put a copy of the statute in your appendix or attached to your brief. That is
what governs. Case law merely provides construction of the language of the statute.
When discussing case law, analyse it. Dont just string-cite cases or regurgitate what an
opinion says. Explain why the cases you rely on should control the case rather than the
cases your opponent (or the lower court) cites.
Use your best three cases. If you cannot prevail on your best three cases having other cases
wont do you any good.
Formal conclusions are not worth the trouble. Start at the beginning; go to the end, and
then stop.
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LEGAL OPINIONS
This explains what judicial opinions are, how they are structured, and what law students and
lawyers should look for when reading them.
When two people disagree and that disagreement leads to a lawsuit, the lawsuit will
sometimes end with a ruling by a judge in favour of one side. The judge will explain the
ruling in a written document referred to as an opinion. The opinion explains what the case
is about, discusses the relevant legal principles, and then applies the law to the facts to
reach a ruling in favour of one side and against the other.
The formula of a legal opinion
Heading
The first part of the case is the title of the case. The title usually tells you the last names of
the person who brought the lawsuit and the person who is being sued. These two sides are
often referred to as the parties or as the litigants in the case. For example: Doe vs. Green.
As the case moves up the ladder the names are inversed. Thus for example if Doe appealed
to the court of appeal the case would be titled as Green vs. Doe.
In criminal law, cases are brought by the Public Prosecutor on behalf of the people.
Therefore the Republic becomes a party to the case; hence a case is titled as R vs. (name of
party being prosecuted)
Types of Disputes
There are two basic kinds of legal disputes: civil and criminal. In a civil case, one person files
a lawsuit against another asking the court to order the other side to pay him money or to do
or stop doing something. An award of money is called damages and an order to do
something or to refrain from doing something is called an injunction.
The person bringing the lawsuit is known as the plaintiff and the person sued is called the
defendant.
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In criminal cases, there is no plaintiff and no lawsuit. The role of a plaintiff is occupied by a
government prosecutor. Instead of filing a lawsuit (or equivalently, suing someone), the
prosecutor files criminal charges. Instead of asking for damages or an injunction, the
prosecutor asks the court to punish the individual through either jail time or a fine. The
government prosecutor is often referred to as the state counsel or prosecutor. The
person charged is called the defendant, just like the person sued in a civil case.
When a lawyer addresses a judge in court, she will always address the judge as your
honour.
In legal opinions, however, judges will usually refer to themselves as the Court.
The Case Citation
Following the case name you will find some letters and numbers. These letters and numbers
are the legal citation for the case. A citation tells you the name of the court that decided the
case, the law book in which the opinion was published, and the year in which the court
decided the case.
It is important to try and cite the most authoritative law report. For many countries there is
an official series.
Remember:
Great lawyers do not evaluate an opinion in terms of their agreement with the result, or
according to how congenial with their personal philosophy it may be, or simply because they
want to apply a value judgment in the choice, interpretation, or application of the
controlling legal precept, for this too may be a personal valuation. Rather, they measure
opinions on:
a) how thoughtfully and disinterestedly the court weighed the conflicts involved in the case
and
b) how fair and durable its adjustment of the conflicts promises to be
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The first factor goes to the reasonableness of the courts decision, the second to the logical
validity of the reasoning. (Harry Jones, 1974)
The Facts of the Case
The first part of the body of the opinion presents the facts of the case. In most common law
jurisdictions there are no particular rules for what facts a judge must include in the fact
section of an opinion. Sometimes the fact sections are long, and sometimes they are short.
Sometimes they are clear and accurate, and other times they are vague or incomplete.
The Law of the Case
After the facts the opinion will then discuss the law. Many opinions present the law in two
stages. The first stage discusses the general principles of law that are relevant to cases such
as the one the court is deciding. This section might explore the history of a particular field of
law or may include a discussion of past cases (known as precedents) that are related to the
case the court is deciding. This part of the opinion gives the reader background to help
understand the context and significance of the courts decision.
The second stage of the legal section applies the general legal principles to the particular
facts of the dispute. This part is in many ways the heart of the opinion: It gets to the bottom
line of why the court is ruling for one side and against the other.
Appellate Litigation
An appeal is a legal proceeding that considers whether another courts legal decision was
right or wrong. After a court or tribunal has ruled for one side, the losing side may seek
review of that decision by filing an appeal before a higher court. The higher court is known
as the appellate or appeals court, as it is the court that hears the appeal. Generally,
appellate cases are decided by panels of several judges.
During the proceedings before the higher court, the party that lost at the original court and
is therefore filing the appeal is usually known as the appellant. The party that won in the
lower court and must defend the lower courts decision is known as the appellee.
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These exam questions test the students ability to understand the facts and spot the legal
issues they raise.
Doing well on an issue spotter requires developing a careful and nuanced understanding of
the importance of the facts. The best way to prepare for that is to read the fact sections of
your cases very carefully.
Know the Specific Legal Arguments Made by the Parties
Lawsuits are disputes, and judges only issue opinions when two parties to a dispute disagree
on a particular legal question. This means that legal opinions focus on resolving the parties
very specific disagreement.
The lawyers, not the judges, take the lead role in framing the issues raised by a case. The
best lawyers are highly skilled at identifying and articulating their arguments to the court.
In an appeal, for example, the lawyer for the appellant will articulate specific ways in which
the lower court was wrong. The appellate court will then look at those arguments and either
agree or disagree.
Know the Decision
The decision of a case is the action the court took. It is often announced at the very end of
the opinion. For example, an appeals court might affirm a lower court decision, upholding
it, or it might reverse the decision, ruling for the other side. Alternatively, an appeals court
might vacate the lower court decision, wiping the lower-court decision off the books, and
send it back to the lower court for further proceedings.
Remember:
When a higher court affirms a case it means that the lower court had it right (in result, if
not in reasoning). Words like reverse, remand and vacate means that the higher court
though the lower court had it wrong.
Understand the Reasoning of the Majority Opinion
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To understand the reasoning of an opinion, you should first identify the source of the law
the judge applied. Some opinions interpret the Constitution while others interpret
statutes, still other cases interpret the common law, which is a term that usually refers to
the body of prior case decisions.
The source of law is very important because common law follows a clear hierarchy.
Constitutional rules trump statutory rules, and statutory rules trump common law rules.
After you have identified the source of law, you should next identify the method of
reasoning that the court used to justify its decision. When a case is governed by a statute,
for example, the court usually will simply follow what the statute says. The courts role is
narrow in such settings because the legislature has settled the law. Similarly, when past
courts have already answered similar questions before, a court may conclude that it is
required to reach a particular result because it is bound by the past precedents. This is an
application of the judicial practice of stare decisis, an abbreviation of a Latin phrase
meaning That which has been already decided should remain settled.
In other settings, courts may justify their decisions on public policy grounds. That is, they
may pick the rule that they think is the best rule, and they may explain in the opinion why
they think that rule is best. This is particularly likely in common law cases where judges are
not bound by a statute or constitutional rule. Other courts will rely on morality, fairness, or
notions of justice to justify their decisions. Many courts will mix and match, relying on
several or even all of these justifications. (Kerr, 2007)
Understand the Significance of the Majority Opinion
Some opinions resolve the parties legal dispute by announcing and applying a clear rule of
law that is new to that particular case. That rule is known as the ratio decidendi of the
case. This are often contrasted with dicta found in an opinion.
Dicta refer to legal statements in the opinion not needed to resolve the dispute of the
parties; the word is a pluralised abbreviation of the Latin phrase obiter dictum, which
means a remark by the way.
When a court announces a clear a ratio decidendi, you should take some time to think about
how the courts rule would apply in other situations. Try to think of hypotheticals, (new
sets of facts that are different from those found in the cases you have read). This exercise
will help you to understand the significance of a legal rule and how it might apply to lots of
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different situations. Courts occasionally say things that are silly, wrongheaded, or confused,
and you need to think independently about what judges say. Concurring and dissenting
opinions often do this work for you.
Remember:
A rule might look good in one setting, but another set of facts might reveal a major problem
or ambiguity.
Judges often reason by analogy, which means a new case may be governed by an older
case when the facts of the new case are similar to those of the older one. Therefore, the
best way to evaluate which are the legally relevant facts for a particular rule is to consider
new sets of facts.
Finally, you should accept that some opinions are vague. Sometimes a court wont explain
its reasoning very well, and that forces us to try to figure out what the opinion means. In
such cases when you look for the ratio decidendi of the case but b you cant find one do
not blame yourself, some opinions are written in a narrow way so that there is no clear
decidendi, and others are just poorly reasoned or written. Rather than trying to fill in the
ambiguity with false certainty, try embracing the ambiguity instead.
Remember:
One of the skills of great lawyers is that they know what they dont know: they know when
the law is unclear. Indeed, this skill of identifying when a problem is easy and when it is hard
(in the sense of being unsettled or unresolved by the courts) is one of the keys to doing very
well in law school and in practice.
Precedent and authority
Precedent is an earlier case that is relevant to a case to be decided. If there is nothing to
distinguish the circumstances of the current case from the already-decided one, the earlier
holding is considered binding on the court. Authority can be either mandatory or
persuasive. Mandatory authority is law that is binding on the court deciding the case. A case
is only a precedent as to a particular set of facts and the precise legal issue decided in light
of those facts. If the case is not a precedent, but contains an excellent analysis of the legal
issues and provides guidance for a court, it is a persuasive authority.
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Before using any legal authority to analyse a problem, you must know how that authority
has been treated by later actions of a court, legislature, or agency. A case may have been
reversed or overruled; a statute or regulation may have been amended or repealed.
When you read a statute, you must also read the cases that have interpreted the statute
because the wording may be ambiguous. Concurrences and dissents are also very
important. You need to read them carefully. To understand why, you need to appreciate
that law is man-made.
Disagreement between the majority opinion and concurring or dissenting opinions often
frames the key issue raised by the case; to understand the case, you need to understand the
arguments offered in concurring and dissenting opinions.
Learning to think like a lawyer often means learning to think like a judge, which means
learning how to evaluate which rules and explanations are strong and which are weak.
The case method
The Historical Reason
The legal system inherited from England is largely judge-focused. The judges have made the
law what it is through their written opinions. To understand that law, we need to study the
actual decisions that the judges have written. Further, we need to learn to look at law the
way that judges look at law.
In our system of government, judges can only announce the law when deciding real
disputes: they cant just have a press conference and announce a set of legal rules. A court
has no power to decide an issue unless it is presented by an actual case or controversy
before the court. To look at the law the way that judges do, we need to study actual cases
and controversies, just like the judges.
In short, we study real cases and disputes because real cases and disputes historically have
been the primary source of law.
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To publish an opinion in such cases would contribute nothing new to the body of law or to
the reader. These cases do not merit even a non-precedential opinion. Instead, a plain
judgment order or citation to the court opinion in the appendix is sufficient.
Cardozos second categories of cases form a considerable percentage in court rulings. In
such cases:
the rule of law is certain, and the application alone doubtful (in such cases) [a] complicated
record must be dissected, the narratives of witnesses, more or less incoherent and
unintelligible, must be analysed, to determine whether a given situation comes within one
district or another upon the chart of rights and wrongs. . . . Often these cases . . . provoke
difference of opinion among judges. Jurisprudence remains untouched, however, regardless
of the outcome.
In this second category a non-precedential opinion is legitimate. The rule of law is settled,
and the only question is whether the facts come within the rule. Such fact-oriented opinions
do not add to jurisprudence and thus do not require publication.
It is only in Cardozos third and final category where an opinion for publication should be
written. The cases comprise of (a) percentage, not large indeed, and yet not so small as to
be negligible, this are cases where:
A decision one way or the other, will count for the future, will advance or retard, sometimes
much, sometimes little, the development of the law. (These are the cases where) The
creative element in the judicial process finds its opportunity and power.
From such cases, each modestly articulating a narrow rule, emerge the principles that form
the backbone of a courts jurisprudence and warrant the full-length, signed published
opinions. Great lawyers know how to distinguish between these three categories.
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Better opinion writers understand that they write for distinct primary and secondary
categories of readers and target the tenor of their opinions accordingly.
Three Cs
Neil McCormick, Professor Emeritus of Public Law at the University of Edinburgh, Scotland,
discusses the duty of an opinion writer in terms of the three Cs. Consequence, Consistency
and Coherence.
To consider consequence, the opinion writer must keep in mind that the case holding not
only applies to the present case, but will apply also to future circumstances that incorporate
identical or similar facts.
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The opinion must also be consistent with valid and binding legal precepts of the legal
system.
The opinion must be coherent with an intelligible value or policy and not measured by a
random set of norms.
The Anatomy of an Opinion
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your conclusion. Make sure that you weigh both sides and make counterarguments where
appropriate. Use case law, analogising and distinguishing. Discuss any policy implications.
As for the conclusion, this is a statement that tells your reader what the result of your
arguments is, or what it should be. The conclusion should answer the question presented.
Smart and great lawyers use IRAC variations to formulate their written arguments.
CRARC
Of the many organisational models deviated from IRAC, one that fully captures all elements
of persuasive legal writing is CRARC.
CRARC stands for Conclusion, Rule, Application, Rebuttal and Refutation, and Conclusion. A
great lawyer uses CRARC as a roadmap to structure an argument section when drafting a
persuasive trial or appellate brief.
The Meaning of CRARC
C: Conclusion.
The Conclusion section is a succinct summary of your main argument on an issue and why
you should win.
This first C is a conclusion about how the court should deal with your legal issue.
The initial conclusion is your initial and most valuable opportunity to persuade the reader
why you should win. This is what distinguishes CRARC from IRAC or IRARC. With the latter
two, unlike with CRARC, you begin with a neutral restatement of an issue.
The Conclusion section shouldnt be a blanket restatement of your point, sub-point, or subsub-point heading. Restatements waste an opportunity to persuade. The Conclusion should
succinctly summarize the argument youll make in the CRARC ahead. It could be more
detailed than a heading, but it neednt be.
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In an appellate brief, the first Conclusion answers the question on appeal in your favour. In a
trial memorandum, the first Conclusion will state why the court should rule in your favour
on the issue in your case.
R: Rule.
The Rule section should consist of a statement or series of statements of the constitutional,
statutory, or common-law authority you deem binding or persuasive in determining the
legal issue. Raise all relevant rules for the first time in the Rule section, not in the Rebuttal
and Refutation section.
Whenever possible, limit yourself to three or four rules. Paraphrase the law or quote
directly from the law.
State your rules in order from those most favourable to your case to those least favourable
to your case under the law. Then cite your strongest authorities first.
Cite relevant statutes or case law after each rule, but do not string-cite to show off your
research.
The Rule section can be more than one paragraph; it should be as long as it needs to be to
encompass the rule.
Dont give more rules than the court needs to decide your case. Be brief and concise.
Raise binding authority before you raise persuasive authority. Consider using parenthetical
explanations to explain case law.
A: Application.
Argue your facts here.
Apply to the facts of the case the rule you identified as relevant. If your rule has a set of
elements or factors, then apply them to your facts accordingly.
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Even if the rule youve enunciated comes from a case that contains dissimilar facts, show
how the rationale behind the rule applies in your case.
Dont simply recite facts in the Application section. The Application section is where law and
fact meld. Attach legal significance to the facts of your case. Merely stating, without
applying, the facts of precedential cases wont persuade the reader. Dont expect the reader
to compare the cases with your facts and reach the conclusions you urge.
Your Application contains your factual and legal arguments and should support your
conclusion.
Case comparisons are ineffective, except when one case contains facts similar to your case.
In a thesis paragraph, provide only a brief application. Youll apply the law to the facts in
detail in later points and sub-points of the brief.
R: Rebuttal and Refutation.
Rebut your adversarys strongest arguments one at a time and refute them, before moving
on to the next rebuttal, with your strongest counter-arguments.
Bolster your credibility by showing the court that you recognize counter-arguments (those
that criticise or distinguish the law or facts of a case you cited in the Rule section). Explain
why your position is correct despite potential or apparent weaknesses.
Explain why your adversarys arguments are unpersuasive.
Your first sentence in this section should begin with a statement showing how
(1) the opponents case is unpersuasive for a specific reason,
(2) your opponents use of a case is misplaced for a specific reason, or
(3) the opposing argument isnt compelling for a specific reason.
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After the first sentence in this section, state the law that shows the truth of the sentence.
Then apply the law to the case. Then conclude. To rebut a second or third argument, follow
the same framework.
State your opponents position neutrally and honestly and then refute that position with
facts or law favouring your position.
Dont repeat rules you already gave in your Rule section.
C: Conclusion.
Your final conclusion should conform to the first C section and the point heading. But
instead of arguing your issues, use the final conclusion to state the relief you seek. This is
the narrow conclusion.
Tie the legal issue and your arguments to the relief you seek. The conclusion summarises
the applicable sub-point or sub-sub point.
Be specific about how the court should decide your case. In appellate briefs, also state
whether the trial court or the intermediate appellate court made a correct or an incorrect
decision whether the appellate court should reverse or affirm the decision.
This shows your reader that every line in between the first and last conclusion of a CRARC
proves your first conclusion.
Remember:
CRARC guides you to begin an argument with a persuasive conclusion statement instead of a
neutral issue statement. It also directs you to craft a rebuttal that acknowledges the
potential weaknesses of a clients case and pre-emptively refutes the other sides
contentions. Anticipating a rebuttal will give you credibility without undercutting an
argument.
Advantages of CRARC
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CRARC holds many advantages over both IRAC and IRARC for persuasive briefs. Both IRAC
and IRARC begin with a neutral restatement of the issue in the case. When you restate an
issue up-front, you miss an opportunity to persuade the reader.
CRARC guides you to begin your argument with a conclusion, which allows you immediately
to tell the reader why you should win. It also helps you analyse important facts and prevents
you from missing crucial facts. A properly CRARCed argument section addresses the
strongest arguments first, followed by weaker arguments and public-policy arguments. This
is the best method for persuasive writing.
It draws the courts attention right away to the arguments with which it might agree.
Other variants (IRARC)
Great Lawyers also use other variants when drafting, for example they may use IRARC when
drafting an objective memorandum.
IRARC stands for Issue, Rule, Application, Rebuttal and Refutation, Conclusion.
The difference between CRARC and IRARC is that the former begins with a persuasive
conclusion statement and the latter begins with a neutral issue statement.
IRARC is better than IRAC because, like CRARC, it compels you to provide a rebuttal and
refutation.
Just like the Rebuttal and Refutation section in CRARC, the rebuttal section in IRARC will
help you gain credibility with the reader, and it will help you focus your arguments.
Structuring the Brief
A valuable way to organise a legal argument is to give the reader a roadmap, which CRARC
provides. A roadmap serves as a mini-thesis that tells the reader what youre about to
discuss.
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Place your roadmap after your thesis and just before each individual CRARC. A roadmap
constructed under the CRARC model instantly reveals the overall legal argument, the rule,
how the rule applies to a particular set of facts, and the counter-argument, all before the
reader begins to read the details of your argument.
Place your Rebuttal and Refutation in the right place in your brief so as not to undercut your
argument. The places with the most emphasis in an argument are the beginning and the
end, while the place with the least emphasis is the middle. With CRARC, an argument begins
and ends with a persuasive conclusion.
The best place for your Rebuttal and Refutation, then, is in the middle of the argument. This
section addresses the flaws in your argument and should be the least memorable. If you
follow CRARC, youll place the Rebuttal and Refutation section in the middle of your
argument, between your application and final conclusion.
This way, you show the reader that you understand your opponents position but you have
good reasons to support your own position.
Use the CRARC model for each issue, and have the courage to limit the number of CRARCs
to those issues that have a reasonable likelihood of success. Issues and, thus, separate
CRARCs consist of individual grounds on which the court might grant the relief you seek if
it agrees with you on that issue but disagrees with you on everything else.
Your strongest CRARC, or at least the one that will give you the greatest relief, should be
listed first, although threshold arguments like those involving the statute of limitations or
jurisdiction always go first. Because youll focus on proving your conclusion, using CRARC
will help you avoid addressing tangential issues. (Lebovits, ,2010)
Some Criticisms of legal Opinions
The following are some criticisms against legal opinions. Great lawyers try to avoid them.
1) Drafting opinions which are too long and burdened with too many citations.
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2) Opinions whose discussion tends to ramble, failing to clearly define and analyse issue
presenting lengthy and largely unnecessary discussion of the cases compared.
3) Opinion which make unstructured references to other cases without indicating what facts
in those cases are material or immaterial to the case at hand.
4) Opinions which fail to set forth specific reasons for choosing one line of cases over others,
saying.
For example: Avoid saying I think that is the better view and, I prefer the majority view,
instead explain why you think a certain view is the better view.
5) Your opinion should not be chunky and sloppy but instead of clean and neat. Avoid overwriting and over-footnoting your opinion
The above expositions are not meant solely for opinion writers. They universally apply to all
legal writing.
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It is some of these
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These are terms which are required in order for the contract to exist. For example, a
contract for the sale of goods needs to identify the parties, price, quantity, date of delivery,
and payment terms.
Definite terms:
As a drafter you must consider statutory or judicial interpretations of key terms, and custom
and usage. In addition, you must beware of relying on definitions outside the terms of the
contract. Further, you must be sure the contract does not contain conflicting terms
concerning material items.
Violation of the law
In drafting you must avoid violating the law. For example, a contract may violate the law
because it is illegal, it fails to follow the form required by law, it omits required language, it
waives rights where the law does not permit waiver, or it includes unconscionable terms
among others.
Capacity of the parties to contract
When drafting you should consider whether issues of capacity are raised by the parties
status, such as mental capacity, age, or lack of authority; or by the parties behaviour, such
as fraud, duress, or undue influence.
Clients interests
In drafting a contract you should consider whether your clients interests are best protected
by including (or excluding) a merger (or entire agreement) clause, inspection clause,
warranty, or an absolute promise to perform.
Performance
As a drafter should consider what terms will best protect the client for occurrences outside
its control, perhaps using a force majeure clause; what conditions must occur for
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performance; and what warranties should be included after checking for any prior oral or
written representations, any description of goods, samples or models shown, any plans or
blueprints, any specifications, any market or official standards, any brochures, any
advertisements, and the quality of goods received.
If the client wants specific performance, you must establish the uniqueness of the goods or
services, or the special circumstances of the sale.
For money damages, you must consider whether to provide expressly for consequential,
incidental, cover, liquidated and punitive damages.
Remember: The laws governing money damages will vary in different jurisdictions.
Effect on third parties
When drafting a contract you must consider whether to allow assignment of rights,
delegation of duties, or transfer of rights and duties.
Additional requirements imposed by statute
Certain statutes may require or bar specific provisions concerning various subjects, such as
contracts involving the sale of real estate, or parties, such as consumers. You must be
conversant with concerned statutes when drafting such contracts.
Requirements of the client
To determine the requirements of the client, as a drafter you must be familiar not only with
the nature of the transaction, but also the nature of the clients operation, including the
clients long-term and short-term business goals and the nature of the business in general.
Clients goals: you must identify the clients express and implied goals. Express goals are
those that would be included in the contract, and implied goals might include the clients
way of doing business.
Degree of risk
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As a drafter you must determine each imaginable risk; you must be familiar with the nature
of the contract and the business environment in which it will operate. The more you learn
about how the client and the clients industry operate the better you can determine what
risks are involved.
You should consider the clients prior experience as well as prior experience in the industry
to determine if the risk is realistic and if the dangers are significant.
You must allocate the risk in a way that reasonably protects the client from risk she does not
wish to assume. You must consider how the risk can be avoided (if at all), what the cost of
avoidance would be, who would bear the cost of avoidance, how the risk could be reduced,
how the risk could be spread, who would be liable for damages if the risk materialized, and
what appropriate limitations on that partys liability for damages might be included.
In addition, you must consider whether the law precludes a party from avoiding the risk.
Also remember, you cannot define the risk in the contract in a way that would make the
contract illusory.
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The drafter must consider whether special explanations may be needed for technical terms
or concepts or to avoid misconceptions.
3) Organize the material
Most contracts contain a title, an introduction, recitals, definitions, operative provisions,
declarations, a closing, and attachments. The drafter should consider each part of the
contract to be drafted, consciously rejecting a segment rather than inadvertently omitting it.
Title
The contract must include a title that accurately expresses the nature of the contract.
Introduction
A contract should begin with an introduction that identifies the parties to the agreement, as
well as the nature of the agreement.
The introduction will include essential information of the party names or special legal status,
such as a corporation or limited liability corporation.
The introduction should be short; specific terms of the agreement belong elsewhere in the
contract.
Recitals
This section of the contract might also be called Premises. Its purpose is to state information
that forms the foundation or background for the contract.
Recitals reflect what was true before the contract existed, not what the parties agree to do
after the contract.
To avoid overdoing the recitals, the drafter should exclude any recital for which he or she
cannot identify a purpose for including. Appropriate purposes for recitals include to clarify
intent, such as the reasons why the parties want the contract; to resolve problems of
negotiation, such as facts that would support arms-length negotiations; to add to
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consideration, such as when the consideration involves more than money or when the value
of the consideration may not be readily apparent; or to bolster the importance of conditions
in the contract, such as the reason why time is of the essence to one of parties.
A party to a contract may not have any remedy if a representation appears in the recitals
and is not true. Likewise, an agreement (such as a definition) may not be enforceable when
it is not within the operative provisions of the contract.
Avoid the use of whereas: While recitals are traditionally introduced with this term, the
term is legalese that does not add meaning to the recitals. Simply numbering each recital
will eliminate the need for this introductory word.
Definitions
Definitions can appear at the beginning of the contract or where the word first appears.
Traditionally, drafters have placed definitions at the beginning of the contract in a definition
section. However, this format can be awkward when referring to definitions in a lengthy
document or when the definition section becomes quite long.
Modern drafters tend to place the definition where the word first appears. However, this
also can be awkward when the word appears throughout a document, because the reader
may have difficulty finding the original definition.
The better rule puts definitions at the beginning of the contract if the term appears in
multiple sections of the document and puts the definition where the term first appears if
the term appears in only that one part.
Definitions should conform to generally accepted drafting conventions. For example:
As a drafter you should use consistent terminology throughout after defining a term. In
other words, the drafter should always use the same word or phrase for the same concept
unless a different meaning is intended.
In addition you should use definitions to define terms, rather than to include other
substantive information. Definitions that are more than one sentence may violate this rule.
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Definitions ought to be drafted using present tense. Since a contract will operate
indefinitely, definitions should read so that they express the current state and so that apply
in future.
Definitions must appear prior to or contemporaneous with the first use of the defined term.
Definitions in the definition section must be in alphabetical order.
Operative provisions
The operative provisions of a contract are those that establish the performance the
agreement requires, the consideration for that performance, and the terms under which the
agreement will operate.
Operative provisions are organized most effectively when the most significant provisions are
at the beginning of the document and the administrative (or housekeeping) provisions, such
as declarations of private law, are at the end. In addition, similar topics should be grouped
together and identified with appropriate headings.
The divisions ought to make the contract easy to use as a reference document.
When drafting a contract you must provide each division with an appropriate heading. The
headings ought to inform the reader of the topic of the division.
Each heading should be sufficiently general to cover all the contents of the division and
sufficiently specific to avoid covering provisions covered elsewhere.
The headings should be stylistically consistent.
Each heading should be numbered or lettered using a consistent scheme.
You should organise the divisions in a logical manner. For example, closely related
provisions ought to be placed together, more important provisions before the less
important provisions and general rules before exceptions.
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If a contract includes a key provision that is unenforceable, the parties may not want to
proceed under the contract even if the unenforceable provision does not go to the essence
of the contract.
A Headings provision
A headings provision states whether the headings are a substantive part of the contract. For
example: The headings in this agreement are for reference only and do not affect the
interpretation of any term or condition in the agreement.
A limitation of actions provision
A limitation of actions provision states in what period a suit must be brought or what
procedure to follow before filing a lawsuit.
An attorney fee provision
An attorney fee provision allocates responsibility for attorney fees in the event of a dispute.
Dispute resolution provisions
Dispute resolution provisions state how to resolve a dispute without litigating. To avoid the
expense and inconvenience of litigation, modern contracts commonly include provisions for
resolving disputes informally or as an alternative to litigation. For example, an informal
dispute resolution provision might provide that the parties meet and discuss any dispute
within a short period of time (such as ten days) after notice of the dispute.
An alternative dispute resolution provision might provide that the parties mediate their
dispute before a mutually acceptable mediator prior to litigation or it might require that the
parties arbitrate their dispute before an arbitrator whose decision will bind the parties.
Signature
A person signing for an entity, such as a corporation, partnership, or trust, may need to
disclose its relationship to the entity, such as a title or capacity.
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The contract ought to include a signature line for the parties signing the contract. The name
of each person signing the agreement should be typed or printed under the signature line.
The title or capacity of each person signing an agreement should be included to confirm that
the person has the authority to sign. The drafter also may want to specially verify that the
person signing the contract has representative power.
Each signature may have a different date. In addition, the signature dates may be different
from the agreement date in the introduction and the effective date of the contract.
Attachments
If there are attachments incorporated by reference somewhere in the contract, the
provisions of those attachments ought to be incorporated by reference consistent with the
provisions of the contract.
As a drafter you must distinguish between attachments that are binding and attachments
that are only for reference.
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Contracts must use active voice to express the responsibilities of the parties. Passive voice
avoids directly stating who is doing what to whom and, therefore, it can be ambiguous.
Most passive voice involves a to be verb with a past participle (such as is written), and it
makes sense when followed with by whom or by what.
You should eliminate all passive voice absent an express reason for leaving it, such as when
the parties to the contract do not know or do not want to disclose who the actor will be, or
when the recipient of a representation or warranty wants it in passive voice, depending on
the risk allocation desired.
The subject and verb ought to be close to each other. When the subject and verb are too far
apart, the sentence is less clear and harder to read because the reader needs to retain all
the information in the subject, plus any modifying clauses, before knowing what to do with
it through the action that the verb communicates.
Use general terms when they are useful to give the parties the flexibility they need. General
terms may be vague but they will not be ambiguous (and, therefore, dangerous) when they
are used purposefully.
Avoid legalese
When terms of art do not have a synonym in ordinary English, be sure to define them.
Legalese is wordy, imprecise, and archaic writing, including such terms as now therefore, be
it known that in consideration of, and other similar phrases. Legalese can also create unclear
references or provide an illusion of precision; the said Agreement or the within Agreement
is really just this Agreement.
Avoid false imperatives.
Imperatives are authoritative and obligatory words.
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For example: Avoid using must when the appropriate word is shall. Must is reserved for
creating a condition precedent.
A void using will when the appropriate word is must. Will is reserved for future tense.
May is reserved for circumstances when the act or the authority is discretionary.
Avoid use of May not. The phrase may not negates discretionary authority. Since may
indicates discretionary authority, some courts have construed may not to also mean may.
Instead use shall not.
Use gender-neutral terminology
Using gender-neutral terminology reflects good legal writing because it is precise, avoids
unnecessarily offending the reader, and is an accurate reflection of the law.
Gender-specific terminology reflects a subtle, but powerful, gender bias because the reader
is most likely to assume that the language refers only to the gender specified. In addition,
gender-specific terminology is ambiguous. For example, gender-specific terms such as he
and man; always include men, but, depending on the context of the reference, they may or
may not also include women.
Nearly every gender-specific occupational title has a gender-neutral equivalent that is
gender-inclusive. For example, chairman becomes chair. Do your homework to identify
them.
One way to eliminate gender-specific pronouns is to repeat the noun.
Punctuation
When drafting you must be sure that the correct punctuation is used and that it is correctly
placed. Many a lawsuit has disputed the terms of a contract because of the ambiguity that
incorrect or misplaced punctuation has created.
Further rules on grammar and punctuation are dealt with, in a dedicated section, later.
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Tabulating a sentence helps the drafter find drafting errors, including the use of different
terminology for the same thing, lack of parallelism, problems with modifiers, unclear
sentence structure, problems with cross-references, and problems with connectors.
Check every provision consistent with the general purpose of the contract.
It is important to consider that words generally will be construed most strongly against the
party using them. That the meaning of general words or provisions will be restricted by
more specific descriptions of the subject matter. (Jacobson, 2008)
Remember:
When drafting effective contracts, the devil is in the details.
Addendum
As a professional writer, you must possess literary skills. If such skills are not natural, they
must be acquired or learned. If you want to write clearly and cogently, with words parading
before the reader in logical order, you must first think clearly and cogently, with thoughts
laid out in neat rows. To do so is to demonstrate respect for the elements of reflective
thinking and the rules of deductive and inductive logic.
Any lawyer who is unwilling or unable to do this will confuse readers and cannot perform his
or her duties properly.
(a) You must practise your writing. Fluency comes, in part, from familiarity with the skill of
writing. The more of it you do, the easier it becomes.
(b) You should read the writings of others. If you spend some of your spare time reading
(anything is recommended apart from menus and bus timetables) you should find that your
own use of English becomes more fluent. If you come across a word which is unfamiliar to
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you, look it up in a dictionary: this is how to expand your vocabulary. If you read a sentence
which is unclear, ask yourself why it is unclear; then make sure that you avoid writing
something which is unclear for the same reason.
(c) You must make sure that you are familiar with the basic rules which govern the writing of
the English language.
(d) Before starting to write a document, make sure that you know exactly what you want to
say.
(e) If you are uncertain of the spelling of a particular word, use a dictionary. If you are using
a word processor, remember that most spell check programs will only question words which
are not in the program.
(f) If you cannot think of the word which conveys precisely what you want to convey, use a
thesaurus. Most word processors have a thesaurus function, though a printed version may
give you a wider choice
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Deductive Reasoning
The Syllogism
Syllogism is a label logicians attach to any argument in which a conclusion is inferred from
two premises. For example:
All men are mortal.
Socrates is a man.
Therefore, Socrates is mortal.
Logic anchors the law. The laws insistence on sound, explicit reasoning keeps lawyers and
judges from making arguments based on untethered, unprincipled, and undisciplined
hunches.
Deductive reasoning is the driving force behind most judicial opinions. Defined broadly,
deduction is reasoning in which a conclusion is compelled by known facts.
Example:
A is smarter than B and C is smarter than A, then we also know that C must be smarter than
B.
Or
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Imagine that you get a cold every-time you are rained on. Using deduction you will know
that if you shower with cold water you will get a cold.
From these examples, we can get an idea of the basic structure of deductive arguments: If X
and Y are true then, Z also must be true.
The specific form of deductive reasoning that you will find lurking below the surface of most
judicial opinions and briefs is the syllogism.
According to the traditional jargon, the syllogisms three parts are called the major premise,
the minor premise, and the conclusion.
The major premise states a broad and generally applicable truth.
The minor premise states a specific and usually more narrowly applicable fact.
The conclusion then draws upon these premises and offers a new insight that is known to be
true based on the premises.
Remember
The basic principle of the syllogism is very straightforward:
What is true of the universal is true of the particular.
If we know every member of a class has a certain characteristic, and that certain individuals
are members of that class, then those individuals must have that characteristic.
In the study of law it is imperative to get in the habit of thinking in syllogisms. When briefing
a case (or for students as you prepare a class assignment) the skeleton of the deductive
syllogism should always poke through in your description of the cases rationale.
Whenever possible, make the arguments in your briefs and memos in the form of
syllogisms. A clear, well-constructed syllogism ensures each conclusion is well-supported
with evidence, and gives the judge recognizable guideposts to follow as he shapes the law
along his desired footpath.
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Sometimes its more than a matter of rearranging sentences and rephrasing statements to
match up with the syllogistic form. Sometimes a legal writer doesnt mention all parts of the
syllogism, leaving you to read between the lines. Logicians are certainly aware that an
argument can be founded on a syllogism although not all parts of the syllogism are
expressed.
If a premise or conclusion is obvious, then writer can save her precious words to make less
obvious points.
In addition to not handing the reader syllogisms on a platter, legal writers also have the
tendency to pile one syllogism on top of another. A series of syllogisms in which the
conclusion of one syllogism supplies a premise of the next syllogism is known as a polysyllogism. Typically, poly-syllogisms are used because more than one logical step is needed
to reach the desired conclusion.
NOTE
A syllogism is a powerful tool because of its rigid inflexibility. If the premises of a syllogism
are properly constructed, the conclusion must follow. But beware of bogus arguments
masquerading as syllogisms.
For example:
All law students are smart, and Steve is smart, therefore Steve is a law student. This is
WRONG.
And Legal writing is full of these mistakes. Learn to avoid them as well as to spot them.
Remember:
The principle behind the syllogism is that whats true of the universal is true of the specific.
In deductive reasoning, you reason from the general to the particular.
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Accordingly, if youre unsure about the nature of the general, you cant draw proper
conclusions about the particular.( Aldisert, 2007)
Further, remember this: just because two things share a common property does not mean
they also share a second property.
Avoiding common logical errors
Certain logical errors crop up again and again, and so you should take particular care to
avoid them.
Dont cite inappropriate secondary authorities or cases from outside jurisdictions; logicians
consider that an appeal to inappropriate authority.
Dont rely on attacks on your opponents character. The fallacy of the personal attack, called
an ad hominem in Latin, diverts attention away from the question being argued by focusing
instead on those arguing it.
Dont rely on appeals to emotion.
Dont rely on fast talking or personal charm to carry the day. A cool head coupled with
rigorous legal research turns a case in your favour, not rhetorical tricks.
It is critical to read every legal document you come across with care. Bad reasoning can
seem persuasive at first glance. Logical fallacies are especially hard to spot in briefs, memos,
and court opinions because of the dense writing and complex fact patterns. Yet the effort is
worthwhile. The ability to detect and avoid logical missteps will improve your writing
immensely, and develop your ability to think like a lawyer.
Inductive Reasoning: Generalisations
Where an issue of law is unsettled and there is no binding precedent to supply a major
premise for your syllogism, deductive logic will be of no use to you.
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Inductive generalisation is a form of logic in which big, general principles are divined from
observing the outcomes of many small events. (Dan Hunter 1998). In this form of inductive
logic, you reason from multiple particulars to the general.
The principle underlying this way of thinking is that the world is sufficiently regular to permit
the discovery of general rules. If what happened yesterday is likely to happen again today,
we may use past experience to guide our future conduct. The contrast with deductive
reasoning is stark. Whereas syllogisms are mechanical and exactif the premises are true
and properly assembled, the conclusion must be trueinductive logic is not so absolute. It
does not produce conclusions guaranteed to be correct, no matter how many examples
scholars and lawyers assemble.
The absence of complete certainty, however, does not dilute the importance of induction in
the law. As we stated at the outset, we look to inductive reasoning when our legal research
fails to turn up a hefty, hearty precedent that controls the case. When there is no clear
statuteno governing authorityto provide the major premise necessary for a syllogism,
the lawyer must build the major premise himself.
In the words of Lord Diplock, the lawyer is required to draw upon the cumulative
experience of the judiciary. Once he has assembled enough case law, a great lawyer tries
to fashion a general rule that supports his position.
Inductive generalisations are easy enough to understand. However, you must be careful to
assemble a sufficient number of examples before shaping a far-reaching rule. Dont create
bogus general rules from exceptional circumstances.
The difficulty comes in knowing how many instances are sufficient to make a generalisation.
Two? Tens? Hundreds? Thousands? This is where the art comes in. As a rule of thumb, the
more examples you find, the stronger your argument becomes.
However, raw numbers are not enough to give you a reliable generalisation. The strength of
an inductive argument rests not only on the number of examples you turn up to support
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your generalisation, but also on the representativeness of the sample size. Keep this in mind
when your opponent makes an argument based solely on the use of statistics.
Remember:
You will never completely escape the risks posed by the fallacy of hasty generalisation. We
can never know with certainty that an inductive generalisation is true. The best that can be
hoped for is that expert research and keen attention to statistics will divine workable rules
that are grounded in the wisdom of human experience.
Analogy
In the language of logicians, analogy is a process of reasoning from the particular to the
particular. Analogy can help a law student as well as a budding lawyer advance untested
legal arguments in the classroom and the courtroom.
Mastering the principles of analogy is not just another garden-variety lawyers skill. Rather,
it is one of the most crucial aspects of the study and practice of law. (Lloyd L, 2005).
Unlike most concepts employed by logicians, the use of analogy is not confined to the
realms of higher mathematics and philosophy. (Irving, 1996) Most law students, and even
most laypersons, are familiar with analogies.
At base, analogy is a process of drawing similarities between things that appear different. In
the world of the law, analogies serve a very specific purpose. Lawyers use them to compare
new legal issues to firmly established precedents. Typically, this means that a current case is
compared to an older one, and the outcome of the new case is predicted on the basis of the
others outcome.
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This form of reasoning is different from deductive logic or inductive generalisation. Recall
that deduction requires us to reason from universal principles to smaller, specific truths.
And the process of generalization asks us to craft larger rules from a number of specific
examples. Analogy, in contrast, makes one-to-one comparisons that require no
generalizations or reliance on universal rules. (Dan Hunter, 2006)
A proper analogy should identify the respects in which the compared cases, or fact
scenarios, resemble one another and the respects in which they differ. What matters is
relevancywhether the compared traits resemble, or differ from, one another in relevant
respects. A single apt comparison can be worth more than a host of not-quite-right
comparisons.
Remember:
Determining whether an analogy is strong or weak is a matter of judgment, not mechanical
application of a rule. (Irving 1996)
Criteria for appraising an analogical argument
(1) the acceptability of the analogy will vary proportionally with the number of
circumstances that have been analysed;
(2) the acceptability will depend upon the number of positive resemblances (similarities)
and negative resemblances (dissimilarities); or
(3) the acceptability will be influenced by the relevance of the purported analogies.
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NOTE
The more practice you get working with analogies, the more adept you will become at
articulating why certain similarities or differences are relevant.
Addendum
Logic is not the whole game. Even if your premises are true and your logical statements
constructed properly, it is crucial to recognize that judges are motivated by more than the
mandates of logic.
Judges have notions of how things should beof what is wrong and what is rightand
often strive to do justice as much as to fulfil the mandates of precedent. They have biases,
too. In reading cases, writing briefs and arguing before a court, you will be more effective if
you flesh out the logical bones of your arguments and attempt to appeal to the judge in
other ways as well.
Remember:
An argument that is correctly reasoned may be wrong, but an argument that is incorrectly
reasoned can never be right.
A solid footing in logic will help you feel more secure when you find yourself in a complex
doctrinal thicket.
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ADVOCACY
In war, then, let your great object be victory, not lengthy campaigns. Sun Tzu, The Art of
War
According to Sun Tzus Taoist philosophy which is similar to Aristotles Rhetoric; the art of
persuasion involves not only the logic of ones legal arguments (logos), it also requires
personal credibility (ethos) and emotional impact (pathos). The truly effective Trial Warrior
must establish the clients moral high ground; how and why the arguments relied upon
lead the trier of fact to a just, fair, and reasonable result.
Legal battles are like war, thus if you have ambitions to become a great lawyer, you will be
well advised to study Sun Tzus principles. This chapter is a good introduction to the
principles.
Preparation
It is essential to analyse the clients and the opposing partys respective financial and
psychological capacities to sustain the litigation campaign. The best resource is usually the
client, and a thorough client interview will elicit preliminary background information.
However, the investigative process does not end there; one should not overlook the
Internet, private investigative services, public records, and individual and/or corporate
searches (for example, property sub-searches).
It is equally important to research opposing counsels litigation tactics and prior trial
experience. The best thing to do is to ask colleagues who might know your opponent, their
opinions on your opponents ability, reputation, personality traits, and the like.
Early preparation entails the efficient procurement of all professional resources, including
firm partners, associates, students-at-law, and law clerks. Particularly in the context of
complex litigation or class actions, structure and organization, and the marshalling of all
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In war, then, let your great object be victory, not lengthy campaigns.
The emphasis here is on early settlement. If settlement is not possible, then speed and
efficiency, as opposed to prolonged or dilatory tactics, is favoured.
Oral argument
The key to oral argument is also meticulous preparation. Your arguments need not be flashy
and clever, but merely coherent and solidly grounded arguments that plod on, point by
point, clearly and relentlessly, to the finish line.
First you need to understand that the two main purposes of an oral argument are
persuasion and education.
The next step is to conduct a brainstorming session where you think of:
(a) a theme for your clients case
(b) the important points you need to make to the court, and
(c) the questions that the judges may ask you.
Then, prepare a short outline to remind you of the points you must get across to the court.
Lastly, Practice and refine your argument.
The first purpose of oral argumentpersuasionis related to your role as an advocate
before the court. This role requires you to attempt to convince the court that your client
should win the appeal. You should have attempted to do this when you wrote the brief, and
you should attempt to do this again during your oral argument.
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To persuade the judges that your client has the winning side of the case, your objective
should be to convey to the court the theme of your clients case and the key points of your
clients argument.
As for the second purpose, it is important to understand that an oral argument is not a
monologue where the advocate simply gives a rhetorical account of his or her side of the
case; rather, it is a dialogue between the bench and the advocates where the advocates
serve as advisors to the court, educating the judges about the case.
In this educational dialogue that is an oral argument, appellate courts ask the advocates
questions for several different reasons. First, and very commonly, the judges want to
identify the most important issue or issues in a case. This may be necessary because the
parties may have presented multiple issues in their briefs, some of which are fairly simple
and can easily be disposed of by the court, and others that are intricate and require further
and more involved discussion. In other words, the court may desire a dialogue with the
lawyers to separate the wheat from the chaff.
Second, the parties briefs may only peripherally touch on issues that the court deems
central to a case and about which the court wants to learn. Or, similarly, the briefs may not
thoroughly discuss very complex issues about which the court needs more information.
Therefore, the court may want the advocates to clarify the facts, law, and public policy
implications involved with those issues.
Finally, an appellate courts decision in a case inevitably has consequences outside of that
case. For instance, in their decisions, appellate courts often set forth rules of law that will be
applied in future cases. Thus, the court may wish to question the advocates about the
impact of its decision on future cases. For example, if the appellant urges the court to adopt
a particular rule of law, the court may ask the advocates some questions about how that
rule will operate in a case with facts different from the case at bar.
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Identifying a Theme
As mentioned above, one of the key purposes behind oral argument is for the advocates to
fulfil their obligation to persuade the court that their clients position is the correct one. In
fulfilling this obligation, a good oral advocate will identify a succinct theme of the case and
convey that theme to the court.
This theme should be as simple as possible and should encapsulate your clients case in one
or two sentences.
Identifying Your Key Points
Once youve identified your theme, write it down because you will use it, along with the
written arguments made in your brief, to identify the key points you must make to win your
case.
When doing this, keep in mind that you will have a limited time period within which to
present your oral argument.
Since you will have a short amount of time to present your side of the case, you should
concentrate on presenting to the court only the two or three most important points
supporting your argument.
The most important points are those points that you would have to present to the court to
win your case. With your theme in mind, review your brief and highlight these two or three
critical arguments in your brief.
The Trial Warrior must know the five essentials for victory, which according to Sun Tzu are:
(1) He will win who knows when to fight and when not to fight.
(2) He will win who knows how to handle both superior and inferior forces.
(3) He will win whose army is animated by the same spirit throughout all its ranks.
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(4) He will win who, prepared himself, waits to take the enemy unprepared.
(5) He will win who has military capacity and is not interfered with by the sovereign
In summary, the Trial Warrior asserts and maintains control over the litigation by complete
knowledge of not only the facts and the law, but also of the relative strengths and
weaknesses of both protagonists and antagonists, including his or her own limitations.
Trial advocacy involves the effective use of discovery techniques to gain tactical advantages
at trial, including:
a) To enable the examining party to know the case they have to meet
b) to allow for admissions and dispensing of formal proof of non-contentious matters; and
c) to procure admissions on contentious matters
The resourceful Trial Warrior will anticipate the use of computer experts specializing in ediscovery as either an offensive or a defensive tactic, depending on the circumstances of the
case.
The importance of organizational skills, particularly in complex litigation, manifested in the
assembly of a litigation team, requires collaboration among colleagues, staff, investigators,
expert, and lay witnesses. Sun Tzu also emphasizes the need for change in tactics and
surprise manoeuvres, using opponents psychological predispositions to draw them into
vulnerable positions.
This approach relies upon a group dynamic whose unity, coherence, and momentum
propels the litigation team, rather than relying upon individual qualities and talents:
The clever combatant looks to the effect of combined energy, and does not require too
much from individuals. Hence his ability to pick out the right men and utilise combined
energy.
Remember:
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Trial preparation is a dynamic, rather than static process. The trial brief, trial book, exhibit
book, and various evidentiary proof checklists must be continuously revised and updated.
So, too, must preparation of lay and expert witnesses. Once the trial date has been set, the
exercise of redrafting and editing the opening statement and closing argument, and refining,
or sometimes discarding trial themes continues in earnest, as does the need to draft and
revise written trial arguments and briefs of authorities, which should be provided to the trial
judge at the beginning of trial.
A trial Warrior must maintain not only professional objectivity throughout, but also exhibit
professional collegiality and civility as a means of fostering settlement. (Pribetic, 2008)
Supporting Your Major Points and Preparing to Answer Questions
Next, you need to consider how you will support the two or three main points in your
argument. You also need to ponder the questions that the court may ask you during oral
argument and prepare to answer those questions. So, try to view the case through the
judges eyes. Put yourself in the judges shoes and ask yourself, If I were a judge in this case,
what would I want to know about the case from the advocates?
In nearly every oral argument, the judges will ask questions about the governing legal
authorities and the facts appearing in the record of proceedings that support your oral
argument. Therefore, you should be prepared to answer questions about the facts and law.
Additionally, judges commonly wish to address the weaknesses of the parties cases. So, be
especially prepared to answer questions about the weaknesses of your case.
In the context of trial advocacy, Sun Tzus admonishes against repeating the same tactics
gained in one victory to a new and different set of facts. The Trial Warrior has to approaches
each brief mindful of the personal idiosyncrasies of the clients, judges, and even opponent
advocates.
He avoids relying on boilerplate precedents, outdated legal principles, or unpersuasive case
law.
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Remember
You must know well the law applicable to your case. This is so because the key function of
appellate courts is to determine the outcome of legal issues. In most cases, appellate courts
are required to say what the law is, how it applies to the case before it, and how it should or
may apply in future cases. As a consequence, you can be certain that the court will ask you
questions about the law.
Thoroughly review your brief and the legal authorities that are crucial to your argument,
especially the authorities that directly relate to the key points of your oral argument.
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You should also reacquaint yourself with the facts of your case. To do this, you should revisit
the record of proceedings from the case. Concentrate on the portions of the record that
contain information crucial to your argument. Specifically, look for facts that you need to
support the key points of your argument. Then, take a piece of paper and jot down the page
numbers of the record that contain information critical to your case. Keep these record
citations on hand for use when you put together an outline for your oral argument. (Dimitri,
2008)
During your review of your brief, the law, and the record, the weaknesses of your case
should become apparent to you. To further identify the weaknesses of your case, you
should review your opponents brief to see which issues your opponent emphasizes in
support of his or her argument. Focus on the legal authorities and facts that your opponent
cites in his or her brief. Then, conduct a brainstorming session, during which you consider
how you can minimize the impact of the weaknesses in your case.
Think of ways to explain why facts unfavourable to your case are not critical to deciding the
core legal issues before the court. During this brainstorming session, write concise and
assertive answers to the courts possible questions regarding the weaknesses of your case.
Keep these answers for reference when you practice your oral argument later in the
preparation process.
Preparing an Outline
The next step in your preparation should be to write an outline for your oral argument.
This outline serves several purposes. First, your outline will serve to remind you of the two
or three most important points supporting your side of the case. Second, your outline
should serve to remind you of critical legal authorities and portions of the record of
proceedings about which the court may question you during oral argument.
Remember, that an oral argument should be a dialogue between the bench and the
advocate, not an uninterrupted speech. Therefore, you should avoid preparing an extensive
outline for your argument.
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Prepare an outline that functions as a safety net, which is there to catch you if you forget
to bring up a critical point that you must make to support your side of the case, or if you
forget to mention a crucial legal authority or fact.
From the standpoint of format, you should begin by writing an outline that contains the two
or three key points that support your argument. Place your most important point first. Use
bullets or numbers to set each point apart from the others. Use buzz phrases or key words
to describe each point rather than long, detailed sentences. By doing this, you will not be
tempted to read your argument, and you will seem more natural and conversational as you
deliver your argument to the court. Moreover, the more extensively you prepare for and
practice your argument, the less likely you will need a detailed outline.
If there is a constitutional provision, statute, or administrative regulation at issue in the
case, you might also want to place the relevant portions in your outline. Additionally,
include citations to key portions of the record that you compiled while reviewing the record.
By placing this important information in your outline, you will be able to immediately access
it should the court ask you about it.
Next, gather a set of small note cards. After reviewing the key judicial decisions in support of
your argument, use a separate note card to write down the citation for each case. In
addition, write a very short synopsis of the case, including the critical facts, holding, and
reasoning. While the most important judicial decisions should be fresh in your mind through
your thorough review of them, these note cards will permit you to jog your memory during
oral argument should you forget certain details about a case.
The final stage in preparing to deliver your oral argument is to practice it. Aside from the
initial stage of preparing to answer questions by reviewing the briefs, law, and record,
practicing your argument is the most important stage of preparation because it enables you
to hear criticism and to revise and refine your oral argument. Practicing your argument will
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also help you to anticipate questions that the judges may ask you during your actual oral
argument.
Note questions that you didnt anticipate in advance of your practice and earmark those
questions so you can put more time into preparing to answer them in future practices.
Watch for any mannerisms that might distract the judges, such as speaking too quickly or
using lots of gestures. Note these mannerisms for your next practice so you can work on
eliminating them.
After practicing, you should revise and refine your argument.
NOTE
Do not over-practice. While you should be well versed in the facts, law, and public policy of
your case, you can get to the point of being so saturated with the case that you lose your
zeal for it. It is important that you show enthusiasm for your case to the court during your
oral argument. If you lose your eagerness to discuss the case with the court, the tone of
your argument will be less persuasive.
Remember
Put yourself in a confident frame of mind about your case. Oral advocates who project
confidence at the podium are more impressive to the judges than advocates who are meek.
The best way to instil self-confidence is to prepare thoroughly.
Finally, know the remedy that you are seeking.
Delivering the Oral Argument
Think before you Speak pronounce not imperfectly nor bring out your Words too hastily but
orderly & distinctly. George Washington, Rules of Civility & Decent Behaviour in Company
and Conversation.
You have prepared for your oral argument. You have practiced it several times. You have
reached the day on which you will actually deliver your oral argument.
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In court you should wait to approach the podium until the chief judge of the panel tells you
that you may proceed. When you reach the podium, you should not begin speaking until
you have the attention of all of the judges on the panel. In other words, you know that you
may begin when all of the judges are looking at you or the chief judge of the panel tells you
to proceed.
As you begin speaking, treat your oral argument as a dialogue with the bench rather than an
uninterrupted speech or monologue. Refrain from reading your argument to the court and
maintain as much eye contact with the judges as possible. Indeed, the most important time
to maintain eye contact with the judges is at the beginning of your oral argument.
In your opening, it is customary after greetings to begin May it please the court. You
should also introduce yourself; tell the court which party you represent, and inform the
court how much time you have reserved for rebuttal. After introducing yourself, you should
give the court what is typically called a roadmap. Your roadmap should begin with the
theme that you identified during your preparation.
Following the theme, your roadmap should contain your explanation of which issue or
issues the case involves and which specific points you will discuss in your argument. Just as
you did in your brief, you should frame your statement of each point persuasively and
assertively, in terms that favour your client. Finally, you should tell the court what remedy
you are seeking.
Following your introduction ask the judges whether they would like to hear a recitation of
the facts. This will give the judges the opportunity to decline if they are already adequately
familiar with the facts. If you do explain the facts, do so very briefly. When reciting the facts,
focus only on those facts that are relevant to the points you will be making in your
argument.
After reciting the relevant facts for the court, you should begin arguing the most important
point in your argument, provided that you have not already received questions from the
bench. Remember, your most important point is the point that gives you the best chance of
success on appeal.
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Argue the most important point first so you do not get side-tracked from conveying your
message to the court.
Follow your most important point by discussing the one or two other points that you need
to make during your argument. There is no need to support each point in your argument
with many references to citations and legal precedent, as this will probably bore the court
and is likely to cause your argument to become unfocused.
Support your argument by explaining why your argument presents the most logical
approach to solving the issues before the court. Do this in terms of the facts, governing legal
concepts, and public policy involved in the case. Weave some equitable concepts into your
argument by explaining why you should win in terms of common sense and fairness.
Remember
Your delivery of your argument should be simple and deliberate. Use simple, concise
sentences to promote comprehension. Do not speak too quickly or rush through your
argument because you will be hard to understand. Furthermore, avoid a monotonous or
meek delivery.
Avoid being overly dramatic with your argument. For example, do not pound on the podium
or raise your voice too loudly. You may gesture with your hands, but do not overdo it to the
point that it becomes distracting.
Answering Questions from the Bench
It is rare for an oral argument not to be interrupted by questions from the bench.
Remember, one of the primary reasons courts set cases for oral argument is to ask
questions about the case.
Moreover, answering questions is the most important task youll have to handle in an oral
argument. You should not treat questions from the bench as an intrusion upon your
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argument. Rather, you should welcome questions from the bench and strive to answer
them to the courts satisfaction.
Learning how to properly answer questions from the bench takes time and practice. The
following steps are a good starting point.
a) Listen to and understand the question.
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Never evade a question from the bench, and never put off your answer to a question by
saying something like, I am going to talk about that in a few minutes. If you can answer
the question with a yes or a no, do so.
If you do not know the answer to the question, do not try to bluff the judges or evade the
question by failing to answer it. Rather, be honest with the court and tell the judges that
you do not know the answer to the question and then move on.
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On rare occasions, you may encounter a moot court judge who is quite hostile with his or
her questioning. Unfortunately, not all judges are civil with their questioning. No matter
how hostile statements or questions from the bench may become, you should be graceful
and poised. Tell the judge posing a hostile question or comment that you respectfully
disagree and move on with your argument.
Sometimes you may encounter questions from the bench that are tangential or irrelevant to
the issues before the court. Resist the temptation to characterize the question as irrelevant
or unimportant.
Do not act as if the judge is creating an inconvenience to you with the question. Rather, be
patient with the court and try to answer all questions from the bench, even if they take you
off on what you consider to be a tangent.
To avoid being side-tracked, keep your answer to such a question concise and direct. Then,
move on to whatever relevant points you need to discuss with the court.
Wrapping Up Your Argument
After you have made the points you need to make and have answered all of the courts
questions, you should conclude your argument.
You are not required to use up the entire time that has been allotted for argument.
Therefore, quit while youre ahead and conclude your argument once you have made all of
the necessary points during the argument and has answered all of the courts questions.
Your conclusion should be brief. Revisit your theme, briefly summarise the points that you
made during your argument, and repeat the remedy you are seeking from the court.
If you are in the middle of answering a question from the court when your time expires
acknowledge that your time is up and ask the court for permission to continue your answer.
Then, after you have finished your answer, say, Thank you, and sit down. Do not launch
into a prepared conclusion in which you reiterate the points you have made and repeat your
prayer for relief.
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Rebuttal
After the appellee has presented his or her argument, the appellant has an opportunity to
give a short rebuttal. If you are giving a rebuttal, be as brief as possible. You should reserve
time for rebuttal, regardless of whether you actually end up using that time. If you do not
reserve rebuttal time, you will be unable to correct any factual or legal misstatements that
opposing counsel made during his or her argument.
To rebut something means to refute it or to respond to it. If you represent the appellant,
you should keep this meaning in mind because you should use your rebuttal only to respond
to points that the appellee raised in his or her argument. For example, you might use your
rebuttal to correct or clarify any misstatements or unclear characterizations of the facts or
the law that your opposing counsel made in his or her argument.
Never use rebuttal to raise new issues or to raise points that you were unable to cover in
your opening argument.
Because the time allotted for rebuttal will be brief, you should cover no more than one or
two points in your rebuttal. Be concise and direct in discussing these points. In addition,
listen carefully and closely to your opposing counsels argument. Otherwise, you will not
have anything to talk about on rebuttal.
NOTE
If you represent the appellee, you should go with the flow and modify your argument
according to what the appellant says during her opening argument.
Remember
Eye contact with the judges is extremely important during your presentation. You want to
maintain a conversational tone with the judges, and eye contact with the bench will aid you
in that goal. Further, when a judge asks you a question, you should focus on keeping eye
contact with the whole bench, not just the judge who asked you the question.
addendum
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Avoid verbal pauses and verbal filler. Verbal pauses are the uhs and ums that some
people use when speaking. Speakers often use verbal pauses when they are thinking of
what to say. Instead of using verbal pauses, simply pause silently.
Verbal filler is language that a speaker unnecessarily uses to preface a point that he or she is
making. For example, we would submit that you honour the etc.
Your demeanour should be deferential but firm. Refer to each judge as your Honour or by
the judges title and name, such as Justice Doe. Refer to the judges collectively as this
court or your Honours. Avoid calling the judges maam or sir.
Great lawyers know what George Washington meant when he said:
In Disputes, be not So Desirous to Overcome as not to give Liberty to each one to deliver his
Opinion and Submit to the Judgment of the Major Part especially if they are Judges of the
Dispute.
Do not take a defensive tone with the judges. One of the worst things that you can do
during an oral argument is to fight with a judge regarding a point about which you disagree.
This may make the judge upset at you and will unquestionably cause you to lose the respect
of the court.
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If the point was clear or obvious then there would be no need for oral argument.
Avoid reading long quotations from the record or the case law you are using to support your
arguments. You will bore the judges if you do so. This does not mean that you may never
quote from the record or the law. If you do so, keep the quote short.
Be yourself during oral argument. Everyone has a different style of speaking, so you should
not try to mimic the speaking style of other advocates.
If you have prepared well for your oral argument, then you can afford to be yourself
because you will give a good oral argument.
Rest assured that; there is no right argument, out there in the universe, of all possible
arguments that, if only you can find it, will in a single, satisfying blow, utterly devastate the
other side and deliver victory to your case.
In the actual practice of law, as in most areas of life, disputes are almost never settled by
the delivery of a decisive, knockout blow. Legal fights usually go the distance, and are won
on points. The winner is the contestant who is fitter, better prepared, and more
determined, and who lands the best blows.
Dont say youre going off the record. Ask the judge to go off the record.
Do not stand directly in front of the bench or block opposing counsels line of sight to the
witness or exhibit.
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Dont sit on the counsel table while conducting your examination or addressing the Court.
Do not invoke as authority the fact that things have always been this way.
You have a professional, ethical obligation to show respect to opposing counsel. Fury, or
indignation, are most powerful when virtually imperceptible. Be nice to opposing counsel.
No matter what. Assume the judge will read deposition transcripts, and every letter and
email you send.
Be nice to court staff. Treat them with the respect you would afford a judge. Staff reports
everything to the judge.
Be in court on time. This means getting to court early. A nine oclock appearance requires
your attendance at 8:55, not later. This includes your witnesses. Make sure your witnesses
are lined up, waiting outside the courtroom, and assume testimony will go faster than
predicted.
If you are running late, make sure you have the phone number of the courts clerk so that
you can call and explain, or at least call some of your colleagues, who might be in courts
vicinity and request them to hold brief for you.
Pre mark exhibits, and agree with opposing counsel on their admissibility. Generally there
are only a few exhibits in a case which truly present difficult issues of admissibility.
Consider providing direct testimony via declaration and having witnesses only available for
cross-examination.
There is no substitute for a very good grounding in the evidence code. The judge is under no
obligation to rule on objections you didnt make, and it is highly unlikely youll be able to
appeal on the basis of inadmissible evidence if you didnt make the right objection at the
time.
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Murphys Law holds that, what might go wrong will go wrong, trust inn this law when
planning to use technology in a courtroom.
Bring in everything you need- thumbtacks, projector, screen, easels, pens, marker pens,
extension cables, white-out, etc. Assume the courtroom is bare. Dont even assume the
courtroom has a table for your video projector.
Set aside time to meet with the courtroom clerk to discuss setting up equipment. Consult
with the clerk before you start moving furniture or set up equipment. The clerk knows about
lines of sight, fire exits, and other requirements.
Practice the presentation with exactly the same equipment and data sources, with the
exactly the same personnel, as you expect to use at trial. You must practice with exactly the
same software you plan on using at trial- versions may not behave the same way (this is
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true, by the way, of PowerPoint), or may be incompatible with files made by another
version.
Your office is not the courtroom, The fact that you can hear those tinny laptop speakers
doesnt mean folks in a large courtroom with atrocious acoustics will. Internet connectivity
in your office doesnt mean you will have it in the courtroom. Dont count on the lights
being turned down in the courtroom in order to see your slide show.
Bring low tech backups, such as paper and foam core versions of items to be projected. Be
prepared to give your closing, scheduled as a multimedia shock and awe presentation on
five screens, with only paper notes.
High tech has an embracing, insidious power: it can distract you and the judge, and over
reliance on it will reduce your flexibility to adapt to swiftly changing circumstances. It is
easier to modify ones opening when relying on notes than with a PowerPoint; it is simpler
to redact a paper exhibit than the PDF form to be projected on a screen.
Talk to the other lawyers about sharing equipment. This reduces costs and, more
importantly from the judges point of view, reduces clutter and the interminable delays as
one array of equipment is set up and another moved away as the lawyers change places.
Bring tape to fix wires and cables.
Check out the courtroom in advance for the best location of projections, screens, displays,
easels, and the rest. Think about lines of sight: Will the judge and opposing counsel be able
to see? Have you interfered with free access by those in wheelchairs or who might use
crutches?
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If your witnesses are bold, and may injure your cause by pertness or forwardness, observe a
gravity and ceremony of manner toward them which may be calculated to repress their
assurance.
If they are alarmed or diffident, and their thoughts are evidently scattered, commence your
examination with matters of a familiar character, remotely connected with the subject of
their alarm, or the matter in issue; as, for instance,where do you live? Do you know the
parties? How long have you known them? etc.
And when you have restored them to their composure, and the mind has regained its
equilibrium, proceed to the more essential features of the case, being careful to be mild and
distinct in your approaches, lest you may again trouble the fountain from which you are to
drink.
If the evidence of your own witnesses be unfavourable to you (which should always be
carefully guarded against), exhibit no want of composure; for there are many minds that
form opinions of the nature or character of testimony chiefly from the effect which it may
appear to produce upon the counsel.
If you perceive that the mind of the witness is imbued with prejudices against your client,
hope but little from such a quarterunless there be some facts which are essential to your
client's protection, and which that witness alone can prove, either do not call him, or get rid
of him as soon as possible. If the opposite counsel perceives the bias to which I have
referred, he may employ it to your ruin. In judicial inquiries, of all possible evils, the worst
and the least to be resisted is an enemy in the disguise of a friend. You cannot impeach him;
you cannot cross-examine him; you cannot disarm him; you cannot indirectly, even, assail
him; and if you exercise the only privilege that is left to you, and call other witnesses for the
purposes of explanation, you must bear in mind that, instead of carrying the war into the
enemy's country, the struggle is still between sections of your own forces, and in the very
heart, perhaps, of your own camp. Avoid this, by all means.
Never call a witness whom your adversary will be compelled to call. This will afford you the
privilege of cross-examination,take from your opponent the same privilege it thus gives to
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you,and, in addition thereto, not only render everything unfavourable said by the witness
doubly operative against the party calling him, but also deprive that party of the power of
counteracting the effect of the testimony.
Never ask a question without an object, nor without being able to connect that object with
the case, if objected to as irrelevant.
Be careful not to put your question in such a shape that, if opposed for informality, you
cannot sustain it, or, at all events, produce strong reason in its support. Frequent failures in
the discussions of points of evidence enfeeble your strength in the estimation of the jury,
and greatly impair your hopes in the final result.
Never object to a question from your adversary without being able and disposed to enforce
the objection. Nothing is so monstrous as to be constantly making and withdrawing
objections; it either indicates a want of correct perception in making them, or a deficiency
of real or of moral courage in not making them good.
Speak to your witness clearly and distinctly, as if you were awake and engaged in a matter
of interest, and make him also speak distinctly and to your question. How can it be
supposed that the court and jury will be inclined to listen, when the only struggle seems to
be whether the counsel or the witness shall first go to sleep?
Modulate your voice as circumstances may direct, Inspire the fearful and repress the bold.
Never begin before you are ready, and always finish when you have done. In other words,
do not question for question's sake, but for an answer.
Cross-examination
The best lawyers know exactly what they want. They ask a few questions, and sit down. The
worst lawyers treat cross as a deposition, exploring this avenue and then the next, hoping, it
seems, to find a little nugget which might be useful. This is not only a waste of time, but
three classic dangers loom:
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(i) Loss of focus (no one may notice the nugget, lost as it is in a miasma of tedium)
When outlining a cross-examination plan of the oppositions expert, take into account the
following fertile terrain for attack:
a) Questionable credentials;
b) Weak foundation for the expert opinion;
c) Erroneous assumptions;
d) Faulty science or lack of reproducible analysis; and
e) Situational or cognitive biases
While each trial lawyer develops a cross-examination style reflecting his or her personality
traits, an effective cross-examination should reflect the dual objectives of aim deception
and rapidity: Rapidity is the essence of war: take advantage of the enemys
unpreparedness, make your way by unexpected routes, and attack unguarded spots.
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Except in indifferent matters, never take your eye from that of the witness; this is a channel
of communication from mind to mind, the loss of which nothing can compensate.
Truth, falsehood, hatred, anger, scorn, despair, and all the passionsall the soulis there.
Be not regardless, either, of the voice of the witness; next to the eye this is perhaps the best
interpreter of his mind. The very design to screen conscience from crimethe mental
reservation of the witnessis often manifested in the tone or accent or emphasis of the
voice. For instance, it becoming important to know that the witness was at the corner of
Sixth and Chestnut streets at a certain time, the question is asked, Were you at the corner of
Sixth and Chestnut streets at six o'clock? A frank witness would answer, perhaps I was near
there. But a witness who had been there, desirous to conceal the fact, and to defeat your
object, speaking to the letter rather than the spirit of the inquiry, answers, No; although he
may have been within a stones throw of the place, or at the very place, within ten minutes
of the time. The common answer of such a witness would be, I was not at the corner at six
o'clock.
Emphasis upon both words plainly implies a mental evasion or equivocation, and gives rise
with a skilful examiner to the question, At what hour were you at the corner, or at what
place were you at six o'clock? And in nine instances out of ten it will appear, that the
witness was at the place about the time, or at the time about the place. There is no scope
for further illustrations; but be watchful, I say, of the voice, and the principle may be easily
applied.
Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the
young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all
this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not
that you may shine, but that virtue may triumph, and your cause may prosper.
In a criminal, especially in a capital case, so long as your cause stands well, ask but few
questions; and be certain never to ask any the answer to which, if against you, may destroy
your client, unless you know the witness perfectly well, and know that his answer will be
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favourable equally well; or unless you be prepared with testimony to destroy him, if he play
traitor to the truth and your expectations.
An equivocal question is almost as much to be avoided and condemned as an equivocal
answer; and it always leads to, or excuses, an equivocal answer. Singleness of purpose,
clearly expressed, is the best trait in the examination of witnesses, whether they be honest
or the reverse. Falsehood is not detected by cunning, but by the light of truth, or if by
cunning, it is the cunning of the witness, and not of the counsel.
If the witness is determined to be witty or refractory with you, you had better settle that
account with him at first, or its items will increase with the examination. Let him have an
opportunity of satisfying himself either that he has mistaken your power, or his own. But in
any result, be careful that you do not lose your temper; anger is always either the precursor
or evidence of assured defeat in every intellectual conflict.
Like a skilful chess-player, in every move, fix your mind upon the combinations and relations
of the gamepartial and temporary success may otherwise end in total and remediless
defeat.
Never undervalue your adversary, but stand steadily upon your guard; a random blow may
be just as fatal as though it were directed by the most consummate skill; the negligence of
one often cures, and sometimes renders effective, the blunders of another.
Be respectful to the court, kind to your colleague; civil to your antagonist; but never
sacrifice the slightest principle of duty to an overweening deference toward either.
In concluding these remarks on cross-examination, the rarest, the most useful, and the most
difficult to be acquired of the accomplishments of the advocate, is calm discretion. In
addressing (the court) you may sometimes talk without having anything to say, and no harm
will come of it. But in cross-examination every question that does not advance your cause
injures it. If you have not a definite object to attain, dismiss the witness without a word.
There are no harmless questions here; the most apparently unimportant may bring
destruction or victory.
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Great lawyers know when to sit down, as well as when to keep their seat. Fear not that your
discreet reserve may be mistaken for carelessness or want of self-reliance. The true motive
will soon be seen and approved. Your critics are lawyers, who know well the value of
discretion in an advocate; and how indiscretion in cross-examination cannot be
compensated by any amount of ability in other duties.
The attorneys are sure to discover the prudence that governs your tongue. Even if the
wisdom of your abstinence be not apparent at the moment, it will be recognized in the
result. Your fame may be of slower growth than that of the talker, but it will be larger and
more enduring. (Cox, 1852)
Nothing could be more absurd or a greater waste of time than to cross-examine a witness
who has testified to no material fact against you. And yet, strange as it may seem, the courts
are full of young lawyersand alas! Not only young oneswho seem to feel it their duty to
cross-examine every witness who is sworn.
Cross-examination as to credit should be exercised with great care and caution.
The infinite variety of types of witnesses one meets with in court makes it impossible to lay
down any set rules applicable to all cases.
Generally, the trial advocate must establish and maintain control of the expert witness by
the following means:
1) Keeping the expert guessing;
2) keeping the expert on the defensive;
3) limiting opportunities for lecturing, pontificating, or proselytising;
4) limiting or eschewing open-ended questions;
5) buttressing your experts opinion through the opposing experts acceptance of your
experts:
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a) Professional credentials,
b) Factual analysis,
c) Reasonableness of assumptions,
d) Lack of bias and professional neutrality, and
e) Scientifically rigorous use of methods, testing, protocols and procedures.
Often, the difference between a failed and successful cross-examination will depend upon
the exercise of balanced judgment and modest goals:
Move not unless you see an advantage; use not your troops unless there is something to be
gained; fight not unless the position is critical.
Presenting Evidence
Achieving mastery of procedural and evidentiary rules is not simply an exercise of recitation
and rote memorization, but having the insight for when (and when not) to use them to
strategic advantage. Interlocutory and pre-trial motions are tactics which should be used
sparingly and only if one can predict how the opposition will react and whether it advances
the overall objective:
Tsun Tzu said:
If you know the enemy and know yourself, you need not fear the result of a hundred battles.
If you know yourself but not the enemy, for every victory gained you will also suffer a defeat.
If you know neither the enemy nor yourself, you will succumb in every battle
If the other sides pleadings are open to attack, one should weigh the costs and benefits of
bringing a motion, as opposed to using this pleading deficiency to greater advantage at trial
or eliminating any avenues of appeal.
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If, however, the factual and evidentiary record strongly supports a motion for summary
judgment, then moving sooner, rather than later, is advisable, particularly where time and
money are at a premium, and where the local procedural rules restrict a motion for
summary judgment after the action has been set down for trial.
There are a few basic steps in using documentary evidence. These are painfully obvious, but
it is far more painful when the steps are not observed.
1) Mark the exhibit, if it has not been pre-marked. Even if it has been pre-marked, provide
for the record and the clerk (1) the number and (2) a very brief description of the item.
2) Provide copies to all parties and the court. You must have copies for the other parties and
the judge. And no, they cannot be different versions than the original.
Copies should be marked copy or some such to avoid the embarrassing problem. The
witness never looks at a copy; but only testifies from the original exhibit.
3) Show the exhibit to the witness
4) Lay the foundation for admissibility if not done before
5) Ask that the exhibit be admitted
6) Keep all exhibits in one place once admitted or used.
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LEGAL RESEARCH
To be a great lawyer, you need to develop exemplary research skills.
Legal research is a legal skill that teaches basic legal knowledge necessary for successful
completion of law school. It also requires issue-spotting, legal analysis, and the application
of law to facts.
Legal research is also a fundamental lawyering skill necessary for the practice of law. It is the
lawyering skill that provides the knowledge necessary for other lawyering skills such as
interviewing, writing, negotiation, and counselling.
A legal researcher needs to be able to identify issues; read and analyse primary sources, like
cases and statutes; and determine which materials are relevant. This chapter will point you
to the direction you need to take when undertaking a legal research assignment.
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The research process can be jump-started if the researcher begins with even one case,
statute, treatise, or law review article on point.
Next use secondary sources to begin your research: The goal of legal research is usually to
find relevant primary law.
Faced with the task of locating this law, a researcher has two choices:
(1) search directly in primary law sources for relevant authority; or
(2) use a secondary source to get citations to relevant authority.
It is generally best to begin research by going to a trustworthy secondary sourcea legal
treatise or a law review article.
For individuals who are new to a given area of law, including attorneys who have never
practiced in that area, secondary sources provide a quick method by which they can get a
grasp on potential issues and pitfalls within that topic. If not for secondary sources, each
legal problem would have to be researched by sifting through primary materials and that
would be a truly daunting task. (Valentine, 2010).
There are several good reasons to start with secondary sources. If the research topic
encompasses multiple primary law sources, for example cases, statutes, and regulations,
one would have to research in at least three different primary sources to find relevant
authority in each category.
A secondary source on the issue would cite to the relevant primary authority in one
publication, whatever the type. With a secondary source, someone else has already done
the work of identifying the relevant information. One of the most important tenets of
carrying out efficient legal research is to find someone who has done the work for you
(Marci, 2008)
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Secondary authority also aids the researcher in understanding the issue being researched by
providing analysis and explanation.
Sources:
Annotated statutes: These give the researcher references to relevant judicial or
administrative decisions, administrative code sections, encyclopaedias, attorney general
opinions, legislative history materials, law reviews, and treatises.
Law review articles: These provide in-depth analysis and usually have extensive footnotes,
which can be an excellent source for references to primary and secondary authority. Law
review articles are good at identifying weaknesses or new trends in the law that might
address a clients situation.
In addition, one can turn to the footnotes to find citations to relevant cases, statutes,
administrative rules and regulations, legislative histories and any other primary or
secondary documentation that has a relationship to the matter at hand.
Legal treatises: like law review articles, can provide analysis and explanation, along with
references to primary and secondary authority. They can be multi-or single-volume works
and range in focus from scholarly to self-help.
NOTE:
Novice researchers should not begin with law review articles unless they already know
something about the subject area. Law review articles generally cover narrow legal topics in
great depth. Therefore, law review articles are excellent resources for more advanced
research on narrow topics, but not necessarily for beginning researchers.
Generally there are four types of treatises: critical, interpretive, or expository, student
textbooks, practitioner-oriented books, and law for the general public.
From secondary sources, you will generate a list of research terms. From the research
terms, you can then move to primary sources (either statutes or cases).
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Remember:
Before you plunge into primary sources, use secondary tools to get an overview of the area.
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Read statutes very carefully. Too many researchers fail to take the time necessary to read
the language of the statute and consider all its implications before deciding whether it is
relevant to the research problem. Moreover, because few statutes are so clear that they can
be understood in one reading, careful research will likely require researchers to read a
statute several times before they understand its meaning and relevance. Also, you should
watch for the definition of terms. There is often a separate definitions section.
Statutes seldom remain unchanged for very long. A future legislature may amend or repeal
a statute for any number of reasons. Therefore, be wary of a statute that has not been
altered in some way. Always check a law for recent changes. Look at the publication date to
determine whether a law needs updating.
Remember:
You can stop researching when you use both secondary and primary resources and locate
the same authorities in both.
Library catalogues
A library catalogue is composed of bibliographic records that describe the items in a librarys
collection.
Use library catalogues and indexes to identify and locate relevant resources.
When you have a citation to a known itemfor example a case, statute, regulation, treatise,
or law review articlethe goal is to locate the full text of the item in a library or through the
librarys resources.
When beginning research on an issuewithout a citation in handthe need is to identify
items (cases, treatises, etc.) that address that issue.
Most legal research projects involve trying to find relevant primary authority on a given
issue of law.
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Library catalogues are a useful tool for finding relevant treatises. By searching a given
librarys online public access catalogue (OPAC), you can identify items available in that
librarys collection. For example: WorldCat is a free online union catalogue and gives
researchers the ability to search more broadly and identify items in the collections of
thousands of libraries around the world.
Use a catalogue to identify items related to a given issue, they focus on the title, contents,
and subject fields.
The title field, as its name suggests, contains the title of the item.
The contents field will not appear in every catalogue record, but when present for a treatise
it typically lists the treatises table of contents or chapter headings. The title and contents
fields are created by a cataloguer using the same text used in the title and table of contents
of a treatise.
The subject field is different. While the concepts expressed in the subject field are based on
the topic(s) covered in the treatise, the words and phrases used do not come from the
treatise itself but from a controlled list. The primary advantage to using a controlled list for
subjects is uniformity. (Buckingham, 2010).
Indexes
Index means to point to. Indexes point to information located somewhere else . . . .
(Dalrymple, 1995)
A good index can be an especially useful tool because it will point to the same material in
several ways (i.e., the same material will be indexed under more than one entry); use crossreferences to direct the user to similar or related terms; be structured in a way that gives
context to the terms used; and help the user find material based on the concept covered
and not the specific words used.
Indexes give the citation to articles, not the full text, this must then be located. If one uses a
law review index on Westlaw or LexisNexis, links are provided from index entries to those
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articles that are available in full text. Hein-Online is an excellent resource, especially for
older articles not available on Westlaw or LexisNexis.
You should not stop reviewing the index after finding just one statute reference; several
statutes may address an issue. Sometimes a research term will be included in the index but
will be followed by a cross reference to another index term. Referring to that term may lead
you to relevant statutes.
When electronic full text of an article is not available, WorldCat can be used to find the
nearest library that subscribes to the journal.
Although WorldCat does include entries for some articles, it is better to search for the title
of the journal in which the article is published.
Digests are indexes to case law. Digests contain abstracts or digests of cases organized by
subject.
Practical tips
Researchers looking for a treatise should search their librarys OPAC or WorldCat. They
should run keyword searches, which look in the title, contents, and subject (and other)
fields. When the record for a treatise that appears to be relevant is found, the researcher
should review the subject headings to identify additional search terms that can be used in a
new keyword search. The researcher can also use the call number to find related items,
either by going to the shelves and browsing, or by searching the catalogue using the known
call number.
If keyword searching returns too many results, researchers should try to limit their keyword
search to the title field alone. This will reduce the number of results and improve their
quality, because a treatise with a researchers search words in its title is likely to be highly
relevant.
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Note that a title keyword search, which looks for the search words anywhere in the title of
an item, is different than a title search, which searches for items with a title that begins with
the exact terms searched.
Researchers looking for statutes should consider using the print indexes to annotated codes
instead of searching full-text databases. (In emerging jurisdictions such as Kenya, the
starting point should be (www.kenyalaw.org) for common law cases a good starting point
would be (www.bailii.org) and for legal articles and treatises (www.ssrn.com and
http://lawreviewcommons.com/) are recommended. All have a free access. Further free
databases are provided later.
Instead of searching full-text databases for law review articles, researchers should consider
using law review indexes. These indexes include articles not available on Westlaw or
LexisNexis. For abbreviations of common law legal journals and law reviews the Cardiff
Index to Legal Abbreviations (www.legalabbrevs.cardiff.ac.uk) is recommended.
Remember:
As a legal researcher if you need help getting started, or hit a road-block in your research,
you should not be afraid to ask for help. There are many places you can turn to for help, for
example: you can ask a librarian for assistance. Many librarians help patrons in person, over
the telephone, via e-mail, or even through live online chats.
Students might also consider contacting a professor at their school who teaches or publishes
on the research topic. Some professors may be more willing than others to help, but many
knowledgeable people like to share information, especially when asked.
Another option for practicing attorneys is to talk to other attorneys with expertise in the
area being researched.
Attorneys who work in firms might talk to more experienced colleagues within that firm.
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Sole practitioners might contact other attorneys in their office building, Attorneys in
practice-related organizations in which they are members, or even attorneys who previously
acted as opposing counsel.
Free online legal databases:
(www.casecheck.co.uk): this offers free digests of cases from Scotland, England and
European Court with links through to judgments where available.
(http://www.wipo.int/wipolex/en/index.jsp): this is a one-stop search facility for national
laws and treaties on intellectual property (IP) of WIPO, WTO and UN Members. It also
features related information which elaborates, analyses and interprets these laws and
treaties.
(http://www.doaj.org/): Provides access to scientific and scholarly electronic journals that
are freely available on the web
(http://network.bepress.com/): this is an open access digital commons network for
academic journals.
(http://ials.sas.ac.uk/library/flag/flag.htm):
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(http://www.worldlii.org): Free source of case law and legislation from various jurisdictions,
international courts and tribunals. It includes a catalogue of free legal web sites organised
by jurisdiction and subject.
Addendum
The breadth of research that attorneys undertake has grown dramatically. Small firms and
solo practitioners are conducting more audience, business, and science research than in the
past. A law student who learns to locate experts, find reliable and useful scientific
information, or track emerging areas of law is being prepared for what lawyers do in
practice.
The Internet and other electronic medium have made teaching legal research far more
difficult than it was in the past for several reasons.
First, the sheer volume of easily available information makes locating useful information
harder. Second, the concept of a conscious, thoughtful, articulable research process has
been disrupted by the ease of typing one or two words into a search engine and being
rewarded with pages of results. The Internet makes it ungodly easy now for people who
wish to be lazy. (Ian Gallacher, 2007)
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Parties and their lawyers increasingly seek means to resolve their differences without
resorting to litigation, and thus they increasingly turn to alternative mechanisms to attempt
to resolve differences.
There are many types of ADR mechanisms in use today. Each has distinctive values and is
useful in certain types of disputes. Some of the most common ADR mechanisms can be
described as follows:
Arbitration
Arbitration is a system whereby parties agree to submit their dispute to a third party, who
holds an evidentiary hearing and issues a final and binding decision. Parties select the
arbitrator and design the hearing procedures themselves. There are many types of
arbitration systems because parties can design them however they choose. Some
procedures are informal in which parties have an opportunity to present any evidence they
wish. Others apply rules of evidence, permit motion practice, and include other judicial
procedures. Some permit discovery and some do not.
Some arbitrators are a single decision-maker, while some are a panel of three or even five.
Decisions of an arbitrator can only be appealed to a court on narrow grounds, such as fraud
or misconduct by the arbitrator. Errors of fact or law by an arbitrator cannot be appealed.
Arbitration thus gives the parties substantial autonomy and control over the process that
will be used to resolve their disputes. This is particularly important in international
commercial arbitration because parties do not want to be subject to the jurisdiction of the
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other partys court system. Each party fears the other partys home court advantage.
Arbitration offers a more neutral forum, where each side believes it will have a fair hearing.
One of the biggest impact areas for a successful arbitration result comes through the
development of a tight, compelling narrative. The underlying need for expedition and
economy necessitates the distillation of the case to the essential elements and the
presentation of those elements in an efficient and logical manner. To do this successfully
requires a strategic approach that utilizes all of the quintessential elements of effective
persuasion and advocacy.
Be prepared and organizedthink of the process as one of educating and persuading the
arbitrator. The hearing should not be endless repetition of favourable facts; rather it should
be an effective presentation of the facts that are necessary for success.
Your narrative must have, fidelity with the arbitrator; in other words, the story must ring
true or make sense to your arbitrator. Does it fit with what they already know or perceive
to be the way things work? Additionally, a story should have cohesiveness. It should hang
together well; it should have internal consistency, meaning there should not be
contradictions amongst the story elements (e.g., the documentary evidence and the
testimony) (Walter, 1989)
Controlling the narrative is a means to controlling the framework of the dispute. Through a
cohesive and compelling story you are setting the boundaries for the arbitrators decision
making process.
The way your arbitrator thinks about your case will be influenced by the language you use to
characterize the issues. The goal is to shape the way the arbitrator will choose to think
about your case by carefully crafting and using words that accurately, vividly, and judiciously
characterize your case.
Appropriate language can enhance a more favourable understanding, retention, recall, and
evaluation of your case.
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There is nothing like a good witness to bring the contents of a document to life in the
mind of an arbitrator.
Although the vast majority of witness preparation efforts are directed at clarifying the
content of the testimony, vocal qualities, and nonverbal messages are just, if not more,
important.
For many witnesses, testifying is unfamiliar territory. Attending to witness preparation by
putting them in a realistic setting is critical to helping them develop confidence and
competence in testifying. There is no good substitute for roleplaying in this situation. Part
of the preparation should include having your witness ready and able to answer questions
from the arbitrators. It is essential to invite others to interrupt and ask questions. Your
witness must practice alternating between answering your, opposing counsels, and the
arbitrators questions.
The more you can make them comfortable with the rules of the hearing, the more you can
make them comfortable understanding how they can firmly, but with civility, stand up to
the efforts of opposing counsel. Equally important, the more comfortable they are, the
more effective they will be in supporting your case narrative.
Remember:
In an arbitration hearing, time is of the essence and the arbitrator does not want his or her
time wasted with repetitive or unstructured arguments.
Opening statements
In an opening statement establish the narrative foundation of your case in a manner that
analytically orients and psychologically motivates the arbitrator or mediator. Your opening
must make your audience want to hear more about your case, process the evidence in your
favour, and render or negotiate a resolution favourable to your client.
The goal is not to overclaim, overpromise, or attempt to inflame the passions. On the
contrary, the language of the opening should be firm, reasoned, and reasonable. If you
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began setting the right tone with your brief, your opening presentation gives you a chance
to reinforce it and to create the lasting impression of the case.
NOTE
You do not want to laboriously and at length restate everything that was said in your brief.
Instead, think of the opening as the opportunity to focus the arbitrators attention on the
parties and the facts in a manner most conducive to your success.
Remember:
Your demeanourthe way you gesture, move, make eye contact, control your voicesends
important signals to the arbitrator about your credibility, your confidence and competence,
and your overall command of the case and the arbitration process.
To make sure that you are sending the right message through your delivery, there is no
better preparation than rehearsing the entire presentation with an audience, integrating
technology and graphics, and employing audiovisual feedback in a structured and
facilitated feedback session. Oral communication is a skill that can be practiced and
improved.
You have to understand that evidentiary objections serve a different purpose in arbitration
than they do in litigation. For example, you can object if the opposing party attempts to
introduce hearsay testimony, but expect the arbitrator to let the testimony in for what its
worth. Use objections not to exclude testimony, but to call the arbitrators attention to
evidentiary weaknesses.
Fifth, understand the concept of credibility and how credibility determinations are made.
Accept that some facts will be bad for your case, and instruct your witnesses to do the
same. Concede the bad facts and concentrate on the good ones dont risk your witnesses
credibility by allowing them to insist on facts that the arbitrator will find un-believable.
Closing speech should be concise, focused, wellreasoned and calm. Remember, you are
attempting to win your case by satisfying the needs of the arbitrator. Provide clear reasons
to prefer your clients case.
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In an arbitration hearing you must deliver powerful advocacy in a short amount of time.
Every decision that is made, every piece of evidence that is used, every witness that speaks,
and every visual that is offered must be done with efficiency.
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arbitrators and of course, the more arbitrators, generally, the more costly the proceedings
are.
Costs of Arbitration
The costs of the arbitration are largely dependent on the type of arbitration procedure
selected and on the institution chosen. So the drafter should make some price comparisons
prior to the selection of an institution.
Scope of Arbitral Clause in respect of the Parties Concerned with the Agreement
In agreements where there is likely to be more than one party to a transaction, for example,
where sub-contractors are concerned, it will be useful to provide for all parties to the
agreement to be the arbitration clause. The drafter should also provide for multiple
arbitrations concerning the same cause of action or to the same subject matter, to be able
to be consolidated into a single hearing.
Mediation
Mediation is a process by which parties utilize a third party, known as a mediator, to help
them resolve a dispute. Some mediators meet with parties together and attempt to get
them to agree to a settlement. Some mediators meet with the parties separately and ferry
information back and forth in an effort to achieve a settlement. The goal of mediation is for
the parties to reach a voluntary settlement which is then reduced to writing and becomes
an enforceable contract.
Conciliation is a process by which as third party attempts to induce parties to resolve a
dispute by improving communications and providing technical assistance. It is generally less
formal than mediation.
There are essentially two types of mediation; facilitative and evaluative. Facilitative
mediation is by far the most common model used in England and Wales for the resolution of
commercial disputes.
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In evaluative mediation at some point the mediator will express a view, (probably
simultaneously to all parties) on the strengths and weaknesses of their respective cases. He
or she might indicate which arguments might succeed and which might fail. The mediator
might even express a view on what might constitute a fair and reasonable settlement. This
will not happen in facilitative mediation.
In facilitative mediation a neutral third party, the mediator, assists the parties to settle their
disputes. The mediator is the catalyst. The presence of an independent third party is the key
distinguishing feature of the process. Facilitative mediation is a process of managed
negotiation.
Certainly there is no set formula for mediators but there are certain common threads. The
mediator must be entirely neutral and independent. The mediator brings a fresh and trusted
mind to what is often an old problem. Trust and integrity are key watch words. His role is to
aid communication between the parties, to assist them to overcome emotional blockages,
to focus their attention and effort on the problems and moreover their solutions.
Mediators can help each side to understand the other sides case or even their own case
(and its weaknesses, which they and sometimes their advisors have been unable or
unwilling to look at). Mediators can suggest new avenues to explore, to identify and work to
overcome deadlock, to unlock and release any of the entrenched positions and in some
cases the ill feeling that can accumulate in the course of a dispute.
Mediation differs from arbitration because it is nonbinding. An arbitral institution is likely to
have rules for mediation as well as rules for arbitration. A mediator will try to make sure
each party understands the others point of view, will meet with each party privately and
listen to their respective viewpoints, stress common interests, and try to help them reach a
settlement.
Mediation is private and confidential. Nothing which is said in the course of the mediation
can be discussed outside the mediation nor revealed to any third party. This stipulation of
confidentiality is generally embodied in the Mediation Agreement which is signed (usually
on the day) to regulate the mediation process.
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Negotiation
Great lawyers know how to negotiate. As a lawyer you should carefully consider how to
initially approach a negotiation because this approach can have lasting effects throughout
the negotiation.
Try to understand these processes in order to avoid unproductive negotiations or to gain an
advantage in a particular negotiation.
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Conflict Resolution
Accommodate the Parties Positions. There are two forms of position accommodation
wherein the parties initial demands on the issues are accommodated: simple compromise
and logrolling. Compromise is meeting halfway on the issues, and logrolling is giving up one
issue in exchange for getting what one wants on another more important issue.
Achieve the Parties Positions. In position achievement each party gets exactly what is
stated in its initial demand. For example, in a dispute over a resource, if the resource is
doubled, the parties each get exactly what they want, that is, their initial demands are met.
There are two forms, one driven by an increase in the resource and the other driven by
modifying the resource so that it now fits the parties needs.
Interest achievement has two forms, bridging and cost cutting. In both cases, the parties
underlying interests are met. In the former, a novel alternative arises, whereas in the latter,
one (or both) parties reasons for resistance are met and overcome.
Hierarchy of interests
Complexity in negotiation can be managed via a mental operation called unlinking
Sometimes; differences of interest are a bundle of connected demands, goals, aspirations,
and values that are seen as inseparable from other demands, goals, aspirations, and values.
Unlinking entails breaking the bundle into smaller parts.
Through unlinking, the smaller parts might then be realigned, or prioritised, and form the
basis of trade-offs, or a new alternative might emerge, as seen in the following examples.
A compromise is defined as a middle ground on an obvious dimension connecting the
parties initial offers.
When a conflict involves differences across a set of issues, and the issues differ in their
relative importance to the parties, the difference can be traded for one another. This is
possible especially if one of the issues is more important than another issue for one party,
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and the other side has the opposite preference ordering on the issues; thus, as a set, the
differences on the issues are complementary. In the trade, each side gets what it wants on
its high-priority issue and gives in to the other on its low-priority issue; this gives greater
value in the agreement to each side individuallyand to them collectivelythan each
getting something in the middle on the issues or making no deal at all.
Bridge the Interests. Perhaps the most creative form of integrative agreement is that
referred to as bridging. In bridging, a new alternative is devised that gives the parties what
they want in terms of the interests that underlie their positions.
The important dimension that distinguishes bridging is the focus on the underlying interests
or reasons, or concerns, or values that generate demands and positions. If those can be
met, the demands and positions are satisfied.
There are several types of bridging formulae, including:
1. Alternation
In alternation, the parties take turns, which is especially useful when there is a time
constraint.
2. Contingent agreement
This entails building unknown futures into the agreement, which is especially useful if the
parties differ in their expectations about the future.
3. Cut the Costs.
If one party is resistant to agreement because what the other proposes has costs, and these
costs can be identified and reduced, then agreement is likely. The agreement is integrative
not due to a change in position or trade-off on issues, but because one party does not suffer
so much. Cost cutting is a form of compensation, but it is specific in the sense that the
compensation addresses the exact value that formed the basis of resistance.
4. Superordination.
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Sometimes agreement is reached when the differences in interest that gave rise to the
conflict are superseded or replaced by other interests.
The use of compensation, as described, is a form of this but usually applied to just one party
to a conflict; the compensated party gives up its resistance because the interest served by
the compensation replaces the initial interest that drove its resistance to the others
demand.
In superordination, both parties drop their initial interests and positions in light of changed
circumstances or goals, a revised view of the conflict, or an enticing new opportunity.
The most powerful form of superordinate interest is working together to fend off a common
enemy. Third parties often know this and use this in the effort to foster cooperation.
Priming-legal negotiation
Lawyers routinely begin legal negotiations with a written demand letter and a wealth of
multidisciplinary, empirical research exists to assist lawyers as they negotiate on behalf of
their clients. The demand letter is one of the most important documents a lawyer writes
because it often initiates negotiations, and that various psychological processes involved at
the outset of a negotiation can significantly affect the negotiations success.
The demand letter provides the lawyer with the opportunity to tell the clients narrative,
persuasively integrating law and fact in a way that is often hindered by procedural
roadblocks once a lawsuit is filed.
Initial Biases
Studies confirm that first impressions are extremely hard to overcome. Once a party takes
an initial position, that party is likely to value evidence that supports that position and
devalue evidence that does not. Furthermore, people generally take self-interested
positions and assess their positions in a biased way. In addition to the tendency to see facts
with a self-interested bias, when confronted with anger or other negative emotions, people
tend to escalate their anger.
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Therefore, although a lawyer could expect the recipient of a demand letter to take a selfinterested position at the outset of a negotiation, once the recipient becomes angry and
defensive, the likelihood of efficient resolution becomes remote. This is because anger
changes the way the brain operates; people become less creative and cooperative, and,
instead, become more vindictive.
Similarly, the perception of unfairness, like anger, has a powerful, negative influence on
negotiations and can lead a person to give up something of value simply to punish the
person who is perceived to be acting unfairly.
Because of these reactions, experts advise negotiators to expect a biased participant and to
avoid insults, shame, blame, and other techniques that would cause the other party to erupt
in anger, and, rather, to focus the other party on fair outcomes.
Demand letters provide lawyers the opportunity to tell their clients stories in an integrated,
persuasive narrative, and they are increasingly required by law.
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Remember:
Never begin a negotiation until youre prepared
Effective Communication Skills
Effective communication plays a fundamental role in any interaction and is essential to
successful negotiations. Effective communication skills include: the ability to listen and
understand the intended message of the sender, clearly expressing your own thoughts and
ideas in a way that is easily followed and understood by others, and finally, accurately
interpreting the messages expressed through body language.
The ability to clear our minds to actively listen to someone may take a great deal of
concentration. At any given moment we are bombarded with interruptions (internal or
external) that can limit our ability to truly hear and understand a message being delivered.
Sit up straighter in your chair and make sure that your body language does not signal closed
reception (crossed arms/legs).
Also, make direct eye contact with the speaker so that he knows that he has your full
attention. And most importantly, think carefully before you respond. Make sure you hear
and understand the speakers message prior to responding and try to avoid thinking about
your next response before the speaker has concluded his remarks.
NOTE
If we perceive any danger, or uncertainty in a message being delivered we may do
whatever possible to block out whats being said.
Never negotiate when you are tired. The message becomes clouded as we attempt to fight
off fatigue. If fatigue is interfering with the ability to listen, consider calling for a time-out
and go get a cup of coffee or take a brisk walk. If all else fails, reschedule the meeting to a
later time.
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The ability to understand any message relies, in part, on our ability to actively listen, without
distractions, to the message being delivered. Then we can accurately interpret that message
in the context in which it was delivered.
Delivering a message that is easily understood and not misinterpreted is equally challenging
and requires special attention for a successful outcome.
Techniques to help clarify information
Ask questions that can help to identify key issues of the discussion.
Use the information that was acquired during pre-negotiation preparation to formulate
questions that can narrow the issues of the discussion.
Make sure to follow-up with questions that will require a more specific answer when
responses are too general.
Keep responses short and very specific to the question. Avoid inserting information that
may be interesting, but not necessarily specific to the subject.
Body Language
Body language is an expression of feelings that are communicated through the eyes, facial
expressions, and position of the head, arms, legs and body posture.
Body language plays a critical role in communication. Multiple messages and/or meanings
can be sent via body language.
Understanding Basic Body Language can help to accurately interpret most messages.
Emotional Control
Emotional control begins by understanding our own personal strengths and weaknesses,
then building on those strengths while minimizing weaknesses. The benefit of emotional
control through self-understanding is the ability to maintain the emotional distance
necessary to be effective.
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Emotional control may necessitate emotional distance to neutralize the situation and avoid
further conflict.
Perhaps the most important aspect of exploring and understanding our personal strengths
and weaknesses is the ability to recognize what pushes our hot buttons what issues can
upset us and how we can address those issues to assure control when necessary.
A time-out is an opportunity to stop an action, conversation or emotion and create a
distance to allow a recharging of self-confidence or control. A time-out can be created by
leaving the room for any reason including a bathroom break, getting a file or obtaining
additional information from another source. The ability to recognize when a time-out is
necessary is an important skill to cultivate.
In the real world, we win some battles and lose others. Its important that we learn to deal
with the frustration and discouragement associated with the lost battles to become more
effective in the battles of tomorrow.
Remember:
Not all people are agreeable and easy to deal with. There are difficult people in the world
and our ability to recognize and deal with the many personalities we encounter can help us
to be more successful in any interactions we may attempt.
Regardless of the circumstances, personal attacks will always result in a negative outcome.
No matter how good it might feel at the time, personal attacks will ultimately produce a
lose/lose situation.
Environment
Whenever possible and appropriate, try to create a relaxed environment. This can be
accomplished in several ways. For example, instead of sitting behind a desk, move the
conversation to a couch, or sitting area. If a sitting area is not available, remove the desk
barrier by bringing your chair around to the other side of the desk. This creates a more
relaxed environment that reinforces the perception of a level playing field.
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Taking a walk away from the more formal office setting can, in many cases, accomplish the
same results. Additionally, adding a little humour, when appropriate, can help others feel
more relaxed and comfortable.
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Winning is, rather, about projecting sincerity without vouching for a clients credibility or the
merits of a clients case. Winning is about delivering on promises without overpromising.
Winning is about zealous representation without being a zealot.
Winning is about the messenger, not just the message and the media. Civility and
professionalism, not aggression and over-lawyering, win cases.
Being civil and professional means being satisfied with the practice of law; earning money
and respect in our chosen, honourable profession; and not dying young of ulcers and heart
attacks. Being civil and professional means imparting trustworthiness and qualifications or,
said another way, winning through integrity.
Great Lawyers have mastered the art of persuasion. Persuasion requires professionalism
and integrity, not merely good arguments. Winning comes down to persuading the judge
that your argument is more compelling than the other partys.
Lawyers presentations and how they conduct themselves are crucial in convincing judges to
rule for their clients.
Integrity and professionalism is not only about winning cases. It is also about winning in the
long run.
Being seen as professionals and gaining good reputations are essential to successful
lawyering.
Great Lawyers know how to disagree without allowing acrimony. The court and colleagues
are more likely to listen and accommodate lawyers perceived as credible and well-
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mannered professionals. A lawyer who fights over small, irrelevant points will lose those
points anyway, and the judge will recall in the next case the aggravation the lawyer caused.
To win with integrity and professionalism, lawyers must be transparent. They must not
mislead or use tricky arguments. They must cooperate with other lawyers, court personnel,
and judges. They must also require those under their supervision to behave the same way.
Suggestions to guide lawyers in winning with integrity and professionalism
Be civil
Lawyers who are civil comply with the professions accepted practices. Civility means being
polite. Good lawyers do not whine or engage in histrionics and hissy fits. On the contrary,
lawyers who aggressively defend their clients best interests while being well-mannered and
charming are likely to win points with the judge, not lose them. Lawyers who conduct
themselves civilly are not rude. They do not engage in reprisals.
Professionals never use vulgar or belittling language. Courtroom antics impress and
influence no one. They distract. Ill feelings existing between clients, particularly during
litigation, should not affect lawyers in their conduct toward opposing counsel. Civility
requires lawyers not to obstruct. Civility requires lawyers not to attack judges or opposing
counsel personally or make false accusations about honesty, integrity, or industry. Civility
requires lawyers not to disparage their own clients.
Be honest
Honesty is not only the best policy; it is the only way to win. Lawyers who cite reversed or
overruled principles will lose the courts respect. Lawyers should always cite the sources
they use and use what they cite. The best lawyers do not cheat the system or cut corners.
Lawyers should not falsely hold out the possibility of settlement to adjourn discovery or
delay trial. They are prohibited from helping a client engage in unlawful or fraudulent
conduct. Lawyers should never try to hide. They win by stating the facts accurately and then
having good explanations and evidence to prove their conclusions.
Be fair
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Know the rules: Respect them and play by them. A game can be won only if the winner plays
by the rules. The practice of law is no different. Lawyers must use tactics consistent with
these rules. Professionals know how best to represent their client within these boundaries
of conduct.
Professionals know that if they act fairly, opposing counsel and judges are likely to respond
the same way.
Be courteous
Treat others like you would like to be treated. Professionals are considerate when
interacting with their client, opposing counsel, and court staff. Courtesy means not crosstalking in court. Good lawyers address only the court, and they let others finish speaking
before they start speaking. Courtesy includes returning phone calls promptly, answering
correspondence quickly, cooperating with opposing counsel on calendar conflicts, and
notifying colleagues of changes.
The first request for an extension of time to respond to a pleading should ordinarily be
granted as a matter of courtesy. By agreeing to an adjournment, lawyers know it will benefit
them when they themselves ask for an adjournment. Courtesies affect how a lawyer is
perceived.
Be respectful
Respect and you shall be respected. The best lawyers do not demand respect. They earn it
by continuously showing consideration for their colleagues and clients. They are never rude.
Engaging in irrelevant or ill-founded conduct exemplifies a lack of respect.
Lawyers should not tell judges that their disingenuous adversaries egregiously
mischaracterize the evidence.
Instead of offering negative opinions, they should offer the grounds for their conclusions.
Nor do good lawyers gossip about their colleagues personal and professional lives.
Be credible
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Credibility is hard to earn but easy to lose. To be considered credible, a lawyer must be
worthy of confidence. The best lawyers never wing it; they are prepared. To avoid underpreparation, the best lawyers do their homework and organize. Poor research wastes the
courts time and harms the client. Failing to find controlling or persuasive cases and statutes
roughly on point reflects poorly on the lawyers skill as an advocate and jeopardizes the
clients claims.
Being candid with the court about facts adverse to the clients position also gives credibility
to the lawyers arguments.
Be consistent
Consistency is the key. To be consistent means always acting with integrity, not only when
helpful. Consistency demonstrates that lawyers are genuine and not deceitful. Consistent
lawyers are interested in improving their skills.
Lawyers reputations are linked to the consistency of their actions. It takes one negative to
taint the positive. Judges are observers; they will notice if lawyers act professionally only
when it helps them, and judges will be less likely to accommodate them.
Be reasonable
Great lawyers use good judgment and common sense. They do not attach unfair or
extraneous conditions to an opponents request for an otherwise legitimate and appropriate
extension of time. They do not prolong arguments or make motions designed to harass.
They avoid unnecessary motions or judicial intervention. They try to negotiate in good faith
and reach an agreement with the other party when possible and when it is in their clients
interest to do so. They allow time to resolve disputes or disagreements and impose
meaningful deadlines in light of the nature and status of the case.
Negotiating reasonably can lead to an agreement that satisfies both sides an outcome
that might elude the parties if the judge decides the matter. Professionals are not
pushovers; they stand their ground on large points but they know when to concede small
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Great lawyers limit the number of arguments to their strongest: the ones most likely to
succeed. But they address their weakest, most vulnerable contentions. Doing so ensures
that they are prepared to answer questions from the judge about those weak arguments
and demonstrates their honesty. More importantly, this allows them to contradict the other
sides arguments: They know where the opposing counsels strong points lie.
Great lawyers also avoid distractions by keeping it simple. They limit adjectives. They avoid
foreign or legalistic language. Written and oral persuasion is linked to clarity and concision.
Professionals do not obscure the truth; they explain why their argument is the best. They do
not write in a conclusory way but in a convincing manner offering details, not opinions. That
way they bring their readers to the edge of the cliff without making their readers resist and
push back. They do not vouch for their clients credibility by using statements like I
believe, I feel, or I think; they know that judges do not want to hear their arguments,
not their beliefs. They do not assume that the reader agrees with their point; they make
sure that their argument is stated clearly and is easy to understand.
Ensuring that arguments are clear and concise diminishes the chances that the court will err.
Be accurate and precise
Great lawyers are specific. Accuracy is crucial to maintaining credibility. Lawyers should
avoid biased modifiers. They do not use snippets out of context. When using citations, they
should limit themselves to the ones that add weight to an argument rather that those that
add bulk and impress only non-lawyers. Legal writing requires precision in citation to
support factual and legal propositions in the form of logical argument.
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lawyer does not consider the proceeding important. Presentation extends beyond dress.
During a trial, lawyers must be prepared and have a theme and a plan. They should present
their arguments to persuade judges, not their clients, who will want them to throw in the
kitchen sink. Presentation in writing is also essential. Judges will not decipher or search for
arguments. To effect a professional presentation, good lawyers revise written documents
numerous times, verifying their arguments, citations, grammar, quotations, and spelling.
Accountability
The best lawyers do not blame. Everyone loses cases. Good lawyers accept responsibility
for their actions. That demonstrates honesty and humility.
Accountability is also an important duty toward clients. Lawyers must explain what
happened in their case and why. Lawyers must return telephone calls and correspondence
quickly. After a trial, professionals recognize where they erred and what they need to
improve.
Recognizing the areas needing perfecting demonstrates humility and taking work seriously.
Accountability also means not overpromising. When promising something to opposing
counsel or judges, professionals will always fulfil their commitments. (Lebovits, 2009)
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EXAMINATIONS
This chapter provides practical advice and guidance to law students and how to cope with
law examinations.
No matter how straightforward an exam question appears, take time and care to analyse it.
In general, essay questions will take one of two forms; either a direct question or instruction
or a quotation followed by a question or an instruction.
One of the reasons why the question based on a quotation may prove more challenging is
that it may leave a certain amount unsaid. You have to consider carefully the question
before attempting to answer.
Essays
There a couple of things that you need to be able to do in order for your essay to be
successful. Firstly, you must answer the question. Secondly, you must be able to distinguish
between relevant and irrelevant content.
Strategy to essay writing
Brainstorming
The most effective approach to brainstorming in preparation for an essay question is to split
it into two stages:
(1) Brainstorm the topic and
(2) Filter the points that emerge to ensure that they are relevant to the particular question.
The filtering stage is important because brainstorming sometimes takes you away from the
main topic by dint of word association. Therefore, filtering is needed as a second stage of
the process to ensure that points that are not relevant to the question are eliminated
before the research stage of the essay writing process gets underway.
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Research
For further details please consult the research chapter.
Outline
Once you have completed some research into the essay topic, you will be able to draw up a
draft structure for your essay that will help you when you come to start writing. It is
important to remember that this is a draft only and that, when you start to write, your essay
might take a different path. However, a very common weakness in essays is that they have
meandered away from the main point and so have a weak focus on the main topic.
If you have an outline structure for your essay, if you seem to be moving away from that
structure you should take a moment to consider whether this is a necessary result of the
way that you have developed your argument (in which case it is fine) or if it is because you
have started to wander away from the central topic (in which case you should bring yourself
back to a stronger focus straightaway even if this means discarding material that you have
written).
Writing the Introduction
The introduction is an important part of the essay. It is the first impression that the marker
gets of the quality of your work so it stands to reason that you should make sure that this
impression is a good one.
Ideally the introduction must:
a) Communicate your understanding of the requirements of the question. It must unpick the
question by explaining what it is about.
b) give an indication of how the question will be tackled. It must give a clear breakdown of
what issues will be addressed in the body of the essay.
Therefore, a good introduction has to explain the structure and content of the essay.
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Remember:
The introduction must not repeat the question
Since most pieces of coursework have to be written within a specified word limit, it is
necessary to develop a concise style of writing that allows you to make all the points you
wish to make.
Tips
You can reduce the length of a paragraph by:
1) Removing irrelevant material.
For example: when dealing with precedents, include only those facts of a case that are
necessary to ensure that it serves its purpose. Try to distinguish between the facts of a case
and its material facts: material facts are the ones that matter to the outcome of the case.
2) Removing excessive description.
For example: Do not use multiple examples to illustrate the same point.
3) Rewording the paragraph so that it is more concise.
In some sentences, you can save a lot more words if you just think careful ly about what you
want to say and then express it as concisely as possible.
You will be surprised how many words you cut off if set yourself the task of rewording every
sentence in a way that saves you one word.
Checking for errors
Before submitting the essay, you should have one final check through to ensure that you
have avoided making the sorts of errors that can creep into your work. You can do this by
reading through the essay on the computer screen but most people find that it is easier to
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spot errors on paper so you might like to print a copy and go through it with a pen in your
hand so that you can circle errors when you spot them.
Tips
The following points can help you to spot some common problems that occur in an essay.
1) Check spelling
2) Check grammar and readability of the essay. Reading sentences out loud can help to spot
mistakes.
3) Ensure that sentences do not start with conjunctions such as and, but or because.
4) Ensure that sentences do not end with prepositions such as of, for or to.
5) make sure each paragraph contains a complete idea or argument and that it flows from
the preceding paragraph and into the paragraph that follows.
6) make sure each paragraph 'touches base' with the question. This will strengthen the
focus of the essay and help to filter out irrelevant material.
7) Check that your introduction explains the content, purpose and structure of the essay
8) Check that your conclusion draws together all the strands of argument from the body of
the essay into a direct answer to the question posed by the essay.
It should summarise the findings and where necessary the recommendations of the essay.
9) Remember that the use of contractions/elisions is inappropriate in academic writing.
Eliminate all instances, changing cant to cannot, hasnt to has not, wont to will not
and so on.
10) Check that there is no confusion between its (short for it is which should be written
in full) and its (possessive form for objects the object equivalent of his for example, the
court opened its doors at 10am.)
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11) Avoid the use of the first person in any form (I, one, we) adopt a more abstract approach
to writing, for example: rather than writing I will outline write this essay will outline,
rather than one could argue write it could be argued and rather than we can see a
common principle write a common principle can be seen.
12) if your department or lecturer have a preference in relation to gender-neutral language
make sure this been adhered to in the essay.
13) Ensure that the essay avoids the use of unnecessary Latin whilst making sure that
necessary Latin phrases, such as mens rea and res ipsa loquitur, are used correctly and
written in italics.
14) When a word has a legal meaning that differs from its everyday meaning, make sure
that the two are not used together as this can cause confusion.
15) make sure the written style is appropriate.
16) Check that references are provided for all quotations as well as legal principles and ideas
that are attributable to a particular writer.
17) Ensure that referencing has been done properly and in line with your departments
preference. If you have not been given any guidance, ask for it. Also, don't wait until the last
minute to investigate your citation requirements. Theres nothing worse than having to go
back through all your research to add in specific page numbers or dates because you forgot
to do it the first time.
18) make sure that the style used for references is consistent throughout the essay. Also
check that all cross-referencing is accurate.
19) Provide page references (and paragraph references for case law) for all quotations. Also
make sure the references are complete. Provide a full bibliography.
20) If you are typing your essay, you can underline or italicise case names, but there's no
need for elaborate type faces. Make your writing stand out rather than your design skills.
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Find out what the house style (for example the font and spacing) of the department is and
ensure that it is adhered to throughout the essay.
21) Ensure that references to Internet sources include the date upon which the website was
accessed.
22) Ensure that long quotations are presented in block format.
23) Check that the essay complies with the word limit. If it does not consider paraphrasing
long quotations to save words
24) make sure that the essay is well-presented and looks polished.
25) Ensure that case citations are complete and correct with the names of the parties in
italics.
26) Check for hanging headings at the bottom of the page and reformat to eliminate these.
(For instance you can use page breaks to reformat)
27) Check for unnecessary capitalisation. Only proper nouns and words that start a sentence
should be capitalised.
28) most importantly confirm that the essay makes sense.
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As if there is much of anything in any human utterance, oral or written, except plagiarism! .
. . The kernel, the soul let us go further and say the substance, the bulk, the actual and
valuable material of all human utterances is plagiarism. Mark Twain
Waldo Emersons and Mark Twains points are valid. However, you might be committing
plagiarism if you submit an essay that incorporates someone elses words or unique ideas
without attribution. This is a serious academic offence and can lead to expulsion from law
school.
Plagiarism is wrong partly because as a student you will be graded on a work that is not
yours and partly because you will not acquire needed skills and knowledge without actually
doing the course work.
You should know that each jurisdiction has its own conventions on how to cite legal
authorities. For instance, The OSCOLA system reflects a common understanding of how
British legal authorities should be cited and is a good place to learn how British and
European cases should be referenced.
OSCOLA refers to the Oxford Standard Citation of Legal Authorities, which is available free
of charge on the University of Oxford Faculty of Law website (www.law.ox.ac.uk). It gives
detailed instructions on how to cite cases, statutes, books, journals and other legal
materials.
The OSCOLA system proposes a citation methodology that conflicts with American usage.
Those whose work includes a large number of American cases may prefer to consult the
latest edition of the Bluebook, which is available in many university law libraries, for U.S.
sources.
The Harvard style of citation is appropriate if you are conducting a socio-legal or other
multi-disciplinary research.
NOTE
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Current British usage avoids all Latin phrases except for ibid, which means in the place of
and refers to the preceding citation only. You may only use ibid if the subsequent citation is
to the same page.
Lawyers in practice are also expected not to plagiarise materials. However, some
unattributed uses of sources that would be completely unacceptable in the context of
drafting a student note, moot court brief or law school writing assignment, might be
completely acceptable in other contexts, such as within a law firm or judicial chambers. For
example, when lawyers use form books, they are expected to exercise their professional
expertise in selecting appropriate forms, modifying the forms to fit the clients situation,
ensuring that the forms are valid under current law, and advising the client whether the
forms will accomplish the desired results.
When your case is a primary source of law, for instance a case, statute or regulation,
plagiarism should rarely ever be an issue. Citing to the source lends support to your
argument, so why not tell the reader where you found your information. Law depends on
authority so make sure to supply the citation to render credibility. A judge reading a brief
expects the argument to be based on legal authorities.
Tips
Be meticulous in checking that every source is referenced. Try printing a copy of your essay
and reading it line-by-line and highlighting every place where a reference is needed to make
sure that you do not miss any.
In conclusion, Examination essays must be readable. They ought to be carefully structured in
order to cover all of the points in a logical order and without repetition. Above all they must
be relevant and answer the question set. Where possible they must follow any invitation to
provide a critical and informed analysis of the topic. This can only be done by reference to
case law, statutes and legal writings. An authoritative answer is all-important, and this will
not be achieved by a series of half-baked and unrelated ideas thrown together without any
support from substantive law.
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Problem questions
Too many students treat problem questions as though they are a quiz. That is to say they
believe that if they spot the correct answer, they will obtain full marks no matter how badly
or even inaccurately expressed their answer is. This is certainly not the case.
The method of asking yourself what would be the most appropriate and practical redress
open to the party, and then searching for an available legal remedy, is the easiest way of
ensuring your answer remains relevant.
Do not spend too much time on unlikely or highly inventive actions. As with legal practice, it
is the obvious solutions that are likely to prove the most effective. Relevance is no less vital
in answering problem questions than in writing essays. It will be easier to achieve, however,
if you stick strictly to the facts of the problem set.
Most problem questions insert specific words to indicate particular legal issues, and
additional detail is kept to a minimum. By far the best guide, therefore, is to direct your
attention to the facts of the problem as set out. It may be possible to illustrate your
knowledge quickly by varying the issue slightly but you must also deal with the question set.
Remember that few problems are likely to be directly in line with previous case law. Often
they cover 'grey' areas of law, where right or wrong answers may not be easily available.
Bearing this in mind you should cover both sides of an argument if possible, but be brave
enough to reach your own conclusion. In general, however, it is unwise to begin with your
conclusion.
The most important point of all in answering problem questions is to cite authority for your
propositions. But, you should not try to remember case references, and it is not generally
necessary to remember dates of cases.
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preferable to give the full case name, in a timed examination you can get by with one name
or the other. If you can't remember the name of a particular case or statute, simply describe
it. Of course, if you are working on a weekly essay or a long-term research project you must
take the trouble of finding and putting in the proper title or citation.
Statutes may prove less troublesome to cite as authority since many institutions allow these
to be taken into the examination room. If so, however, the statutes should be a point of
reference only. You can only make use of statutory material in answering problems if you
are fully familiar with the legislation in advance of the examination and know where to look
and what to look for.
If you are not allowed the facility of statutes in the examination room, it is unnecessary to
memorise statutes or even sections, but you will need a close working knowledge of them in
order to answer problems. You will not be permitted to annotate your statute book, but you
may be allowed to use markers pointing to the relevant statutes.
If you are allowed to take a statute book into the examinations, buy it at the beginning of
the year. Take it to lectures and tutorials, and mark or highlight the relevant sections of
statutes as you use them. In general terms, the statutes that you will need will be those
referred to in class, but do not neglect provisions discussed in reading that you have
undertaken.
Reference to statutory or case authority should be concise and give only as much detail as is
necessary to support your argument.
Knowing how much detail to present to the examiner is a sign of your ability to deal
selectively with a large body of legal material - an immensely important quality in practice.
The same is true for the selection of statutory material. The great danger of having a statute
book in the examination is that you may simply want to copy from it, particularly if you feel
stuck for something to say. Avoid this temptation. Ask yourself whether it is necessary to
quote from the statute rather than merely refer to a section. If it is, do so as briefly as
possible.
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If the statute contains a list such as a list of conditions to be met, rather than copying out of
the list, ask yourself which of the conditions are relevant to your question, and present only
these, perhaps, in your own words. The examiner knows that you have a statute book with
you. It is there to assist you in applying statutory provisions to answer questions in the
examination. It can be an invaluable aid, but blindly copying out provisions from the book is
hardly likely to you gain you marks.
Whether your examination question is of the problem or essay type you are going to need
to formulate an argument. The better structured and more logical this is, the higher the
marks awarded. It will be easier for the examiner to follow if it is concise and unambiguous.
If you can show that you have rejected irrelevant considerations and stuck to an accurate
analysis of legal principle, this will doubtless impress the examiner. If you can go further and
exercise a critical analysis of the particular area, citing authority by using case law and
statutes to support your argument, and if you can do so in a measured and considered
manner, you should obtain a high mark.
Pay attention to your written style. Aim for strong introductory and concluding remarks
which make an impact or leave an impression on the examiner. It is unwise, however, to
spend too long on this. Time is precious in examinations. Plan ahead which statutes you will
rely on and make sure you know your way around the book. In spite of time pressures, avoid
slang and make a careful attempt to weed out legal in exactitudes in your writing - e.g.,
using prosecute when you mean sue.
It is also a good idea to avoid wit or sarcasm. What seems enormously funny to you may not
be so humorous to an ill-tempered examiner.
It helps to remember that examiners are only human, and that marking is a dreadful chore.
The only way in which to use this to your advantage is to produce the type of script that
makes the examiner sit up and read attentively for the next 15 minutes. Half-baked
ramblings or dull repetition of facts or legal rules are unlikely to do the trick, but legible,
concise and carefully developed answers throughout the whole script might just make an
impression on even the most hardened and cynical marker.
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It is impossible to become a first-rate brief or opinion writer without mastering basic writing
skills.
Back to basics: Grammar
We have already dealt with the issue of grammar and good writing but it is worth to repeat
the rules of grammar in more detail.
Use the Active Voice.
Effective writing uses both active and passive sentences. The passive voice may sometimes
be preferable, such as where the actor is obvious or where the writer wants the actor to be
ambiguous.
Overuse of the passive voice can make your writing sound overly formal. In addition, use of
the active voice emphasizes the actor, and active sentences are usually shorter.
A major problem with much writing is wordinessusing several words when one will do. A
lawyer can often improve his or her writing considerably just by paring unnecessary words.
Eliminate Unnecessary Repetitions.
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Be Specific.
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A thesaurus is full of words with similar meanings. However, if you examine each synonym
carefully, you will find that few words mean exactly the same thing; there are usually
nuances of meaning between synonyms.
One of the keys to effective writing is to use words that convey the precise meaning you
intend. This is especially true for lawyers. The use of one word may be the difference
between winning and losing a case.
Combining Sentences
A simple sentence consists of a noun and a verb with or without additional modifying words.
While simple sentences are common, your writing will be choppy and uninteresting if you
only use short, simple sentences. Moreover, a series of simple sentences lacks flow. One
way to create longer sentences is to combine two simple sentences. However, a writer
should combine sentences only when they belong together, such as sentences that concern
the same idea or when sentence two expands on sentence one.
NOTE
One can often combine two simple sentences into one simple sentence, especially when
they repeat certain words or ideas.
A writer can also combine two simple sentences into compound sentences, comprising two
independent clauses.
The most common way to combine independent clauses is with conjunctions, such as and
or or. Always use a comma before the conjunction to avoid a run-on sentence.
One can also combine two independent clauses with a conjunction and leave out the noun
in the second clause.
A writer can also combine independent clauses by using punctuationsemicolons and
colons. Writers use semicolons more often than colons. A colon produces a more abrupt
break and is more dramatic.
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A writer can also combine independent clauses with linking adverbs, such as yet, however,
or nevertheless. If the linking adverb comprises four letters or more, use a semicolon after
the first clause and a comma after the linking adverb. Otherwise, use a comma between the
clauses.
As a writer you should be careful not to create sentences that are too long or that contain
unrelated ideas.
Eliminate Redundant Sentences.
Sometimes it is not necessary to combine sentences. A sentence may merely repeat what
another sentence says in different words. One should delete the redundant sentence.
Don't Tread Water
Some sentences, while not redundant, tell the reader little. A writer should eliminate all
sentences that tread water.
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A paragraph should begin with a striking topic sentence. The topic sentence sets the
paragraph's theme, and the remainder of the paragraph expands on the topic sentence.
Each sentence in the paragraph should relate to the topic sentence.
Creating Coherence and Flow
Coherence and flow are important to effective writing. A paragraph may be technically
perfect, but it will sound bad if the sentences do not flow together.
There are many ways to create coherence and flow in a paragraph. The most important one
is for the writer to think in large blocks to think in units of several sentences instead of one
sentence at a time. It is very helpful to read your writing out loud. If your writing sounds
choppy, it reads choppy.
In prose, each sentence should flow from the previous one. Phrases or sentences that
belong together should use punctuation that produces brief pauses (commas, semicolons,
etc.). Distinct units should be separated by long pauses (paragraph breaks). A writer can
connect sentences by subtle repetitions and using connecting words or phrases. The writer
should properly place primary and subordinate materials.
Paragraph unity also helps create coherence within paragraphs.
The most common mechanical device to create coherence is connecting (or transitional)
words or phrases. Connecting words and phrases include: moreover, furthermore, first,
finally, in addition, on the other hand, to the contrary, in particular, for example, for
instance, accordingly, consequently, therefore, shortly thereafter, thus, yet, however, next,
similarly, likewise, also, in conclusion, obviously, today, thus far, then.
However, avoid overusing these devises as they will make your writing sound mechanical.
A writer can also use repetition of a key word to create coherence.
Punctuation
Punctuation refers to symbols that organize and give structure to writing.
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Punctuation lets you change the inflection of your voice and give meaning to your words.
Punctuation helps speed up or slow down language.
Punctuation lets writers emphasize some words and de-emphasize others.
Punctuation tells readers when to feel emotion.
Punctuation tells readers when to pay attention.
Punctuation clarifies.
NOTE
The punctuation you use and where you put it will alter how readers will interpret what you
write.
Good punctuation makes you feel, hear, and understand language.
Periods (.)
Three punctuation marks end a sentence: periods, question marks, and exclamation points.
Thoughts without periods are lengthy and convoluted.
Use periods at the end of a declarative sentence. A declarative sentence states an
argument, fact, or idea. It doesnt require the reader to take action or answer.
Use periods at the end of commands.
Use periods at the end of a citation before a new sentence.
Use periods, not question marks, after indirect questions.
When a sentence ends in an abbreviation, you use one period, not two.
If the sentence ends in a question mark or an exclamation point, use a period after the
abbreviation.
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Dont use periods for acronyms. To create an acronym, take the first letter from a series of
words to form a pronounceable word that stands for something.
Examples: AIDS and NATO.
Because you can pronounce acronyms as words, you dont need periods.
Use periods for abbreviations.
Abbreviations are different from acronyms; you pronounce each individual letter in an
abbreviation. If your readers are familiar with the abbreviation, dont use periods.
Question marks (?)
Use a question mark at the end of a direct question, or one to which you expect an answer.
Dont use a question mark for an indirect question or declaration.
Put a question mark at the end of a sentence if a question is embedded in the sentence.
Dont use a question mark for a polite request.
Dont use a question mark for a command.
Dont put a question mark at the end of a sentence that begins with whether. Whether is
a statement, not a question.
Put a question mark inside quotation marks if the question is in the original. Put it outside if
its not in the original.
If the sentence and the quoted material are questions, dont use two question marks.
When a question ends with a series of brief questions that are follow-up questions to the
main question, each follow-up question should begin with a lowercased letter and end with
a question mark.
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Rhetorical questions, or questions a writer asks for which the writer doesnt expect an
answer, should end with a question mark. But avoid using question marks unless youre
quoting. Good legal writers answer questions, not ask them.
Exclamation points(!)
Use an exclamation point at the end of a command, emphatic declaration, or interjection.
Put an exclamation point inside the quotation mark if the exclamation point is in the
original. Put an exclamation point outside if the exclamation point is not in the original.
Exclamation points may accompany mimetically produced sounds.
NOTE
Avoid exclamation points in legal writing. They tell readers that youre exaggerating or
screaming at them. Use exclamation points for informal writing, like birthday wishes to a
loved one or the occasional informal e-mail.
Instead of using exclamation points to intensify your writing, use concrete nouns and, even
better, vigorous verbs.
Colons (:)
Colons press readers forward.
Use a colon after a salutation in formal writing. Use a comma, not a colon, after a salutation
when writing to friends.
Separate hours from minutes with a colon.
Separate book titles from subtitles with a colon.
Use a colon to introduce a definition.
Use a colon to replace is or are.
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Use a colon after an independent clause defined as a clause that has a subject, a verb,
and can stand on its own as a sentence to
(1) introduce lists,
(2) introduce an illustrative quotation,or
(3) show that something will follow.
You dont need a colon after included; the preceding clause isnt an independent clause.
Unless what follows is a quotation, a colon may not follow a dependent clause, defined as a
clause that cant stand on its own as a sentence.
Uppercase the first word after a colon when an independent clause follows the colon.
Dont capitalize after a colon when a dependent clause follows the colon.
If more than one independent clause follows the colon, begin each independent clause with
a capital letter.
Colons always go outside quotation marks.
Spacing: Use two spaces after a colon in typing and one space in publishing.
Semicolons (;)
Dont confuse colons with semicolons. Colons press readers forward. Semicolons slow
readers down.
Use semicolons to connect closely related independent clauses.
Dont use semicolons use commas to connect dependent clauses to independent
clauses.
Use semicolons to avoid run-on sentences.
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Use semicolons, not commas, to separate two independent clauses if the second
independent clause begins with a conjunctive adverb (accordingly, again, also, besides,
consequently, finally, for example, furthermore, hence, however, moreover,
nevertheless, on the other hand, otherwise, rather, similarly, then, therefore
thus).
Use a semicolon to separate two independent clauses if the second independent clause has
a conjunctive adverb somewhere in the sentence, usually after the subject.
Use semicolons in lists that contain internal commas or an and or or.
Its acceptable in lists to use two or more semicolons in the same sentence.
Use semicolons to replace commas and coordinating conjunctions (and, but, for, nor
or, yet).
The first letter after a semicolon is lowercased, unless the word is a proper noun.
Use a semicolon between string citations.
Put semicolons after and outside parentheses.
When a semicolon follows an abbreviation with periods, its acceptable to put a semicolon
after a period.
Semicolons always go outside the quotation mark.
Spacing: Put one space after a semicolon.
Parentheses ()
Parentheses direct readers to additional and slightly different information. They also set off
explanations, interruptions, or phrases that obscure the main text.
Parentheses introduce abbreviations and acronyms.
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If the parentheses appear at the end of a sentence, punctuate after the final parenthesis. If
the parentheses contain an independent clause, punctuate inside the final parenthesis.
Parentheses de-emphasize. To emphasize, use dashes ().
NOTE
Parentheses are (usually) too informal for legal writing.
Brackets[]
In a quotation that contains a factual, spelling, or usage error, use [sic],
If the context makes it clear that the mistake was in the original, dont add. Use [sic]
sparingly. Overusing [sic] suggests youre insulting or embarrassing the original
quotations author.
Consider using brackets to correct the quotation.
Use brackets in a quotation to show alterations or additions to a letter or letters in a word.
Never add within quotation marks long bracketed text after a quotation.
Brackets go inside parentheses.
Add a space between parentheses and brackets.
Commas (,)
Commas are meant to slow down language or replace words.
To create a pause, add a comma
Put commas after salutations in informal writing.
Put commas before titles.
Dont use commas to separate nouns from restrictive terms of identification.
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Use commas to separate coordinate adjectives. Two tips to figure out whether the adjective
is coordinate or non-coordinate:
(1) Reverse the order of the adjectives to see whether the sentence makes sense. Or
(2) insert and between the adjectives to see whether the sentence makes sense. If the
adjectives pass test 1, theyre coordinate adjectives and need commas. If the adjectives pass
test 2, theyre coordinate adjectives and need commas. If the adjectives pass neither test,
the adjectives are non-coordinate and wont need commas.
Use a comma to separate two parts of a double-comparative.
Put a comma before a coordinating conjunction (and, but, for, nor, or, so, yet)
that joins two independent clauses. Dont put a comma before a conjunction if the
conjunction joins a dependent clause: a sentence that has no subject, verb, or both cant
stand on its own as a sentence.
Use commas to enclose appositives: nouns or pronouns that rename or explain the nouns or
pronouns that follow.
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Quotation marks.
Quotation marks come in three forms: single quotation marks ( ), double quotation marks
( ), and triple quotation marks ( ).
Use quotation marks for direct quotations, including a speakers words.
Dont use quotation marks until you start the quotation.
Dont use quotation marks and hyphens together.
Use quotation marks to set off definitions or to explain or express words and phrases.
Use quotation marks to signal a newly invented word or phrase or an old word or phrase
used in a new context.
Dont enclose indirect quotations what someone says but not in the exact, original
language with quotation marks.
Use quotation marks to note that a word or phrase is inappropriate in context, but do so
sparingly.
According to the Association of Legal Writing Directors (ALWD) Citation Manual, use
quotation marks for quotations of 49 or fewer words or if the quotation runs fewer than
four lines of typed text and is not an epigraph or a quotation of verse or poetry. For blocked
quotations if the quotation has 50 or more words, if it exceeds four lines of typed text, or
if the material quoted is a verse or poem dont use quotation marks at the beginning or
end of the quotation.
Single-paragraph quotations have quotation marks at the beginning and end of the quoted
language. Multiple paragraph quotations have quotation marks only at the beginning of
each paragraph and at the end of the last paragraph.
Footnote and endnote numbers always go outside quotation marks.
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Finally, Dont overquote; overquoting substitutes for analysis. Quote accurately; accurate
quoting makes readers trust you. And use quotation marks if youre quoting; quote to be
seen as a scholar, not a plagiarist.
NOTE
Overusing quotation marks will make you look egotistical or sarcastic. Language loses
impact with overused quotation marks. Make readers focus on content, not style, and
especially not exaggerated style.
Apostrophes
Use apostrophes to show ownership or possession, indicate a contraction, or form plurals.
Use apostrophes to form possessive nouns or pronouns.
In informal writing, use apostrophes to indicate a contraction: Cannot becomes cant.
Do not becomes dont. He is becomes hes. I am becomes Im. It is or it has
becomes its etc.
Em and en dashes
An em dash () is as wide as the capital letter M or sometimes longer, depending on
the printer. In typing, the em dash is represented by two hyphens (--). An en dash ()
is as wide as the capital letter N. In print, an en dash is twice as wide as a hyphen (-).
Use em dashes to emphasize. Em dashes are more emphatic than en dashes, colons, or
parentheses. Parentheses are the least emphatic.
Em dashes set off abrupt changes in thought, interruptions, or supplemental explanations. If
the change of thought, explanation, or interruption is in the middle of the sentence, add a
closing em dash to signal the end of the change of thought, explanation, or interruption.
Whats enclosed between em dashes is an interpolated clause.
Slashes (/)
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Dont use a slash for and/or. Use only or if the conjunction is disjunctive: if it separates
two or more options.
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Final word:
This book has provided a methodology for researching constructing and arguing legal
arguments, but no methodology, in this discipline or any other, can ever be more than a
reliable rule of thumb.
A methodology can provide highly useful guidance to the initiate and the expert alike, but it
is never a substitute for practiced judgment based on real experience. The true master of a
craft knows when to deviate from the rules as well as when to follow them, when to cut
corners and when to proceed more strictly. The advice contained in this book should be
taken in this spirit.
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