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David Steiber - Legal Writing - E1


Newman v. City of Detroit
281 Mich. 60, 274 N.W. 710 (1937)
Parties:
Action by Plaintiff-Newman, administrator of the estate of Charles L. Newman, deceased,
brought against Defendant-City of Detroit, a municipal corporation, to recover damages for
death of prenatal Plaintiff by injuries incurred during ride within car owned and operated by
defendant.
Procedural History and Outcome:
Circuit Court denied motion to dismiss by defendant; appeal was granted due to nature of
certiorari. Supreme Court found no cause of action by plaintiff and thus reversed denial of
motion to dismiss by lower court and remanded cause back to lower court.
Facts:
Plaintiff's mother, white pregnant with Plaintiff, was a passenger of defendants street car at time
of accident
Plaintiff suffered from prenatal injuries and thus died three months after birth.
Accident occurred 22 days prior to birth.
Prenatal injuries alleged to have occurred during said accident
Issue(s):
Should a person be held liable for alleged fault of a prenatal injury during accident? Can
someone not alive bring suit of a tort?
Holding:
Person should not be held liable for alleged prenatal injury as its practical to determine cause of
physical or mental defects that appear at child-birth or thereafter as they may be congenital, or
perhaps mishaps at parturition.
Reasoning:
Courts reasoned to reverse denial of motion to dismiss due to lack of cause of action under
common law or any statute. Evidence for this judgement was provided from precedence of
other jurisdictions where decisions were reversed. Courts agreed with Defendants concern that
to permit such recovery would expand current common law and effectively act as legislation.
Appellees reasoning, Survival Act, section 14040, Comp.Laws 1929, using causation as a
matter of proof, etc.. were considered not applicable and better left addressed to the legislature.
Notes, Dissents:
One case exists where recovery was allowed for prenatal injuries. (Zuckerman, 4 Pa.Dist. &
Co. R. 227)

Case Analysis
-The Facts
substantive - everything that has happened thats not part of the procedure
procedure - legal actions taken
Substantive -Parties-Conflict-ResolutionHow are the plaintiff and defendant introduced? Then characterize them.
Only put facts that matter
Parties of element
What facts are essential to resolving the conflict?
What is the procedure?
Details of procedure can dramatically change case.
Every action taken by courts
Grounds for every action taken
To bring action you must have an actual legal justification. A motion to dismiss is a jigsaw
puzzle with pieces missing.
Case went straight to the supreme court be are cause courts have never dealt with this before.
Now what is the issue?
What is the supreme court really trying to get at? Who did what to whom, and what are the
potential consequences? Whats the purpose of responding/having this case?
Holding?
Answers the issue. Holding is not the outcome of the case! Why the case is here. The
enduring value of the case. Principle of law, with general applicability.
Rationale?
Where does this ruling come from?
Why did court choose this rule of law?
How did they apply rule of law to conflict?
Outcome?
Facts which justify outcome
Sections marked are where holdings are Example : [ 1 ]
Notes are problems which red flag in your mind - when it doubt write it down, can be
useful later.
Look everything up! DO IT DAVE. DO IT.
Read walnut v. something
In writing - Send to me case analysis by tuesday.
sirothst@law.cardozo.yu.edu

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Newman case
When no precedent, just give it a shot
nature of facts, recognize whats important
appeal to statute because even the highest court cannot alter statutes. Argue by analogy.
harbor back to legal saying and argue from that
Womack case - prenatal injuries where child survives
no statute involved = no judicial legislation involved. More leg room for judicial branch
Three holdings:
Common law negligence claim can be brought for prenatal injuries
Child has legal right to begin life with a sound mind and body.
The ruling applies to all pending and future cases.
Powers v. Troy
and
Oniel v. Morse

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Sept. 22
Differences between Newman and Oneill
Newman is in the way of Ps case in Oneill. Its important to eliminate Newman by directly
attacking it, and they also say that the case has already been overruled by implication. This suit
is specifically for child, but the parents are also bringing a suit for themselves. We know not a
person based on case law, but what about on statutory law?
statute in derogation to the common law => judgement of law has gone in one direction, until
legislator immediately takes it into another direction
contrary to common law, going in another direction. There is no history of this new direction.
We have nowhere else to look besides the statute.
Dissent
Newman is an outlier.
Oneill overrules Powers
Womack has a role to play, what is that role?
Newman had a role to play, what was that?
786 - essentially statute, central holding of case
787 - 788 supporting rational
How can anyone who isnt born have dependents?
Need to be able to have a dollar sign valuation.
Twins injured before birth, are they persons?
Factual differences between current case and previous cases, are they trivial or essential?
For memo - help judge make decision - stay as unbiased as possible ( A Draft opinion)
Let law guide you
slightly more particular facts
Oneill had child in womb that could live without mother. Injured and killed while liable
Twins both injured before they were viable to live outside of moms womb. Injured when
unviable, died when viable.
Does type of recovery established under Oniell apply to these two twins?
Does it matter when baby dies?

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Single spaced:
Intro
Double spaced:
Issue - who did what to who with what potential consequences
Short Answer - Sums up the discussion and main points
First sentence - Rule that answers the issue
Remainder - all reasons that support that rule

Discussion
Every major paragraph has Application of Law => Facts => Points
Quote the controlling language of the statute.

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Sept 29
Oct 14th due
Writing a letter Advisory letter
Points to hit:
Who are you writing to?
Most important thing to consider, Tone.
1. be considerate
2. be professional
Take writers information and restate it in own words (state the facts)
Only take what is relevant - use the law
Restate relevant facts in coherent order
Restate back to her questions of law
I. shes raising issues, just not in the proper form
Warn her that your response is only based on the facts: caution.
If facts are missing or have changed, then you have to warn her that your advice is based off
what she has given you. If she is missing anything, ask her to respond and you will be able to
revise statements accordingly.
Response: Plainly, simply, responding to a lay person, minimal legal jargon.
- Keep sentences short
- be direct
You can offer future consultations if you see case is viable.
She is concerned that she will not meet the quality and character of the florida bar
1 page letter
Readable paragraphs
Bring Bluebook

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Second assignment Email Memo - Shortest and most disposable of memos
Identify as quickly as possible a particular issue, then solve that issue
Can hint at something bigger
What are the facts?
1. John Smith
2. High rise apartment - upper east side
3. Balcony apartment, lots of greenery on the balcony
4. very difficult and expensive to maintain
5. he has been having a problem - Hawks have been raiding this greenery to build their nests
6. He becomes sick of this - wonders if there is anything he could do
7. Realizes he has property insurance, seeks to recover under insurance policy.
8. looks at forms of insurance and seeks all acts of vandalism are covered
9. asks law firm if this is possible
10. contacts senior associate with all this information
11. Find out - Strictly New York Law.
Research this manually in library.
Sources of law
Primary source of law - is the law itself
Second source of law - is what leads you to primary source
No place to start? Start at secondary source. Legal Encyclopedia:
New York Jurisprudence
1. Comprehensive Index
Go to volume directed by index
most important cases cited first
Cannot cite a case without reading
name of case, then citation A. N.Y.S = New York Supplement - focus here only
- Example: 44 N.Y.S. 97 N.Y.S 2d
- Volume _ N.Y.S_Page N.Y.S second series
2. What are facts, what question am I asking? Whats the nature of the problem?
Homeowner insurance
Vandalism
Animals
Quickly summarize the facts
Define substance
Define Issue
What is your rationale?
Where does rule come from?
Why is it used?
How is it used?
What happens when you use it?
Guideline - whats the necessity of the work?

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BLUE BOOK - Know where to look
Back page - Quick reference
Index - near the back - index of all the rules
Blue pages - basic rules
496 - citations - appreciations
Underscore, do not use italics
Pg 4 - introductory signals
Part One:
Rules 1-9: Establishes general standards of citation and style for use in all forms of legal writing
Part Two:
Rules 10-21: Presents rules for citation of specific kinds of authority such as cases, statutes,
books, periodicals, and foreign and international materials.
When case implies something say, See Blah vs Blah.
Signals are underlined.
e.g.
Pg 10- How to cite a case
Use Underscore
pg 279 - new york state cases
Example:
Federal Case
Look for Federal Jurisdiction Table - Pg 235 - District Courts
Cooper v. Coughlin, Inc., 550 F. Supp. 2d 78, 80 (S.D.N.Y. 2010) (finding footnotes are onerous
but critical)
Rule B10.2
i.d. means this is the directly above source. short citation forms.
Pg 510, months!

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Dear all,
The Email Memo ("Hawk") research assignment does not need to follow any formal structure or
include proper citation. Our client, Mr. Smith's property is being damaged by wild hawks. His
insurance covers "all acts of vandalism."
Initially, provide a short recitation of the facts as I gave you in class.
Then next you should define the Issue -- don't be too general, e.g., "can he recover under his
policy?" -- instead, use the Issue to describe his legal problem.
Then next you should answer the Issue, essentially expressing the Holding, the controlling rule
of law. You will draw this from the case or cases you find in your research.
Finally, the remainder is a paragraph to explain your controlling rule of law. Think of how we
discussed in class the Rationale in Case Analysis. From what case did your rule come? Why did
that court choose that rule? How did the court in the case you found apply that rule? What is
your own application of that rule to your legal question? What conclusion do you necessarily,
logically draw from applying the precedent rule to your legal question? These are ideas for you
to consider in formulating your explanatory paragraph. Do not think of them as mere bullet
points that you must mechanically address. Be plain, clear, and natural in your writing style.
You are looking in the New York Jurisprudence. Find key terms in the Index, and that will lead
you to the section of the New York Jurisprudence that provide cites to controlling law. Find that
law (the case) in the New York Supplement. Read the controlling law and base your email
response on that.
Best,
Prof P

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Dear all,
Following below is an assignment asking you to take the position of an attorney writing an
advisory letter, as we discussed in class.
I'm very sorry that I only learned today that there was an email failure in sending this originally
last Friday.
Best,
Prof P

*************************
LETTER WRITING ASSIGNMENT
Assume the following facts for this exercise. You are
an attorney working for the Miami office of the
American Civil Liberties Union. Allie Toklas is a
first year law student in only her third week at the
University of Miami School of Law. She also happens to
be living in a homosexual relationship with another
woman.
Recently, Allie read in the newspaper that the state
Bar of Virginia denied admission to a man openly
living in a homosexual relationship. Naturally
sensitive to such events, Allie is now concerned that
her sexual orientation may delay or deny her admission
to the Florida Bar, especially since she knows her
lesbian relationship would clearly fall under the
rubric of Florida's criminal statute against sodomy,
which prohibits oral sexual intercourse.
Allie has written you a letter asking for your advice.
Her questions in her own words include:
"Will either my sexual orientation or current living
arrangement somehow prevent me from being admitted to
the Florida Bar? Should I lie about or, if possible,
at least neglect to mention any of these facts when
applying to the bar? Should I refuse to answer any
inquiries into my sexual life if so questioned by the
Florida Board of Bar Examiners?"
Based only on the cases cited below and accompanying
material included in this email, write Allie a letter
responding to her questions. Although Allie is a law
student, she is but a 1L and so not familiar with the

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terms or methods of law. Therefore, do not use legal
jargon or formally cite authorities. A deep probing of
every conceivable issue is also unnecessary. Just
explain her legal standing as you see it directly and
in plain English. On certain issues, the law may be
definite. On others, you may have to speculate as to
possible outcomes. Express yourself accordingly.
Always remain cordially instructive when answering her
inquiries, but by no means hesitate to declaim without
equivocation against a position you feel illegal or
unethical.
Construct this assignment in standard letter form as
discussed in class: Times New Roman, size 12 font,
single spaced, no longer than one page.
Use the following cases, included at the bottom of
this email. No other research is needed or allowed.
In re Florida Board of Bar Examiners, 358 So. 2d 7
(1978)
and
In re N.R.S., 403 So. 2d 1315 (1980).
(I have attached these cases to the email below)
--------------------Also use the following from the ABA Model
Rules of Professional Conduct:
Rule 8.1 Bar Admission and Disciplinary Matters
An applicant for admission to the bar, or a lawyer in
connection with a bar admission application or in
connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact.
COMMENT
[1] The duty imposed by this Rule extends to persons
seeking admission to the bar as well as to lawyers.
Hence, if a person makes a material false statement in
connection with an application for admission, it may
be the basis for subsequent disciplinary action if the
person is admitted, and in any event may be relevant
in a subsequent admission application.

Rule 8.4 Misconduct

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It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of
professional conduct, knowingly assist or induce
another to do so, or do so through the acts of
another; [...]
(c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation; [....]

***
Here are checkpoints for writing a letter of advice
from an attorney to a layperson:
Check these in the following order:
1. Are you formal in tone but also sympathetic to the
problem of the recipient of your advice?
2. Did you restate in your own words the question or
questions of law asked of you?
3. Did you restate in your own words the facts
presented to you?
4. Did you caution the recipient of your letter that
your advice is based only on the facts presented to
you, and that any additional facts or change in facts
may radically change the nature of your advice or even
invalidate it? [Very important -- keeps you out of
malpractice.]
5. Did you explain in layperson's terms and without
legal jargon your response to question or questions
asked of you?
6. Did you offer to accept future consultations on
this matter?

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