Legal Writing: Legal Arguments, Briefs, and Outlines

© 2021 Nancy J. White, permission granted to use for educational purposes, no commercial use.
Any photos without attribution do not require any, otherwise all photos sourced.

Contents
Objectives.............................................................................................................................- 3 -
Comparing English Composition to Business Writing......................................................- 3 -
Rules of Writing...................................................................................................................- 4 -
Arguments and Legal Arguments.......................................................................................- 6 -
Laws and Legal Elements....................................................................................................- 7 -
FIRAC: Facts, Issues, Laws/rules, Analysis, and Conclusions.........................................- 9 -
Facts and Social Constructs................................................................................................................- 9 -
Issues................................................................................................................................................- 11 -
Value Issues aka Overall Issues aka Legal Consequences Issues...............................................- 12 -
Factual Issues and the Job of the Jury.........................................................................................- 13 -
Legal Issues aka Issues of Law...................................................................................................- 16 -
Example of an Argument Containing Each of the Types of Issues.............................................- 17 -
Laws or rules....................................................................................................................................- 18 -
Analysis............................................................................................................................................- 19 -
Conclusion/opinion/answer..............................................................................................................- 22 -
Outlines and Making a Layer Cake: I mean Writing a Legal Argument or Paper......- 23 -
Citing Your Research Using Footnotes............................................................................- 25 -
Checklist of Common Mistakes Students Make When Writing Legal Arguments.......- 26 -
Briefs...................................................................................................................................- 26 -
Sections of a One-Issue Brief with Labels and Explanation............................................................- 27 -
Example of a One-Issue Brief of a Case..........................................................................................- 28 -
Sections of a Two-Issue Brief with Labels......................................................................................- 29 -
Sections of a One-Issue Law School Brief with Labels and Explanations of New Sections...........- 29 -
Grammar and Style Notes.................................................................................................- 30 -
Capital letters rule: Cap names and titles ONLY.............................................................................- 30 -
“Me” rule: Never begin a sentence with the word “me”..................................................................- 31 -
‘s and s’ Rule: Use ‘s or s’ when one thing belongs to another thing, never for plurals.................- 31 -
Commas: More commas, no parentheses.........................................................................................- 33 -
Paragraphs: More.............................................................................................................................- 33 -
Never start a paragraph with the word “there”. (Stylistic rule)........................................................- 33 -
Avoid the word “that” and “being that” in written sentences. (Stylistic rule).................................- 34 -
Avoid the word “so” in formal business writing. (Stylistic rule).....................................................- 34 -
Review Questions...............................................................................................................- 35 -
Problems.............................................................................................................................- 38 -
Samples...............................................................................................................................- 41 -
Sample Preliminary Outline of Legal Writing Assignment with 2 Topics and 2 Issues (opinion
sections)..........................................................................................................................................................- 41 -
Sample Informational Memo Using ABC Organization and Footnotes..........................................- 42 -

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 Sample Legal Argument – Does not Include Agenda/Intro Paragraph or Conclusion/Summary
Paragraph........................................................................................................................................................- 45 -
Sample Legal Writing Assignment Containing Background Information and a Legal Argument..- 47 -
Sample Outline Used to Prepare the Prior Legal Writing Assignment Containing Background
Information and a Legal Argument................................................................................................................- 50 -
Sample Argument Written by a Judge aka Case – Fitchie v. Yurko, Lottery Ticket Joint Venture - 51 -
Sample 1-Issue Brief not in Memo..................................................................................................- 53 -
Sample 4-Issue Brief in Memo.........................................................................................................- 55 -
Appendix: Sample Grading Rubrics................................................................................- 59 -
Generic Brief Grading Rubric for 2 Issue Brief...............................................................................- 59 -
Generic Legal Argument/memo/paper - 6 Issues/topics Grading Rubric.......................................- 60 -

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Objectives

1. Recognize the difference between English composition writing and business writing.
2. List the Rules of Writing applying legal writing.
3. Explain what an argument and a legal argument are.
4. Explain what “ABC” means for writing papers.
5. Define what each letter in “FIRAC” means.
6. Recognize facts, issues, laws, analysis, and conclusions/answers/opinions.
7. Explain the job of the jury in US litigation.
8. Know when to use introductory/agenda paragraphs, summary paragraphs, and how to
avoid transitions bombs.
9. List the differences and similarities between legal arguments, briefs, and outlines.
10. List the labels that must be included in a brief.
11. Cite using Chicago Manual footnotes.
12. Prepare an outline, a brief, an argument, a legal argument, and a legal writing assignment
with multiple topics and issues.

Comparing English Composition to Business Writing

Most college students have had classes called something like “English Composition”. Some of
the fundamental concepts covered there are “audience” (the person or person who read the paper) and
“purpose” (the reason for writing the paper). Both of these concepts apply to legal writing. Your audience
is different than the audience for an English composition and will be explained in more detail below.
Your audience may be an employer, judge, or someone with or without a legal background. The purpose
of the writing may be to give an overview of the law or to give an opinion on the likelihood of winning a
legal argument.

Some college students have had a class entitled “business writing”. Students may have been
introduced to the ABC format for a business memo or report: agenda (introduction), body, and conclusion
(summary). Legal writing is similar as it is just a specialized form of business writing, a form of business
writing involving the law and legal issues. Business writing and legal writing are special types of writing
differing from English Composition and you will need to understand the differences in order to master
business and legal writing. When writing in a business or legal context be sure to write with an eye
toward the audience and the purpose of the writing. For example, an email or text message to a friend is
vastly different than a business or legal memo.

As mentioned above, legal writing is a subset of business writing and you need to employ a
different style than the one used in English composition papers. The style in business writing and legal
writing is more direct and to the point. The topic sentence in a paragraph is normally the first or second
sentence and is not buried deep in the paragraph. Some of the differences between business writing and
English composition are:
 Business writing gets to the point quickly.
 Business writing tells the reader the topic of the writing in the first or second sentence.
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  Business writing is less “artistic” or creative.
Compare and contrast the two introductory paragraphs below. Assume the assignment is the same
for both Example A and B: to write about certain administrative agencies and give the reader some
information about those agencies. You should be able to tell which example is written for a business
reader and which for an English or political science professor. Both are acceptable because the audience
is different. For one of the examples the audience is a businessperson, for the other, the audience is a
professor.

 Example A: This memo is in response to your memo to me asking for an

overview of three specific federal agencies and a current news article relative to each agency.
The agencies you have asked me to review are Federal Agency A, Federal Agency B, and
Federal Agency C. The federal government, as well as state and tribal governments, have
many administrative agencies designed to enforce specific laws and regulations.

 Example B: The proper amount of government imposition is a frequently

debated issue in our country today. Some believe that taxes should decrease and government
interference should be minimal, while others believe the opposite or somewhere in between.
Regardless of beliefs, the citizens of the U.S. should remember that much of the bureaucratic
work done by administrative agencies day-to-day goes unrecognized. Many of our
government agencies employ our citizens to ensure the health and wellbeing of the rest of the
United States. Multiple agencies exist within our government today; however, a few of these
agencies are tasked with ensuring and enforcing fair business practice within the United
states. Three of the largest and most imperative agencies for American commerce and
employment are the Agency A, Agency B, and Agency C. As a U.S. citizen, it is important to
have some sort of concept of these agencies and how they play a factor in our lives,
especially if they are in charge of protecting our hard earned paychecks.

Rules of Writing

Free Photo by Glenn Carstens-Peters on Unsplash

The following general rules of good, professional business writing apply to legal writing and you
may already be familiar with them but are included here for your review.

1. It is the writer’s job to convey the information to the reader, it is not the reader’s job to try to
figure out what the writer means.
2. Proper grammar and professional presentation are a must. All fonts should be the same unless for
some special type of emphasis or quote.

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 3. While the following might be acceptable in emails or text messages, in professional business
memos, you should follow the following rules:
a) Avoid slang or swearing of any kind.
b) Avoid the word “so”. Say, “Therefore…”
c) Never say or write “being that” instead use the word “because.”
d) Do not use contractions such as “can’t” or “would’ve” in professional memos.
e) Do not start sentences with “there,” “and,” or “but.”
f) No one sentence paragraphs or long paragraphs.
g) Use commas when appropriate.
h) Know when to use “s” (plural such as “cats”) and “’s” (possessive such as “the cat’s
bowl”).
4. Talk about only one topic at a time. This rule is often broken by beginner writers. Many, if not
most, people use a “stream of consciousness” approach to writing. There is nothing wrong with
this. However, after using a stream of consciousness approach, you need to rearrange the
information so that related information is together and you are only talking about one topic at a
time..
5. When you introduce a topic, resolve it before moving on to the next topic. A topic may be
something like “overview of negligence”. A topic may be an issue, for example “Is A entitled to
workers’ compensation?” or “Was A wrongfully terminated for filing a workers compensation
claim?”. Notice how the two issues stated here are related but they cannot be discussed at the
same time. You must always first completely discuss and resolve the first topic/issue before
moving on to the second. Many beginner writers attempt to discuss everything at the same time,
jumping back and forth between topics and confusing the reader.
6. Each paragraph should have only one topic. Many new writers will jumble several topics into
one paragraph, just putting down whatever thoughts come into their heads. While this stream of
consciousness writing is extremely common it is necessary to go back over the stream and
organize it so that all information on any particular topic is together. This rule does have
exceptions: An introductory/agenda paragraph can state all the topics to be covered in a paper. In
addition, a summary paragraph can briefly summarize all the topics in the paper although it is
common to have more than one summary paragraph if there are many topics in the paper. Please
note that the introductory/agenda paragraph and the summary paragraph do not have the same
function and if they are the same one or both is incorrect. More on introductory/agenda and
summary paragraphs below.
7. Topic sentences. Although the first sentence of a paragraph is not always the topic sentence, it is
good practice to do this in business writing where the reader wants you to get to the point.
Business writing is not English literature; the reader is not reading to admire the beauty of your
prose but to get information quickly and accurately.

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 Open ClipArt Vectors Pixabay.com

8. Avoid transition bombs. Abrupt changes in topics, which can be called “transition bombs,”
should be avoided. When the topic changes, let the reader know in the first sentence of the
paragraph containing the new topic. Sometimes a title is appropriate, although you cannot have a
title for every paragraph. Do not put the transition sentence at the end of the prior topic. This
violates the “one topic per paragraph” rule. Examples of transition sentences are:
 The next topic to be discussed is…
 The above leads me to the topic of …
 Moving on to the next issue…
 The above situation raises the issue of …

Arguments and Legal Arguments

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An argument is a passage (written or oral) designed to convince another of the validity of the
author’s opinion or conclusion to some issue and is supported by at least one reason why the listener
should believe the author. If the statement is merely one of opinion and gives no reasons why the
listener/reader should believe the opinion, the statement is not an argument but just an opinion. If your
assignment requests information but does not require you to express an opinion, it could be called an
informational memo. A sample informational memo and a sample legal argument can be found at the
end of this reading.
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 Arguments are based on the science of logic, the science of arguments. Logic explains how
arguments are made and how to recognize good and bad arguments. Arguments are made in all
disciplines from English literature to nuclear physics. In a law class you will concentrate on a specialized
type of argument called the legal argument. A legal argument is merely an argument using at least one
law as a reason in support of the conclusion. Other reasons used to support the conclusion of a legal
argument include ethical reasons, religious reasons, economic reasons, and political (power) reasons. A
legal memo or legal assignment is a memo or assignment related to the law; it may or may not contain a
legal argument depending on the topics of the memo or assignment. A legal memo or legal assignment
will, however, always contain “ABC” (agenda, body, conclusion). The concept of ABC is covered above.

The components of a legal argument are: facts, issues, rules, analysis, and conclusions (FIRAC).
You will notice these are the same components as required for a brief. This is because a brief is the
dissection and labeling of a legal argument into FIRAC. FIRAC will also exist in the outline of a legal
argument because each element should be in the paper. An outline is a list of the components of a
paper/memo/assignment.

Many students confuse the terms “legal argument” (discussed in this section) and “legal issue”
discussed in the section below involving Issues. These two concepts are not the same although both are
related to the law. A legal argument is an argument containing at least one law in support of the
conclusion. A legal issue is one of three issues commonly found in legal arguments. A legal issue is an
issue asking “What law applies here or what does the law mean?” A more in-depth explanation of what a
legal issue is will be discussed in more detail below.

Free image from Image by mohamed Hassan from Pixabay

Laws and Legal Elements

Laws are the government standards of behavior/values set out by a constitution, statute,
regulation, or case. In most law classes the word “rule” is often used for “law”. The word “rule” Laws
and rules include the definition of any word used in a law or rule. Many court cases exist to help define
the words used in a particular law.

The following is an example of a law, specifically, an OSHA (Occupational Safety and Health
Agency) regulation: “Each employer - (1) shall furnish to each of his employees employment and a place
of employment which are free from recognized hazards that are causing or are likely to cause death or
serious physical harm to this employees… (OSHA Sec. 5).

Some decisions of some courts in some cases are laws for some of the later cases on that specific
topic. This is the concept of “precedent” or “stare decisis”. Determining whether or not a case is
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precedent takes a level of understanding of the law normally beyond the ability of students who are just
beginning to study law. This topic is not discussed further in this reading.

Many students incorrectly believe the decision of a court is a law. This is incorrect, it is an
opinion, which is why court cases are often called “opinions”. In addition, the decision of a court is not a
fact because facts are, by definition, not opinions. The concept of facts is more fully discussed below.

Free Photo by Terry Vlisidis on Unsplash

It is unlikely you will ever find a law containing one legal element. A legal element is a part of a
law that must be proved by facts in order to win using that law. Some laws are more complicated than
others and will contain many legal elements. A law might be compared to a molecule – a molecule is
composed of more than one atom, a law is composed of more than one element. Most of the laws used in
beginning law classes are simplifications of complex laws containing many legal elements, many of
which are ignored in the educational setting.

An example of a simplified law a student might see in a beginning law class is this simplified rule
of negligence: A party is negligent if they have acted unreasonably and caused injury. The elements of
negligence, using this simplified law, are (1) unreasonable action and (2) causing injury. In order to win a
case or solve a problem using this simplified law you must point out the facts supporting the existence of
each element: an unreasonable action and facts supporting the existence of injury. If you do not have
those facts, you cannot win using this law.

Let us look at a more complicated, but still simplified law, the law of contract formation. This
simplified rule of contract formation is: A contract is formed if there is an offer, acceptance,
consideration, and sometimes a writing is needed. This law has 4 elements. Notice that the last element is
not needed each time – this is common in the law. Some elements may only be required in certain
situations:

1. Offer

2. Acceptance

3. Consideration

4. and sometimes a writing

If you wanted to prove a contract existed, you would need facts to support each element. If you do not
have facts supporting each element, no contract is formed.

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FIRAC: Facts, Issues, Laws/rules, Analysis, and Conclusions

FIRAC is an acronym standing for “facts, issue, rules, analysis, conclusion” and is used to
organize an argument. It is commonly used in the legal field.

It is important to remember that the law and legal writing have one, very important tool: words.
Words are important and the meanings of words are debated and decided by courts and other branches of
the government on a daily basis. Be very careful of the words you use and the meanings they convey. This
is always important but even more important whenever the topic relates to the law. In legal reality, as
compared to the everyday reality we live in, each of the words in the list below has a specific legal
meaning and is used in a specific way in the legal system. It is impossible to comprehend legal reality and
legal writing, without an understanding of what these words mean and how they are used in the law. Each
is discussed in more detail below this list:

 Fact
 Issue
 Law or rule
 Analysis
 Conclusions also called opinions or answers

Chapter 1. Facts and Social Constructs

Many people have difficulty understanding the term “fact” or recognizing a fact when they see
one. However, facts are always more important than the law and it is impossible to produce or understand
legal arguments without recognizing facts and distinguishing them from opinions. One problem is facts
are often disputed and in everyday reality people operate with an incomplete understanding of the facts –
this limited understanding of the facts has worked for humans for thousands of years, but does not work
in the legal system. The legal system has a process to determine what the facts to be used to decide a case
are. In the United States that process is the jury process – that is juries are asked to determine what the
facts are. In other legal systems the judges have more control over determining the facts. In the United
States the jury can be waived and then the judge makes the factual determinations.

Once that process is complete, that is the jury has decided what the facts are, those facts are
assumed to be true and used by the court to make its decision. The process is more fully discussed in a
section below called “Issues of Fact” and “The Role of the Jury”.

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 Facts are unemotional, nonjudgmental, objective observations of the state of reality. An example
of a fact is “the boiling point of water is 100°C or 212° F at 1 atmosphere of pressure at sea level.” We

Laws are never facts.

Facts are never laws.

often call upon science or evidence to discover facts. In the legal arena parties can agree on what the facts
are and if that happens (this is rare) then the facts can easily be used to resolve the issue. If the parties do
not agree on what the facts are then an issue of fact is raised. The facts must then be determined by the
jury based on the evidence. The concept of “issue of fact” is discussed below.

FUNDAMENTAL CONCEPT

Opinions/conclusions/answers are never facts.

Exception: Decisions on issues of fact are
facts.
FUNDAMENTAL CONCEPT

Social constructs can also be used in support of a conclusion in the same way facts can be if the
parties agree on the existence of the social construct. Social constructs are concepts invented by humans
but not found in nature such as contracts, corporations, negligence, justice, and intellectual property. As
long as the parties agree on the existence of a social construct, it can be used in support of a conclusion. If
the parties do not agree, then an issue is raised, and existence of the social construct must be determined.
Issues are discussed below in the section titled Issues below.

Many students (and dictionaries) mistakenly think facts are “something that exists”. This is
incorrect, at least in connection with the law, because laws and opinions exist and these are, by definition,
not facts. Laws are laws, and never facts. Opinions are opinions and laws are a special type of opinion.
Opinions are never facts. Facts are facts. You will need to know and use the legal definition of facts to
prepare legal arguments. You may want to practice making factual statements until you are comfortable
with the distinction between a fact and an opinion. Here is an exercise:

 “The plate has one slice of pizza on it” it is a fact.

 “I like pizza” is not a fact, it is an opinion.

 “The plate has one slice of really good pizza on it” is a combination of fact and
opinion; the part of the statement “the plate has one slice of pizza on it” is a fact, the part of
the statement “the pizza is really good” is an opinion.

 “The parties have a contract” can be used in support of a conclusion if the parties
agree to the statement. The concept of “contract” is a social construct because contracts do
not exist in nature. If the parties do not agree they have a contract, then the law provides laws
to judge whether a contract exists or not.

 “The person murdered the bystander” can be used in support of a conclusion if

the parties agree on the validity of the statement. The concept that one person can “murder”
another is a social construct because murder does not exist in nature. Killing exists in nature
but the concept of murder involves intent and mens rea, concepts invented by humans. Again,
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 as with the social construct of “contract” the law provides a process by which the existence of
a murder, can be determined.

EXAMPLES OF FACTS

 Tabitha fell down the stairs.

 The stairs had water on them.

 The stair had a handrail.

 Tabitha was not using the handrail when she fell down the stairs.

 The person stabbed the bystander.

 The bystander died from the stab wounds inflicted by the person.

 The parties signed a piece of paper that had the word “contract” at the top.
(Compare this statement to the statement, “The parties have a contract”. The two are not the
same. “The parties signed a piece of paper…” is a fact; “the parties have a contract” is a
social construct).

Opinion

Chapter 2. Issues

The issue is the question or questions being resolved, that is what the parties disagree about. If
the parties do not disagree about something it is, by definition, not an issue. In the law, issues can be
categorized as: (1) value/overall/legal consequences issues, (2) factual issues, and (3) legal issues. Each
will be explained in more detail below.

Free photo pexels.com

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Value Issues aka Overall Issues aka Legal Consequences Issues

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Primarily, people involved in the legal system are asked to make value judgments (value
opinions) about whether certain behavior is “legal,” “illegal,” “in good faith,” “reasonable” or meets some
other legal standard. People in business often ask something like, “What are the legal consequences if we
do “X” or fail to do “X” in this situation?” Another way to recognize this type of issue is if it asks, “If this
matter were to go to court, what decision would the court make?” or “Who wins in this situation if the
matter goes to court?” These are all very general ways of wording a value aka overall aka legal
consequences issue. A value/overall/legal consequences issue is a question about the legality of
behavior or the legal consequences of a certain situation. A value judgment is a
conclusion/opinion/answer to a value/overall/legal consequences issue. Whenever a case is decided by a
court, it is a value judgement – that is the conclusion/opinion of the judge(s) based on the judge(s)’
understanding of the law and the facts. Notice that to answer a value/overall/legal consequences issue
requires an understanding of both the law and the facts.

EXAMPLES OF VALUE/OVERALL/LEGAL CONSEQUENCES ISSUES

1. Did the defendant violate any law? Did anyone violate the law?

2. What are the legal consequences of this scenario/problem/situation?

3. Who is legally responsible here?

4. Is this matter were to be decided in a court of law, who would win?

5. Who wins the argument in this scenario?

6. Has a contract been formed between A and B? (Notice that to answer this issue
an understanding of the law of contract formation and an understanding of the
facts is needed – therefore, this is a value issue. Another way to recognize this is
a value issue is that the concept of contract is not something appearing in nature,
it is a human concept or idea: a social construct. Social constructs were discussed
in the above section on Facts.)

7. Has A breached the contract? (Again, notice that in order to answer this issue
both an understanding of what happened, that is the facts, and the law relating to

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 breach of contract, must be understood to reach the conclusion. Any issue
requiring both an understanding of the facts and the law is, by definition, a
value/overall/legal consequences issue.)

8. Was the plaintiff wrongfully terminated? (Again, notice how both the facts
surrounding the termination of the plaintiff and an understanding of the law is
needed to answer the question.)

9. What should legally be done in this situation?

10. Is Lina an independent contractor or an employee?

11. Is General Motors strictly liable for the damage caused by its faulty ignition
switch? (Notice how the law of strict liability must be understood to answer the
issue. The issues is posed in such a way that the factual issue of whether or not
the ignition switch was faulty has not been placed at issue, it is assumed the
ignition switch is faulty or that the fact it is faulty has already been established.)

The value/overall/legal consequences issue can be worded in countless ways. You will not be
able to memorize the value/overall/legal consequences issues; you must understand the concept to be able
to recognize this type of issue.

To emphasize a point raised in the above list of issues, did you notice that before you can answer
a value/overall/legal consequences issue, you need to know two things: what law applies? (aka the legal
issue)? and what are the facts? (aka any factual issues)? These are both discussed in more detail below.

The answer/conclusion to a value/overall/legal

consequences issue is never a law or a fact but
always an opinion.

FUNDAMENTAL CONCEPT

Factual Issues and the Job of the Jury

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 In order to answer a value/overall/legal consequence issue, you must have the answer to two other
issues: “What happened?” and “What law applies or what does this law mean?” The first issue, “What
happened?” will likely raise factual issues because it is easy to lie/misremember and difficult to prove the
existence of something that happened in the past. Factual issues arise when the parties disagree about
what happened. One party says, “I stopped at the stop sign” and the other party says, “You did not stop at
the stop sign”. Both statements cannot be true.

In legal reality, factual issues are more common and more difficult to handle than any other
type of issue. This is because humans have not developed time travel and cannot go back and see what
actually happened or what someone actually did. We must depend on evidence or proof to determine
what someone actually did or what actually happened. In the justice system in the United States juries
resolve factual issues unless the jury is waived. If the jury is waived the trial is considered a bench trail,
that is trial where the judge decides all of the issues, including the factual issues.

In a classroom setting the difficulties caused by factual issues are usually avoided by merely
giving students a statement of facts and the students are told to assume facts given are true. This allows
the students to then move on to the legal issues and overall/value/legal consequences issues. This
approach has the advantage of allowing students to study the law but gives students a distorted picture of
the actual practice of law. In the actual practice of law factual issues predominate and most lawyers spend
most of their time attempting to resolve factual issues or negotiate settlements based on an incomplete
knowledge of the facts. Comparatively little time is spent on legal issues.

You should be able to recognize simple factual issues. You can recognize a factual issue if the
parties disagree about what happened leading up to the dispute. If the parties disagree about what law
applies, then you know only legal issues are raised. If you are presented with a value/overall/legal
consequences issue a factual issue might exist but if it does, the issue cannot be answered unless the
factual issue is taken to a jury. Prior to actually taking the factual issue to a jury, the competent lawyer
will analyze the value/overall/legal consequences issue from both sides in order to be prepared for
whatever the jury decides.

EXAMPLES FACTUAL ISSUES: Notice these ask what happened here?

1. Did John cheat on the test?

2. Did Mary hit Larry?

3. Did Josephina agree to pay $500 or $600 for the car?

4. Why did the employer fire the employee?

5. Did the company violate the wage/hour laws?

6. Why did the company hire A instead of B?

7. Is the ignition switch faulty?

8. Did the employees of Company A take the display racks of Company B and
destroy them?

9. Who let the dogs out?

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 Here is an example of a situation where no factual issue exists. Astudent could quickly move onto
the legal issue (what law applies?) and the value/overall/legal consequences issue to resolve the problem
and determine who wins.:

 Motina, Inc. and Narsa, LLC have a contract that says Motina will sell and Narsa
will buy all of the lumber cut by Motina, Inc. up to 500,000 board feet per year. A hurricane
destroys Narsa’s place of business and all of its business equipment. Must Narsa buy the
lumber from Motina?

Notice the problem is written so no factual issues exist - the parties do not disagree on whether or not a
contract existed, what the contract said, or whether the hurricane destroyed Marsa’s place of business, and
all of its business equipment. The student is expected to assume all of this is true and move on to the legal
issue (what law applies?) and solve the value/overall/legal consequences issues (must Narsa buy the
lumber from Motina?). The value/overall/legal consequences can be correctly resolved if the law is
known.

Here is an example of a problem where a factual issue exists and the value/overall/legal
consequences issue must have input from a jury or looked at from both sides, it cannot be definitively
decided.

 Gbenga, Inc. entered into a contract with Vigale, Inc. whereby Gbenga, Inc.
agreed to sell to Vigale, Inc. 1 million gallons of sweet crude oil (crude oil with less
than .42% sulfur). (Notice that neither of the parties disputes the prior facts and therefore no
issues are raised.) Vigale, Inc.’s engineer says the oil they receive has. .5% sulfur (not
“sweet”) but the Gbenga, Inc. engineer insists the oil is “sweet”. Vigale, Inc. refuses to pay
for the oil and returns it to Gbenga, Inc. Gbenga, Inc. sues for damages. Has Vigale, Inc.
breached the contract?

In order to resolve the value/overall/legal consequences issue (Has Vigale, Inc. breached the contract?)
the factual issue, “Was the crude delivered by Gbenga “sweet” or not?” must be resolved. This factual
issue can only be resolved by testing and testimony of expert witnesses about the quality of the oil. A jury
will decide if the oil delivered was sweet or not. If you were given this problem you would have to look at
it from both Gbenga, Inc.’s point of view (the oil delivered was “sweet”) and from Vigale, Inc.’s point of
view (the oil delivered was not “sweet”) and discuss both sides of the argument, you cannot assume the
oil was “sweet” or “not sweet”.

Free photo: <a href="https://www.vecteezy.com/free-vector/jury">Jury Vectors by Vecteezy</a>

15
 The job of the jury involves not only resolving factual issues such as those mentioned above, but
also some issues involving social constructs. The easiest way to find out what the jury does is to review
some of the standard jury instructions available online. Juries decide issues of fact: was A driving the car
or was B driving the car? Juries also decide whether or not the facts meet the standards set by some laws,
for example, a jury will decide if a defendant’s behavior is “reasonable” given the particular situation. In

Juries do not make mistakes.

the legal system the facts, as decided by the jury, are considered true. Some exceptions exist but these are
rare. The basic concept is: juries do not make mistakes. Juries can also read minds and determine, for
example, if someone intended to harm another or whether it was just an accident.

FUNDAMENTAL CONCEPT

As an example of what the jury might be asked, assume the factual issue is, “Why did the
employer fire the employee?” In order to answer this factual issue in legal reality, each party presents
proof or evidence to the jury in support of their version of the facts to the jury. Proof or evidence consists
of statements, records, pictures, documents or anything a party believes will help convince the jury their
version of the facts is correct. The jury then decides which version of the facts to accept. The legal system
assumes the jury’s decision is correct. This is a topic is more complex than presented here but because it
is not a concept beginning students need an in-depth understanding of, it is not further addressed here.

Juries can read minds perfectly.

FUNDAMENTAL CONCEPT

Legal Issues aka Issues of Law

Legal issues aka issues of law are the easiest to resolve in an educational setting. Legal issues
aka issues of law ask “What law applies here or what does the law mean?” In law classes you will be
given this issue many times and will be expected to know what law applies to certain problems and
situations. The answer to a legal issue will always be an overview of the law or an explanation of what the
law means.

Photo licensed from 123RF. <a href='http://www.123rf.com/profile_eric1513'>eric1513 / 123RF Stock Photo</a>

16
 The answer to the legal issue is never the answer to the value/overall/legal consequences issue but
is needed to answer the value/overall/legal consequences issue. Here is one way to check if you have
answered a legal issue correctly: if your answer has any name in it, it is not the answer to the legal issue
because laws apply to everyone and do not have names in them. No law says, “Mira is negligent.” No law
says, “Gbenga breached the contract.” Those statements are not laws, they are opinions, that is answers to
the value/overall/legal consequences issue. The law can be used to support the opinion that Mira is
negligent or Gbenga breached the contract, but no law specifically says, “Mira is negligent” or “Gbenga
breached the contract.” The law says, “a party is negligent if they have acted unreasonably and caused
injury.” (Simplified rule of negligence). Contract law defines a breach of contracts as a “failure to
perform a contract”.

Here is an example of a simplified law: Parties in a contractual relationship must act in good faith
with each other. Notice how this law applies to all parties in a contractual relationship.

Here is a statement that is not a law but is a conclusion/answer/opinion to a value/overall/legal

consequences issue: Batista, LLC did not act in good faith with Leron, Inc. You should be able recognize
that this statement is not a law because it has the names “Batista” and “Leron” in it. No law has the names
“Batista” or “Leron” in it. You might ask, “what if a court has decided that Batista did not act in good
faith with Leron; isn’t that a law?” The answer is most emphatically: NO!! The statement, “Batista LLC
did not act in good faith with Leron, Inc.” is the conclusion to a value/overall/legal consequences issue, it
is an opinion – that is the opinion of the court based on the laws and the facts. The statement is neither a
fact nor a law – it is an opinion.

EXAMPLES OF ISSUES OF LAW: Ask what law applies or what does the law mean?

1. What does the law say about situations like this? (Compare this wording to “did
X violate the law?” which is a value/overall/legal consequences issue.)

2. What does the law mean by “gift”? Is an engagement ring a gift?

3. What is the difference between an independent contractor and an employee?

4. What is meant by the term “strict liability”?

5. What is the law of strict liability?

6. When can an employer fire an employee?

7. What are the legal elements needed to win a case of negligence?

8. What is needed to form contract?

9. What is the liability of a corporation for the acts of the corporation’s employees?

Example of an Argument Containing Each of the Types of Issues

The following is a very simple legal argument containing each of the three different types of
issues. Notice that the overall/value/legal consequences issue cannot be resolved because of the issue of
fact. The writer of the argument has to make the argument from three different angles because of the
existence of the factual issue.

17
 Xavier was driving her car and collided with Marla, a pedestrian walking in a crosswalk.
Marla was injured because of the collision. (Details about the injury omitted to shorten
example.)

Marla says Xavier deliberately rammed her (Marla) with her car because Marla had
recently had a date with Xavier’s old boyfriend whom Xavier still liked. Xavier denies
this and claims she could not stop because of invisible black ice on the road. If Xavier
deliberately rammed Marla the law of battery, which is an intentional offensive touching
of another without their consent1 would apply and Marla could recover punitive damages.
Punitive damages are damages designed to punish someone who intentionally injures
someone and are not available in negligence cases. 2 If Xavier did not deliberately ram
Marla, but was only driving carelessly, that is in an unreasonable manner, then Xavier
can be liable, at most, for negligence. Negligence is as an unreasonable or careless act
causing injury.3 If the jury were to decide that Xavier acted neither intentionally nor
unreasonably, then Marla can collect nothing from Xavier. The jury must decide whether
Xavier acted intentionally, unreasonably, or neither before we can decide if Marla is
entitled to damages from Xavier.

 Value/overall/legal consequences issue: Who wins? Can Marla collect punitive

damages from Xavier? What damages, if any, can Marla collect from Xavier? (The issue can
be worded in various ways).

 Factual issue: Which of the following occurred: Xavier intentionally collided her
vehicle into Marla; or, Xavier was driving in a negligent manner and collided her vehicle into
Marla; or, Xavier acted neither intentionally nor unreasonably?

 Legal issue: What law applies: battery, negligence, or none? (The answer to this
issue depends on the answer to the factual issue.)

Chapter 3. Laws or rules

This topic is discussed in more detail above as it is needed to understand the section on “Issues”.
It is included here so these sections of this reading contain “FIRAC”. As a reminder, however, laws are
the standards of behavior established by a government. Laws consist of:

 Constitutional law (constitutional provisions and decisions explaining those provisions)

 Statutes
 Administrative regulations
 Case or common law

1
Battery, Wikipedia, http://en.wikipedia.org/wiki/Battery_(tort), accessed 9 June 2013.
2
Punitive Damages, The Free Dictionary, http://legal-dictionary.thefreedictionary.com/punitive+damages, accessed
9 June 2013.
3
Negligence, Legal Information Institute, http://www.law.cornell.edu/wex/negligence, accessed 9 June 2013.
18
 Chapter 4.

Chapter 5. Analysis

The analysis is usually the most important and the most difficult aspect of a legal argument to
prepare. The analysis contains the reasons in support of the conclusion/answer/opinion. The analysis
section must contain the elements of the law and the facts supporting each element of the law or a
statement that no facts exist to support a particular element. An element of the law or legal element is
some part of law that must be supported by facts in order to win an argument based on that law. This
topic was discussed above in the section entitled Laws and Legal Elements.

Photo by Andrew Neel from Pexels

For example, assume the issue in a case is: Was A negligent? The simplified rule of negligence
is: A party is negligent if they have acted unreasonably and caused injury. This simplified law can be
divided into two elements: (1) a party acted unreasonably and (2) this unreasonable act caused injury. In
order to win an argument supporting the conclusion that A was negligent, both of these legal elements
must be clearly articulated and the facts supporting the existence of each of these legal elements must be
clearly articulated. That is, the party claiming A was negligent must point out to the reader/listener of the
argument the facts showing (1) an unreasonable act and (2) causing injury. If only one element or neither
element is supported by facts, then this argument cannot support a conclusion that A was negligent.

Some students merely repeat the laws and the facts in the analysis section. This is not acceptable.
The writer’s job is to point out specifically which facts support which element. That is analysis is the
application of the law to the facts, it is not just a repeat of the law and facts. In the example above, the
person making the argument that A is negligent must point out the legal element (unreasonable behavior)
and the facts supporting that element (for example, texting while driving or driving while drunk, or
whatever facts exist in the particular case). Then the person making the argument must mention the
second element (causing injury) and point out the facts showing injury (broken leg or whatever facts exist
in the particular case). This is a simple example but most laws are more complex than this and require
much more analysis.

19
 Preparing a legal argument template4 may be useful in understanding what is needed and how to
prepare the analysis. See Figure 1 below, a sample of a completed legal argument template. The legal
elements are in the left column and the facts in the right column. The application of the law to the facts
occurs in the middle column where the author expresses an opinion about whether or not the facts support
the legal element (=) or do not support the legal element (≠).

The facts of the problem from which this template is built are: Due to a rainstorm, at a grocery
store, every time a customer going in or out opened the door water was blown in. Additionally, customers
themselves were tracking water into the store. An employee frequently mopped the water from the
doorway of the store, as instructed by a manager. No sign was ever posted warning to customers of the
water on the floor. No mat was placed on the floor to absorb water. A woman was injured when she
slipped and fell in the doorway of the store due to the water. Her medical bills and lost wages relating to
the accident were $4,000. Assume the issue raised is: Is store negligent? The simplified rule of
negligence used is: A party is negligent if they have acted unreasonably and caused injury. The
conclusion to the issue is “yes” because facts exist to support both legal elements.

Legal elements Analysis Facts

= or ≠
Unreasonable act No sign, no mat, only
=
mopping
Caused injury $4,000 in medical bills and
=
lost wages
FIGURE 1: LEGAL ARGUMENT TEMPLATE

The analysis is prepared by making sentences from the lines, for example:

 In order to be liable for negligence a party must have acted unreasonably. In this situation the store
acted unreasonably by only mopping, not putting up a sign or a mat.
 In addition, to be liable for negligence a party must cause injury. In this situation the customer had
$4,000 in medical bills and lost wages.
Here is an example of a more complex problem with its more complex template. The parts are
labeled with FIRAC to make the example easier to follow and a sample written analysis can be found at
the end.

FACTS: The following story appeared in the Morning Sun, the local newspaper on
3/21/01, and was based upon an interview between a Morning Sun reporter and a
representative of the local Pepsi Bottling Plant:

“REWARD OFFERED IN POP MACHINE CASE”

The Pepsi Bottling Group is offering a $500 reward for information that leads to the
arrest and conviction of people who have been stealing money from pop machines during
the past month.

4
For more information on templates to help with analysis see: White, Nancy J., Legal Analysis: There's a Template
for that! (September 12, 2018). ALSB Journal of Business Law & Ethics Pedagogy, Volume 2, Issue 1, Summer
2019. Available at SSRN: https://ssrn.com/abstract=3248471.
20
 The Michigan State Police and Mt. Pleasant Police have been investigating several thefts
from machines in the area. Anyone with information is asked to call. (Based on actual
story in the Mt. Pleasant Morning Sun, 3/21/01).

Brisa gives information on 3/25/01 that leads to arrest and conviction. Is Brisa entitled to
$500 from Pepsi?

ISSUE: Was a contract formed between Pepsi and Brisa?

RULES: A contract is formed when there is an offer, acceptance, consideration, and in

some cases, a writing signed by the person to be charged, is required. An offer is the
expression of a willingness to enter into a contract. A party may revoke an offer at any
time prior to acceptance. A counteroffer terminates an offer. The acceptance must mirror
the offer. Acceptance can be in any manner including actual performance of the act
requested in the offer. Consideration is what each party gets and what each party gives
up; both parties must get something, and both must give up something, in order for
consideration to exist. A writing, signed by the person to be charged, is required for the
following types of contracts only: sale of interest in real estate, sale of goods over $500,
lease longer than a year. (Simplified rules of contract formation).

APPLICATION: Legal Analysis Template

Legal elements Analysis Facts

= or ≠
offer = The Pepsi Bottling Group is offering a
$500 reward for information
acceptance = Brisa gives information that leads to
arrest and conviction.
consideration = Brisa to receive $500 and Pepsi is to
give up $500
written Not required No writing/authentication. Contract for
evidence/authentication/recor information. Facebook post does exist.
d

CONCLUSION: Yes

A simple analysis paragraph might look like this although more information and detail could be
given depending on the instructions for the assignment. This example does not have any citations or
footnotes but would be acceptable as an answer on an essay test:

Yes, a contract has been formed between Brisa and the Pepsi Bottling Company because
all of the legal elements needed to support the formation of a contract exist and are
supported by the facts. The required legal elements are: consideration, offer, acceptance,
and in some circumstances, a writing is required. Pepsi made an offer of $500. Brisa
accepted the offer by performing the act requested in the offer and giving the
information. The law recognizes acceptance by act. The consideration in support of the
contract is that Brisa gives information and Pepsi gets information. No
authentication/record (element) is required for this type of contract, but the Facebook
page does document the offer.

21
 Chapter 6. Conclusion/opinion/answer

Photo by Ann H from Pexels

The conclusion/opinion/answer is the answer to the issue raised in the scenario. In a brief the
conclusion should be one or two words only to make sure you are not including any supporting
statements. In the example above regarding the lottery ticket argument, the issue in a brief might be
“Must Burke share the lottery winnings with Phyllis, Judy and Francis?” The conclusion is simply “yes”.
The conclusion is mentioned again in the analysis together with the supporting facts and law.

Conclusions/answers/opinions unsupported by
facts and law are always wrong.

FUNDAMENTAL CONCEPT

Students often have trouble differentiating between conclusions to value/overall/legal

consequence issues, factual issues, and legal issues. It might be best to start with recognizing conclusions
to legal issues because these are the easiest of the three. The conclusion to a legal issue will always be a
statement of the law that applies to everyone. (easiest of the three). The conclusion to a factual issue is an
unemotional, nonjudgmental description of what happened. All other conclusions can be considered
conclusions to value/overall/legal consequences issues. Here are some examples:

 Issue of law: What is required to prove someone has committed defamation? Conclusion:
Making a false statement about another. (Simplified rule of defamation).
 Issue of fact: Was the statement made by A true or false? Conclusion: A jury must decide
this based on the evidence. The conclusion will be either “the statement made by A about
B was true” or “the statement made by A about B was false”.
 Value/overall/legal consequences issue: Can B win a lawsuit against A for defamation?
Conclusion if the jury determines the statement made by A is false: yes. Conclusion if the
jury determines the statement made by A is true: no.

22
Outlines and Making a Layer Cake: I mean Writing a Legal Argument or Paper

FIGURE 2: LAYERING A LEGAL ARGUMENT

Photo licensed from Bigstockphotos.com

Writing a legal argument or writing anything else is sort of like making a layer cake. See Figure
2: Layering a Legal Argument. There are good ones and bad ones. In a good one, the frosting stays on the
top and does not melt into the body of the cake. Each layer is distinct, but you can tell each is part of a
whole. Each layer has its own qualities and purposes. You can tell where the layers are. Look at the
picture above. Issue 1 and Issue 2 are not mixed up in the same layer, each issue is in its own layer and it
comes AFTER the analysis of that issue. You have Issue 1 followed by Issue 2. A legal argument, and
every other paper/memo/project/report you will ever prepare is organized this way.

In many fundamental law classes, you will be taught to make and write simple legal arguments. A
legal argument is, by definition, an argument containing at least one law as a reason in support of the
answer/conclusion/opinion. In other words, at least one of the reasons in support of the opinion is
something like, “My opinion is based upon the law that says ________.” Other reasons, such as ethical,
political, economic, psychological or other discipline support can be also be used but at least one reason
must be a law.

An outline is a list of topics or sections that will appear in a writing or speech. Every project
benefits from an outline. The outline need not be completed before the writing or speech, it may be
beneficial to free write (writing whatever comes into your head) and then prepare the outline. The outline
may change during the writing. “ABC” is an acronym standing for “agenda, body, conclusion” and is
designed to help students prepare simple outlines.

 Agenda: This is often referred to as the “introduction” or “introductory paragraph”. The

introductory paragraph telling the reader what the topics of the writing are. In the
business world this paragraph usually tells the reader why they are receiving the
writing/memo.
 Body: This is where the information to be transmitted is organized. This section may
many paragraphs and pages.
 Conclusion: This is better termed the “summary” part of the writing where the main
points are emphasized.

23
See tables below titled Table 1: Checklist for Agenda/Introductory Paragraph for Business Writing and
Table 2: Checklist for Conclusion/Summary Paragraph for Business Writing for a handy checklist to
make sure your first and last paragraphs contain the proper elements.

If your paper involves one argument, that is one issue, a simple outline could be follows:

 Agenda: Issue to be covered

 Body: Contains the FIRAC of the one issue
 Conclusion: Summary of the main points

Here is an example of an outline of a more complex legal argument/paper/assignment with 2

issues and detailed background needed to understand the issues:

 Agenda/Introductory paragraph. Tell the reader all of the topics and issues to be
discussed in the paper but give no details. Some papers have several background topics, some
do not. You may have been asked to provide specific information in the paper. You may have
been asked to give your opinion, that is make an argument, in the paper. Tell the reader the
topics and issues but no details.

 Topic 1: The law relating to any issues you are resolving should not be here but
in the FIRAC section below. This section should contain information you may have been
asked to produce. It may be several paragraphs and may have more than one topic if you have
been requested to provide information on more than one topic.

 Facts and Issue 1: Introduce the first issue by telling the reader the issue and the
facts relevant to that issue. Again, this may be more than one paragraph.

 Law related to Issue 1: In the next paragraphs you summarize the law needed to
resolve the issue.

 Analysis and conclusion to Issue 1: Here is where you give your opinion based
on the law and the facts.

 Facts and Issue 2: Same as above

 Law related to Issue 2: Same as above

 Analysis and conclusion to Issue 2: Same as above.

 Summary paragraph. Must contain the main point of each topic and the
conclusion to each issue. This paragraph is not merely a repeat of the agenda/introductory
paragraph but gives the main points of each topic and the conclusion to each issue.

The agenda paragraph may be difficult for beginning writers to construct. Here is a practice
exercise. Fill in the blanks using topics/words from one of your writing assignments.

 This memo/paper/email/presentation (choose one that is appropriate) will cover

the following issues/topics/concepts (choose one or more words that is appropriate). The first
issue/topic/concept is _________________. The next issue/topic/concept to be
reviewed/covered/discussed/presented/analyzed (choose a word that is appropriate) is
________________. (Continue until all of the major issues/topics/concepts have been
24
 mentioned.) (In addition to this include important information such as why the memo is being
written, or the purpose of the memo, what goals of the memo might have. No one way exists
to write an agenda/introductory paragraph. Be creative.)

 Each topic is mentioned and the reader knows

what to expect.
 Tell the reader the goals/purpose of the writing.
 No details of any of topics are included here.

TABLE 1: CHECKLIST FOR AGENDA/INTRODUCTORY PARAGRAPH FOR BUSINESS WRITING

 In the real world, the summary paragraph is the
most important paragraph in a long memo or paper.
 It must contain the main point of each topic.
 If it reads the same as the introductory
paragraph it is wrong.

TABLE 2: CHECKLIST FOR CONCLUSION/SUMMARY PARAGRAPH FOR BUSINESS WRITING

Citing Your Research Using Footnotes

Several different ways of citing sources exist: APA, MLA, Bluebook etc. Chicago Manual
Footnotes are the easiest, but any particular instructor may require a different form of citation. See
examples below in Table 3, Simplified Chicago Manual style formats. Chicago Manual Style Footnotes
are commonly used in academic writing related to the law.

If you do not know how to use footnotes here is an explanation of how to insert a footnote in
Word®. In Word® go to the <References> menu and chose <Insert footnote>. You will be taken to the
footnote location to enter the citation. See picture below.

25
 For more examples google “Chicago Manual of Style”
Book example
1
Miller & Jentz, Business Law Today: The Essentials, 9th ed.
(South-Western 2011), p. 345.

Webpage example– CAUTION MUST CONTAIN THE NAME OF THE

WEBPAGE AND DATE ACCESSED, MERELY DUMPING A URL IS NOT
ACCEPTABLE
2
“Contract law,” Wikipedia, accessed June 10, 2020,
http://en.wikipedia.org/wiki/.

TABLE 3: ACCEPTABLE CHICAGO MANUAL STYLE CITATION FORMATS

Checklist of Common Mistakes Students Make When Writing Legal Arguments

MISTAKES

Photo by Iyi Kon

1. Attempting to discuss two issues at the same time by switching back and forth between them
instead of introducing one issue, finishing it, and then moving on.
2. Failure to use proper citation format.
3. Cutting and pasting the laws and/or facts into the analysis and not explaining why any particular
law or fact is important.
4. Not including enough law in the argument to make sense.
5. Paragraphs are too long.

Briefs

A brief is the dissection of a legal argument or case into the requested component parts. A case is
merely the name the legal profession gives to a legal argument written by a judge. A brief is similar to a
book report. In beginning law classes, you will likely be asked to dissect other’s legal arguments – this
helps you understand how legal arguments are constructed. In a brief, as compared to a legal argument,
your opinion is irrelevant. Even if you think the author of the legal argument is wrong, you can still brief
the author’s legal argument.

26
 Chapter 7. Sections of a One-Issue Brief with Labels and Explanation

Any particular instructor may require more or less detail for a briefing assignment. One of the
simplest briefs and the needed labels, with an explanation of what is required is:

Name of case and citation: If the legal argument you are dissecting is a case written by a judge,
there will be a name of the case with some letters and numbers. For example: Smith v. Jones, 123
P.3rd 456 (2010). If the legal argument you are dissecting is not a case written by a judge, it will
not have a name and therefore your brief will not contain a section entitled, “Name of case and
citation.”

Facts: Put a summary of the who, what, where, when, why, and/or how here. If you are having
trouble determining “facts” from “rules” and “conclusions” review the sections covering each of
those topics in this reading.

Issue: This is the question the case or argument is resolving. Usually you will not be required to
determine if this is a value/overall/legal consequences issues, legal issue, or factual issue. This is
most often worded as a value/overall/legal consequences issue, especially by beginning students.
The issue must always be formed as a question and failure to do so will result in a reduction of
grade.

Rules/Laws: Normally this is a summary of the law used by the author of the argument in
support of the conclusion – it is never any law made by the case. However, for beginners at
briefing instructors may be flexible and overlook this aspect. The main problem students have
with this section is putting an incomplete summary of the law actually used in the argument to get
to the conclusion.

Analysis: THIS IS THE MOST IMPORTANT SECTION OF THE BRIEF. Assume this is
the only section of the brief your instructor will read. Assuming this will force you to write a
complete summary of the argument including the facts and law because you are to assume no one
has read that section of your brief. Since this may be the first time you have done this, here are
very specific items to include:

 It is recommended that the first sentence answer the issue you have raised.
 The second sentence should contain the word “because”. The word “because”
may need to be used many times in the analysis.
 The analysis must have the important law/legal elements used to reach the
conclusion even if that information was already mentioned in the rules section.
 The analysis must have the important facts even if that information was already
mentioned in the facts section. In other words: REPEAT THE IMPORTANT
FACTS.
Conclusion/opinion/answer: This is a simple one or two word answer to the issue you have
raised. For beginner writers you may put either the value issue (most common) or the legal issue
(very rare for students to be able to determine this). Although not wrong, if your conclusion is
more than 2 words you may have put some of the analysis in this section and therefore, this
section will be wrong. If you have a factual issue in your argument, you will notice that you have
a minimum of two arguments. Argument 1 will determine the conclusion if the facts are
determined as Party 1 wants. Argument 2 will determine the conclusion if the facts are
determined as Part 2 wants. This type of assignment is rare.
27
 Chapter 8. Example of a One-Issue Brief of a Case

Name of case and citation: (The year is also included) Johnson v. M’Intosh, 21 U.S. 543, 8
Wheat. 543 (1823, U.S. Supreme Court).5

Facts:  Plaintiffs received deeds to certain parcels of land from certain Indian chiefs in 1773 and
in 1775. These parcels are now situated in the chartered area of Virginia, which later became part of the
state of Kentucky. The defendant obtained title to the same land from the United States government about
1785.

Issue: Who owns the land?

Rule: Rule of Conquest: this rule says that land conquered by one country or army belongs to that
country or army. Discovery Rule: holds that the nation of a European conqueror or discoverer of land in
North America became the owner of those lands. Native inhabitants have no rights under the Discovery
Doctrine and do not own the lands they occupy, only individuals of European descent can own the land.

Analysis:  Defendant owns the land even though his deed is later in time than the deed of the
plaintiffs. Defendant’s6 deed is dated 1785 and plaintiffs’7 deeds are dated 1773 and 1775 respectively.
The reason defendant wins is because the defendant received his deed from the US government. The US
government conquered Great Britain in the war known as the Revolutionary War. This war ended in 1783
and therefore all lands belonging to the King of Great Britain at that moment became lands of the US
government under the Rule of Conquest, which says that land conquered by one country or army belongs
to that country or army.

Using the Discovery Doctrine,8 the lands originally belonged to Great Britain because they were
the Europeans who discovered the lands. Then followed the Revolutionary War and Great Britain lost its
rights in the lands to the United States under the Rule of Conquest. Therefore, only the United States
government has the power to sell the lands. Since the defendants received their deed from the US
government, the lands belong to defendants.

The Indian chiefs never had the right to sell lands they are occupying because they did not own
them. Under the Discovery Doctrine, Indian tribes do not own lands, only Europeans can own land. Any
deeds or transfers of title from Indians to private citizens are invalid because Indians do own the land they
occupy.

Conclusion: Defendant

5
I did not put a copy of the case here because it is over 24 pages long. However, if you are interested in reading the
case just Google the name of the case and the citation, it will come up. The writing is very difficult to follow, as is
common in older cases.
6
Grammar note: Notice the use of the ‘s. The ‘s is used for possession: the defendant’s deed.
7
Grammar note: Notice the use of s’ rather than ‘s. This is because the second “s” can be removed because
“plaintiffs” is plural. The writer does not write “Plaintiffs’s deeds” only “Plaintiffs’ deeds”.
8
Yes, this is a real case and this is the real law used to justify why Indians did not own land. This has changed over
time and now Indians can own certain lands. That concept is beyond this course.
28
 Chapter 9. Sections of a Two-Issue Brief with Labels

You cannot present the reader with more than one issue at a time otherwise, it is difficult for the
reader to follow the information. For this reason a brief with more than one issue must be set up as
illustrated below. Notice you only need to put the facts once at the beginning. Notice that all of the
information related to Issue 1 is together. All of the information for Issue 2 is together. If you have more
than two issues, follow the same format until you are finished. Format:

Name of case and citation: (The year is also included)

Facts:

Issue 1:

Rules: (only include those related to Issue 1)

Analysis: (include only the analysis relevant to Issue 1

Conclusion: (include only the conclusion to Issue 1)

Issue 2:

Rules: (include only those related to Issue 2)

Analysis: (include only the analysis relevant to Issue 2)

Conclusion: (include only the conclusion to Issue 2

Etc. follow the same format until all issues are resolved.

Chapter 10. Sections of a One-Issue Law School Brief with Labels and Explanations of New
Sections

If you are asked to complete a law-school style brief two additional sections are needed, one at
the beginning and one at the end:

Name of case and citation: (The year is also included)

Procedural Posture: This explains where the case is in the litigation process. Examples include:
appeal from a trial; appeal from a motion to dismiss; appeal from Circuit Court #1, decision of District
Court (name).

Facts:

Issue:

Rules:

Analysis:

Conclusion: (include only the conclusion to Issue 1)

29
 Disposition: This section explains where the case goes next in the litigation process. Examples
include: remanded to the trial court for further proceedings, appeal court decision upheld, appeal court
decision overturned, case dismissed.

WRITING TAKES WORK!

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Grammar and Style Notes

Grammar check website

Grammar has many, many rules most of which you know without realizing them and I will not
review them here. However, in my experience many students can use a refresher on some rules or can
benefit by my simplified rules which work most of the time but may have some exceptions. I have also
included a few simple stylistic suggestions to will make your memos and other written communications
more professional sounding.

Chapter 11. Capital letters rule: Cap names and titles ONLY

Capitalize names and titles only. Some exceptions to this rule exist but using this simplified rule
will result in fewer errors:

The basic rule here is: DON’T. Students tend to cap words that should not be capped. Students
tend to cap new words or important words. There is no rule saying “cap new or important words”. Other
than the first word of the sentence, the only other words you will probably need to worry about are names,
including names of businesses. Do not cap concepts such as “federal” “law” “torts” “negligence”
“defamation” or “government”.

 Example: The president is speaking about financial aid this afternoon.

 Example: “The Importance of Financial Aid”, is the topic of the speech to be

given by President Kent at Central University this afternoon.

“President” is capped in the second sentence because it is the title of the president. The title of
the speech is also capped because it is the title of the speech. Central University is capped because it is a
name.

30
 Chapter 12. “Me” rule: Never begin a sentence with the word “me”.

Simplified rule that will save you in most circumstances: Never start a sentence with “me” unless
you are a toddler. “Me” cannot ever be the first word of sentence, either written or spoken. “I” can be the
first word of the sentence.

Hint to help you get this correct: Many people have trouble determining when to use “me” or “I”.
However, few have trouble with “us” or “we”. Here is a trick to help determine if you should use “me” or
“I”: say the sentence with “us” or “we”. If “us” sounds right, then “me” is the proper word, if “we”
sounds right, then “I” is the proper word.

Incorrect: Me and my friends are studying. This is also incorrect: My friends and me are
studying.

You know this is incorrect because “me” is never the first word in the sentence. You would never
say “Me is studying”.

 Correct: My friends and I are studying. I and my friends are studying.

A simple trick that works for most to determine whether “I” or “me” should be used is to
substitute “me” with “Us”. This sentence sounds odd to most native English speakers: “Us are studying”.
This sentence should tell you “me” does not fit either, the sentence has to be it has to be or “We are
studying” or “I am studying”.

Avoid contractions in formal business writing. (Stylistic rule).

Do not use the words “don’t” “can’t” “haven’t” and similar contractions in formal business
writing. These are fine in informal, personal communications but avoid in formal settings. This will also
limit your misuse of ‘s

Poor writing: Marketing hasn’t finished the project yet.

Better writing: Marketing has not finished the project yet.

Chapter 13. ‘s and s’ Rule: Use ‘s or s’ when one thing belongs to another thing, never for
plurals

This simplified rule will save you in most circumstances but takes practice. One reason this is
complicated is that the apostrophe is also used in contractions albeit for a different reason. However, if
you avoid contractions in written work your errors will be limited.

Rule: ‘s or s’ is used only when one thing (noun) belongs to another thing (noun), never for
plurals. Notice you will always have two nouns when using ‘s or the understanding of two nouns.

 Correct: Josh’s books are over there.

 Incorrect: Joshs books are over there.

 Incorrect: Joshs book’s are over there.

 Correct: “Rosie’s” on a restaurant sign. It is understood that the meaning is

“Rosie’s Restaurant” or “Rosie’s Place.”
31
  Correct: The government’s stand on this topics are….(Note the two nouns
“government” and “stand”; this should clue you into the fact that the first noun needs and ‘s
or s’.)

 Incorrect: The governments stand on this topic’s are….

Another complication with this rule is that if the first noun is a plural, then you should drop the
second s:

 Correct: Most students’ (not ‘students’s since “students” is plural, not singular)
attempts to understand this rule are…

 Incorrect: Most student’s attempts….. (This is incorrect because “student” is

plural in the sentence, see example below).

 Incorrect: Most student’s attempts…..(Notice “attempts” is merely plural and that

is why it has an “s” on the end. However, nothing belongs to “attempts” so there is no ‘s.

 Correct: All of my dogs’ (more than one dog) medicines are in this cupboard but
my cat’s (only one cat) medicine is in that one.

Additional examples

 Correct: Students’ homework is at the front of the room. (This is correct because
the homework belongs to the students – plural, not one student. The apostrophe comes after
the “s” in “students” because “students” is plural).

 Correct: Students’ homework assignments are at the front of the room. (This is
correct because the assignments belong to the students. The apostrophe comes after the “s” in
“students” because “students” is plural).

 Correct: Many students find the rule about ‘s rule hard. (No ‘s because “students”
is just a plural, there is nothing in the sentence that belongs to the students).

32
 REVIEW AND REVISE YOUR WORK!
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Chapter 14. Commas: More commas, no parentheses

Whenever you are tempted to use parentheses: STOP. You probably need a comma instead. I
suggest you never use parentheses since most people use them incorrectly. Use commas if you would stop
when saying the sentence or have more than two items in a list.

 Incorrect because it has no commas: He was not looking for the knight’s body he
was looking for the tomb itself and found the body.

 Correct: He was not looking for the knight’s body, but he was looking for the
tomb itself, and found the body.

 Incorrect because parentheses are used: He was not looking for the knight’s body
(he was looking for the tomb itself) and found the body.

 Incorrect: We have apples oranges and spiders.

 Correct: We have apples, oranges, and spiders. (Note: The last comma is
optional).

 Incorrect: The cave had only bats, and guano.

 Correct: The cave had only bats and guano. (Rule: No comma if only two items
in the list).

Chapter 15. Paragraphs: More

Many students are unsure where to break up a paragraph. As a general statement, more is better.
If in doubt, break up a long paragraph into shorter ones. When you do that you will begin to see what
information goes together and what does not.

Chapter 16. Never start a paragraph with the word “there”. (Stylistic rule).

 Poor writing example: There are three reasons this not a good idea.
33
  Better writing example: This is not a good idea for three reasons.

Hint: If you find yourself using the word “there” to begin sentences, try beginning the sentence
with other nouns in the sentence to see which one sounds better.

Chapter 17. Avoid the word “that” and “being that” in written sentences. (Stylistic rule).

The word “that” can often be eliminated from a sentence and the sentence has the same meaning.
It is always a good idea to eliminate useless words from your writing. I do not think the phrase “being
that” has any meaning in the English language but it appears to be becoming a substitute for “because”
however you should avoid that phrase. 

 Poor writing example: The student believes that this is the best major for her.

 Better writing example: The student believes this is the best major for her.

 Poor communication example: Being that I speak English, I can make up just
about anything and people will understand; being that English grammar is very easy to learn
and being that most people ignore it anyway.

 Good communication example: Because I speak English, I can make up just

about anything and people will understand; English grammar is very easy to learn and most
people ignore it anyway.

Chapter 18. Avoid the word “so” in formal business writing. (Stylistic rule).

Do not use “so” in formal business writing, use “therefore” instead.

 Poor writing example: The principal has not given the agent that power so the
principal is not bound by the agent’s act.

 Better writing example: The principal has not given the agent that power,
therefore the principal is not bound by the agent’s act.

34
Review Questions

1. Which of the following is an example of business writing and which is an example of English
composition? Also, list one characteristic that differentiates the two.
 Example A: This memo is in response to your memo to me asking for an
overview of three specific federal agencies and a current news article relative to each agency.
The agencies you have asked me to review are Federal Agency A, Federal Agency B, and
Federal Agency C. The federal government, as well as state and tribal governments, have
many administrative agencies designed to enforce specific laws and regulations.

 Example B: The proper amount of government imposition is a frequently

debated issue within our country today. Some believe that taxes should decrease and
government interference should be minimal, while others believe the opposite or somewhere
in between. Regardless of beliefs, the citizens of the U.S. should remember that much of the
bureaucratic work done day-to-day goes unrecognized. Many of our government agencies
employ our citizens to ensure the health and wellbeing of the rest of the United States.
Multiple agencies exist within our government today; however, a few of these agencies are
tasked with ensuring and enforcing fair business practice within the United states. Three of
the largest and most imperative agencies for American commerce and employment are the
Agency A, Agency B, and Agency C. As a U.S. citizen, it is important to have some sort of
concept of these agencies and how they play a factor in our lives, especially if they are in
charge of protecting our hard earned paychecks.

2. True or false: It is the reader’s job to figure out what the writer is saying.
3. True or false: In professional writing/business voice it is best to tell the reader the topic of the
paragraph in the first sentence.
4. True or false: When I write about two different issues/topics/concepts I can jump back and forth
between the different issues/topics/concepts in my paper.
5. True or false: When I write about two different issues/topics/concepts I should have an
introductory paragraph and a summary paragraph.
6. What does the acronym “ABC” stand for?
7. True or false: The summary paragraph is the most important paragraph in a complex
paper/memo.
8. True or false: I can just cut and paste my introductory/opening paragraph into the
summary/ending as they are both the same thing.
9. True or false: The only difference between an introductory/opening paragraph and a
summary/ending paragraph is that the first tells the reader what the writer will do and the second
tells the reader what the writer did.
10. True or false: The introductory/opening paragraph tells the reader the topics and the
summary/ending paragraph tells the reader the main point about each topic.
11. True or false: If #9 and #10 above have the same answer, one or both of them is incorrect.
12. What does the acronym “FIRAC” stand for?
13. What is the difference between a fact and a social construct?

35
 14. Give an example of:
a. Fact
b. Social construct
c. Issue
d. Rule
15. List at least two differences between a legal argument and a brief.
16. What is the job of the jury?
17. What are the differences between a brief and an outline?
18. List what is contained in each part of a simple legal argument as per the recommended outline. If
you do not know what is meant by “part” go back to the reading, specifically the section titled,
“Making a Layer Cake, Oh, I mean Writing a Legal Argument.”
19. True or false: It is not necessary to put a detailed overview of the law in a legal argument, a few
lines are sufficient.
20. True or false: The reasons in support of the conclusion/answer/opinion of a legal argument are
found in the analysis part of the legal argument.
21. True or false: All legal arguments must have at least one reason in support of the
conclusion/answer/opinion that is similar to the following, “My opinion is based on this law
which is supported by this fact”.
22. True or false: When writing any paper, you may introduce several topics and jump back and forth
in the paper talking a bit about this one and then a bit about that one, and then coming back to the
first, and then moving to the second, then back to the first.
23. What are the three types of issues that may exist in a legal argument?
24. How can you easily recognize the value/overall/legal consequences issue?
25. Basically, every value/overall/legal consequence issue is the same. What is that basic
value/overall/legal consequences issue?
26. Basically, every factual issue is the same. What is that basic factual issue?
27. Basically, every legal issue is the same. What is that basic legal issue?
28. Which of the following is an answer to a value/overall/legal consequence issue and which is the
answer to a legal issue?
a. The defendant can wear the headscarf.
b. Persons can wear headscarves if required by their religion even if a company dress policy
does not allow it.
29. Outline a simple legal argument memo/paper/assignment with 1 issue. Hint: Be sure to use ABC
also.
30. List the labels required for a a two-issue brief in the proper order in which they would appear in
the actual brief.
31. Which of the following statements is correct?
a. A legal element is a law.
b. A legal element is a part of a law.
36
 32. True or false: The legal elements must be discussed in the analysis section of the argument and
each supported by a fact and if you do not have a fact to support the element, then you must make
that clear.
33. True or false: Your legal arguments will be judged on things such as how much law you include
and how well your organize your argument.
34. True or false: In the analysis section you combine the important facts and the legal elements in a
logical and understandable way to convince the reader of your conclusion/answer/opinion.
35. List the labels that must be included in a simple brief in this class. Other professors may have
slightly different labels.
36. True or false: You have been instructed to answer the issue in the first sentence of the analysis
section of the brief.
37. True or false: You have been instructed to use the word “because” in the second sentence of the
analysis section of the brief.
38. True or false: In professional writing the word “so” should be avoided.
39. Go to Sample Legal Argument – Does not Include Agenda/Intro Paragraph or
Conclusion/Summary Paragraph below. This is the argument about the man driving the truck. It
is not the best argument and is not written in ABC format. I have included this writing here to
point out the problems. It could be greatly improved.
a. This writing is not in ABC format. What is missing?
b. Why does the passage contain footnotes?
c. What are the FACTS presented in the above passage?
d. Certainly, the value/overall/legal consequences issue is “Who wins?” or “Was the law
broken here?” The author has been more specific in wording the issue which is always
helpful to a reader. What is the value/overall/legal consequence issue this author
presents?
e. What laws or RULES (and remember definitions are rules) are given in the passage?
HINT: THIS QUESTION CANNOT BE ANSWERED IN ONE SENTENCE. IF YOU
HAVE ONLY ONE SENTENCE YOU HAVE MISSED SOME LAW. GO BACK AND
RE-READ THE ARGUMENT.
f. The simplified law of negligence, as presented by this author has two elements. What are
they? If you do not understand this question, go back and read the section of this reading
explaining what a legal element is.
g. One element of the law of negligence is satisfied, according to the author of the
argument. What element is satisfied? I only want the element. ONLY THE ELEMENT.
Do NOT put a conclusion here, only list the element. Your answer should 2 words, do not
write a complete sentence.
h. What FACTS did the author use to satisfy this element? Again, I want only facts, no
conclusions, and no laws. JUST THE FACTS.
i. Smyth is not negligent because his actions did not support the second element of the law
of negligence. What element is that? Again, list only the element, not a conclusion.
j. Several irrelevant fact(s) are presented in the passage. List two.

37
Problems

1. Is the following passage an argument, a legal argument, a brief, an outline, or none of

these? CAUTION: This sample is intentionally extremely brief and would not be
acceptable as a homework assignment.
Name of case and citation: Saratoga County Chamber of Commerce Inc., v. Pataki, 100 N.Y.2d
801, 798 N.E.2d 1047, 766 N.Y.S.2d 654 (2003, N.Y. App.).

Facts: Governor entered into an agreement with Indian tribe to allow the tribe to open a Las
Vegas gambling center. The compact was approved by the federal government.

Issue: Is the agreement between the Governor and the tribe valid?

Rule: Federal law requires states to allow Indian gambling if other businesses can engage in
gaming. The NY constitution only allows the following forms of gambling: state-run lottery and private
pari-mutuel betting (betting on horse races).

Analysis: The court reviewed prior NY constitutions and determined that the state does not allow
gambling in the state except in limited circumstances. The only type of gambling that private businesses
are allowed to engage in is pari-mutuel betting and therefore that is the only type of gambling that Indian
tribes in New York can engage in. Since the agreement between the Governor and the tribe was for all
types of Las Vegas style gambling it went beyond the gambling allowed by the state.

Conclusion: No

2. Is the following passage an argument, a legal argument, a brief, an outline, or none of

these? CAUTION: This sample is intentionally extremely brief and would not be
acceptable as a homework assignment.
Saratoga County Chamber of Commerce Inc., v. Pataki, 100 N.Y.2d 801, 798 N.E.2d 1047, 766
N.Y.S.2d 654 (2003, N.Y. App.).

On October 15, 1993, then-Governor Cuomo entered into the "Tribal-State Compact (aka
“agreement”) Between the St. Regis Mohawk Tribe and the State of New York." This compact was
approved by the federal government as required by federal law and the Tribe opened its casino in 1999.
This agreement allowed for all types of Las Vegas gambling such as poker, machines, Kino, and other
forms of gambling.

As background, it is necessary to understand that Indian tribes are under federal government
control, not state control. US Congress passed a statute (25 USC § 2701 [5]) which essentially allows
Indian tribes to have casinos in any state where the state law does not outright bar gambling for business
purposes in the state. That is, if the state allows some businesses to engage in gambling, it must also allow
Indian tribes to engage in the business of gambling. The issue raised in this argument then is: does the
Constitution of the State of New York allow gambling?

Article I, § 9 of the New York State Constitution clearly forbids the business of gambling. It
states, "Except as hereinafter provided, no lottery or the sale of lottery tickets, pool-selling, bookmaking,
or any other kind of gambling, except lotteries operated by the state… and except pari-mutuel betting on
horse races shall be allowed within this state..” (NY Const art I, § 9 [1]).

38
 Before the first New York State Constitution was written in 1777, gambling in New York was
forbidden. The original Constitution of 1777 does not mention gambling or lotteries but the Second
through fifth Constitutions, and the current Constitution prohibits gambling.

The agreement entered into by the Governor and the Tribe is therefore invalid because it violates
the state constitution prohibition against gambling. While it is true the state constitution allows the state to
run a lottery it does not allow private businesses to run gambling businesses. The federal government only
requires the state to allow Indian gambling if the state allows other businesses to operate gambling
businesses. The only exception to this is the law allowing betting on horses. The state must allow betting
on horse races at businesses on tribal lands like it does other businesses. However, this does not mean that
all forms of gambling are allowable on tribal lands.

3. Is the following passage an argument, a legal argument, a brief, an outline or none of

these?
“This class has too much homework.”

4. Is the following passage an argument, a legal argument, a brief, an outline or none of

these?
“This class has too much homework. In the first week, I had to read about 30 pages and answer
over 50 chapter questions and problems!”

5. Is the following passage an argument, a legal argument, a brief, an outline, or none of

these? CAUTION: This sample is intentionally extremely brief and would not be
acceptable as a homework assignment.
Intro paragraph

Topic 1: Why we have antitrust law. Background on the history of antitrust law.

Topic 2: Background on AT&T attempting to buy Time Warner. What is happening? Why does AT&T
want to do this?

Issue 1: Would AT&T buying Time Warner be a violation of antitrust law? Overview of mergers and
antitrust law.

Analysis and conclusion to the issue including other cases.

6. Is the following passage an argument, a legal argument, a brief, an outline, or none of

these? CAUTION: This sample is intentionally extremely brief and would not be
acceptable as a homework assignment.
“This class has too much homework. In the first week, I had to read about 30 pages and answer over 50
chapter questions and problems!”

7. Is the following passage an argument, a legal argument, a brief, an outline, or none of

these? CAUTION: This sample is intentionally extremely brief and would not be
acceptable as a homework assignment.
Facts: The state of Oklahoma passed a statute which prevented the shipping or selling of
Oklahoma minnows out of state. The state passed this law to protect a limited resource and make sure the
minnows were not depleted.

39
 Issue: Does the Oklahoma statute violate the Commerce Clause of the U.S. Constitution?

Rule: The Commerce Clause of the US Constitution, which prevents some state laws. The
above clause has been interpreted by the courts to prevent state laws that (1) discriminate (other than
minor, incidental discrimination) against interstate commerce, (2) whether the statute serves a legitimate
local purpose and, if so, (3) whether alternative means could promote the local purpose without
discrimination. Meiners, Legal Environment of Business, 5th Ed. P. 224, 2001.

Analysis: The Oklahoma statute discriminates against interstate commerce by preventing

the sale and transportation of minnows across state lines – that is the minnows can only be harvested for
use in Oklahoma. This discrimination is not minor. While the state of Oklahoma has done this for a
legitimate purpose, that of conserving a limited natural resource, the state has used an unacceptable
method of protecting the minnows. They must come up with some other method of protecting the
minnows that does not discriminate against interstate commerce.

Conclusion: Yes

8. Is the following passage an argument, a legal argument, a brief, an outline, or none of

these? CAUTION: This sample is intentionally extremely brief and would not be
acceptable as a homework assignment.
Intro/agenda paragraph about paper topic: EEOC (Equal Employment Opportunity Commission)
and EEOC problem assigned

Background on EEOC – what it is and what it does.

Background on how the EEOC would handle the problem given in the homework assignment.

Issue presented in the homework assignment: Has employment discrimination occurred in the
facts given in the problem.

Facts of the assigned problem

Issue and rules – restate issue and give overview of the applicable law. Include recent cases.

Analysis and conclusion: Give opinion on the conclusion to the issue. Explain why I reached that
conclusion restating the important facts and the legal elements.

Summary paragraph: Major points to mention: what the EEOC is, the issue, the conclusion to the
issue.

40
Samples

Chapter 19. Sample Preliminary Outline of Legal Writing Assignment with 2  Topics
and  2  Issues (opinion sections)

Intro/agenda paragraph

Part 1: Facts, background – brief overview

Part 2: Topic #1 and preliminary notes

Part 3: Topic #2 and preliminary notes

Part 4: FIRAC of Issue #1. Preliminary notes including an indication of the law applicable to the
issue.

Part 5: FIRAC of Issue #2. Preliminary notes including an indication of the law applicable to the
issue.

Summary paragraph. Not usually completed in the outline. NOTE: In professional writing, the

Summary Paragraph is often called the "Executive Summary" and is placed at the beginning of a memo.  I
will NOT ask you to do that.

41
 Chapter 20. Sample Informational Memo Using ABC Organization and Footnotes

Notes to students: This is an informational memo, that is a memo where one person has been
asked to give another information. Notice this is not a brief nor a legal argument, it is just information.
One person has asked another for information on the law of illegal discrimination in employment. It is no
different than if you were to be asked to provide a memo on the causes of the US Civil War.

MEMO

TO: <Put name of person to whom memo is being sent>

FROM: <Writer of memo inserts their name here>

RE: <Insert short descriptor. For this memo it might be “Overview of Illegal Discrimination in
Employment”>

DATE: <Insert date here>

*******************

You have asked me for an overview of the law relating to illegal discrimination in employment
decisions. This memo will cover illegal discrimination, disparate impact discrimination, and a bona fide
occupation qualification.

When looking at this issue, federal law plays an important role. Federal law prevents any
employer providing public accommodation or transportation and employers with 15 or more employees
from certain types of discrimination, referred to as illegal discrimination. Illegal discrimination is
discrimination based on race, creed, sex, religion, national origin, citizenship, disability, pregnancy, union
membership, or age. The term protected class is sometimes used to refer to the group of people with any
of these characteristics. Legal discrimination is discrimination based on any other reason such as
discrimination based on experience, education, family relationship, congeniality, or any other valid reason
for discriminating between employees or potential employees.

State law may expand the number of covered employers to virtually all employers in the state.
Some states may have additional categories of illegal discrimination. For example, Michigan prevents
discrimination on the basis of height and weight.9

Most employers use some type of pretext to hide illegal discrimination. If an employer is alleging
that the decision to hire or fire was not based on illegal discrimination and the employee (or potential
employee) is claiming the decision to hire or fire was based on illegal discrimination, a factual issue
arises and a jury must decide which of the two positions is correct.

For example, assume Cynthia, an African-American woman with a college degree, worked at a
deli in a grocery store. More than a year later, the owner of the store promoted a white woman to the
position of deli manager. The white woman had worked in the deli for only three months, had only a 6th
grade education, and could not calculate prices or read recipes.

Although the owner gave various reasons for promoting the white woman instead of Cynthia, the
court held that these reasons could be pretexts for hiding illegal discrimination based on race and the

9
See Michigan S.A. 3.548(202 (2021)).
42
matter would have to be decided by a jury. The matter was ordered to trial for a determination of whether
or not illegal discrimination occurred.10

In addition to the illegal discrimination described above, the law forbids what is called disparate
impact discrimination. Disparate impact discrimination is some employment-related requirement or
discrimination that on its face appears to be neutral, but actually affects those in a protected class
differently or disproportionately. This type of discrimination is subject to legal scrutiny for its validity.
The discrimination will only be upheld if some valid reason for the employment-related requirement
exists.

An example might be an employer has both indoor and outdoor maintenance/cleaning job
positions. The indoor jobs are more desirable than the outdoor jobs. The employer has a requirement that
only persons with a high school degree can have the indoor jobs. This results in the majority of indoor
jobs going to whites and the majority of outdoor jobs going to blacks. Because the requirement of a high
school education is irrelevant to the ability to do the job, it is a form of illegal disparate impact
discrimination. The employer may not require a high school diploma for the inside maintenance/cleaning
jobs.

Employers may discriminate on race, religion, national origin, or sex if that characteristic is a
bona fide occupational qualification or BFOQ. A bona fide occupation qualification or BFOQ is a
legitimate requirement that the person holding the job have some characteristic that would normally be
classified as illegal discrimination. A BFOQ is a limited exception to anti-discrimination law and
allowable only in special circumstances.

For example, a Catholic church can discriminate and hire only Catholic priests. A hospital can
have a policy to hire only women mammogram technicians. A women’s prison can have a policy that
only female guards may supervise female prisoners in the shower. All of these qualify as a BFOQ.

A further example is: Fragante applied for a clerk’s job at the Department of Motor Vehicles but
was not chosen because of his very heavy Filipino accent which made him extremely difficult to
understand. Because being able to communicate clearly with English-speaking customers was an
important part of the job, he was not hired. The court determined this was an acceptable form of
discrimination.11 <End of Example>

Let’s assume, Johnson announced a policy that women, except those whose infertility was
medically documented, could not work in jobs involving actual or potential exposure to lead. All of these
jobs were higher paying than other jobs at the company. The company stated it feared lawsuits by
pregnant women who were exposed to lead. However, exposure to lead can also harm males and can
cause impotence. The court held that the male-only requirement for the high-paying jobs was not a
BFOQ. While it was true medical harm could result from the exposure to lead the court said the way to
handle the problem was to protect all workers in those jobs from exposure to dangerous levels of lead.

In summary, federal law prohibits any employer providing public accommodation or

transportation, and employers with 15 or more employees, from certain types of discrimination based on
race, creed, sex, religion, national origin, citizenship, disability, pregnancy, union membership, or age.
These categories (race, creed, etc.) are referred to as “protected classes”. State law may provide additional
protections. In addition to these types of discrimination federal law prohibits what is called “disparate
impact discrimination”. This type of discrimination is some employment-related requirement or
10
Example based on McCullough v. Real Foods, Inc., 140 F.3d 1123 (8th Cir. 1998).
11
Example based on Fragante v. City and County of Honolulu, 888 F.2d 591, 104 A.L.R. Fed. 801 (9th
Cir. 1989).
43
discrimination that on its face appears to be neutral, but actually affects those in a protected class
differently or disproportionately. Finally, the law does allow discrimination of someone in a protected
class if the qualification is a “bona fide occupational qualification” or BFOQ. That is, if the qualification
is reasonably necessary for the particular job, the employer may discriminate in favor of a certain
otherwise illegal form of discrimination.

44
 Chapter 21. Sample Legal Argument – Does not Include Agenda/Intro Paragraph or
Conclusion/Summary Paragraph

Tim Smyth, an employee of Schmall Business Planners, Inc. was sent to the office supply store to
pick up needed supplies, such as copier paper and pens. He drove his red Ford pick-up. Since it was 11:45
he stopped to have lunch - a hamburger - and had a beer with his lunch. On his way to the office supply
store Smyth failed to stop at a stop sign and almost ran over a pedestrian who was wearing a chicken suit.
The stop sign was clearly visible and a warning sign existed approximately 100 feet before the stop sign
warning motorists that a stop was coming up on the road. Smyth stated that he did not see the pedestrian.
However, the pedestrian was able to dodge the car without coming into contact with the car or falling.
The pedestrian was scared by the incident, but was otherwise uninjured. The pedestrian did not go to the
hospital or receive medical treatment, however the pedestrian did have nightmares for a few weeks after
the incident.

One issue presented in this problem is: Is Smyth liable to the pedestrian for negligence?
Negligence is a tort cause of action – one that is designed to compensate people when others have acted
unreasonably and caused them injury. Under the simplified rule of negligence a person is liable to another
for negligence if they acted unreasonably and caused damages. 12

Failing to stop at a stop sign is acting unreasonably and this first element of the law is satisfied.
The existence of unreasonable conduct is further supported by the fact that not only was the stop sign
clearly visible, but there was a warning sign approximately 100 feet before the stop sign warning drivers
that a stop sign was approaching.

Next, it must be decided if the pedestrian was damaged. Damages are injuries suffered by
someone. A party who wins a lawsuit is usually entitled to some form of damages to compensate them for
their injuries.13 There are several types of damages: compensatory, nominal, and punitive to make a few.

The problem states that the pedestrian was scared but was not physically injured. Is being scared
a form of damage? Most states require that in order to be compensated for mental damages an injured
party must be physically damaged as well as mentally damaged. 14 Since the pedestrian was able to dodge
the car and the car did not come into contact with the pedestrian, the pedestrian did not suffer any
physical injury. The pedestrian did not go to the hospital or receive medical treatment. Since no physical
injury was incurred the law prevents the recovery of any damages for the mental injury of being scared.
The pedestrian was scared and had nightmares, but these do not constitute a physical injury.

In summary then, Smyth is not negligent. He is not negligent even though his behavior is
unreasonable. This is because he did not cause any legally recognized damage to the pedestrian. In order
to sustain a claim for negligence the injured party must prove both unreasonable behavior and injury,
unreasonable behavior by itself is not enough. The injured party has not done so in this case and
therefore, Smyth is not liable to the pedestrian for negligence.

12
Meiners, Business Law – The Essentials, 8th Edition, p. 455 (2010).
13
Meiners, Business Law – The Essentials, 8th Edition, p. 475 (2010).
14
Meiners, Business Law – The Essentials, 8th Edition, p. 480 (2010).
45
 Sample Argument Written by a Judge aka Case - Tribal Gambling Case

Saratoga County Chamber of Commerce Inc., v. Pataki, 100 N.Y.2d 801, 798 N.E.2d 1047, 766 N.Y.S.2d
654 (2003, N.Y. App.).

(Note: Case has been shortened and simplified by the author).

On October 15, 1993, then-Governor Cuomo entered into the "Tribal-State Compact (aka
“agreement”) Between the St. Regis Mohawk Tribe and the State of New York." This compact was
approved by the federal government as required by federal law and the Tribe opened its casino in 1999.
This agreement allowed for all types of Las Vegas gambling such as poker, machines, Kino, and other
forms of gambling.

As background, it is necessary to understand that Indian tribes are under federal government
control, not state control. US Congress passed a statute (25 USC § 2701 [5]) which essentially allows
Indian tribes to have casinos in any state where the state law does not outright bar gambling for business
purposes in the state. That is, if the state allows some businesses to engage in gambling, it must also allow
Indian tribes to engage in the business of gambling. The issue raised in this argument then is: does the
Constitution of the State of New York allow gambling?

Article I, § 9 of the New York State Constitution clearly forbids the business of gambling. It
states, "Except as hereinafter provided, no lottery or the sale of lottery tickets, pool-selling, bookmaking,
or any other kind of gambling, except lotteries operated by the state… and except pari-mutuel betting on
horse races shall be allowed within this state..” (NY Const art I, § 9 [1]).

Before the first New York State Constitution was written in 1777, gambling in New York was
forbidden. The original Constitution of 1777 does not mention gambling or lotteries but the Second
through fifth Constitutions, and the current Constitution prohibits gambling.

The agreement entered into by the Governor and the Tribe is therefore invalid because it violates
the state constitution prohibition against gambling. While it is true the state constitution allows the state to
run a lottery it does not allow private businesses to run gambling businesses. The federal government only
requires the state to allow Indian gambling if the state allows other businesses to operate gambling
businesses. The only exception to this is the law allowing betting on horses. The state must allow betting
on horse races at businesses on tribal lands like it does other businesses. However, this does not mean that
all forms of gambling are allowable on tribal lands.

46
 Chapter 22. Sample Legal Writing Assignment Containing Background Information and a
Legal Argument

MEMO

To: Professor White

From: Tyler Larabel (used with student’s permission)
Re: Legal Argument AT&T/Time Warner
Date: Spring xxx
********

This memo is in response to your memo asking me to give you my opinion about the legality of
acquiring Time Warner. Is this an acquisition that will be allowed to occur by the courts? In addition you
asked me to summarize antitrust laws, analyze the how the agencies involved in reviewing this merger
will apply the law, and give a prediction on the likelihood this merger will allowed to go through.

AT&T is a pay-for TV and internet provider. They are attempting to acquire Time Warner a cable
provider with a multitude of channels including Turner cable TV and HBO premium network.To
determine if this will violate any antitrust laws the Federal Trade Commision and the United States
Justice Department will review the acquisition before it goes through.

Antitrust laws are laws that aim "to protect the process of competition for the benefit of
consumers, making sure there are strong incentives for businesses to operate efficiently, keep prices
down, and keep quality up."15 They do this through three major antitrust laws the Sherman Act, the
Clayton Act, and the Federal Trade Commission Act. The Sherman Act aims to outlaw anything that
restricts free trade and also to outlaw any unreasonable monopolies. The Clayton Act addresses specific
collusive actions that the Sherman Act does not such as such as mergers and interlocking directorates, the
Clayton Act specifically outlaws mergers that “may be substantially to lessen competition, or to tend to
create a monopoly."16 Finally the Federal Trade Commission Act bans all “unfair methods of
competition” and "unfair or deceptive acts or practices.", it has been ruled by the US Supreme court that
all violations of the Sherman Act are also violations of the Federal Trade Commission Act, so the FTC
can effectively enforce both this law and the Sherman Act, but it cannot levy cases under the Clayton Act,
only the US Justice Department is allowed to do that.

This acquisition is considered a merger, which is defined as “a deal to unite two existing
companies into one new company.” There are two different types of mergers relevant to this issue. Those
being vertical and horizontal mergers. Vertical mergers are defined as “a strategy where a company
expands its business operations into different steps on the same production path.” 17 This type of merger is
seen when grocery stores such as meijers acquire their own trucking company to distribute their products
to their stores. Whereas horizontal mergers are “a merger or business consolidation that occurs between
firms that operate in the same space, as competition tends to be higher and the synergies and potential
gains in market share are much greater for merging firms in such an industry.” 18 Which would be like if

15
The Antitrust Laws, Federal Trade Commission webpage, accessed 3/16/17, https://www.ftc.gov/tips-advice/competition-
guidance/guide-antitrust-laws/antitrust-laws
16
The Antitrust Laws, Federal Trade Commission webpage, accessed 3/16/17, https://www.ftc.gov/tips-advice/competition-
guidance/guide-antitrust-laws/antitrust-laws
17
Vertical Integration Definition | Investopedia http://www.investopedia.com/terms/v/verticalintegration.asp#ixzz4bas116JS
18
Horizontal Merger Definition | Investopedia, accessed 3/16/17
http://www.investopedia.com/terms/h/horizontalmerger.asp#ixzz4bb6gC86J
47
Coke and Pepsi merged and became one company. A merger such as this would almost certainly violate
antitrust laws however.

Horizontal mergers have a higher chance of creating a monopoly and thus have a much higher
chance of being barred under the Clayton Act as the explicit purpose of these mergers is to increase a
company’s market share and eliminate a competitor by rolling them into one’s own business which has
the inherent potential to “substantially lessen competition”, so there is a much greater risk of these types
of mergers being barred under the Clayton act than their vertical counterparts. The law’s aversion of
horizontal mergers can be seen in one of the first antitrust cases Standard Oil co. of New Jersey vs United
States. In this case it was ruled that Standard Oil was using their overwhelmingly large share of the
market to engage in illegitimate, anti-competitive practices such as “abuse of the control of pipe-lines, to
railroad discriminations, and to unfair methods of competition in the sale of the refined petroleum
products"19

The acquisition of Time Warner, however would be a vertical merger. Vertical mergers may
possibly, but not necessarily, “create competitively objectionable barriers to entry” 20 if certain
requirements are met. These requirements are that the degree of vertical integration must be so great that
if the merger went through, the new entrants to the primary market (i.e. AT&T’s market) would also have
to simultaneously enter into the secondary market (i.e. Time Warner’s market). Not only that, but entry
into the secondary market must make entry into the primary market significantly more difficult and less
likely to occur, and the structure and characteristics of the market must be conducive to non-competitive
behavior to the point that an increased barrier to entry would impair the performance of the primary
market. For example, if a company that refines steel owns a mine they would be able to produce refined
steel at a much lower cost. This would make it so that other manufactures would also need to own a mine
in order for their prices to remain competitive. This additional cost to new manufacturers would make
starting a steel company significantly harder if not impossible, which would seriously hurt competition.
There are a few other conditions which may also bar this merger from going through which I will go over
later in this memo.

The most important issue we must address is if this merger is if it will meet these aforementioned
requirements. The first requirement is that the degree of vertical integration must be so great that new
entrants to the primary market would also have to simultaneously enter into the secondary market. As I
have already stated vertical integration is defined as “a strategy where a company expands its business
operations into different steps on the same production path, such as when a manufacturer owns its
supplier and/or distributor.”21 This definition clearly demonstrates that these companies are becoming
vertically integrated, however the question is whether this degree of vertical integration will necessitate
new pay-for TV providers to also own their own cable companies to be able to enter into and effectively
compete in the market. I agree with the CEO of AT&T when he said the success of Netflix and amazon as
online pay-for TV providers effectively proves that new pay-for TV providers do not need to own a major
studio to be successful in the market.22 The court would look at the success of these online pay-for TV
providers as proof that a firm can still compete in the pay-for TV market without even the infrastructure
of the firms we have traditionally competed against. This success without infrastructure would lead the
court to determine that an increase in infrastructure for firms in this market would not necessitate that all
firms in this market follow suit.

19
Elliot Jones, The Trust Problem in the United States (1921), online archive, accessed 4/13/17
https://archive.org/details/trustprobleminu00jonegoog
20
Non-Horizontal Merger Guidelines, Justice Department website, accessed 3/16/17 https://www.justice.gov/atr/non-horizontal-
merger-guidelines
21
Vertical Integration Definition | Investopedia http://www.investopedia.com/terms/v/verticalintegration.asp#ixzz4bas116JS
22
Making Sense of AT&T’s Bid for Time Warner, New York Times webpage,
https://www.nytimes.com/2016/10/24/business/making-sense-of-atts-bid-for-time-warner.html?_r=1
48
 The second condition is “entry into the secondary market must make entry into the primary
market significantly more difficult and less likely to occur”. 23 This condition is met by this merger. The
court would look at cost involved in entering Time Warner's market, which is quite large. The company
itself is valued at $85.4 billion, to determine the cost of market entry the court would have to look at its
plant assets and inventory, these are valued approximately $4.5 billion. 24 This would mean that in order
for a new company to enter into Time Warner’s market they would at the very least have to have the $4.5
billion in order to get the same infrastructure and supplies provided by Time Warner. I believe the court
would also see the highly competitive nature of Time Warner’s market as a significant barrier. The court
would look at the massive amounts spent on advertising by these companies. Once these are examined the
court would see that their marketing has entrenched these companies far into American life, even to the
point of having the intangible “good will” of the company amount to approximately $28 of the $85
billion25 almost one third of the company's total assets. I believe the court would view the difficulty of a
new firm to accrue good will of that size and value as constituting another very serious barrier to entry.

The final condition to be met is that the primary market must be structured in such a way that an
increase to entry barriers would impair the performance or quality of the market as a whole. As I have
demonstrated “The barriers to entry for new companies in the telecommunications sector are very strong
and primarily revolve around the necessity for massive capital expenditures and marketplace
difficulties.”26 For years this was thought to create a “natural monopoly” in the telecommunications
industry. In the 1982 ruling of United States v AT&T, however, it was deemed that even though a “natural
monopoly” existed in the telecommunications industry AT&T had a degree of vertical integration so great
that they had to be split up into smaller companies to avoid them engaging in anti-competitive
behaviors.27 This demonstrates that even though there are high barriers to entry already an increase in
entry barriers due to vertical integration can still be struck down under antitrust laws, so long as they can
be used to obstruct “the process of competition”. I believe the court would apply the same logic in our
situation.

In summation, to determine if this merger will violate US antitrust laws, the Federal Trade
Commission and the United States Justice Department will review the acquisition before it goes through.
They will apply the Clayton act, Sherman Antitrust act, and Federal Trade Commission act, to ensure that
the degree vertical integration caused by this merger does not unduly restrict the competitive process. I
believe that this merger will be allowed to go through. The standards for an unlawful vertical merger are
that, in order to compete in the primary market one must own a company in the secondary market as well,
having to enter the secondary market must create entry barriers, and these entry barriers must impair the
function of the market. While entry into the secondary market creates entry barriers and the creation of
such entry barriers would hurt the market, our acquisition of Timer Warner would not necessitate that
other firms in our market also enter into Time Warner’s market. Since that important provision is not met
I believe the FTC and the Justice Department will allow our merger to go through.

23
Non-Horizontal Merger Guidelines, Justice Department website, accessed 3/16/17 https://www.justice.gov/atr/non-horizontal-
merger-guidelines
24
Time Warner Financial Position: Assets, Stock Analysis, https://www.stock-analysis-on.net/NYSE/Company/Time-Warner-
Inc/Financial-Statement/Assets
25
Time Warner Financial Position: Assets, Stock Analysis, https://www.stock-analysis-on.net/NYSE/Company/Time-Warner-
Inc/Financial-Statement/Assets
26
How strong are the barriers to entry in new sectors telecommunications sector, accessed 4/13/17,
http://www.investopedia.com/ask/answers/071515/how-strong-are-barriers-entry-new-companies-telecommunications-sector.asp
27
US Department of Justice vs AT&T, Network World, accessed 4/12/17, http://www.networkworld.com/article/2287512/lan-
wan/u-s--department-of-justice-vs--at-t.html
49
 Chapter 23. Sample Outline Used to Prepare the Prior Legal Writing Assignment Containing
Background Information and a Legal Argument

Intro/agenda paragraph: Topic is legality of AT&T acquiring Time Warner.

Background on AT&T

Background on Time Warner

Background on antitrust law in general

Background on the law of mergers in antitrust law. Horizontal, vertical

Issue 1: What type of merger is this? Analyze and come to conclusion.

I concluded it is a vertical merger. Explain why.

Issue 2 and law: Is this vertical merger legal or not? Overview of the law used to determine if
vertical merger will be upheld.

Analysis and conclusion: Explain why I think the merger will be upheld using the laws and facts

Summary paragraph: what is antitrust law, explain what a merger is. Restate conclusions to both
issues.

50
 Chapter 24. Sample Argument Written by a Judge aka Case – Fitchie v. Yurko, Lottery Ticket
Joint Venture

JUDY RITCHIE et al., Plaintiffs-Appellees, v. RICHARD BURKE, Defendant-Appellant (Illinois

Lottery Commission, Defendant)
Appellate Court of Illinois, Second District

(Note: Based on Fitchie v. Yurko, 570 NE2d 892 (1991), but shortened and some modifications
made to the actual case to illustrate role of jury and simplify the case.)

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiffs, Judy Ritchie, Phyllis Seld, and Frances Vincent, brought this action seeking a an equal
share, with the defendant to a $100,000 lottery prize claimed by defendant, Richard Burke, from the
Illinois Department of the Lottery (Lottery). The jury held that a partnership or joint venture existed
between the parties and the judge ordered defendant to pay each plaintiff the sum of $25,000 plus court
costs. We affirm.

The trial testimony revealed the following sequence of events. Plaintiff Phyllis Seld and her
husband, Robert, owned a combination service station and coffee shop, which they called Hitching-A-
Ride, in Burlington. Phyllis operated the coffee shop, and, as a part of the coffee shop business, she sold
lottery tickets. Defendant Burke started coming into the coffee shop in November 1989 to have a cup of
coffee or pancakes and to socialize. Sometimes Phyllis would play the lottery with Burke. Phyllis
indicated, but Burke disputed, that they would share equally in any winnings even when only one of them
supplied the money to buy lottery tickets. Plaintiff Judy Ritchie had known Phyllis for a number of years
and sometimes helped her in the coffee shop. Judy was acquainted with Burke only because she saw him
occasionally at Hitching-A-Ride.

During the second or third week of February 1990 Phyllis and Judy were both in the coffee shop
when Burke came in and said he wanted to play the lottery. While there were inconsistencies between
plaintiffs' and defendant's testimony, as well as minor differences even in the testimony of the various
plaintiffs, it appears clear the following events occurred. Phyllis was behind the counter, waiting on
customers. Judy, along with plaintiff Frances Vincent, was sitting at the counter. Burke purchased lottery
tickets which needed to have film scratched off the front of them in order to reveal whether a prize had
been won.

At some point Burke asked Phyllis if she wanted to help him scratch the film off the tickets, but
Phyllis suggested that he ask Judy to help because she was the luckier one. … While Burke repeatedly
denied it, all three plaintiffs testified that Burke indicated to them that if they would help him scratch off
the lottery tickets they would be his partners and would share in any winnings which resulted from those
tickets. After playing for some time, Judy uncovered three television sets and announced that she had a
winner. At the time, the parties were playing the Fortune Hunt lottery game, and the ticket scratched by
Judy gave the owner a chance to compete for a $ 100,000 prize.

All of the plaintiffs gave very similar testimony as to what occurred after the winning ticket was
scratched. Judy placed the ticket on the counter near Phyllis. Burke urged Phyllis to fill it out, but she said
she did not want to go on television. Burke indicated he was willing to be on the television show, and,
after some discussion, all the parties agreed that Burke should be their representative and go on television.
Burke then printed "F.J.P. Rick Burke," representing the first initial of each plaintiff and his own name,
on the line provided on the back of the ticket for the name of the ticket holder. He also gave his address

51
and phone number. According to Phyllis, when Burke started filling out the ticket he told her he was
going to put all of the plaintiffs' initials and his name on the ticket and indicated once again that they
would be partners no matter what they might win.

During the time Burke and the plaintiffs were playing the lottery, Robert Seld and Thomas
Vincent, Frances' husband, were having coffee in a booth in the coffee shop. Both spouses testified that
after Judy declared she had a winner they heard Burke ask the three plaintiffs for their initials. He
indicated he wanted to put their initials on the ticket because they were partners. All of the plaintiffs
admitted that they did not pay out of their own pockets for any of the lottery tickets that were purchased
that day.

Burke acknowledged that he placed plaintiffs' initials on the back of the winning ticket. He said
he did so because he wanted to remember who helped him scratch the ticket. Then, if he won, he could
take them out to dinner or give them something for helping him.

Burke subsequently mailed the ticket to the Lottery and it was one of the six tickets drawn on
March 10, 1990.  On March 11 Burke stopped at Hitching-A-Ride to see the Selds. Phyllis' daughter,
Sherry Payne, was there at the time. Sherry testified that Burke gave her a nudge in the arm and said, "We
are going to be rich." She knew he was referring to the lottery because her mother had told her about the
winning ticket. Phyllis also testified that she heard Burke make the comment about all of them getting
rich. She also said Burke remarked that Judy would probably use her share to put a down payment on her
house and that he was going to go to Las Vegas with his share. Burke testified that he consulted an
attorney regarding the ownership of the ticket about two days before he went on the television show.

The Lottery show on which Burke appeared as a contestant was taped on March 16 and aired on
the evening of March 17. Burke won the $ 100,000 prize and placed only his own name on the claim form
for the prize. Over the next several days plaintiffs tried unsuccessfully to reach Burke. On March 22,
1990, they filed this suit [seeking a share of the proceeds of the ticket].

After a jury trial the jury held that a partnership existed between the parties and that the value of
the ticket was to be divided between the three plaintiffs and defendant. Judgment was so entered.
Defendant appeals the judgment.

Whether a partnership exists is generally a question of fact to be resolved by the fact finder.
(Peterson v. Prince (1981), 102 Ill. App. 3d 220, 224.) A court of appeal may not overturn a judgment
merely because it disagrees with it or might have reached a different conclusion had it been presented
with the issue in the first instance. (Schulenberg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356; In re Estate
of Elson (1983), 120 Ill. App. 3d 649, 655.) In this case the jury found that the parties had formed a joint
venture. A joint venture, as a practical matter, is essentially a partnership carried on for a single
enterprise. O'Connell v. Pharmaco (1987), 164 Ill. App. 3d 68, 72.

A joint venture is an association of two or more persons to carry out a single enterprise for profit.
( In re Johnson (1989), 133 Ill. 2d 516, 525-26; Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d
313, 318.) Whether a joint venture exists is a question of the intent of the parties. (United Nuclear Corp.
v. Energy Conversion Devices, Inc. (1982), 110 Ill. App. 3d 88, 109.) A formal agreement is not essential
to establish a joint venture. (Barton v. Evanston Hospital (1987), 159 Ill. App. 3d 970, 973.) Rather, the
existence of a joint venture may be inferred from facts and circumstances demonstrating that the parties,
in fact, undertook a joint enterprise. Ambuul, 162 Ill. App. 3d at 1068.

In accordance with the foregoing, the judgment of the circuit court of Kane County is affirmed.

52
 Chapter 25. Sample 1-Issue Brief not in Memo

Name of Case and Citation: Fitchie v. Yurko, 570 NE2d 892 (1991)

Facts: The jury determined that a joint venture existed based on the following facts. Plaintiff
Phyllis Seld and her husband, Robert, owned a combination service station and coffee shop, which they
called Hitching-A-Ride, in Burlington. Phyllis operated the coffee shop, and, as a part of the coffee shop
business, she sold lottery tickets. Defendant Burke started coming into the coffee shop in November 1989
to have a cup of coffee or pancakes and to socialize. Sometimes Phyllis would play the lottery with
Burke.

During the second or third week of February 1990 Phyllis and Judy were both in the coffee shop
when Burke came in and said he wanted to play the lottery. Phyllis was behind the counter, waiting on
customers. Judy, along with plaintiff Frances Vincent, was sitting at the counter. Burke purchased lottery
tickets which needed to have film scratched off the front of them in order to reveal whether a prize had
been won.

At some point Burke asked Phyllis if she wanted to help him scratch the film off the tickets, but
Phyllis suggested that he ask Judy to help because she was the luckier one. … While Burke repeatedly
denied it, all three plaintiffs testified that Burke indicated to them that if they would help him scratch off
the lottery tickets they would be his partners and would share in any winnings which resulted from those
tickets. After playing for some time, Judy uncovered three television sets and announced that she had a
winner. At the time, the parties were playing the Fortune Hunt lottery game, and the ticket scratched by
Judy gave the owner a chance to compete for a $ 100,000 prize.

All of the plaintiffs gave very similar testimony as to what occurred after the winning ticket was
scratched. Judy placed the ticket on the counter near Phyllis. Burke urged Phyllis to fill it out, but she said
she did not want to go on television. Burke indicated he was willing to be on the television show, and,
after some discussion, all the parties agreed that Burke should be their representative and go on television.
Burke then printed "F.J.P. Rick Burke," representing the first initial of each plaintiff and his own name,
on the line provided on the back of the ticket for the name of the ticket holder. He also gave his address
and phone number. According to Phyllis, when Burke started filling out the ticket he told her he was
going to put all of the plaintiffs' initials and his name on the ticket and indicated once again that they
would be partners no matter what they might win.

After a jury trial the jury held that a partnership existed between the parties and that the value of
the ticket was to be divided between the three plaintiffs and defendant. Judgment was so entered.
Defendant appeals the judgment.

Issue: Must Burke share the lottery winnings with Phyllis, Judy, and Francis?

Rules: Whether a partnership exists is generally a question of fact to be resolved by the fact
finder. A court of appeal may not overturn a judgment merely because it disagrees with it or might have
reached a different conclusion had it been presented with the issue in the first instance. A joint venture, as
a practical matter, is essentially a partnership carried on for a single enterprise. A joint venture is an
association of two or more persons to carry out a single enterprise for profit. Whether a joint venture
exists is a question of the intent of the parties. A formal agreement is not essential to establish a joint
venture. Rather, the existence of a joint venture may be inferred from facts and circumstances
demonstrating that the parties, in fact, undertook a joint enterprise.

53
 Analysis: The issue in this case is whether or not a joint venture was formed between Phyllis,
Judy, Frances, and Burke. The jury determined that yes, a joint venture had been formed and the parties
were to share in the winnings from a lottery ticket and the appeal court upheld the jury’s decision. A joint
venture, as a practical matter, is essentially a partnership carried on for a single enterprise. In this case
Burke bought some lotter tickets but asked Phyllis, Judy, and Frances to help him scratch them off and
that if any of the tickets were winners, they would share the winnings. When Burke bought some lottery
tickets and agreed to share the winnings. They scratched off the tickets, Burke put the initials of all of the
parties on the back of the ticket, and they all appeared on television together to celebrate the win.

However, later Burke claimed he bought the tickets for himself and refused to share the winnings.
Phyllis, Judy, and Frances claimed the parties had a joint venture. The single enterprise in this case was
the scratching of the lottery tickets purchased by Burke and the television appearance and the winnings
that came from it. A joint venture is an association of two or more persons to carry out a single enterprise
for profit. Phyllis, Judy, Frances and Burke carried out this enterprise of buying and scratching off lottery
tickets for profit. Whether a joint venture exists is a question of the intent of the parties. Phyllis, Judy and
Frances testified that Burke indicated to them that if they would help him scratch off the lottery tickets,
they would be his partners and would share in any winnings which resulted from those tickets. In
addition, Burke wrote the initials of all of the parties on the back of the winning ticket. A formal
agreement is not essential to establish a joint venture. No formal agreement was made, only a verbal
agreement. The existence of a joint venture may be inferred from facts and circumstances demonstrating
that the parties, in fact, undertook a joint enterprise. The testimony of Phyllis, Judy, Francis, Sherry
Payne, Robert Seld and Thomas Vincent, along with the initials of all of the parties written on the
winning ticket by Burke, indicates that a joint venture was formed by the parties.

Conclusion: Yes

54
 Chapter 26. Sample 4-Issue Brief in Memo

MEMO
To: Professor White
From: Rachel Pohl (used with permission)
Date: February 8, 20xx
Re: Krupinski v. Costco Brief
********

Name of Case: DONALD KRUPINSKI, Plaintiff-Appellant, v DONALD A. NITKIN and LAURA R.

NITKIN, Defendants, and COSTCO WHOLESALE CORPORATION, Defendant-Appellee. 2015 Mich.
App. LEXIS 2394; CCH Prod. Liab. Rep. P19,748; 2015 WL 9258073

Facts: Defendant Costco Wholesale Corporation owns members-only warehouse clubs, some including
gasoline stations. The station’s set up allows customers to drive to and away from the pump in one
direction. Vehicles will line up on one side of the pump island to wait to fill up their gas tanks. Each
island has a front and rear pump. Vehicles wait behind a 10-inch wide stop line painted on the pavement,
six feet away from the rear pump.

Krupinski was fueling his vehicle at one of these gas stations in the Shelby Township location.
Krupinski’s car was at the forward gas stop, Edward Skiba's vehicle was in the front of the line, behind
the stop line, waiting for an available pump in that island. Donald Nitkin's vehicle was behind Skiba's
vehicle.

When Nitkin started his vehicle to move forward, it rapidly accelerated and struck Skiba's vehicle,
pushing it forward and causing it to strike the rear of White's vehicle, which in turn pushed forward into
the rear of plaintiff's vehicle.

Krupinski was pinched between the two vehicles. He suffered severe injuries that eventually led to the
amputation of both of his legs.

Issue 1: Is the defendant entitled to a summary disposition?

Rules: A motion for summary disposition under MCR 2.116(C)(10) challenges the factual sufficiency of
a claim, and this Court considers the evidence—including "affidavits, depositions, admissions, or other
documentary evidence"—in the light most favorable to the nonmoving party. Gorman v American Honda
Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223 (2013).
"The reviewing court should evaluate a motion for summary disposition under MCR 2.116(C)(10) by
considering the substantively admissible evidence actually proffered in opposition to the motion." Maiden
v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999).
"Opinions, conclusionary denials, unsworn averments, and inadmissible hearsay do not satisfy the court
rule; disputed fact (or the lack of it) must be established by admissible evidence." Palazzola v Karmazin
Prod Corp, 223 Mich App 141, 155-156; 565 NW2d 868 (1997) (citation omitted). Summary disposition
may be granted under MCR 2.116(C)(10) when "there is no genuine issue regarding any material fact and
the moving party is entitled to judgment as a matter of law." Id. at 116.

55
Analysis: Yes, the defendant is entitled to a summary disposition. This is because the plaintiff’s expert
testimony did not conclude that the gas station was unreasonably hazardous, simply saying that it did not
minimize “pedestrian-vehicle” conflicts. There is not enough support for the factual evidence, since the
court can only look at the substantially admissible evidence proffered in opposition to the motion. The
defendant can have summary disposition because the plaintiff’s testimony failed to establish an
unreasonable hazard, therefore the material fact issue is not sustainable, and summary disposition may be
granted because the courts determined there is no evidence regarding any material fact.

Conclusion: Yes

Issue 2: Was the gas station defectively designed?

Rules: Where defective design is alleged, Michigan courts apply "a pure negligence, risk-utility test in
products liability actions against manufacturers of products." Prentis v Yale Mfg Co, 421 Mich 670, 691;
365 NW2d 176 (1984). "A manufacturer has a duty to 'eliminate any unreasonable risk of foreseeable
injury.'" Bazinau v Mackinac Island Carriage Tours, 233 Mich App 743, 757; 593 NW2d 219 (1999).
Thus, the test for whether a design is defective "questions whether the design chosen renders the product
defective, i.e., whether a risk-utility analysis favored an available safer alternative. Gregory v Cincinnati,
Inc, 450 Mich 1, 11-12; 538 NW2d 325 (1995).

This Court in Lawrenchuk, 214 Mich App at 435-436, analyzed a claim for defective design of a
premises, and summarized the requirements that a plaintiff must satisfy with expert testimony in order to
survive summary disposition:

A plaintiff who claims that a product was defectively designed has the burden of producing evidence of
the magnitude of the risk posed by the design, alternatives to the design, or other factors concerning the
unreasonableness of the risk of a particular design. Owens v Allis-Chalmers Corp, 414 Mich 413, 429-
432; 326 NW2d 372 (1982). . . . In determining whether a defect exists, the trier of fact must balance the
risk of harm occasioned by the design against the design's utility. Prentis v Yale Mfg Co, 421 Mich 670,
688-689; 365 NW2d 176 (1984).

Analysis: No, the gas station was not defectively designed. This is because plaintiff could not produce
evidence that the magnitude of the risk posed by the design, alternatives to the design, or other factors
concerning the unreasonableness of design would reduce the risk.

The 10-inch-wide stop line where vehicles wait was painted on the pavement, six feet away from the rear
pump. Given that these precautions were there, the manufacture did eliminate any unreasonable risk of
foreseeable injury. The expert witness did not sufficiently give alternatives to the design, and the test for
whether a design is defective questions whether a risk-utility analysis favored an available safer
alternative. There is no evidence that there is a safer alternative. Although the testimony did say that the
gas station is not designed to minimize “pedestrian-vehicle” conflicts, it did not produce evidence of the
magnitude of the risk posed by the design, alternatives to the design, or other factors concerning the
unreasonableness of the risk of a particular design. To survive summary disposition, these facts must be
given by the plaintiff.

56
The plaintiff did not attempt to argue that all self-service gas stations are unreasonably dangerous because
of the proximity of moving vehicles to pedestrians, but instead argues that the defendant's uniquely
designed gas station is unreasonably hazardous because of the possibility of a chain-reaction accident.
However, no explanation is given for why the unique design creates more circumstances for chain crashes
to occur compared to regular gas stations.

In determining whether a defect exists, the trier of fact must balance the risk of harm occasioned by the
design against the design's utility. Since the gas station was not proven to be more dangerous than other
designs of gas stations, the trier of fact has no evidence to conclude that there is a defect.

To be a defective design, the evidence must be balanced with the amount of harm it has against its
purpose, and the plaintiff does not give the amount of harm. Therefore, no defective design is proved.

Conclusion: No

Issue 3: Does the Costco gas station have a duty to warn users of the product hazards?

Rules: With regard to a failure-to-warn product liability claim, a product manufacturer owes no duty to
warn a user of a product of hazards that are not unreasonably dangerous and are open and obvious. Laier
v Kitchen, 266 Mich App 482, 488-489; 702 NW2d 199 (2005) the hazard of being struck by a car while
a pedestrian in an area with many cars moving in and out of the area is an obvious one. See Lugo v
Ameritech, 464 Mich 512, 522; 629 NW2d 384 (2001) ("[t]here is certainly nothing 'unusual' about
vehicles being driven in a parking lot, and, accordingly, this is not a factor that removes this case from the
open and obvious danger doctrine.").

Analysis: No, Costco had no duty to warn users of the hazards of the design of the gas station. This is
because the manufacturer owes no duty to warn of hazards that are not unreasonably dangerous or are
open and obvious. The hazard of being hit by a car under the gas station conditions is not unusual.
Therefore, the doctrine of open and obvious applies to the situation. Cars would move to wait their turn
for the pump, and would be in motion near pedestrians. Since there is nothing unusual about vehicles
being driven in a parking lot, the product manufacturer has no duty to warn a user of the product hazards.
The hazard of being hit is determined to be obvious, since both moving vehicles and pedestrians are in the
same area. Reasonable minds must conclude that the dangers of a vehicle accident are determined to be
open and obvious, concluding that Costco gas station has no duty to warn a user of the hazards of a
product.

Conclusion: No

Issue 4: Does the open and obvious doctrine apply?

Rules: The test to determine if a hazard is open and obvious is whether "an average user with ordinary
intelligence [would] have been able to discover the danger and the risk presented upon casual inspection."
Novotney, 198 Mich App at 475. Here, the risk of a pedestrian being struck by a car while in using a self-
service gas station is open and obvious.

57
Analysis: Yes, the “open and obvious” doctrine applies in this case. This is because the danger and risk
associated with the design of the gas station is open and obvious to an average user of ordinary
intelligence. Upon even a casual inspection, those with ordinary intelligence can see the danger of being
hit by the moving vehicles. The busy activities in the gas station, and the moving cars cause a reasonable
assumption that the situation has a risk. This implies that the danger is “open and obvious” and the
doctrine applies.

Conclusion: Yes

58
Appendix: Sample Grading Rubrics

Chapter 27. Generic Brief Grading Rubric for 2 Issue Brief

% Description
Contains the label “Name of case” with the name of the case, if any. At this level of your
5% education a correct legal citation is not necessary but no deduction if you attempt to put the
legal citation and it is wrong.
Contains the label “Facts” with a summary of the facts following the label. Caution:
5% Nothing said here counts for required facts in analysis.

ISSUE #1
Contains the label “Issue 1” with the issue WORDED IN THE FORM OF A QUESTION
5%
AND USING A QUESTION MARK.
Contains the label “Rule” or “Law” with a summary of the law used in the argument
relevant to the first issue. The law need not be cited in the brief but no deduction if it is.
15%
No credit if law is taken from other source such as the PowerPoints or the text.

Contains the label “Analysis” or “Premises”. FIRST SENTENCE MUST ANSWER THE
ISSUE AND USE THE WORD “BECAUSE”. The remainder of the analysis explains why
the writer of the argument came to the conclusion the writer came to using both the FACTS
20%
and the LAW specifically the LEGAL ELEMENTS of the law.

Cutting and pasting will result in a very low or even failed grade.
Contains a one or two word answer to the issue. This should not be a complete sentence but
5%
just an answer to the issue without any explanation.
ISSUE #2
Contains the label “Issue 2” with the issue WORDED IN THE FORM OF A QUESTION
5%
AND USING A QUESTION MARK.
Contains the label “Rule” or “Law” with a summary of the law used in the argument. The
law need not be cited in the brief but nothing is taken off the grade if it is.
15%
No credit if law is taken from other source such as the PowerPoints or the text.

Contains the label “Analysis” or “Premises”. FIRST SENTENCE MUST ANSWER THE
ISSUE AND USE THE WORD “BECAUSE”. The remainder of the analysis explains why
the writer of the argument came to the conclusion the writer came to using both the FACTS
20%
and the LAW specifically the LEGAL ELEMENTS of the law.

Cutting and pasting will result in a very low or even failed grade.
Contains a one or two word answer to the issue. This should not be a complete sentence but
5%
just an answer to the issue without any explanation.
100 TOTAL
%

Revised 4/29/2017

59
 Chapter 28. Generic Legal Argument/memo/paper - 6 Issues/topics Grading Rubric

         % Description
  Formatted properly: No points, I   expect this to be done properly. See deduction section below however.
Memo, double-spaced, 12 point font, first paragraph line indented.
0
Citations   done properly. 50% deduction for improper citations that are not in   footnotes.
First part contains the facts. Again no points, this is just cut and paste.
  2.5 Introductory paragraph with the topics to be discussed but no details on the topics.
  2.5 ISSUE/TOPIC   #1. Detailed overview of the law.
  ISSUE/TOPIC   #2: Example: this is where the factual   issue, if any, might be discussed. Factual issues might be
5
discussed at end as an alternative.
  5 LAW/Explanation: Overview of what a factual issue is and   how it is handled, with citations.
  5 Gave example to help the reader understand. Example properly cited.
  ISSUE/TOPIC/ELEMENT   #1: Varies by problem. The law is likely to have several elements needing  
5
review.
  5 LAW: Overview of the law with proper citations.
  5 Gave example to help the reader understand. Example   properly cited.
  ANALYSIS: Came to a conclusion, applied law to facts,   mentioned major facts related to the issue ONLY. No
5
cut and paste.
  5 ISSUE/TOPIC/ELEMENT   #2: Varies by problem.
  5 LAW: Gave overview of the parol evidence rule with proper   citations.
  5 Gave at least one example of a parol evidence rule   situation with proper citation.
  ANALYSIS: Came to a conclusion, applied law to facts, mentioned major facts related to the issue ONLY. No cut
5
and paste.
  5 ISSUE/TOPIC/ELEMENT   #3: Varies by problem.
  5 LAW: Gave overview of law with proper citations.
  5 Gave at least one example of a mistake situation with   proper citation.
  ANALYSIS: Came to a conclusion, applied law to facts, mentioned major facts related to the issue ONLY. No cut
5
and paste.
  2.5 ISSUE/TOPIC/ELEMENT   #4: Varies by problem.
  5 LAW: Gave overview of law with proper citations.
  5 Gave at least one example of a breach of contract situation with proper citation.
  ANALYSIS: Came to a conclusion, applied law to facts, mentioned major facts related to the issue ONLY. No cut
5
and paste.
  ISSUE/TOPIC:   For example ethics discussion or settlement options. Gave overview of the various
settlement options available   including pros and cons. Recommended mediation as the option. No credit for  
5
arbitration recommendation as that is a poor choice in these circumstances.   No reason to give up your right to
trial and appeal so early in the   negotiations.
  2.5 Summary paragraph.
  Deductions for improper citations, failure to put overview of   facts of the problem at the beginning,
  unorganized paper, unprofessional   looking paper, paragraphs with 1 sentence, paragraphs that are too long,  
paragraphs that have more than one topic, or____________________
    TOTAL
 

60