Legal Writing

and Other Lawyering Skills

EDITORIAL ADVISORS
Vicki Been
Boxer Family Professor of Law
New York University School of Law

Erwin Chemerinsky
Dean and Distinguished Professor of Law
University of California, Irvine, School of Law

Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago

Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School

James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School

Richard K. Neumann, Jr.

Professor of Law
Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School

David Alan Sklansky

Yosef Osheawich Professor of Law
University of California at Berkeley School of Law
 ASPEN COURSEBOOK SERIES

Legal Writing
and Other Lawyering Skills
Sixth Edition

Nancy L. Schultz
Professor, Dale E. Fowler School of Law at Chapman University

Louis J. Sirico, Jr.

Professor of Law and Director, Legal Writing Program
Villanova Law School
Copyright © 2014 CCH Incorporated.

Published by Wolters Kluwer Law & Business in New York.

Wolters Kluwer Law & Business serves customers worldwide with CCH, Aspen Publishers, and
Kluwer Law International products. (www.wolterskluwerlb.com)

No part of this publication may be reproduced or transmitted in any form or by any means, electronic
or mechanical, including photocopy, recording, or utilized by any information storage or retrieval
system, without written permission from the publisher. For information about permissions or to
request permissions online, visit us at www.wolterskluwerlb.com, or a written request may be faxed
to our permissions department at 212-771-0803.

To contact Customer Service, e-mail [email protected], call 1-800-234-1660, fax

1-800-901-9075, or mail correspondence to:

Wolters Kluwer Law & Business

Attn: Order Department
PO Box 990
Frederick, MD 21705

Library of Congress Cataloging-in-Publication Data

Schultz, Nancy L., author.

Legal writing and other lawyering skills / Nancy L. Schultz, Professor, Chapman University
School of Law, Louis J. Sirico, Jr. Professor of Law and Director, Legal Writing Program, Villanova
Law School.—Sixth edition.
p. cm.
Includes bibliographical references and index.
eISBN 978-1-4548-4659-8
1. Legal composition. 2. Oral pleading–United States. I. Sirico, Louis J., Jr., 1945- author. II.
Title.
KF250.S38 2014
808.06’634—dc23

2014001205
 About Wolters Kluwer Law & Business
Wolters Kluwer Law & Business is a leading global provider of intelligent
information and digital solutions for legal and business professionals in key
specialty areas, and respected educational resources for professors and law
students. Wolters Kluwer Law & Business connects legal and business
professionals as well as those in the education market with timely,
specialized authoritative content and information-enabled solutions to
support success through productivity, accuracy and mobility.

Serving customers worldwide, Wolters Kluwer Law & Business products

include those under the Aspen Publishers, CCH, Kluwer Law International,
Loislaw, ftwilliam.com and MediRegs family of products.

CCH products have been a trusted resource since 1913, and are highly
regarded resources for legal, securities, antitrust and trade regulation,
government contracting, banking, pension, payroll, employment and labor,
and healthcare reimbursement and compliance professionals.

Aspen Publishers products provide essential information to attorneys,

business professionals and law students. Written by preeminent authorities,
the product line offers analytical and practical information in a range of
specialty practice areas from securities law and intellectual property to
mergers and acquisitions and pension/benefits. Aspen’s trusted legal
education resources provide professors and students with high-quality, up-
to-date and effective resources for successful instruction and study in all
areas of the law.

Kluwer Law International products provide the global business

community with reliable international legal information in English. Legal
practitioners, corporate counsel and business executives around the world
rely on Kluwer Law journals, looseleafs, books, and electronic products for
comprehensive information in many areas of international legal practice.

Loislaw is a comprehensive online legal research product providing legal

content to law firm practitioners of various specializations. Loislaw
provides attorneys with the ability to quickly and efficiently find the
necessary legal information they need, when and where they need it, by
facilitating access to primary law as well as state-specific law, records,
forms and treatises.

ftwilliam.com offers employee benefits professionals the highest quality

plan documents (retirement, welfare and non-qualified) and government
forms (5500/PBGC, 1099 and IRS) software at highly competitive prices.

MediRegs products provide integrated health care compliance content and

software solutions for professionals in healthcare, higher education and life
sciences, including professionals in accounting, law and consulting.

Wolters Kluwer Law & Business, a division of Wolters Kluwer, is

headquartered in New York. Wolters Kluwer is a market-leading global
information services company focused on professionals.
Contents
Preface

Chapter 1. Overview
Chapter 2. Managing Your Time
Chapter 3. Learning About the Legal System
Chapter 4. Research Strategy
Chapter 5. How to Brief a Case
Chapter 6. Introduction to Legal Analysis
Chapter 7. Purpose, Context, and Structure
Chapter 8. Make Your Main Themes Stand Out
Chapter 9. Help the Reader to Understand You
Chapter 10. Meeting the Client
Chapter 11. Introduction to the Memo
Chapter 12. The Memo: Heading, Issue, and Conclusion
Chapter 13. Practice with Drafting Memos: Headings, Issues, and
Conclusions
Chapter 14. The Memo: Facts and Discussion
Chapter 15. Practice with Memos: Facts and Discussion
Chapter 16. Writing the Client Opinion Letter
Chapter 17. Practice with Client Letters
Chapter 18. Advising the Client
Chapter 19. Negotiating
Chapter 20. Mediation
Chapter 21. Settlement Agreements
Chapter 22. Communicating Electronically
Chapter 23. Drafting Pleadings
Chapter 24. Practice with Pleadings
Chapter 25. Writing Persuasively
Chapter 26. Writing Pretrial Motions and Trial Briefs
Chapter 27. Appellate Process and Standard of Review
Chapter 28. Introduction to Writing Appellate Briefs
Chapter 29. The Appellate Brief: The Introductory Parts
Chapter 30. The Appellate Brief: Statement of Facts; Summary of
Argument
Chapter 31. Practice in Writing the Statement of Facts and Summary of
Argument
Chapter 32. The Appellate Brief: Argument and Conclusion
Chapter 33. Basic Principles of Oral Communication
Chapter 34. The Appellate Argument

Appendices
I. Memoranda
II. Client Letters
III. Settlement Agreements
IV. Pleadings
V. Briefs and Oral Arguments
VI. Grammar and Punctuation

Index
Preface

Chapter 1
Overview

§1.01. Introduction
§1.02. The Legal System and Legal Analysis
§1.03. Types of Legal Writing
1. The Case Brief
2. The Memorandum
3. The Client Opinion Letter
4. Settlement Agreements
5. Communicating by Email
6. Pleadings
7. Motions
8. Briefs
§1.04. Writing Style
§1.05. Citation Form
§1.06. Communications Skills
1. Client Interviewing and Counseling
2. Negotiation and Mediation
3. Oral Argument

Chapter 2
Managing Your Time

§2.01. Managing Your Time in Law School

§2.02. Managing Your Workload by Planning Ahead
§2.03. Managing Your Writing Assignments
 1. Different People Have Different Writing Methods
2. Dealing with Writer’s Block
a. Stop Researching and Start Writing
b. Write a “Zero Draft”
c. Write the Easy Parts First
d. Use the Buddy System
e. Talk with Your Professor
§2.04. Getting Your Document Written: Five Pointers
1. Plan Your Writing Process
2. Plan for Multiple Drafts
3. Be Realistic in Planning Your Deadlines
4. Build in Some Time for Complications
5. Leave Time for the Details

Chapter 3
Learning About the Legal System

§3.01. The Legal System and Legal Writing

§3.02. Sources of Law and Their Hierarchy
§3.03. The Court System
1. The State Courts
2. The Federal Courts
§3.04. The Common Law
1. Mandatory Authority
2. Persuasive Authority
3. The Weight of Authority
§3.05. Statutes and Their Interpretation
1. The Supremacy of the Legislature and the Legislative Process
2. The Relationship Between Statutory Law and Common Law
3. The Roles of the Court and the Legislature—An Illustration

Chapter 4
Research Strategy

§4.01. Introduction
§4.02. Where Do You Start?
 1. Statutes
2. Treatises
3. Restatements
4. Legal Encyclopedias
§4.03. Other Resources
1. Digests
2. A.L.R. and Legal Periodicals
§4.04. Computer Research
1. Traditional Legal Research Sources
2. Not Purely Legal Resources
3. Books versus Computers—How Do You Decide?
§4.05. Updating Your Research
§4.06. When Do You Stop?
1. Look for the Most On-Point Cases First
2. Stop When You Come Full Circle
3. Do Not Follow Every Lead
§4.07. How Do You Keep Track?
§4.08. Research Checklist

Chapter 5
How to Brief a Case

§5.01. What Is a Brief?

1. Briefing Is Taking Notes
2. The Purposes of Briefing
§5.02. How to Brief
1. The Format
2. Parts of the Brief
a. An Exercise
b. Name of the Case
c. Citation
d. Facts of the Case
e. Procedure
f. Issue
g. Holding
h. Analysis
i. More Sample Briefs
 3. Problem
§5.03. Beyond Briefing
Exercise

Chapter 6
Introduction to Legal Analysis

§6.01. Introduction
§6.02. Arguing Deductively
1. Limitations
2. Maximizing the Use of Deductive Reasoning
3. Application
§6.03. Applying the Law to the Facts
1. The Basic Approach
2. An Example of Legal Analysis
§6.04. Case Analysis
Exercise
Exercise
§6.05. Statutory Analysis
Exercise
Exercise
§6.06. Legal Analysis Checklist

Chapter 7
Purpose, Context, and Structure

§7.01. Introduction
§7.02. Purpose
§7.03. Context
§7.04. Structure
1. Outlining
Exercise
2. Deciding on a Structural Strategy
3. Roadmaps, Topic Sentences, and Transitions
Exercise
4. Organizing Within Arguments
 5. Placement of Policy and Equity Arguments
§7.05. Context and Structure Checklist

Chapter 8
Make Your Main Themes Stand Out

§8.01. Introduction
§8.02. Make the Outline of Your Argument or Discussion Stand Out
§8.03. Put Your Conclusion First
§8.04. Write Effective Paragraphs
1. Use Topic Sentences
2. Write Cohesive Paragraphs
a. Write Focused Discussion Sections
b. Avoid Extraneous Sentences
3. When Necessary, Use Transitions and Repeat Words
Exercise

Chapter 9
Help the Reader to Understand You

§9.01. Introduction
§9.02. General Advice
1. Get to the Point
2. Use Concrete Language
3. Use the Active Voice
4. Avoid Legalese
5. Define Technical Terms
6. Write in the Appropriate Tone
Exercises
§9.03. Structure
1. Write Short Sentences
2. Put the Parts of Your Sentence in a Logical Order
3. Avoid Intrusive Phrases and Clauses
4. Use Full Sentences
5. Use Parallel Structure
§9.04. Content
 1. Use Positives Rather Than Negatives
2. Avoid Ambiguous Words and Phrases
3. Avoid Colloquialism
4. Do Not Personalize
5. Avoid Excessive Variation
Exercises

Chapter 10
Meeting the Client

§10.01. Introduction
§10.02. Purpose of the Initial Interview
§10.03. Planning the Initial Interview
§10.04. Greeting the Client
§10.05. Preparatory Explanation
§10.06. Getting the Client’s Perspective
1. Getting Started
2. Keeping Track
3. Getting the Details
4. Goals and Priorities
§10.07. Preliminary Assessment of the Client’s Problem
§10.08. Developing Options
§10.09. Fees
§10.10. Closing the Interview
Exercise
§10.11. Client Interview Checklist

Chapter 11
Introduction to the Memo

§11.01. What Is a Memo?

§11.02. The Purposes of a Memo
§11.03. The Parts of a Memo
1. The Heading
2. The Issue
3. The Conclusion
 4. The Facts
5. The Discussion
§11.04. The Hallmarks of a Well-Written Memo
1. Thorough Research
2. Good Judgment
3. Objective Analysis
4. Clear Writing Style
a. Good Organization
b. Write for the Reader
c. Precision and Clarity
5. Creativity
6. Correct Citation Format

Chapter 12
The Memo: Heading, Issue, and Conclusion

§12.01. The Heading

§12.02. The Issue
§12.03. The Conclusion

Chapter 13
Practice with Drafting Memos: Headings, Issues, and
Conclusions

§13.01. Exercise I
§13.02. Exercise II
§13.03. Exercise III
§13.04. Exercise IV

Chapter 14
The Memo: Facts and Discussion

§14.01. Facts
§14.02. Discussion
§14.03. Make Your Reasoning Readily Apparent
1. Avoid the “Digest” Approach
 2. Avoid the “Historical Development of the Law” Approach
3. Avoid the Use of Too Many Quotations from Legal Authorities
4. Avoid the “Abstract Writing” Approach
5. Avoid the “Law Discussion Only” Approach
6. A Good Example
Exercise

Chapter 15
Practice with Memos: Facts and Discussion

§15.01. Introduction
§15.02. Drafting the Facts Section
§15.03. Editing the Facts and Discussion Sections of a Memo
§15.04. Drafting the Discussion

Chapter 16
Writing the Client Opinion Letter

§16.01. Introduction
§16.02. Write in an Appropriate Style
1. Focus on Your Audience
2. Be Concrete
3. Avoid Sounding Colloquial
4. Avoid Jargon and Stilted Language
5. Use Correct Spelling and Grammar
§16.03. Answer the Question
1. Include Important Facts Provided by the Client
2. Be Accurate
3. Explain Your Answer
4. Do Not Promise What You Cannot Deliver
5. Address Your Client’s Concerns
§16.04. Tell the Client Where You Are Going
Exercise

Chapter 17
Practice with Client Letters
§17.01. Introduction
§17.02. Editing a Letter
§17.03. Drafting a Letter

Chapter 18
Advising the Client

§18.01. Purpose of the Consultation

§18.02. The Scenario
§18.03. Planning the Consultation
§18.04. Beginning the Consultation
§18.05. Reaffirming the Client’s Goals and Priorities
§18.06. Developing Options
1. Likely Consequences
2. Advantages and Disadvantages
§18.07. Choosing a Course of Action
§18.08. Getting Settlement Authority
Exercise
§18.09. Consultation Checklist

Chapter 19
Negotiating

§19.01. Introduction
§19.02. Purposes of Negotiation
§19.03. Theories of Negotiation
1. Adversarial Models
a. Game Theory
b. Economic
c. Social-Psychological Bargaining
2. Problem-Solving Negotiation
§19.04. Styles of Negotiation
§19.05. Planning for Negotiation
1. Evaluating the Case
2. Planning to Exchange Information
3. Establishing an Opening, Target, and Bottom Line
 4. Analyzing Needs and Interests
5. Planning for Personalities
§19.06. Beginning the Negotiation
§19.07. Information Exchange
§19.08. Trading
§19.09. Closing the Negotiation
§19.10. Negotiation Ethics
§19.11. Negotiation Checklist
Exercise

Chapter 20
Mediation

§20.01. Introduction
§20.02. What Is Mediation?
§20.03. What Do Mediators Do?
§20.04. Confidentiality
§20.05. The Stages of a Mediation
1. Preparation
2. Mediator Introduction
3. Party Opening Statements
4. Agenda Development
5. Caucuses/Conferences
6. Brainstorming/Negotiating
7. Resolution
§20.06. Writing for Mediation
1. The Agreement to Mediate
2. Mediation Briefs
Exercise

Chapter 21
Settlement Agreements

§21.01. Introduction
§21.02. What Do Settlement Agreements Look Like?
1. Descriptive Title
 2. Caption
3. Transition/Language of Agreement
4. Recitals/Background
5. Definitions
6. Operative Language
7. Contingencies
8. Declarations
9. Closing
§21.03. Who Does the Drafting?
§21.04. Releases
Exercise

Chapter 22
Communicating Electronically

§22.01. The Trend : Communicating with Email

§22.02. Know Your Audience
§22.03. Format Your Email Appropriately
§22.04. Send a Message That Is Not Too Simple or Too Complex
§22.05. Email with Caution
1. Anticipate the Unexpected Reader
2. Maintain a Professional Tone
§22.06. Email Advice
1. Begin Your Email with a Summary of the Query
2. Be Aware of Differences in Email Systems
3. Watch Out for the “Reply All” Button
4. Proofread
5. Be Cautious with Humor and Avoid Sarcasm
6. Avoid Emotions
§22.07. Sample Emails
Exercise

Chapter 23
Drafting Pleadings

§23.01. Introduction
§23.02. The Purpose and Language of Pleadings
§23.03. Following Rules
§23.04. Captions
Exercise
§23.05. The Complaint
§23.06. The Answer
§23.07. Verifications

Chapter 24
Practice with Pleadings

§24.01. Introduction
§24.02. Plaintiff’s Facts
§24.03. Drafting the Fact Allegations
§24.04. Drafting the Legal Claim
§24.05. Critiquing a Complaint
§24.06. Drafting the Answer
§24.07. Critiquing an Answer

Chapter 25
Writing Persuasively

§25.01. Introduction
§25.02. Make Your Argument Clear and Credible
1. Make Your Argument as Simple as Possible
2. Write in a Persuasive but Credible Style
§25.03. Write a Well-Organized Argument
1. Structure Your Argument
2. Put Your Best Arguments First and Develop Them More Fully
§25.04. Adopt a Persuasive Writing Style
1. Be Concrete
2. When You Want to Emphasize a Word or Idea, Place It at the
End of the Sentence
3. When Appropriate, Use the Same Subject for a Series of
Sentences
§25.05. State Your Facts Persuasively
§25.06. Make Equity and Policy Arguments
§25.07. Use Precedent Persuasively
1. Argue that Adverse Precedent Is Consistent with Your
Argument
2. Interpret Precedent Narrowly or Broadly, as Appropriate

Chapter 26
Writing Pretrial Motions and Trial Briefs

§26.01. Purposes of Motions

§26.02. Form of Motions
§26.03. Motions to Dismiss
Exercise
§26.04. Motions to Compel Discovery
§26.05. Motions for Summary Judgment
Exercise
§26.06. Ethical Considerations in Motion Practice
§26.07. Checklist for Motions
§26.08. Trial Briefs
§26.09. Examples

Chapter 27
Appellate Process and Standard of Review

§27.01. Introduction
§27.02. How Cases Come Up on Appeal
§27.03. The Record on Appeal
§27.04. The Standard of Review
1. Clearly Erroneous
2. Abuse of Discretion
3. De Novo Review
4. The Importance to the Practitioner
§27.05. Available Forms of Relief

Chapter 28
Introduction to Writing Appellate Briefs
§28.01. What Is a Brief?
§28.02. Procedural Rules for Appellate Briefs
§28.03. The Parts of a Brief
1. The Title Page
2. Table of Contents
3. Table of Authorities
4. Jurisdictional Statement
5. Questions Presented
6. Constitutional and Statutory Provisions
7. Statement of Facts
8. Summary of Argument
9. Argument
§28.04. The Hallmarks of a Well-Written Brief

Chapter 29
The Appellate Brief: The Introductory Parts

§29.01. Using the Record

§29.02. The Title Page
§29.03. Table of Contents
§29.04. Table of Authorities
§29.05. Jurisdictional Statement
§29.06. Questions Presented
§29.07. Text of Constitutional, Statutory, and Regulatory Provisions
Exercises

Chapter 30
The Appellate Brief: Statement of Facts; Summary of
Argument

§30.01. Statement of Facts

1. Tell What Happened
2. Tell the Truth, but Put Your Best Foot Forward
3. Hold the Court’s Attention
Exercise
§30.02. Summary of Argument
Chapter 31
Practice in Writing the Statement of Facts and Summary of
Argument

§31.01. Exercise I
§31.02. Exercise II
§31.03. Exercise III
§31.04. Exercise IV

Chapter 32
The Appellate Brief: Argument and Conclusion

§32.01. The Argument

1. Structuring the Argument
a. Use Headings
b. How to Write the Headings
c. Using Headings as an Advocate
d. How Many Headings?
e. Final Considerations
2. Preparing the Substance of the Argument
a. General Considerations
i. Understanding the Appellate Process
ii. Familiarity with the Record
iii. Research: Do It Right but Know When to Stop
iv. Compliance with the Rules of Court
v. Simplicity in Substance and Style
b. Formulating the Arguments
c. The Organization and Substance of the Arguments
d. What to Avoid
e. Using Precedent
i. Hierarchy of Precedent
ii. Handling Adverse Precedent
iii. Rebuttal of Opposing Arguments
iv. Parentheticals, String Cites, Signals, Quotations, and
Footnotes
f. Writing Persuasively
 i. Control Tone
ii. The Final Touches
§32.02. The Conclusion
§32.03. A Checklist

Chapter 33
Basic Principles of Oral Communication

§33.01. Introduction
§33.02. Consider the Audience
1. Do Your Homework
2. Adapt to Your Audience
§33.03. Consider the Setting
1. Study the Physical Surroundings in Advance
2. Understand the Occasion
§33.04. Structure for Maximum Effect
1. Structural Strategy
2. Methods of Proof
3. Organizational Patterns
a. Chronological
b. Cause to Effect
c. Problem to Solution
d. Pro Versus Con
e. Topical
4. Introductions, Conclusions, and Transitions
§33.05. Write for Sound Appeal
1. Useful Tools
a. Humor
b. Novelty
c. Conflict
d. Suspense
e. Emphasis
f. Theme
g. Language
i. Rhetorical Questions
ii. Repetition
iii. Imagery
 2. Not So Useful Tools
§33.06. Apply the Fundamentals of Good Public Speaking
1. Maintain Eye Contact
2. Be Heard
3. Do Not Read
4. Use Emphasis
5. Use the Pause
6. Use Appropriate Gestures
7. Watch Your Posture

Chapter 34
The Appellate Argument

§34.01. Introduction
§34.02. The Setting of the Oral Argument
§34.03. Preparing the Oral Argument
1. Know the Record
2. Study the Authorities
3. Know the Arguments
4. Outline Your Arguments
5. Prepare Argument Aids
6. Rehearse the Argument
7. Advise the Court and Your Opponent of New Information
§34.04. The Structure of the Oral Argument
1. Basic Argument Structure
a. The Introduction
b. The Roadmap and Key Facts of the Case
c. The Argument
d. The Conclusion
2. Rebuttal
§34.05. Questions From the Judges
§34.06. Oral Argument Checklist

Appendices

I. Memoranda
II. Client Letters
III. Settlement Agreements
IV. Pleadings
V. Briefs and Oral Arguments
VI. Grammar and Punctuation

Index
We have used the materials in this book to teach legal writing and analysis
to students at Villanova Law School, George Washington University Law
School, and Chapman University School of Law. We wish to thank them for
all they have taught us about teaching the subject. Most of the sample
documents in this book are the products of our students and former
students. The names of the authors of documents reproduced in the
appendices appear with their documents.
We would also like to thank our research assistants for their invaluable
contributions to this latest edition. Nancy Schultz thanks Jared Berman and
Billy Zakis for their very capable assistance. Lou Sirico thanks Tehrim
Umar for the same.
 Legal Writing
and Other Lawyering Skills
§1.01. INTRODUCTION
To be a successful lawyer, you must write and speak effectively. In
your profession, you will spend much of your time crafting legal documents
and speaking with clients, courts, and other lawyers. In this book, we help
you learn some of the skills you will need to be a lawyer. You will learn
how to draft case briefs, memoranda, opinion letters, pleadings, motions,
briefs, and settlement agreements. You also will learn about client
counseling, negotiations, mediation, and how to make oral arguments in
court. You will master an approach that emphasizes precision, good
organization, and plain English. By learning to communicate clearly, you
will increase your effectiveness as a lawyer.
Law school is an exciting, but demanding experience. It places far
more demands on your time than your undergraduate education probably
did. Coping with these demands requires you to lead an organized life. In
Chapter 2, we offer suggestions on how to organize your time and how to
tackle writing assignments that will be new to you. If you prioritize your
obligations and set aside time to meet them, you still will have time to relax
and socialize.
Our educational philosophy is to teach you how to write and argue in a
traditionally accepted style. As you gain experience, you will develop a
style that reflects your personality and particular strengths. At this stage,
however, you should learn the standard method as a foundation for later
growth.
 This chapter gives you an overview of the book. It briefly discusses the
legal system and legal analysis and then describes the major types of legal
writing. It also explains our approach to writing style, discusses citation
form, and introduces the lawyering skills you need to learn.

§1.02. THE LEGAL SYSTEM AND LEGAL ANALYSIS

Before you can make legal arguments or draft legal documents, you
need to learn about the American legal system and about accepted methods
of legal analysis. You need to learn more than television and the movies
have taught you. You also need to unlearn some of what they have taught
you.
Television and the movies offer a simplified view of the law. Though
they frequently portray trials, they rarely show lawyers engaging in legal
research and drafting documents. The media spend little time on pretrial
proceedings and on courts that hear appeals from trial decisions. The media
almost never tell us that this country has many court systems: every state
has its own courts, and the federal government has not only the United
States Supreme Court, but also trial courts, appeals courts, and various
specialized courts.
The media also fail to offer even a glimpse of how lawyers construct
legal arguments. Though television and the movies frequently present
arguments based on common sense, they do not show how these arguments
must be stylized to become legal arguments that judges will find persuasive.
Legal analysis is not particularly difficult or different from other
methods of reasoning. Nonetheless, you must expend considerable effort to
become good at it. In this book, we teach you about the legal system and
legal reasoning. Over the next several years, these subjects will occupy
much of your time. Becoming proficient in the methods outlined in this
introduction will aid you in your other courses.

§1.03. TYPES OF LEGAL WRITING

1. The Case Brief
A case brief is a summary of a court opinion. As a student, you
undoubtedly are writing case briefs in most of your courses. Writing the
brief helps you prepare for class. During class, the brief serves as an
accessible set of notes on the case. Chapter 4 offers help in reading and
briefing cases.
The word “brief” has another meaning. It also refers to the written
argument that a lawyer presents to a court deciding a case. See Section
1.03[8].
2. The Memorandum
By “memorandum” or “memo” we mean the interoffice memorandum.
It discusses the law concerning a client’s legal problem and predicts how a
court or other body would decide the issue presented. The memo, then, is
essential in determining how to proceed. The writer of the memo first must
research the law thoroughly and then explain how it supports his or her
conclusion. In legal practice, memos may take many forms, as we discuss
later in the book.
The word “memorandum” sometimes is used to describe the written
argument that a lawyer presents to a court or an administrative agency. The
lawyer may write this type of memo to support or oppose a pretrial motion,
to summarize the argument in a trial or administrative hearing, or to support
the client’s argument before an appellate court. In the latter case, most
courts would call the document a brief. In all cases, the document is similar
to a brief in that its goal is to persuade rather than to summarize the law.
See Section 1.03[8].
3. The Client Opinion Letter
The client opinion letter advises the client how the law applies to a
particular problem and suggests a course of action. The lawyer should
explain any legal concepts in lay language.
4. Settlement Agreements
This is another important form of legal writing. When disputes are
settled by negotiation or mediation, the agreement must be formalized in a
way that clearly and accurately reflects the agreement the parties have
reached. The agreement should anticipate possible future areas of dispute
and provide a mechanism that will prevent future litigation between the
parties.
5. Communicating by Email
 The legal profession is not immune to the electronic revolution. Today,
lawyers communicate by email and other types of electronic media. In the
recent past, new lawyers usually forwarded their research and other
assignments in printed memoranda that would require at least several pages.
Now, they frequently send out their work by email and expect their
supervisors to read it on an iPhone.
Email demands that the lawyer be concise but still accurate. Although
all legal writing calls for conciseness and accuracy, electronic
communication takes those requirements to a new level.
6. Pleadings
Pleadings are the written papers that a lawyer serves on the opposing
side and files with the court to begin litigation. In a noncriminal case, for
example, the plaintiff’s lawyer files a complaint asserting that the client has
suffered a legal wrong and that the defendant is liable. The defendant’s
lawyer files an answer and may file a counterclaim asserting claims against
the plaintiff. Other pleadings may also be filed.
Complaints are the first opportunity the lawyer has to state the case in
writing. They must be drafted clearly and precisely, and establish sufficient
facts to support the alleged cause of action or the court may refuse to hear
the case and dismiss the complaint.
7. Motions
Before, during, or after trial, a lawyer may file a motion asking the
court to deal with a particular issue. For example, the defendant’s lawyer
might move to dismiss the plaintiff’s claim and argue that even if all the
plaintiff’s assertions are true, the defendant still would not be liable.
Motions are persuasive documents and should follow the principles of
advocacy writing. There are very few universal rules that govern the format
of motions, so you will need to learn the procedures that are followed in
your jurisdiction and in the law office where you work.
8. Briefs
By “brief,” we primarily mean the appellate brief. It is the written
document that the lawyer submits to the court when the client’s case is on
appeal. It includes a factual explanation of the case and an argument based
on detailed legal analysis of relevant cases and other authorities as well as
fairness and social policy concerns. Some courts call the brief a
memorandum. See Section 1.03[2]. “Brief” may also refer to the written
argument that the attorney presents at the pretrial or trial level, or even prior
to a mediation.
Different courts have different rules for the format of the brief. In this
book, you will learn a standard form that you can easily adjust to meet the
requirements of a particular court. We also provide specific examples of
different kinds of briefs.

§1.04. WRITING STYLE

This book is about writing and speaking like a lawyer. A lawyer should
write and speak clearly, concisely, and forcefully. So should other
professionals. Our profession faces a particular problem: it has inherited a
tradition of poor writing. Many of the court opinions in your casebooks
offer sad examples of this tradition. If the judges had written the opinions
clearly, you would understand the decisions better and spend less time
reading and briefing them.
Lawyers frequently justify lapses in comprehensibility by emphasizing
the need to convey highly technical information and complex ideas. We
reject such excuses. As a lawyer, you can write and speak clearly. Lawyers
and scholars concerned with this matter agree. Current books and articles
make clear that short sentences and plain English are the trend. Rambling
sentences and legalese are out. You may recognize this philosophy if you
have read The Elements of Style by Strunk and White1 and On Writing Well
by William Zinsser.2
Some first-year students are shocked when they receive their writing
assignments back from the writing instructor. They find their papers
covered with red-penned criticisms. Often the real shock comes to students
who always believed they were excellent writers. In undergraduate school,
they received praise and good grades and gained confidence in their ability.
For them, legal writing seems to be a totally new form of writing.
Throughout this book, we use the written work of our students to
provide good and bad examples of legal writing. The bad examples were
written by intelligent, capable students. Most of the students came to law
school confident about their writing abilities. They discovered they had
more lessons to learn if they were to be good legal writers. They mastered
those lessons and improved their legal writing style.
 Your pre-law writing experience may not be a valid predictor of your
initial performance in legal writing. Legal writing can be equally difficult
for students of all backgrounds.
You may have been an English major who wrote brilliant essays or
poetry for years. You may experience strong feelings of hurt and
discouragement if you receive a paper that the writing instructor has torn
apart. The instructor then gently tries to lessen the pain by explaining that
you now are learning a new and very different method of writing. It is best
for you to accept this fact now, before you hand in your first assignment.
On the other hand, you may have been an accounting or science major
in undergraduate school with little writing experience and with many fears
about legal writing. You may be delighted to discover that you can write
very well in the legal setting.
We do not claim that the writing style we teach is superior to all other
writing styles. Many great works of literature conform to other styles. Much
good journalism lacks the precision that we demand. We make only one
claim: the writing style that we teach is the best style for legal writing.
Many lawyers cling to the old ways. Some of your future employers
may be among them, and you may have to compromise if you cannot
persuade them to give you a free hand. But the tide is turning. Your efforts
at communicating clearly will pay off. Judges, clients, and other lawyers
will be more likely to understand you. They will also find you more
persuasive. Lawyers who refuse to abandon verbosity and jargon may find
themselves viewed as dinosaurs in a modern world.

§1.05. CITATION FORM

As a lawyer, you will rely heavily on constitutions, statutes, prior
cases, and other authorities. To cite authority means to refer to specific
statutes, cases, and the like when you prepare an analysis of a legal point or
make a legal argument. You may cite authority to provide important
information, to support your argument, or to acknowledge adverse authority
that you must distinguish or contest.
When you cite authority in a written document, you must include
enough information so that the reader can make an initial decision about the
authority’s importance. For example, the reader may find it important to
know how old a case is, whether the court is a local one, and whether the
court is prestigious. You also must include enough information to enable the
reader to find the authority in the library or online. For a case, a successful
library search requires knowing the case’s name, the set of books in which
it appears, the volume, and the page number. A successful online search
requires knowing the case name, jurisdiction, and date.
Two competing manuals set out rules on what information you must
include in a citation and what format you should use. They are the ALWD
Citation Manual (created by the Association of Legal Writing Directors and
Darby Dickerson) and The Bluebook: A Uniform System of Citation
(published by a small group of law reviews). Fortunately, for most citations
that you will use in a first-year law course, the citation rules of both
manuals are virtually the same. However, the ALWD Citation Manual is
much more student oriented and much easier to understand than the
Bluebook. The ALWD Citation Manual is the manual we follow for
citations used in this book.

§1.06. COMMUNICATIONS SKILLS

1. Client Interviewing and Counseling
Lawyers have occasion to generate written documents only if they
have clients to represent. You must be able to convince a potential client
that you are the right person to handle the important and delicate matter that
he or she proposes to hand over to your keeping. You will be able to do this
if you plan your interviews to maximize the likelihood that you will get all
necessary information and be able to accurately assess the client’s problem
and develop appropriate options for resolving it. You will have satisfied
clients and lots of work if you can help clients to resolve their legal
dilemmas in ways that meet their needs and take their goals and priorities
into account. To be able to do this consistently requires skill and practice.
We will introduce you to some of the fundamental skills and concepts that
underlie this vital work. We will also explain how research and writing
relate to client representation.
2. Negotiation and Mediation
The vast majority of legal problems are resolved outside of court.
Negotiation is a critical lawyering skill. In this book, we introduce you to
some issues of fundamental importance to effective negotiation—
preparation, information exchange, keeping track of concessions, and the
tone and style of the negotiation. We discuss both adversarial and problem-
solving “win/win” strategies for negotiating. You will discover that
negotiating is a very human process, with few rules and lots of psychology.
You will also discover that good legal research and writing skills make you
a more effective negotiator and lawyer.
Mediation takes place when negotiations fail and the parties need
assistance in communicating to resolve a dispute. In this book, we introduce
you to the fundamentals of mediation—what a mediator does and how
lawyers function in a mediation. There are several forms of writing that
relate to mediation: agreements to mediate, premediation briefs, and
settlement agreements. We teach you about all of them.
3. Oral Argument
Lawyers make oral arguments before legislatures and administrative
bodies and in courts. In this book, you will learn specifically how to make
an oral argument when a court is hearing your client’s case on appeal. In an
appellate court, you submit your written argument in a brief, and you also
may get the opportunity to address the court in oral argument.
Appellate argument differs in style from college debate and other
speaking occasions. A formal etiquette governs what you say and how you
say it. By using this book, you will learn when to sit, when to stand, how to
begin your argument, and the like. You also will learn how to structure your
argument, what to emphasize, and how to answer questions. In addition,
you will learn how to be persuasive.
Learning effective legal writing and oral advocacy is a demanding and
exciting task. We wish you well.

1. William Strunk & E.B. White, The Elements of Style (4th ed., Allyn & Bacon 2000).
2. William Zinsser, On Writing Well (30th ann. ed., Harper 2006). A number of books urge
lawyers to write in plain English. They include Irwin Alterman, Plain and Accurate Style in Court
Papers (ALI-ABA 2002); Gertrude Block, Effective Legal Writing (5th ed., Foundation Press 1999);
Louis J. Sirico, Jr. & Nancy L. Schultz, Persuasive Writing for Lawyers and the Legal Profession (3d
ed., LexisNexis 2011); Richard Wydick, Plain English for Lawyers (5th ed., Carolina Academic
Press 2005).
§2.01. MANAGING YOUR TIME IN LAW SCHOOL
For many students, dealing with the demands of law school is a
challenge. In undergraduate studies, you probably had sufficient time to
complete the required work. At that level, students sometimes postpone
their studies until a few days before the final exam or write a paper the
night before it is due. Law school, however, is different. You must complete
your homework before each day’s class. And writing assignments require
more than a single, hasty draft.
The demands of law school require students to manage their time very
carefully. In this chapter we first offer guidance on managing your time and
then turn to completing your writing assignments efficiently, including
some tips on dealing with writer’s block. It’s worth noting, however, that no
one method of time management works for everyone. Therefore we offer
general guidelines that you can adapt to your own personality and needs.

§2.02. MANAGING YOUR WORKLOAD BY PLANNING AHEAD

The best advice on managing your time is to plan ahead. Without
advance planning, you run the risk of dealing with your law school
workload by handling the current urgent assignment. In no time at all, you
will fall behind in meeting your obligations and begin to wonder how you
will ever stay afloat. On the other hand, if you plan ahead, your law school
assignments will become a manageable, daily flow of work.
Start by making a timeline for at least the next six weeks, or,
preferably, for the rest of the semester. Mark the deadlines for your long-
term projects—for example, major legal writing assignments, other
important assignments, mid-term exams, and final exams. If you do not
know those dates, ask. You may know of other big, personal dates—for
example, an undergraduate homecoming, a wedding, or a family reunion.
Mark those dates on your timeline as well. To the extent that you can, break
down your major projects into small, intermediate tasks and set deadlines
for completing them. For example, set deadlines for outlining segments of
your courses, for completing the research on a writing assignment, and for
meeting with your career advisory staff.
Now that you have scheduled plans for long-term projects, turn your
attention to your day-to-day tasks. Those tasks include preparing for each
class, reviewing your notes after each class, and completing short, written
assignments. Use your timeline to plan your week. For example, decide
when you will study for each class, when you will work on research for
your next big writing project, and when you will craft your resume. Don’t
forget to schedule time for relaxation, exercise, meals, and parties.
Each evening, briefly review your day to make sure you are roughly on
schedule. When you conduct your review, you will sometimes discover that
you are behind your schedule or possibly even ahead of it. In either case,
you now have the chance to revise your schedule for the coming days to
make sure that you can complete all your tasks.
Of course, although this plan sounds quite logical and manageable,
reality may intrude and complicate your schedule. You may come down
with the flu, break up with the love of your life, or realize that a given
project will require far more time than you expected. You should not
respond by tossing out your timeline. Instead, adjust it. If you allocate more
time to one project, you may have to make the difficult decision of reducing
your commitment to another. You may decide to skip a party or your
favorite television show, or even devote only adequate time to preparing for
tomorrow’s classes. In any event, make sure that you have clearly identified
the high-priority tasks in your life and are allocating to them the time that
they deserve.

§2.03. MANAGING YOUR WRITING ASSIGNMENTS

1. Different People Have Different Writing Methods
 Often, Legal Writing professors emphasize only one method of
completing a writing assignment: complete the research, make an outline,
fill in the outline with text based on your legal research, edit your draft, and
keep revising your drafts until you are satisfied. For some students, this
linear method works perfectly. However, for other students, it does not
work at all.
How we plan our writing and then execute it depends on our particular
personalities and cognitive styles. In order to draft a document, some
writers need to work through, say, seven drafts. Other writers spend a good
deal of time thinking about a draft before committing their thoughts to
paper; for them, the first draft may need only limited revision. Some writers
prefer to construct a detailed outline and then insert text. Others freely write
or follow their own organizational system and then proceed to organize
their writing in a linear outline format.
The point: In order to write successfully and efficiently, you need to
know what method works best for you. Your only obligation is to finish
with a well-organized document that conforms to an outline format and that
largely follows the lessons that this book offers.
2. Dealing with Writer’s Block
Sooner or later, probably every writer comes to a full stop; you cannot
seem to turn your thoughts into words. The causes vary. You are afraid that
your product will be inferior. You cannot find a way to organize your
thoughts. You tell yourself that you cannot write until you do more
research. Still, the deadline approaches, and you need to get moving.
To get the words flowing, no one method works every time. You need
to try different methods and see which works for you in a given situation.
Here are a few that you might try.
a. Stop Researching and Start Writing
Sometimes, we continue researching because we know that once we
stop, we will have to start writing. Researching, then, becomes an excuse
for not writing. Remind yourself that after you begin to write, you always
can return to your research. When you have spent enough time researching,
start writing. As you write, you may discover that you have very little
productive research yet to perform.
b. Write a “Zero Draft”
 Often, the way to break through the blockage is simply to start writing
—writing anything. You are not writing a first draft. You are writing a “zero
draft.” Forget about the outline. Forget about starting by writing the
introduction to the document and then systematically continuing to the end.
Just write what comes to mind. You may find that much of what you write
you can use without much revision. More importantly, the simple act of
writing may free you to continue with your project.
c. Write the Easy Parts First
This technique is sometimes called the “Swiss cheese method.”
Imagine a mouse confronting a slice of cheese. The mouse nibbles a hole in
the slice and then nibbles another hole. Eventually, the slice looks like
Swiss cheese. In the end, the mouse consumes the entire slice.
Imagine your project as a slice of cheese. The difficult parts of the
project are keeping you from writing. You are not sure how to write about
them. Instead, you identify the easiest parts of the project and start by
tackling them. You are like the mouse nibbling holes in the cheese. When
you finish nibbling away the manageable parts, you may find that the
difficult parts are few and are not as much of a challenge as you feared.
d. Use the Buddy System
Find a friend who has the same or a similar writing project as you.
Without engaging in any forbidden collaboration, talk about your projects
and agree on some deadlines—for example, when you will complete the
first round of research, when you will write the first few pages, when you
will conform your authorities to the prescribed citation manual. By using
this system, you and your buddy give one another support and motivate
yourselves to meet deadlines.
e. Talk with Your Professor
Your professor probably has dealt with many students who are fearful
of writing. With that experience, he or she can help you through your
difficulty. Lawyers become legal writing professors because they like to
help students develop into confident, successful lawyers. They want to help
you.

§2.04. GETTING YOUR DOCUMENT WRITTEN: FIVE

POINTERS
 If you plan the writing process, break it into stages that are expressly
scheduled, and leave yourself time to get the details right and to handle
problems, you will find that writing is less stressful and more productive
than it might otherwise be. It may seem that in making suggestions for
managing the writing process, we have added steps that will all take time.
This is true—these steps will all take time—but if carefully followed, they
also will prevent stress, save time that might otherwise be spent on needless
editing and revision, and leave you with a finished written product of which
you can be proud.
1. Plan Your Writing Process
The most important aspect of planning the writing process is having a
plan. That sounds simple, but like many simple statements, it is true. As we
emphasized at the beginning of this chapter, planning is essential. For some
writers, starting with a “zero draft” is a helpful way to get started. However,
sitting down at the computer the night before an assignment is due and just
writing will likely result in a stream-of-consciousness product. In the end, it
will require more editing and revision than you have time for, and the
finished product will not resemble a carefully planned and structured
document. So do not think that you can save time by skipping the planning
and preparatory steps. Structuring your approach to writing will ultimately
save time and will almost certainly result in a better final product.
2. Plan for Multiple Drafts
In law school, you need to schedule at least a first draft and a final
draft. If you have time, you may want to think about an additional,
intermediate draft. Each draft should be a full, written version of the
document; it is not a good draft if you leave gaping holes in the discussion
with a note that you will get to it later. You need to see your writing in front
of you in order to figure out if it works. Do the arguments make sense? Are
they clear? Are there gaps in the logic? Are they adequately supported by
authority? If you write more than one full draft, you will have the chance to
correct both analytical and stylistic problems with your writing.
As a near-final step, consider printing your document. It may look
different in hard copy than it does on the computer screen. If so, you may
want to revise the format.
3. Be Realistic in Planning Your Deadlines
 You will have a deadline for almost any legal document you write,
whether it is a paper for class, a memo for a supervisor, or a brief for court.
So you should start your writing process by being honest with yourself
about how much time each step of the process will take—research, outline,
first draft, final draft. You should assume that each step will take a
significant amount of time, and you need to schedule these steps around
whatever else is going on in your professional and personal lives. So be
realistic. How much time do you have between the day you get the
assignment and the day it is due? How much time do you have each day and
week to devote to the assignment?
You should give yourself a minimum of 24, and preferably 48, hours
before your deadline to leave the document untouched before a final review
for minor errors. You will miss errors if you keep working on the document
right up until the deadline. By reviewing your document after some time
away from it, you will be able to compare what you meant to say with what
you actually said, and make any necessary changes. And you will be better
able to catch typographical and grammatical errors, as well as citation
errors.
Thus, you should complete your final draft two to three days before the
deadline. You should complete your rough draft a week before that. And
you should complete your outline a week before your first draft. You should
give yourself a significant amount of time to prepare an outline after you
have completed your research; a good outline will make writing the first
draft significantly easier and more efficient.
Obviously, you need to adjust your internal deadlines according to how
much time you actually have to prepare the assignment. Our guidelines are
intended to give you a relative idea of how much time you need to leave for
each phase.
4. Build in Some Time for Complications
As a group, legal writing professors are becoming less tolerant of late
papers. If you fail to meet a deadline, you may receive a reduced grade or a
failing grade. Because some personal problem may arise along the journey
to the deadline, be sure to build into your schedule a bit of extra time in
case you need it.
It has been said that machines have “critical-need detectors.” This
means that when you need them most—the printer, the copier, or the
computer—they are most likely to suffer malfunctions. If you wait until the
last possible moment to produce your finished product, you will not have
time to deal with technical difficulties. We have all heard the stories of
computer crashes in the middle of the night that result in missed deadlines,
or copiers that jam when we are trying to produce documents for court. If
you are stressed out because you have left your work too close to the
deadline, consider the possibility that that very stress may cause technical
problems because you are in a hurry and are not handling the equipment as
you should.
Even if you have done nothing to contribute to the problem, leaving
yourself extra time will allow you to find that other printer or copier. In
addition, back up your work while you are writing. This precautionary step
may save you from that disastrous computer crash. There are many options
for preserving your work—on a flash drive, in “the cloud,” and so on. Use
them!
5. Leave Time for the Details
Perhaps the single most common mistake made by inexperienced
writers is not leaving enough time to get the details right. Legal documents
tend to have several parts, whether multiple required sections such as are
found in briefs or simple cover sheets and technical requirements for
filings. You need to get in the habit of caring about the details, including
grammar, spelling, punctuation, and citation form. You cannot place your
sole reliance on software that checks spelling or auto-corrects errors. Those
programs cannot recognize every error. For example, they will not catch the
word that is a real word but is misused in a sentence.
The only sure way to catch the minor mistakes is to carefully
proofread your document with a fresh pair of eyes. To give yourself the best
chance of actually catching your mistakes, remember to put the document
aside for at least 24 hours before you proofread it. Details matter. Get into
the habit of making sure your writing is technically correct and professional
looking. This practice will give your writing the polished appearance that
will impress your professors, supervisors, clients, and judges.
§3.01. THE LEGAL SYSTEM AND LEGAL WRITING
Much of the legal writing you will do in your career will involve
analyzing legal problems. To analyze a legal problem, you must understand
the sources of our law and their relationships to each other. You must also
understand the workings of our legal system. This chapter provides a broad
introduction to our court system, the common law, and statutory law and
interpretation. Once you understand these aspects of the legal process, you
will be able to evaluate a legal problem properly and prepare an accurate
and well-reasoned legal analysis.

§3.02. SOURCES OF LAW AND THEIR HIERARCHY

There are three primary categories of law: constitutions, statutes, and
common law. The Constitution of the United States and the 50 state
constitutions set out the structure and powers of government, protect
individual liberties, and define the reach of statutory authority. Statutes are
passed by legislatures and govern a host of areas ranging from crime to
social security benefit levels. The common law is the law judges make
when they rule on cases. When a case is decided, it becomes a precedent for
future similar legal conflicts in the same jurisdiction.1
An applicable constitutional provision, statute, or common law rule
always governs the outcome of a legal problem. The existing case law will
assist you in interpreting the statute or constitutional provision in the
context of your particular case. When there is no relevant constitutional
provision or statute, as there often is not, the common law is the sole source
of authority for evaluating and resolving your case.

§3.03. THE COURT SYSTEM

Two court systems operate simultaneously in the United States: the
state court system and the federal court system. In both the state and federal
court systems there are two types of courts: trial courts and appellate courts.
The following is an overview of each system.
1. The State Courts
Each of the 50 states has a court system. Although the structure of that
system differs from state to state, it is always hierarchical. There are trial
courts, often an intermediate appellate court, and a court of last resort—the
tribunal at the top tier of the court system. In addition, there may be
numerous other courts that perform specialized roles, such as small claims
courts, juvenile courts, and housing courts.
A trial court is presided over by one judge, and may or may not
include a jury. The function of a trial court is to determine the facts by
evaluating the evidence in a case and to arrive at a decision by applying the
law to the facts. Trial courts at the state level may be divided into courts of
limited jurisdiction and courts of general jurisdiction. Pursuant to the
provisions of the state constitution and state laws, courts of limited
jurisdiction rule on certain specific matters such as violations of criminal
law. Courts of general jurisdiction are empowered to hear a broader range
of civil and criminal matters and often also review appeals from courts of
limited jurisdiction.
From the decision of a trial court, the losing party may appeal to the
next level, the appellate court. The appeal is heard by a panel of three to
five judges, of whom a majority must agree on a particular result. That
result forms the basis of the court’s opinion deciding the case. The appellate
court evaluates the lower court’s decision and determines whether it
committed any legal error that would warrant reversing or modifying the
decision or ordering a new trial. The decision of the appellate court may be
appealed to the state’s highest court, which often has discretion to choose
the cases it will hear. The decisions of the courts of last resort are final, and
there is no further appeal of state law issues.
 This diagram of the California courts illustrates a typical state court
system, though you will find that states name their courts differently—for
example, New York calls its court of last resort the Court of Appeals rather
than the Supreme Court.

Source: Superior Court of California County of Santa Clara, Self Service Center, Overview of the
State Court System, http://www.scscourt.org/general_info/community/courtsystem.shtml

2. The Federal Courts

The Constitution and certain federal statutes establish the federal
courts and empower them to hear certain kinds of cases. Federal courts hear
all cases that arise under federal law, such as those involving the United
States Constitution or federal statutes, disputes between two states, or cases
in which the United States is a party.
Like the state systems, the federal court system is divided into trial
courts, appellate courts, and a court of last resort. The trial courts are called
district courts. Each state has at least one district court, and that court’s
jurisdiction is limited to the territory of its district. In a district court case, a
judge sits with or without a jury, depending on the nature of the case and
the wishes of the parties.
The intermediate appellate courts in the federal system are called the
United States courts of appeals. The courts of appeals hear appeals from the
district courts located in the same circuit. A circuit is a designated
geographical area usually encompassing several states. The United States is
divided geographically into thirteen circuits. Eleven of these circuit courts
are identified by number, for example, the United States Court of Appeals
for the Third Circuit. There is also the United States Court of Appeals for
the District of Columbia and the United States Court of Appeals for the
Federal Circuit, which hears appeals in patent cases, certain international
trade cases, and some cases involving damage claims against the United
States. Usually, three judges sit on a panel to decide a particular case, and at
least two must agree for a decision to be reached.
The Supreme Court of the United States, consisting of the Chief
Justice and eight Associate Justices, is the highest court in the federal
system. The Court hears a limited number of cases from the courts of
appeals and, on certain issues, from the district courts and the highest state
courts. The Court must accept review of certain types of cases, but these are
rare. Typically the Court selects which cases it will hear by issuing a writ of
certiorari. Cases heard by the Supreme Court generally involve new or
unresolved questions of federal law affecting people throughout the country
and interpretations of federal statutes or the United States Constitution.
This diagram illustrates the federal court hierarchy:

§3.04. THE COMMON LAW

 The phrase “common law” refers to legal principles created and
developed by the courts independent of legislative enactments. It is the
body of law judges create when they decide cases. The doctrine of stare
decisis mandates that a court follow these common law precedents. Under
our system of precedent, however, courts must follow only those precedents
that are mandatory or have binding authority. Case law that is not binding is
often referred to as persuasive authority.
1. Mandatory Authority
Mandatory authority is authority that you must rely on because it binds
the court in your jurisdiction. It is unethical to omit from a legal argument
mandatory authority that is adverse to your client’s interests.
When you are presented with a legal problem, you research the
statutory and case law of the controlling jurisdiction to resolve that
problem. If there is an applicable statute, the court is bound to follow that
statute as previously interpreted by the courts. If there is no statute, you will
look for case law that is binding on the court where the case is pending.
A precedent becomes binding on a court if (1) the case was decided by
that court or a higher court in the same jurisdiction, and (2) the material
facts of the pending case and the decided case, as well as the legal
reasoning applicable to the two cases, are indistinguishable. For example, a
state trial court is bound by the decisions of that state’s intermediate
appellate courts and its highest court. A federal district court is bound by
the decisions of the court of appeals of the circuit in which the district court
is situated and the decisions of the Supreme Court. District courts are not
bound by the decisions of other district courts or by those of the courts of
appeals of other circuits. The courts of appeals are bound by their own
decisions and those of the Supreme Court. They are not bound by the
decisions of other courts of appeals.
Suppose you are arguing a case in a jurisdiction and your research
discloses a case from a higher court in the same jurisdiction with identical
material facts and applicable reasoning. The material facts are the facts the
court actually relies upon in reaching the decision. The court you are before
is bound by the holding of the previous case; the earlier case is “on point”
with your case. The holding is the court’s decision on the issue before it. All
other discussion of tangential issues is called dicta and is not binding. You
will rarely, if ever, have a case that is directly “on point” with your case—
most cases will be distinguishable on some material basis.
2. Persuasive Authority
Sometimes your research will show that your jurisdiction has neither a
statute nor legal precedent to govern your case. You must then rely on
persuasive authority to help analyze the issue. Persuasive authority is non-
mandatory legal authority. It is authority that may persuade a court to
decide a certain way but does not require a particular decision. Persuasive
authority includes:

• Primary authority that does not control your case because the rules are not
directly applicable or the relevant facts are distinguishable. For example,
assume that in a particular case a court finds that the defendant was liable
for assault for brandishing a real gun at plaintiff. This holding may not
apply to a subsequent case in which a defendant brandishes what is
obviously a toy gun at a plaintiff.
• Secondary authority, such as treatises, hornbooks, or law review articles,
which present only authors’ viewpoints about law but are not themselves
the law.
• Dicta in court opinions, which are discussions that are explanatory, but
not necessary, to the decisions. For example, the court in the gun assault
case may suggest that brandishing a knife also can constitute an assault.
An actual case involving brandishing of a knife, however, may not
involve an assault unless all the circumstances create that offense. The
victim, for example, may have felt no real threat from the defendant’s
brandishing the knife, and therefore no assault occurred. The court
deciding the knife case will not be constrained by the suggestion in the
earlier case that brandishing a knife may be an assault.
• Precedents from other states that have decided your issue are persuasive
authority. In the federal system, precedents from other district courts and
other courts of appeals are persuasive authority.

3. The Weight of Authority

When you draft your legal papers for the court, you must decide which
cases to include in your discussion to present the most compelling
argument. Certain cases will be more persuasive than others. How
persuasive a case is, that is, what weight it carries, depends on a number of
factors, including:

(a) The level of the court. The decision of a higher court is more authoritative than
that of a lower court.
(b) Factual similarity. When the cases you cite have facts similar to your case, their
value as precedent increases.
(c) The year of the decision. A more recent opinion is more useful than one that is
dated.
(d) The judge. Look for an opinion written by the judge presiding over your case or
by a judge with a good reputation.
(e) Majority decisions. Language from a majority decision carries more weight than
that from a concurring or dissenting opinion.
(f) The state in which the court deciding the case sits.
(i) Geographic proximity. A case from a state that is relatively close
geographically is often more helpful than one from a state that is far away.
(ii) Certain states, like New Jersey, are often at the forefront of emerging case law.
(g)The number of other courts that have cited the case approvingly; that is, a
developing trend in the law.

§3.05. STATUTES AND THEIR INTERPRETATION

1. The Supremacy of the Legislature and the Legislative Process
Under our system of government, the United States Congress and the
state legislatures are the supreme lawmakers, subject only to the limitations
of the federal and state constitutions. Therefore, statutes provide the binding
rules of decision that courts must follow. Statutes prevail over common law
if there is a conflict between the two. Here is a brief discussion of how
statutes come into being.
A member of Congress introduces a bill in either the House or the
Senate.2 It is then referred to the appropriate committee, which conducts
hearings and issues a report. There is discussion of the bill on the floor, and
a vote is taken. If it passes, it goes to the other chamber, where it goes
through a similar process. If different versions of the bill are passed by the
House and Senate, the bill may be sent to a conference committee for
resolution of the differences. Finally, it goes to the President for signature or
veto. If the President vetoes the bill, Congress may try to “override” the
veto with a two-thirds majority vote, meaning they can pass it anyway if
they get enough votes. Otherwise, the President’s veto means the bill will
not become law.
 In finished form, state and federal statutes usually have certain parts: a
preamble, which may include a statement of policy or purpose; a definition
section, which attempts to define the significant words used in the statute;
the substantive provisions; and any procedural provisions. Consider the
following Maryland statute:
MD. CRIM. CODE ANN. §10-701. “Flag” defined
In this subtitle, “Flag” includes any size flag, standard, color, ensign,
or shield made of any substance or represented or produced on any
substance, that purports to be a flag, standard, color, ensign, or shield of the
United States or of this state.
MD. CRIM. CODE ANN. §10-702. Scope of subtitle
This subtitle does not apply to:

(1) an act allowed by the statutes of the United States or of this State, or by the
regulations of the armed forces of the United States; or
(2) a document or product, stationary, ornament, picture, apparel, or jewelry that
depicts flag without a design or words on the flag that is not connected with an
advertisement.

MD. CRIM. CODE ANN. §10-703. Marked flag and merchandise

Scope of section

(a) This section applies to a flag of the United States or of this State, or a flag that is
authorized by law of the United States or of this State.

Prohibited—Advertising marking

(b) For exhibition or display, a person may not place or cause to be placed a word,
figure, mark, picture, design or advertisement of any nature on a flag.

Prohibited—Public display of marked flag

(c) A person may not publicly exhibit a flag with a word, figure, mark, picture,
design, or advertisement printed, painted, or produced on or attached to the flag.

Prohibited—Merchandise marked with flag

(d) A person may not publicly display for sale, manufacture, or otherwise, or sell,
give, or possess for sale or for use as a gift or for any other purpose, an article of
 merchandise or receptacle on which a flag is produced or attached to advertise, decorate,
or mark the merchandise.

Penalty

(e) A person who violates this section is guilty of a misdemeanor and on conviction
is subject to a fine not exceeding $500.

MD. CRIM. CODE ANN. §10-704. Mutilation

Prohibited

(a) A person may not intentionally mutilate, deface, destroy, burn, trample, or use a
flag:
(1) in a manner intended to incite or produce an imminent breach of the peace;
and
(2) under circumstances likely to incite or produce an imminent breach of the
peace.

Penalty

(b) A person who violates this section is guilty of a misdemeanor and on conviction
is subject to imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both.

MD. CRIM. CODE ANN. §10-705. Construction of subtitle

This subtitle shall be construed to carry out its general purpose and to
make uniform the laws of the states that enact it.
MD. CRIM. CODE ANN. §10-706. Short title
This subtitle may be cited as the Maryland Uniform Flag Law.

As you see, while the Maryland statute has no preamble, it does have a
definition section and substantive and procedural sections, including
penalty and construction provisions.
2. The Relationship Between Statutory Law and Common Law
After the applicable constitutional provisions, enacted statutes are the
highest authority in a jurisdiction. The courts are bound by them. A
legislature may enact a statute that overrules or modifies existing common
law. It may enact a common law rule into a statute. Courts, however, rule on
whether statutes are constitutional.
When deciding a case governed by a statute, the court must decide
how to apply and enforce that statute. Courts rely on certain aids in
interpreting the meaning of a statute. You will rely on those same aids in
urging the court to adopt a particular construction.
Most statutes are deliberately drafted in broad language because they
are written to establish a principle rather than to solve a specific problem.
The general language serves as the basis for common law development of
the statute by the courts. It is the court’s application of a statute to particular
cases that gives meaning to the statute’s language and provides guidance for
future cases.
To interpret broad and ambiguous statutory language, courts look to
the following for guidance:

• The actual language of the statute, (i.e., the words chosen by the
legislature).
• The context within the statute. What is the subject or purpose of other
headings or sections in the same statute? What language do
complimentary statutes contain? Is there a statutory statement of
legislative purpose? Legislatures sometimes attempt to avoid ambiguity
problems by including statements of legislative purpose as a preamble to
the statute itself.
• The legislative history of the statute. A statute’s legislative history
provides information to the court about the legislature’s intent in
adopting the statute. It consists of the “official comments,” the floor
debate, the committee reports, and the committee hearings.
Unfortunately, on a state level, the legislative history is often nearly
nonexistent, and on every level it may be very difficult to obtain.
• Administrative interpretations by the agency charged with administering
the statute. They occasionally provide a more specific indication of the
statute’s meaning. For example, the Food and Drug Administration issues
regulations and interpretations of statutes governing the food and drug
industries; the Federal Communications Commission issues regulations
and interpretations governing cable and television, among other
communications services, and the Department of Transportation issues
regulations and interpretations governing all the various forms of
transportation, such as trains.
• The interpretation of other courts. A court will consider how courts at a
higher level, the same level, or even a lower level have applied the
statute.
• The broader context of the statute. What kinds of events were taking
place that caused the legislation to be created? What goals were to be
furthered by enacting the statute? If a statute overrules common law or
tries to fill in a gap in the common law, understanding the problems that
led to the enactment can help define the scope of the statute.
• The common law. When a statute codifies existing common law, the body
of cases that developed the common law rule provides highly useful
guidance.
• A comparison with similar statutes of other jurisdictions.
• Scholarly interpretations, if available.

Courts sometimes also look to canons of statutory construction. These

are maxims intended to provide guidance. However, courts are free to
disregard them. Here are the most commonly used canons:

1. The “plain meaning rule.” In construing a statute, the court shall not
deviate from its literal meaning except as required by internal
context or the need to avoid absurd results.
2. The rule of “negative implication.” When the legislature has
covered a certain subject in a statute, it must have intended to
exclude everything not mentioned.
3. The principle of construing penal statutes narrowly.
4. The principle of construing statutes in derogation of the common
law narrowly.

Although some canons of interpretation have themselves been adopted

by statute,3 as a rule they reflect common sense and do not provide
technical help in construing a statute. As between the available aids to
interpretation, courts will more likely be persuaded by intrinsic factors such
as the statute’s language and “plain meaning” than by extrinsic factors such
as legislative history.
3. The Roles of the Court and the Legislature—An Illustration
The question of whether flag burning is permissible has been
addressed by the legislature and courts in turn. It provides an excellent
illustration of the interaction between the two in the context of statutory
interpretation.
 The Texas Penal Code stated:
Desecration of Venerated Object.

(a) A person commits an offense if he intentionally or knowingly desecrates:

(1) a public monument;
(2) a place of worship or burial;
(3) a state or national flag.
(b) For purposes of this section, “desecrate” means deface, damage or otherwise
physically mistreat in a way that the actor knows will seriously offend one or more
persons likely to observe or discover his action.

Tex. Penal Code Ann. §42.09 (West 1989).4

While the Republican National Convention was taking place in Dallas
in 1984, Gregory Lee Johnson participated in a political demonstration that
included the public burning of an American flag. He was convicted of
desecrating a flag in violation of Texas law. This conviction was affirmed
by a Texas district court of appeals, but was subsequently reversed by the
Texas Court of Criminal Appeals. The United States Supreme Court granted
certiorari.
Texas claimed its interest in preventing breaches of the peace justified
Johnson’s conviction under the statute. In fact, however, there was no
breach of the peace. The Supreme Court heard the case on appeal and
observed that Texas was essentially making the argument that an “audience
that takes serious offense at particular expression is necessarily likely to
disturb the peace and that the expression may be prohibited on this basis.”
Texas v. Johnson, 491 U.S. 397, 408 (1989). The Court also found that the
asserted state interest in “preserving the flag as a symbol of nationhood and
national unity” could not survive the scrutiny imposed on state actions that
attempt to regulate speech content protected by the First Amendment. Id. at
420.
The federal flag burning statute in effect at the time of the Texas v.
Johnson ruling stated:
Desecration of the flag of the United States; penalties
(a) Whoever knowingly casts contempt upon any flag of the United
States by publicly mutilating, defacing, defiling, burning, or trampling upon
it shall be fined not more than $1,000 or imprisoned for not more than one
year, or both.
 (b) The term “flag of the United States” as used in this section, shall
include any flag, standard, colors, ensign, or any picture or representation of
either, or of any part or parts of either, and of any substance or represented
on any substance, of any size evidently purporting to be either of said flag,
standard, colors, or ensign of the United States of America, or a picture or a
representation of either, upon which shall be shown the colors, the stars and
the stripes, in any number of either thereof, or of any part or parts of either,
by which the average person seeing the same without deliberation may
believe the same to represent the flag, standards, colors, or ensign of the
United States of America.
(c) Nothing in this section shall be construed as indicating an intent on
the part of Congress to deprive any State, territory, possession, or the
Commonwealth of Puerto Rico of jurisdiction over any offense over which
it would have jurisdiction in the absence of this section.
18 U.S.C. §700 (1989).
Congress responded to the Texas v. Johnson case by removing the
“casts contempt” language from subsection (a) of the statute, reasoning that
now the flag burning prohibition was not content-based. The revised statute
read, in relevant part:
AN ACT
To amend section 700 of title 18, United States Code, to protect the
physical integrity of the flag.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

This Act may be cited as the “Flag Protection Act of 1989”.

SEC. 2. CRIMINAL PENALTIES WITH RESPECT TO THE PHYSICAL
INTEGRITY OF THE UNITED STATES FLAG.

(a) In General—Subsection (a) of section 700 of title 18, United States Code, is
amended to read as follows:
(a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains
on the floor or ground, or tramples upon any flag of the United States shall be fined
under this title or imprisoned for not more than one year, or both.
(2) This subsection does not prohibit any conduct consisting of the disposal of a
flag when it has become worn or soiled.
(b) Definition.—Section 700(b) of title 18, United States Code, is amended to read as
follows:
 (b)(1) As used in this section, the term ‘flag of the United States’ means any flag
of the United States, or any part thereof, made of any substance, of any size, in a form
that is commonly displayed.

18 U.S.C. §700 (Supp. II 1990).

Shortly after the passage of the revised Flag Protection Act, Shawn
Eichman and two friends set several United States flags on fire on the steps
of the United States Capitol during a political demonstration. Their protest
was, in part, intended to demonstrate their objection to the newly enacted
statute. In United States v. Eichman, 496 U.S. 310 (1990), the Supreme
Court found that the revised language failed to make the statute
constitutional.
Although the Flag Protection Act contained no explicit content-based
limitation on prohibited conduct, it was nevertheless clear that the
Government’s asserted interest was related to the suppression of free
expression and concerned with the content of such expression. The
Government’s interest in protecting the physical integrity of a privately
owned flag rests upon a perceived need to preserve the flag’s status as a
symbol of our Nation and certain national ideals. But the mere
disfigurement of a particular manifestation of the symbol, without more,
does not diminish or otherwise affect the symbol itself in any way. For
example, the secret destruction of a flag in one’s own basement would not
threaten the flag’s recognized meaning. Rather, the Government’s desire to
preserve the flag as a symbol of certain national ideals is implicated only
when a person’s treatment of the flag communicates a message to others
that is inconsistent with those ideals.
Moreover, the precise language of the Act’s prohibitions confirmed
Congress’s interest in the communicative impact of flag destruction. The
Act criminalized the conduct of anyone who knowingly mutilated, defaced,
physically defiled, burned, maintained on the floor or ground, or trampled
upon any flag. Each of the specified terms—with the possible exception of
“burns”—unmistakably connotes disrespectful treatment of the flag and
suggests a focus on those acts likely to damage the flag’s symbolic value.
And the explicit exemption for disposal of worn or soiled flags protected
certain acts traditionally associated with patriotic respect for the flag.
Although Congress cast the Flag Protection Act in somewhat broader
terms than the Texas statute at issue in Johnson, the Act still suffered from
the same fundamental flaw: it suppressed expression out of concern for its
likely communicative impact. United States v. Eichman, 496 U.S. 310, 312-
326 (1990).
It is clear that Congress wanted to enact a law that prohibited flag
burning. However, it seems equally clear that regardless of the form of such
a statute, it most likely would not survive a constitutional challenge. Reread
the Maryland flag burning statute at the beginning of this section. Is it
possible that the Maryland legislature has drafted a statute that would
survive constitutional scrutiny? The statutory language suggests that the
statute will be enforced only when the circumstances surrounding the flag
burning are likely to create a breach of the peace.
As you see, enacted statutes have no meaning or effect until they are
interpreted by the courts and applied in context. Statutory analysis is an
important function of our court system.

1. The word “jurisdiction” means different things in different contexts. Here we use it to refer to
the geographic area or court system in which a case is decided. It can also mean the power of a court
to hear a case, as in “personal jurisdiction” (jurisdiction/power over a party) or “subject matter
jurisdiction” (jurisdiction/power over the issue presented to the court).
2. For our purposes, we simply note that the processes in the federal and state systems are
similar.
3. A Pennsylvania statute states:

RULE OF STRICT AND LIBERAL CONSTRUCTION

Statutes in derogation of common law—
(a) The rule that statutes in derogation of the common law are to be strictly
construed, shall have no application to the statutes of this Commonwealth enacted finally
after September 1, 1937.
Provisions subject to strict construction—
(b) All provisions of a statute of the classes hereafter enumerated shall be strictly
construed:
(1) Penal provisions.
(2) Retroactive provisions.
(3) Provisions imposing taxes.
(4) Provisions conferring the power of eminent domain.
(5) Provisions exempting persons and property from taxation.
(6) Provisions exempting property from the power of eminent domain.
(7) Provisions decreasing the jurisdiction of a court of record.
(8) Provisions enacted finally prior to September 1, 1937 which are in derogation
of the common law. Provisions subject to liberal construction—
(c) All other provisions of a statute shall be liberally construed to effect their objects
and to promote justice.

1 Pa. Cons. Stat. Ann. §1928.

4. This statutory section now relates to cruelty to animals.

§4.01. INTRODUCTION
For purposes of this discussion, we assume that you have already
learned or are learning how to use specific materials in the library. The goal
of this chapter is to teach you how to integrate your knowledge of the
materials in the library with what we are teaching you about legal writing
and analysis.
In other words, once you have your writing assignment in hand, how
do you approach the research process? Where do you start? How many
places do you look? How do you balance book and computer research?
When do you stop? How do you keep track of your research so that you
don’t end up covering the same ground repeatedly? We will take up each
question in turn, using the Paul Trune problem presented in Chapter 6. The
issue in the case is whether Mr. Trune can bring a civil action for false
imprisonment. Before continuing, go to Section 6.04 and read the facts of
the case.
As we go through this discussion, do not be concerned if you see
angles that are not discussed. Our approach shows you how one person
might effectively research this particular problem. If you see other
approaches, try them; you may find that they work for you, or you may find
they were not included because they were unproductive.

§4.02. WHERE DO YOU START?

As you begin the research process, identify the key legal terminology
that will help you access the appropriate research sources. If you are
unfamiliar with the area of law presented by the research problem, begin
your research with a secondary resource that discusses the broad legal
principles and rules that govern the area. Examples of such sources include
hornbooks, treatises, and legal encyclopedias. If you do have some
knowledge of the field, you can go directly to sources of primary authority
such as digests and annotated statutes.1 We will discuss the use of each of
these resources in Mr. Trune’s case.
1. Statutes
Many law students reflexively think of statutes when beginning
research tasks. If you are researching a problem in an area that is likely to
have been addressed by a legislature, that is not a bad instinct to have.
When you are unfamiliar with the law in your jurisdiction, begin by
determining whether there is a relevant statute. Is there a false
imprisonment statute in Wisconsin? Section 940.30 of the Wisconsin
Statutes, governing false imprisonment, provides that “[w]hoever
intentionally confines or restrains another without the person’s consent and
with knowledge that he or she has no lawful authority to do so is guilty of a
Class H felony.”
Before you start searching the annotations under §940.30 for helpful
cases, read the statute carefully. The question you have been asked is
whether Paul Trune can bring a civil action for false imprisonment. You are
researching false imprisonment as a tort, not a crime. Thus, the statute’s
characterization of false imprisonment as a felony should tip you off that
the statute does not apply to your client’s situation, and you should ignore
it.
2. Treatises
If you are researching an area such as tort law that tends to be
governed almost exclusively by common law decisions, how do you begin?
The answer depends in large part on how familiar you are with the subject
matter of your research project. If you know the elements of false
imprisonment and are familiar with the key terminology, you can probably
begin with the relevant digests. However, if you do not, you will first need
some background information about the topic. For that, you should consult
a secondary source such as a treatise.
 In a treatise, you can read generally about the applicable legal
principles as well as begin to identify specific cases. Dobbs, The Law of
Torts (West 2000) is one of the primary treatises in the area of tort law. If
you look on pages 67-75, you will find an explanation of the tort of false
imprisonment. You will also see some Wisconsin cases in the footnotes:
Drabek v. Sabley, 31 Wis. 2d 184, 142 N.W.2d 798 (1966) (p. 69, n. 16; p.
71, n. 18; p. 73, n. 4); Herbst v. Wuennenberg, 83 Wis. 2d 768, 266 N.W.2d
391 (1978) (p. 70, n. 12; p. 71, nn. 17 and 19); and Dupler v. Seubert, 69
Wis. 2d 373, 230 N.W.2d 626 (1975) (p. 71, nn. 16 and 17). Herbst and
Dupler are discussed at length in Chapter 6.
3. Restatements
Another good source of general rules, at least in areas of the law for
which they exist, are the Restatements. Restatements are common law
treatises on legal subjects, such as Torts, Contracts, and Property, created to
collect and present current rules and cases. Although the Restatements are
not the law, unless the courts in your jurisdiction have adopted the relevant
provisions, they are often persuasive. In any event, the Restatements
provide a good discussion of basic principles, with examples of how those
principles can be applied. The Appendix volumes contain relevant cases, so
you can determine whether the courts in your jurisdiction have cited the
Restatement. If a Restatement provision applies to your case, do not
overlook this resource as you search for applicable law.
First, consult the general index at the end of the pertinent Restatement
(i.e., Torts, Contracts, etc.). The general index will direct you to the
appropriate volume, which will include a more detailed index. False
imprisonment is covered in §§35-45 of the Restatement (Second) of Torts.
The applicable language of many of these sections is quoted in the
decisions discussed in Chapter 6, so we have not reproduced it here.
If you look in the Appendix volumes, which are organized
chronologically, you will find annotations of cases from various states. The
Restatement is cited extensively in both Herbst and Dupler, so you should
not be surprised to find the Herbst case in the appropriate Appendix
volume. If you check earlier volumes of the Appendix, you will also find
Dupler. If you check later volumes, you will find other Wisconsin cases.
Remember that you must check several volumes to be sure you have
discovered all of the relevant authority.
4. Legal Encyclopedias
Finally, legal encyclopedias are another good source of general rules
and a good starting point for finding primary authority. If you have found a
good treatise, you may not need to check an encyclopedia as well. Looking
in an encyclopedia may also be unnecessary if there is an applicable
Restatement, at least if the Restatement has been adopted in your
jurisdiction. If, however, you have not located any other resources that can
help you learn the basic rules and terminology of your field of inquiry,
encyclopedias should do the job. Until you become comfortable with legal
research and the resources available to you, you may want to check more
than one source anyway, to be sure you genuinely understand the legal
issues involved and to see if the different sources contain different types of
useful information.
If your state publishes its own legal encyclopedia, start there. In this
discussion, we will take on the slightly more difficult task of trying to find
Wisconsin precedent in the general encyclopedias, Corpus Juris Secundum
and American Jurisprudence; the research procedures, however, are the
same. If you look in volume 32 of American Jurisprudence 2d, at the start
of the chapter on false imprisonment, you will find an outline that breaks
the topic of false imprisonment into analytical elements. As you scan the
outline, Part B, “Elements,” should look like a good place to start. More
specifically, section 2, dealing with the basic elements of confinement,
should look particularly interesting. The subsections will give you a general
discussion of what constitutes sufficient restraint.
The next step is to look for cases in your jurisdiction that demonstrate
how the courts have applied those concepts. When you look under sections
10-20, however, you will find that only footnote 65 cites a Wisconsin case:
Weiler v. Herzfeld-Phillipson Co., 189 Wis. 554, 208 N.W. 599 (1926)
(holding that there is no false imprisonment where a supervisor interrogates
an employee suspected of dishonesty in the supervisor’s office for a lengthy
period; the court pointed out that the employee was being compensated for
the time and was under the direction of the employer so long as she
remained an employee). An examination of the pocket part discloses no
additional Wisconsin cases. The case you have found will get you started on
the question of what constitutes false imprisonment in Wisconsin, but given
its age, you should try to find something a little more recent.
 An examination of volume 35 of Corpus Juris Secundum will yield a
similar outline. Part B, “Manner and Character of Restraint,” again dealing
with the basic requirements of restraint, should look like a good place to
start. In the main volume, you will find one Wisconsin case: Herbst v.
Wuennenberg (§15, n. 6, and §17, n. 11). (Herbst is discussed in Chapter 6.)

§4.03. OTHER RESOURCES

1. Digests
Now that you have a greater familiarity with the elements of false
imprisonment and have identified a few cases to read, you can move on to
the digests. While digests will not give you general descriptions of the law,
they will probably provide you with more cases. Again, you should use a
state digest if your state has its own, but you can also look in West’s
regional digests. In the North Western Digest 2d, you will find an outline
for false imprisonment. Assuming that your primary goal is to determine
what the cases have to say about the sufficiency of restraint as an element of
false imprisonment, you should find notes 5 and 6 relevant. Here are the
Wisconsin cases contained in the annotations under those key numbers:

Johnson v. Ray, 99 Wis. 2d 777, 299 N.W.2d 849 (1981)

Drabek v. Sabley, 31 Wis. 2d 184, 142 N.W.2d 798 (1966)
Schaidler v. Mercy Medical Center of Oshkosh, Inc., 209 Wis. 2d 457,
563 N.W.2d 554 (1997)
Peters v. Menard, Inc., 224 Wis. 2d 174, 589 N.W.2d 395 (1999)
Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 580 N.W.2d 233
(1998)
Herbst v. Wuennenberg, 83 Wis. 2d 768, 266 N.W.2d 391 (1978)
Hainz v. Shopko Stores, Inc., 121 Wis. 2d 168, 359 N.W.2d 397 (1984)

At least two of these Wisconsin cases are familiar, but several new
ones appear also. The advantage of the digests over the treatises and
encyclopedias is that the digests provide brief general descriptions of the
cases, which you can use to decide whether you want to read any particular
case in full. In making this decision, always remember that such a short
description of the case cannot possibly alert you to every aspect of the
decision that might be useful, and that these “squibs” are occasionally
inaccurate.
Even so, you can often use the annotations to eliminate cases that have
no relevance to the situation you are researching. For example, if you look
at the descriptions of Johnson, Schaidler, Miller, or Hainz, you should
conclude that you are not likely to find anything helpful in those cases
because the facts are so different as to make them difficult to compare.
Given that you have other cases that outline the general requirements to
make a claim of false imprisonment, you do not need these cases for any
general language they might contain.
An examination of the pocket part to the digest will reveal no new
Wisconsin cases, so you should start to feel fairly confident that you have
now identified the most relevant and up-to-date precedent on your issue.
Also note that you are starting to see some of the same cases repeatedly,
which is a good sign—it means that you are finding the limits of the legal
universe in which you are operating.
2. A.L.R. and Legal Periodicals
If you wish to be especially thorough and find out what others have
written on your topic, you might want to consult sources such as the
American Law Reports (A.L.R.), the Current Law Index, or one of the
indexes to legal periodicals. For a topic as straightforward as this one,
involving an intentional tort that has been reasonably well defined by the
courts, such additional research will probably not be necessary. If you were
doing this research in a firm, at a client’s expense, you would almost
certainly not go to such lengths. While you are in law school, however, and
are still learning the law with the luxury of enough time to fully investigate
all potentially helpful options, you might want to at least take a quick look
at these kinds of supportive resources. If you happen to come across an
annotation or law review article specifically on your topic, you might even
save time on your research.
If you did look at the A.L.R. index, you would find brief descriptions
of a number of annotations on specific aspects of false imprisonment. And,
if you searched the Current Law Index for false imprisonment, you would
again find brief descriptions of articles on specific aspects of the topic. The
Current Law Index is organized chronologically, so you might have to
check several volumes for relevant articles. The vast majority of articles
and annotations listed in these sources deal with criminal false arrest and
imprisonment; the few that have any civil or tort implications do not appear
to be relevant. You can use your judgment as to whether you would read
any of these annotations or articles, but again, if you were doing this
research at a client’s expense, you should consider whether the expenditure
of the time required would be cost-effective.

§4.04. COMPUTER RESEARCH

1. Traditional Legal Research Sources
Most law schools provide free access to LexisNexis and Westlaw.2
LexisNexis and Westlaw can be used most efficiently when you have
enough of an understanding of the legal terminology that you can frame a
search that will retrieve only relevant cases. For example, if you search a
database of Wisconsin state cases using “false imprisonment,” you will
retrieve 10,585 cases on LexisAdvance and 941 cases on WestlawNext.3
When a client is paying for your time on the computer, you simply
cannot read through hundreds or thousands of cases. Even if a client is not
paying, it makes no sense to go screen by screen through all those cases
when a glance through an encyclopedia, a treatise, or a digest will let you
know much faster whether you need to read the cases in their entirety. In all
likelihood, the vast majority of the cases do not deal substantively with
false imprisonment, or they may involve criminal charges or aspects of the
tort that are not at issue in your case.
Do not use the specific facts of your case to narrow your search. It is
highly unlikely that you will find other cases involving fact patterns just
like yours, and your real concern is to find cases dealing with the same
issues that your case raises. For example, you could narrow your search by
adding “farmer” to your search request, but that will not reduce the number
of cases you find, nor will it add to the number of useful cases. You should
know by now that it does not really matter that the defendant is a farmer,
and such a search will only waste your time.
As you narrow your search, focus on terminology that will call up
cases dealing with the elements of the tort with which you are concerned.
Your primary concern in Mr. Trune’s case is whether there was sufficient
restraint. Thus, you might try a terms and connectors search along the lines
of “false imprisonment and restrain! w/20 suffic!”, which will yield 65
cases on WestlawNext and 15 on LexisAdvance. If you perform the search,
you will note that at least some of these cases look very familiar. You can
also try a natural language search to see what you find.
WestlawNext is also very efficient in finding an updated, digital copy
of a legal digest or legal encyclopedia. For example, let’s look at “false
imprisonment” one more time. Log onto WestlawNext and go to the front
page. From there, click on the tab “Tools,” located under the broader tab
“Browse[.]” Next hit the first link titled “West Key Number System[.]” A
list of 450 legal topics should pop up. You can manually search for “false
imprisonment” or you can use the search key (on a PC, use control+F; on
Mac, use command+F) and search for “false imprisonment[.]” This should
take you to number 168—false imprisonment; go ahead and click on the
link. The top two links on the next page under “Civil Liability” will bring
you to a table of contents like page, similar to the digest. The bottom two
links under “Criminal Responsibility” will list relevant cases, which you
can refine based on the jurisdiction you want to search.
Many other websites offer access to legal sources; some are free,
others are not. Try searching yourself to see what you find, or consult your
legal writing instructor or law librarian to see what other sources they
recommend. LexisAdvance and WestlawNext are very expensive to use in
practice, so you should not assume that you will be able to do all of your
research using those services once you are out of law school.
2. Not Purely Legal Resources
You no doubt already have experience researching online using Google
or other search engines. For that reason, we do not discuss here all the
sources available; we merely suggest one or two sources that may be
helpful.
Google Scholar is a free research engine that produces surprisingly
good legal research results, at least for some users. If you input a search,
Google Scholar will come up with cases on the topic, plus citations to the
cases in articles. It does not have an updating feature, so you cannot tell
whether the case is still good law, and the cases come up without headnotes
or other features available on LexisAdvance and WestlawNext that can lead
you to other relevant sources. Law librarians and legal writing instructors
who have tried searches on Google Scholar report both pleasant surprise
about the speed and accuracy of the results, and concern about the lack of
some familiar and helpful features. If you search for Wisconsin civil cases
on false imprisonment you will come up with 249 cases—more than you
want to scroll through.
You are probably already familiar with Wikipedia, especially since it
appears in so many search results. Wikipedia can be very helpful for finding
general information on a topic, or as a launching pad for research in a
particular area. We do not recommend it for formal legal research, however,
because any Wikipedia user can add information on the site. As a result,
you cannot guarantee the accuracy or reliability of the information you find
there.
As when using other research tools, it is always a good idea to check
your research by trying multiple sources. The information that comes up
repeatedly is likely to be the most helpful and reliable.
3. Books versus Computers—How Do You Decide?
Many practicing attorneys report frustration and disappointment at
what they see as inadequate research training and skills on the part of recent
law graduates. Many law students assume that everything worth finding can
be found on the Internet. However, the Internet is not always the answer—it
may be inefficient, excessively costly, and unable to give you what you
need. One senior attorney points out that Internet research has two major
shortcomings—it cannot work with either concepts or analogies, both of
which are critical to legal analysis.4 Sometimes books in the library lead to
faster and more accurate results. You may even find key cases in the books
that would not have turned up in a computer search. Sometimes this is the
result of what we call the “inspiration factor.” As you are scanning an
outline in an encyclopedia, digest, or annotated code, you may see a
heading that will lead you to important cases, but it may not use the words
you would have thought to use for a computer search.
All in all, the safest approach often is to try both book and computer
research. You should start with books, to gain familiarity with the relevant
concepts, and use visual scanning to see connections and terminology that
may not have occurred to you just sitting at your computer. Turn to the
computer when you have narrowed your research sufficiently to choose the
best search terms, or when you are ready to look for specific cases and
statutes.5
§4.05. UPDATING YOUR RESEARCH
Always update your research, not only to make sure the cases you plan
to build your argument on are good law, but also to see whether there are
any subsequent cases that might be even more helpful. Updating services
such as Shepard’s from LexisNexis or KeyCite from Westlaw can be just as
useful as case finders as they are citators. Updating online is much more
efficient than using the Shepard’s volumes in the law library, but you should
use whatever updating tools you are taught in your legal writing class. The
important thing is to make sure that you are relying on the most recent
authoritative sources, and are not going to embarrass yourself by citing a
case that has been overruled or is otherwise no longer good law.

§4.06. WHEN DO YOU STOP?

Perhaps the most frustrating element of legal research for those who
are learning it is knowing when to stop. In their zeal to leave no stone
unturned, fledgling lawyers tend to explore every conceivable alternative, to
look in every resource book the library has to offer, and to read every case
that even mentions the type of cause of action at issue in the case they are
researching. Telling you that you will develop instincts that will help you
avoid wasting time in the library or online (which you will) may offer some
long-term comfort, but it will not get you through those frustrating early
efforts. Thus, we offer a few guidelines that should help streamline your
first research efforts.
1. Look for the Most On-Point Cases First
Students sometimes try to identify the entire universe of available case
law before beginning to read the decisions and then read all the decisions in
no particular order. You will save yourself time and effort, and conclude
your research sooner, if you identify the most useful cases right from the
start and then read them before you go on. Identify these cases by looking
for factual similarities or statements of holdings that sound like they could
easily apply to your case.
Shepardizing these close cases, and reading cases cited in the decisions
that support propositions important to you, should allow you to narrow the
scope of your subsequent research. Using these cases as a jumping-off point
will eliminate the need to read cases that do no more than outline general
principles without offering useful applications to your situation.
2. Stop When You Come Full Circle
One of the surest signs that you should stop looking for new cases is
repeatedly coming across citations to the same cases in different sources.
Thus, if you find the same cases in the digest and the encyclopedia, even
when you are researching different key words, you can be confident that
you have identified the most relevant case law. Focus any additional
research on leads provided by those key cases.
3. Do Not Follow Every Lead
One of the most common problems encountered by students is the
frustration that comes from realizing that you have wasted valuable time
reading cases that have only the most tangential relevance to your situation.
Often, this is the result of deciding to read a case of possible but
questionable relevance, then discovering a citation to an even more
tenuously related decision, following up on that one too, and perhaps going
on to follow the chain even further afield. While you do not want to miss
any genuinely useful authority, you must constantly remind yourself what
your case is really about.
To avoid these trips down blind alleys, draft a one-page outline of your
tentative analysis and keep it with you at all times. By regularly referring to
the outline, you will keep focused on the real issue in your case. If you are
not ready to draft an outline, find another way to stay focused, for example,
keeping with you any written information that you have about your
assignment.6 Creative analysis of problems is to be encouraged, but if you
are finding it difficult to connect the product of your research to your main
issue, imagine how difficult it will be for your reader!
Even when you stay focused, sometimes you will not find cases on
point, but only cases tenuously related to the topic of your research. In this
predicament, your only recourse is to read many cases in search of the few
that contain some useful language or fact patterns. All you can do is try to
analogize these cases to yours, either factually or by looking at the
underlying legal or policy issues.
Finally, if you believe that you are spending an inordinate amount of
time researching, consider whether you might be procrastinating. Students
are often afraid to begin writing. Let’s face it: it’s no easy task to put your
ideas and research findings into some logical order, and then craft them into
sentences, paragraphs, and pages. Spending time on research can be
justified, but once you pass the point where it is really productive, move on.
Writing can actually be fun if you give it a chance!

§4.07. HOW DO YOU KEEP TRACK?

To avoid wasting time later, spend time early on creating a research
path. When you consult a digest or encyclopedia and find a relevant case,
copy down the case’s full name and citation. This way, you will not spend
valuable time tracking down missing parts of citations or pulling cases off
the shelves only to discover that you have already read and rejected them.
When you read the case, make a note next to the citation that indicates
whether it was helpful or not, and whether you plan to return to it or cite it
in your written analysis. Most of us find that making copies of useful cases
is a good way to keep track of them, and to make sure we have all the
necessary information for citation purposes. The problems tend to arise in
losing track of the cases we decide not to use, and it is worth a few extra
minutes of your time to make a complete record of your research process.
Whenever your notes get disorganized, it is worth stopping to make a
clean list of useful cases and rejected cases. This way, you will not have to
wonder whether you have already read a case.

§4.08. RESEARCH CHECKLIST

The following checklist will remind you of basic sources and
approaches as you research a project. You will not need to follow each step
for every assignment, but the checklist should enable you to consciously
reject a step or resource rather than forgetting its existence.

I. Process
• Start with secondary sources such as treatises and encyclopedias
if you need to learn the fundamental rules that govern your area
of the law.
• Look for an applicable statute if you think there might be one,
but be sure the statute actually applies before reading any
annotated cases.
 • Go to the digests when you know the key words that will help
you identify relevant cases.
• Use computer sources as appropriate, depending on cost,
efficiency, and your understanding of the subject matter.
• Update your research, and check the validity of the sources on
which you intend to rely.
• Read on-point cases first, Shepardize them, and read cited
decisions on important points. Don’t follow tenuous leads.
• Stop when you see the same cases repeatedly.
• Keep a research path.
II. Sources
• Statutes
• Treatises and hornbooks
• Restatements
• Encyclopedias
• Digests
• Computer-assisted legal research (if it is cost-effective and you
know the key words)
• Shepard’s, KeyCite, AutoCite (use as a case finder, not just to
check whether a case is good law)
• A.L.R.
• Periodicals
• Other sources, such as looseleaf services, that might apply to
different types of problems

1. If you are researching a question that might be the subject of a law review article, that would
be an excellent place to start. Law review articles will give you a head start on primary source
research, as well as an idea of arguments that can be made on your topic. You can find law review
articles by using a published index to periodicals or by doing an online search.
2. Your school may also have subscriptions to other legal research services, such as Loislaw,
which can be accessed at http://www.loislaw.com.
3. As of September 2013.
4. Scott Stolley, The Corruption of Legal Research, For Def. 39 (Apr. 2004).
5. A recent study by LexisNexis suggests that young lawyers are spending most of their research
time online and are not using legal classification systems. Lastres, “Rebooting Legal Research in a
Digital Age,” located at http://www.lexisnexis.com/documents/pdf/20130806061418_large.pdf.
Whether they are approaching research in the most efficient manner possible is, of course, the
question, but the study makes interesting points about how legal research is evolving.
6. If you do end up reading irrelevant cases, avoid the temptation to find a way to work them
into your written product anyway, just to show your instructor (or your supervisor) how much work
you did. You will only frustrate the reader by overwhelming him or her with useless information, and
you may make him or her wonder whether you really understood the issue at all.
§5.01. WHAT IS A BRIEF?
1. Briefing Is Taking Notes
In your first year of law school, your professors will expect you to
brief the cases that they assign. The word “brief” has two meanings in law.
A brief is a written argument that an attorney submits to a court deciding a
case. A brief also is a summary of a court opinion. In your initial law school
classes and in this chapter, your concern is with this second type of brief.
Because briefing is new to you and because law school is also new,
you may think that briefing is very different from anything you have done
before. If you examine the task closely, however, you will discover that it is
a very familiar one.
Briefing a case is taking notes on the case. By this time, you are a
veteran at taking notes on what you read. You probably started taking notes
in high school or college. Briefing a case seems different because it is a
highly structured method of taking notes. It requires you to identify various
parts of a case and summarize them.
2. The Purposes of Briefing
Briefing has two purposes. First, it helps you to focus on the important
aspects of the case. A court opinion may ramble on page after page. Your
brief, however, will be no longer than one or two pages. Briefing forces you
to get to the heart of the case to grapple with the essentials.
Second, briefing helps you prepare for class and serves as a source of
reference during class. You cannot brief a case properly unless you
understand it. Briefing ensures that you understand the case before you
discuss it in class. During class, you will find yourself referring to your
brief. The discussion in a law school class goes far beyond what the brief
contains. Your professor uses a court opinion only as a springboard to a
sophisticated treatment of legal doctrine and legal process. Without the sort
of understanding of basic aspects of a case that briefing demands, you will
not get off the springboard and will fail to gain what the class has to offer.
Your case briefs are your personal notes. Your professors are not going
to grade them. They probably never will read them unless you ask for
assistance. Few students refer to their briefs when preparing for exams.
View your briefs as your private study tools for class preparation.
Because you will not be handing in your briefs to your professors and
will not use them at semester’s end, you may be tempted not to brief cases.
Briefing can be time consuming, and your time is limited. We strongly
encourage you to stay with briefing at least for the first few months of law
school.
At the initial stage of your legal education, you should brief all
assigned cases. As your grasp of the law grows, you will switch to writing
short summaries or even writing notes in the margins of your casebooks.
For now, however, brief your cases diligently. Briefing will help you
understand what is going on in class, not always an easy task.

§5.02. HOW TO BRIEF

1. The Format
The typical brief includes the name of the case, its citation, the
important facts in the case, the case’s procedural status, the issue in the
case, the court’s holding, and the court’s reasoning.
Different professors may ask you to brief cases in different ways. We
offer you a typical format for a case brief. If a professor asks for a slightly
different format, be sure to oblige him or her. You will find that despite
deviations in format, all professors want you to abstract essentially the same
information.
2. Parts of the Brief
a. An Exercise
 Here is an exercise to help you learn about briefing cases. After
reading the trial court’s opinion in Conti v. ASPCA (which you may read
again in your property course), go back and take notes on it. You need not
follow any particular format. Just take notes as if you were taking notes on
a college reading assignment. Following the case is a brief of the case.
Please do not read it until after you have completed taking notes.
As you read the opinion, note its format, the typical format for this sort
of opinion. It begins with the name of the case, with the plaintiff’s name
coming first. It then lists citations, which tell you what library books
contain the opinion. Next is the name of the judge who wrote the opinion.
Finally comes the text of the opinion. It contains the facts of the case, the
court’s reasoning, and the court’s decision.
Conti v. ASPCA
77 Misc. 2d 61, 353 N.Y.S.2d 288 (Civ. Ct. 1974)
MARTIN RODELL, JUDGE.
Chester is a parrot. He is fourteen inches tall, with a green coat, yellow
head and an orange streak on his wings. Red splashes cover his left
shoulder. Chester is a show parrot, used by the defendant ASPCA in various
educational exhibitions presented to groups of children.
On June 28, 1973, during an exhibition in Kings Point, New York,
Chester flew the coop and found refuge in the tallest tree he could find. For
several hours the defendant sought to retrieve Chester. Ladders proved to be
too short. Offers of food were steadfastly ignored. With the approach of
darkness, search efforts were discontinued. A return to the area on the next
morning revealed that Chester was gone.
On July 5th, 1973 the plaintiff, who resides in Belle Harbor, Queens
County, had occasion to see a green-hued parrot with a yellow head and red
splashes seated in his backyard. His offer of food was eagerly accepted by
the bird. This was repeated on three occasions each day for a period of two
weeks. This display of human kindness was rewarded by the parrot’s finally
entering the plaintiff’s home, where he was placed in a cage.
The next day, the plaintiff phoned the defendant ASPCA and requested
advice as to the care of the parrot he had found. Thereupon the defendant
sent two representatives to the plaintiff’s home. Upon examination, they
claimed that it was the missing parrot, Chester, and removed it from the
plaintiff’s home.
 Upon refusal of the defendant ASPCA to return the bird, the plaintiff
now brings this action in replevin.
The issues presented to the Court are twofold: One, is the parrot in
question truly Chester, the missing bird? Two, if it is in fact Chester, who is
entitled to its ownership?
The plaintiff presented witnesses who testified that a parrot similar to
the one in question was seen in the neighborhood prior to July 5, 1973. He
further contended that a parrot could not fly the distance between Kings
Point and Belle Harbor in so short a period of time, and therefore the bird in
question was not in fact Chester.
The representatives of the ASPCA were categorical in their testimony
that the parrot was indeed Chester, that he was unique because of his size,
color and habits. They claimed that Chester said “hello” and could dangle
by his legs. During the entire trial the Court had the parrot under close
scrutiny, but at no time did it exhibit any of these characteristics. The Court
called upon the parrot to indicate by name or other mannerisms an affinity
to either of the claimed owners. Alas, the parrot stood mute.
Upon all the credible evidence the Court does find as a fact that the
parrot in question is indeed Chester and is the same parrot which escaped
from the possession of the ASPCA on June 28, 1973.
The Court must now deal with the plaintiff’s position that the
ownership of the defendant was a qualified one and upon the parrot’s
escape, ownership passed to the first individual who captured it and placed
it under his control.
The law is well settled that the true owner of lost property is entitled to
the return thereof as against any person finding same. (In re Wright’s Estate,
15 Misc. 2d 225, 177 N.Y.S.2d 410) (36A C.J.S. Finding Lost Goods §3).
This general rule is not applicable when the property lost is an animal.
In such cases the Court must inquire as to whether the animal was
domesticated or ferae naturae (wild).
Where an animal is wild, the owner can only acquire a qualified right
of property which is wholly lost when it escapes from its captor with no
intention of returning.
Thus in Mullett v. Bradley, 24 Misc. 695, 53 N.Y.S. 781, an untrained
and undomesticated sea lion escaped after being shipped from the West to
the East Coast. The sea lion escaped and was again captured in a fish pond
off the New Jersey Coast. The original owner sued the finder for its return.
The court held that the sea lion was a wild animal (ferae naturae), and when
it returned to its wild state, the original owner’s property rights were
extinguished.
In Amory v. Flyn, 10 Johns. (N.Y.) 102, plaintiff sought to recover
geese of the wild variety which had strayed from the owner. In granting
judgment to the plaintiff, the court pointed out that the geese had been
tamed by the plaintiff and therefore were unable to regain their natural
liberty.
This important distinction was also demonstrated in Manning v.
Mitcherson, 69 Ga. 447, 450-451, 52 A.L.R. 1063, where the plaintiff
sought the return of a pet canary. In holding for the plaintiff the court stated,
“To say that if one has a canary bird, mocking bird, parrot, or any other bird
so kept, and it should accidentally escape from its cage to the street, or to a
neighboring house, that the first person who caught it would be its owner is
wholly at variance with all our views of right and justice.”
The Court finds that Chester was a domesticated animal, subject to
training and discipline. Thus the rule of ferae naturae does not prevail and
the defendant as true owner is entitled to regain possession.
The Court wishes to commend the plaintiff for his acts of kindness and
compassion to the parrot during the period that it was lost and was gratified
to receive the defendant’s assurance that the first parrot available would be
offered to the plaintiff for adoption.
Judgment for defendant dismissing the complaint without costs.
___________
Now that you have completed reading the case and taking notes on it,
compare your notes with a typical brief of the case.
Conti (pl.) v. ASPCA (def.)
77 Misc. 2d 61, 353 N.Y.S.2d 288 (Civ. Ct. 1974)

FACTS: ASPCA owned Chester, a show parrot. On June 28, he escaped to a

tree and def. could not retrieve him. The next day, he disappeared. On July
5, pl. found Chester and enticed him to his home. ASPCA learned about
this and took Chester back. Pl. brought replevin action. (There was a
question whether the parrot really was Chester, but the court decided he
was, based on the evidence.)
PROCEDURE: Action for replevin. Court dismissed the complaint, in
def.’s favor. (Note: This is a trial court decision.)

ISSUE: Whether, when a domesticated animal escapes, ownership passes to

the person who next captures it.

HELD: The parrot here is a domesticated animal (no discussion). When a

domesticated animal escapes, ownership remains with original owner.

ANALYSIS: The owner of a wild animal (ferae naturae) loses ownership

when it escapes with no intention of returning. This rule does not apply to
domesticated animals (animals that have been trained and disciplined).
They are treated as lost property, and ownership remains with the original
owner. The court fails to state a rationale explicitly, but cites the Manning
case: a contrary holding would contradict “all our views of right and
justice.” The court relies on three cases:

Mullett: A sea lion is treated as ferae naturae. Upon escape, the new
captor gains ownership.
Amory: Court treats wild geese as tamed and therefore unable to gain
their natural liberty.
Manning: Escaped pet canary is treated as a domesticated animal and
as belonging to the original owner.
___________
Your notes probably contain most of the information that the sample
brief contains. The organization, however, may be quite different. You can
see how the briefing format forces you to focus on essential information
and state it concisely in a logical order. Now let us use the Conti case and
the sample brief to examine the parts of a brief.
b. Name of the Case
 Copy the name of the case. When you determine which party is the
plaintiff and which is the defendant and, on appeal, which is the appellant
or petitioner and which is the appellee or respondent, write down this
information as well. Some opinions are written in a way that makes these
vital facts difficult to discover. In Conti, the plaintiff’s name comes first,
but in some cases it comes second. If you fail to write down which litigant
is which, you may forget this information at a crucial moment in class.
c. Citation
The citation contains the information that you need to find the case in
the library. If you do not know how to use a cite to find a case, you will
learn very shortly. Most casebooks offer abridged versions of cases. Your
curiosity sometimes will lead you to search for the complete case in the
library. If you have the cite in your brief, you will not have to return to your
casebook to find it when you head for the library.
d. Facts of the Case
Write down the facts that you think were important to the court in
deciding the case as well as any additional facts that are important to you.
Court opinions often contain pages of facts. You would be wasting time and
paper if you were to copy them. You want only the essential facts. If you
read the entire case before you begin to brief it, you will have a much better
sense of which facts are the essential ones. If you fail to read the case first,
you run the risk of getting mired in a complex set of facts and writing pages
of useless information.
The Conti case has relatively few essential facts. These facts are that
Chester, a domesticated parrot, flew away from its owner, the ASPCA, and
ultimately landed in the home of Conti, who now claims ownership.
Chester’s height and coloring are not significant. These characteristics
would be significant if the opinion focused on whether Conti’s parrot really
was Chester. Therefore you need not write down Chester’s description. The
details of Chester’s escape and ultimate welcome at the Conti household
also are not essential. We know we can disregard this information because
we have read the rest of the case.
e. Procedure
Answer three questions:
(1) Who is suing whom for what? In Conti, the answer is clear.
 (2) What is the legal claim? Here, the plaintiff is suing in replevin. In
some other case, a plaintiff might sue for breach of contract, false
imprisonment, negligence, relief granted by a statute, or on one of many
other grounds. If you come across a word like “replevin” and do not know
its meaning, look it up in a dictionary. “Replevin” tells us that Conti was
asking the court to order the ASPCA to return the bird to him. If you did not
know the meaning of replevin, you might have thought that Conti might
have been satisfied to receive the dollar value of the bird.
(3) How did the lower court rule in the case? It heard the arguments,
considered the evidence, and rendered the decision. The trial court wrote
the Conti opinion. Therefore we have no decision by an even lower court.
Suppose Conti was dissatisfied with the court’s decision and appealed to a
higher court, which decided the case and issued a written opinion. If we
were briefing that opinion, we would note in our brief that the court below
had dismissed Conti’s complaint.
f. Issue
The issue is the legal question that the court must decide in order to
reach its conclusion. In Conti, the issue is whether the owner of a
domesticated animal loses ownership when it escapes and someone else
captures it. Sometimes a court opinion will state the issue explicitly.
Sometimes it will state the issue only implicitly and leave you the task of
articulating it explicitly.
The Conti court states the issue in a very shorthanded way: “[I]f it is in
fact Chester, who is entitled to its ownership?” We are ignoring the court’s
first issue—whether the parrot is Chester—because the court finds the issue
uncontroversial and quickly decides it without analysis. You must flesh out
the issue in order to state it in more general terms. The issue deals not just
with a parrot named Chester, but with any domesticated animal that escapes
and undergoes capture under similar circumstances. Ultimately the court
must decide the case on the basis of a general rule applicable to similarly
situated individuals and animals.
How narrowly or broadly you phrase the issue is, in part, a matter of
taste. In the sample brief, we phrase the issue broadly:
Whether, when a domesticated animal escapes, ownership passes to the person who next
captures it.
Another lawyer might phrase it more narrowly—that is, more tailored to the
facts of the specific case:
Whether, when a domesticated parrot escapes, ownership passes to the person who next
captures it.

Still another lawyer might phrase it even more narrowly:

Whether the finder of Chester, an escaped parrot, owns it when the parrot was a
domesticated animal that the ASPCA trained and disciplined and used in educational
exhibitions.

In our experience, beginning law students frame issues too narrowly or too
broadly. When they frame an issue too narrowly, they focus too much on
the facts of the case and fail to understand that it applies to a broad range of
cases. When they frame an issue too broadly, they fail to appreciate how
important the specific facts of a case are to the court deciding it.
Learning to frame an issue is an art that takes time to learn. Your
professors will give you guidance in mastering the art. They also will let
you know how narrowly or broadly they want you to frame issues in their
respective courses.
g. Holding
The holding is the court’s decision and thus its resolution of the issue
in the case. It usually requires rephrasing the issue from a question to a
declarative sentence. In Conti, the holding is:
When a domesticated animal escapes, ownership remains with the original owner.

As with framing issues, different professors will have individual

preferences on how broadly or narrowly they want you to state the holding.
h. Analysis
Explain the court’s reasoning in reaching its decision. Again, reading
the case before you brief it will save you an enormous amount of time.
Understanding the court’s reasoning is not always easy. Sometimes the
reasoning will be unclear or contain gaps in its logic or require the reader to
discern what the court is saying only implicitly. These defects and similar
ones often will be the subject of class discussion.
A court frequently explains that its decision furthers important social
policy. In your brief, identify these policy considerations. In Conti, the court
quotes an earlier decision to the effect that a contrary holding would
contradict “all our views of right and justice.” If the Conti court had written
a more expansive opinion, it might have stated that its holding protected the
right of property ownership because it forbids an individual to casually
seize and keep the property of another.
Court decisions often include dicta. Dicta are discussions of law that
are not necessary to the court’s decision in the case before it. The singular
of “dicta” is “dictum.” The discussion of the Conti court about the rule to
follow when an undomesticated animal escapes is dictum. The court’s
discussion of that situation is not essential to deciding the case of a
domesticated parrot that escapes. It is a wise practice to note dicta in your
brief.
Be sure to read any footnotes. Most cases appearing in law school
casebooks are edited versions. The editor has omitted most footnotes. If the
editor has retained a footnote, he or she believes that it is important to the
student’s understanding of the case. A footnote sometimes contains the key
to the case.
Do not ignore dissenting and concurring opinions. Again, if an editor
retains a dissent or concurrence, he or she has done so for a reason. Do not
be surprised if your professor asks you if you agree with the majority or the
dissent. If you fail to brief the dissent, you probably will be unable to
answer the question.
i. More Sample Briefs
Here are two additional briefs of the Conti case. Each differs slightly
from the sample brief we have studied. Our purpose is to show you that
there is not just one way to brief a case. Just as different people take notes
in different ways, different people brief cases in different ways. In each,
however, the essential information is the same.
Conti v. ASPCA
77 Misc. 2d 61, 353 N.Y.S.2d 288 (Civ. Ct. 1974)

FACTS: on June 28, 1973, the ASPCA’s parrot, Chester, flew away. On July
5, Conti (Pl.) found a bird the court determined was Chester in his
backyard. Conti caged the parrot and called the ASPCA for information on
parrot care. The ASPCA (Def.) suspecting the parrot was Chester went and
took the parrot from Conti. Def. refused to return the parrot to Pl.
PROCEDURE: Trial court decision on a replevin action. Replevin is an
action where a person seeks to recover possession of particular goods.

ISSUE: Who has rightful possession of an escaped parrot originally owned

by one party and recaptured by another?

HELD: Ownership of a domesticated animal does not terminate upon

escape, but remains with the original owner.

ANALYSIS: The true owner of lost property is entitled to its return.

Ownership of a wild animal (ferae naturae) ends when it escapes and
returns to its natural liberty. A domesticated animal (one that has been
trained and disciplined) is treated as lost property and is subject to return
upon recapture.
In determining whether the parrot was domesticated or wild, the court
considered three cases and three guidelines. Mullet found an untrained sea
lion to be ferae naturae. Amory held geese that had been trained were
domesticated. Manning determined extinguishing ownership of a pet canary
was “wholly at variance with all our views of right and justice.” Chester
had been trained, disciplined and was like a canary. Ownership continued to
be held by the ASPCA because Chester was domesticated.

Second Sample Brief

Conti v. ASPCA
77 Misc. 2d 61, 353 N.Y.S.2d 288 (Civ. Ct. 1974)

FACTS: Defendant ASPCA conducted a demonstration with a parrot named

Chester during which the bird escaped. A week later, a parrot with markings
and colorings similar to Chester’s appeared in plaintiff’s yard and remained
with the plaintiff for two weeks before being caged. The ASPCA removed
the bird after plaintiff called for advice about its care. ASPCA claimed the
bird was Chester and belonged to the organization.
PROCEDURE: Action for replevin—plaintiff wants the bird back.

ISSUE: Court identified two issues: 1. Whether the bird is actually Chester;
and 2. Who gets him?

HELD: ASPCA gets the bird because: 1. The court found that the bird was
Chester; and 2. As a domesticated animal, Chester does have a true owner,
whose rights are not lost when the bird escapes.

ANALYSIS: The key issue in determining ownership was whether the rule
of ferae naturae applied. This rule states that an owner acquires only
qualified rights in a wild animal that are extinguished if the animal escapes.
The court found that Chester was subject to training and discipline and
therefore was not wild.
3. Problem
Here is another case that many of you will read during your first year
in law school. Please brief it. Following the opinion are three sample briefs
of the case. Compare your brief to them. Please do not read these briefs
until you have written your own. If you ignore this instruction, you will
learn far less.
As you read the opinion, note that it is an appellate opinion. The trial
court decided in favor of the defendant, and the plaintiff has appealed to the
appropriate appeals court, here, the Massachusetts Supreme Judicial Court.
Note also the format of the opinion. It begins with the name of the
case. Here, the first name is McAvoy, the name of the plaintiff, who is now
the appellant. Though some courts put the name of the appellant first, others
do not necessarily do so. In each case, you need to check. Next is the
citation you need to find the case in the library. Then come the facts of the
case and, then, the name of the justice who wrote the opinion. Most of the
time, the name of the judge appears before the statement of the facts. In
virtually all appellate cases, several judges decide the case, and one judge
writes the opinion. Here, Justice Dewey had that task. After the opinion
discusses the case, it gives the court’s ruling. In this case, the court
overruled the plaintiff’s exceptions and upheld the decision of the trial
court. Exceptions are the grounds on which the plaintiff sought the appeal.
McAvoy v. Medina
93 Mass. (11 Allen) 548 (1866)
[Tort action to recover sum of money found by plaintiff in defendant’s
shop.]
At the trial in the superior court, before Morton, J., it appeared that the
defendant was a barber, and the plaintiff, being a customer in the
defendant’s shop, saw and took up a pocket-book which was lying upon a
table there, and said, “See what I have found.” The defendant came to the
table and asked where he found it. The plaintiff laid it back in the same
place and said, “I found it right there.” The defendant then took it and
counted the money, and the plaintiff told him to keep it, and if the owner
should come to give it to him; and otherwise to advertise it; which the
defendant promised to do. Subsequently the plaintiff made three demands
for the money, and the defendant never claimed to hold the same till the last
demand. It was agreed that the pocket-book was placed upon the table by a
transient customer of the defendant and accidentally left there, and was first
seen and taken up by the plaintiff, and that the owner had not been found.
The judge ruled that the plaintiff could not maintain his action, and a
verdict was accordingly returned for the defendant; and the plaintiff alleged
exceptions, (Citations omitted.)
Dewey, J. It seems to be the settled law that the finder of lost property
has a valid claim to the same against all the world except the true owner,
and generally that the place in which it is found creates no exception to this
rule. 2 Parsons on Con. 97. Bridges v. Hawkesworth, 7 Eng. Law & 7. Eq.
R. 424.
But this property is not, under the circumstances, to be treated as lost
property in the sense in which a finder has a valid claim to hold the same
until called for by the true owner. This property was voluntarily placed
upon a table in the defendant’s shop by a customer of his who accidentally
left the same there and has never called for it. The plaintiff also came there
as a customer, and first saw the same and took it up from the table. The
plaintiff did not by this acquire the right to take the property from the shop,
but it was rather the duty of the defendant, when the fact became thus
known to him, to use reasonable care for the safe keeping of the same until
the owner should call for it. In the case of Bridges v. Hawkesworth the
property, although found in a shop, was found on the floor of the same, and
had not been placed there voluntarily by the owner, and the court held that
the finder was entitled to the possession of the same, except as to the owner.
But the present case more resembles that of Lawrence v. The State, 1
Humph. (Tenn.) 228, and is indeed very similar in its facts. The court there
makes a distinction between the case of property thus placed by the owner
and neglected to be removed, and property lost. It was there held that “to
place a pocket-book upon a table and to forget to take it away is not to lose
it, in the sense in which the authorities referred to speak of lost property.”
We accept this as the better rule, and especially as one better adapted
to secure the rights of the true owner.
In view of the facts of this case, the plaintiff acquired no original right
to the property, and the defendant’s subsequent acts in receiving and
holding the property in the manner he did; does not create any. Exceptions
overruled.

First Sample Brief

McAvoy v. Medina
93 Mass. (11 Allen) 548 (1866)

FACTS: Pl. customer found a pocket-book lying on a table in def.’s

barbershop. Def. agreed to hold it in case the owner returned. The owner
never showed up and apparently was a transient customer. Def. refused to
give pocket-book to pl.

PROCEDURE: Pl. brought tort action to recover money in the pocket-book.

T.C.: Pl. could not maintain the action; verdict for def. Pl. appeals. Ct. here
affirms (exceptions overruled).

ISSUE: Does the finder have a valid claim to property that the owner
voluntarily placed in a given location and forgot to retrieve (i.e. property
that the owner mislaid)?
HELD: No.

ANALYSIS: The finder of lost property has a valid claim to it as against all
but the true owner. But property that is voluntarily placed somewhere, like
the table in the barbershop, and accidentally left behind is not lost property.
The finder has no right to it. The owner of the location has the duty to take
reasonable care of the property until the owner calls for it. This rule is better
adapted to secure the rights of the true owner.

Second Sample Brief

McAvoy v. Medina
93 Mass. (11 Allen) 548 (1866)

FACTS: McAvoy (P) was a customer in Medina’s (D’s) barbershop. P found

a pocket-book containing money on a table in the shop. P & D agreed (at
least at the time of trial) that it was placed on the table and accidentally left
by a transient customer. P left the pocket-book with D who promised to
advertise it. No one claimed it, and D refused to give P the money found in
it.

PROCEDURE: P appeals from the trial court, which found he could not
maintain a tort action for the value of the money.

ISSUE: Whether the finder of property determined to be accidentally left

has the same property right as the finder of lost property.
HOLDING: The finder of mislaid or forgotten property acquires no right to
the property found against the shop owner where the article was left.

ANALYSIS: Property voluntarily placed and accidentally left in a shop does

not give the finder a valid claim against all but the true owner. A shop
owner has the responsibility to use due care for the property until the true
owner returns. Creating a property interest in the shop owner supports its
return to its proper owner.
The court uses Bridges and Lawrence to show that finding the property
in the shop is not the determinative factor. The distinction is between
deciding if it is lost (Bridges—found on the floor), in which case the finder
gets it, and finding if it is mislaid or forgotten (Lawrence—found on a
table).

Third Sample Brief

McAvoy v. Medina
93 Mass. (11 Allen) 548 (1866)

FACTS: Plaintiff McAvoy saw a purse on a table in def.’s barbershop and

asked def. to give it to the owner or to advertise it. When the owner did not
show up to claim the purse, pl. demanded it.

PROCEDURE: Action in tort to recover money. Pl. appeals from lower

court verdict for def.

ISSUE: If the purse is not treated as lost, but as accidentally left behind,
would the finder be entitled to keep it if the true owner does not show up?

HELD: Pl.’s appeal was denied (exceptions overruled). The court held that
the purse would not be treated as lost under the circumstances and thus pl.
acquired no right to the property.

ANALYSIS: The court relied on Lawrence v. State in which the court

distinguished between property “placed by the owner and neglected to be
removed” and property lost. The court felt that treating the mislaid property
differently and giving it to the owner of the location created a rule that was
“better adapted to secure the rights of the true owner.”

§5.03. BEYOND BRIEFING

Briefing is just the beginning of preparing for class. Once you brief a
case, you need to think about the opinion critically. You will spend most of
your time in class evaluating the opinion rather than merely restating what
the court said. By the time class is over, you may decide that you disagree
with the court. After a class on the Conti case, you still may agree with the
outcome, but you may question at least some of the court’s reasoning. In a
class on the McAvoy case, you may learn that the trend among courts is to
reject its holding. Here are three questions to help you think about the cases
you have briefed.
(1) Do you agree with the court’s holding and reasoning? Does the
logic flow? Does the court rely on assumptions—explicit or implicit—with
which you disagree? Do you agree with the social policies that the court
purports to further?
(2) Would you use the court’s holding to decide a case with similar, but
not identical, facts? In Conti, suppose Chester was an untamed wolf instead
of a tamed parrot? Suppose he was a tiger that escaped from the zoo?
Would the court still find for the ASPCA, even though the animal was
undomesticated? Would you?
(3) Why did my professor and the casebook’s editor select this case?
What larger lessons are they trying to teach? Why are Conti and McAvoy
usually near the beginning of property casebooks, as opposed to the middle
or end? If you think about each case as part of a series of cases that you are
studying, do you see a big picture in addition to a series of narrow rules?

Exercise
Pick a case that you have briefed for one of your classes. Ask your
professor to read it and suggest ways to improve it. You will discover that
most professors will be very willing to spend the time with you.
§6.01. INTRODUCTION
Largely because of the adversary system, American legal analysis has
at its core the common law doctrine of stare decisis, which means “to stand
with things decided.” In other words, earlier cases are precedents whose
holdings determine the outcome of later cases. Constitutions, statutes, and
other sources of law are frequently the bases of court decisions. Courts must
determine the meaning of these law sources as they apply to specific
situations. Thus, analysis of case precedent forms the core of legal analysis,
and legal analysis is primarily applying court-made law to the facts of the
current case. In every case, lawyers on opposite sides will be using the same
facts and law, but hoping to persuade the court to reach diametrically
opposed conclusions.
There are three steps for developing a legal argument:

1. Determine all legal authority, or general rules, applicable to your

case.
2. Apply this legal authority to the facts of your particular case.
3. Draw a conclusion based on the legal authority that you have
applied to your case.

For example:
 The next two sections discuss legal authority and how to use deductive
reasoning to apply authority to your case.

§6.02. ARGUING DEDUCTIVELY

Legal analyis frequently relies on deductive reasoning. When you
argue deductively, you take three steps:

1. apply a general rule (of law), which usually derives from a

particular statute or case but also may derive from a variety of
different sources,
2. to a particular case, and
3. draw a conclusion.

For example:

In a legal argument, the general rule is the relevant legal authority; the
particular case is the facts of your case; and the conclusion is the result
reached by applying the legal authority to the facts.

For example:

The general rule is a court decision stating that all golfers have a legal
duty to avoid injuring other golfers, and a golfer fulfills this duty by yelling
“fore” when hitting a golf ball. In this particular case John Doe is a golfer.
Therefore, the conclusion is that John Doe has a duty to avoid injuring other
golfers, and he can fulfill this duty by yelling “fore” when he hits a golf
ball.
 When broken into its components, the deductive reasoning applied
here looks like this:

In your legal writing or other law school classes, you will probably
learn about IRAC (Issue, Rule, Application/Analysis, Conclusion), or some
other version of the acronym (CRAC, CIRAC, etc.). You will also hear this
acronym when you start preparing for your bar exam, and you may hear it
from practicing attorneys. It is the formulation of deductive reasoning that
has been most commonly used in law schools for many years.
Almost all approaches to legal analysis use some form of what we
teach you here—identify your issue and rule, apply the rule to your case,
and state your conclusion. Most teachers and supervisors in law offices will
also tell you to state your conclusion up front, which leads to CRAC or
CIRAC. Whatever it is called in your classroom or office, the basic premise
remains the same—use a structure that contains the essential elements of
legal analysis and that presents those elements clearly for your reader to
follow.
1. Limitations
Deductive reasoning is only a framework or a starting point for
formulating a legal argument. It does not always dictate the outcome of a
case with great precision and may only give you a “ballpark” prediction of
what the outcome of your case should be. Remember that the party on the
other side of the case also will apply deductive reasoning, using the same
facts and law, to arrive at a very different conclusion about the case.
Deductive reasoning is only as valid as your interpretation of the general
rule and your application of that rule to the particular case.
For example, with regard to the case above, suppose you found the
general rule in a California case, but New York law governs your case and
does not follow the California rule. If New York law is settled, it controls;
that is, if New York law specifically holds that yelling “fore” is not
required, the California case has no precedential value. If it is unsettled,
then the California rule is, at best, persuasive authority. Thus, if New York
courts have said only that golfers must take “reasonable steps” to avoid
injuring other golfers, you might want to argue that the California rule is
more specific and should be adopted.
With regard to the same case, suppose John Doe the golfer is a child.
Or suppose he was incapable of yelling “fore,” either because he could not
speak or he speaks a foreign language. These differences in the facts might
make your authority nonmandatory and maybe not even persuasive.
If the general rule is very broad or very narrow, or if your
understanding of how the rule applies to the particular case is in some way
not totally accurate, your conclusion may not be persuasive to a court.
Reasoning deductively is not always as easy as it appears, but it is still a
useful framework for legal logic.
2. Maximizing the Use of Deductive Reasoning
To use deductive reasoning for legal argument, you must:

1. Be sure that your general statement, or rule of law, is correct by

analyzing all relevant law and predicting accurately the rule you
think the court will apply to your case.
2. Be sure that your statement of the facts in the particular case is
accurate and does not ignore anything that might alter application of
the general rule.
3. Be sure that your application of the rule to your facts is thorough
and fair, taking into account all relevant analogies and distinctions.
4. Be sure that your final conclusion follows logically from the rule
and facts.

If there are several issues in your case, you should apply deductive
reasoning to each issue separately, again taking great care as to your
interpretation of what the law is and its application to your own situation.
One issue may contain many sub-issues, each of which requires a separate
application of deductive reasoning.
3. Application
 When writing your argument with deductive analysis, we recommend
that you always state your conclusion first because readers of legal writing
do not want to be left waiting in suspense for the conclusion. After you state
the conclusion, identify the key issue and the applicable rule, and present
the relevant legal authority. Next apply the legal authority to the facts of
your case. Finally, restate the conclusion you have drawn from your
analysis.
Here is a brief example of this form of analysis:

Conclusion: The defendant here had a duty to shout “fore” to the plaintiff.
Issue: The key issue is when a golfer has a duty to yell “fore” when
hitting a golf ball in the direction of another golfer on an
adjacent fairway.
Major In Allen v. Pinewood Country Club, Inc., 292 So. 2d 786, 789
Premise: (La. App. 1974), the court held that golfers have a duty to yell
(Relevant “fore” if they hit a golf ball and another golfer on a different
legal fairway is standing in the ball’s line of flight. The court found
authority or that all golfers have a duty of reasonable care and must avoid
rule) injuring other golfers. Id. To fulfill this duty, a golfer must
give timely and adequate warning to other golfers in the golf
ball’s line of flight. Id. Therefore, a golfer has a duty to yell
“fore” when hitting a golf ball that veers toward another
fairway and a golfer on the other fairway is standing in the
ball’s line of flight. Id.
Particular Under Allen, the defendant in the present case had a duty to
Case: yell “fore” to the plaintiff. The defendant hit a golf ball from
(Applying the fairway of the sixth hole. The ball hooked toward the
the relevant fairway of the fifth hole. The plaintiff was standing on the
legal fairway of the fifth hole and was in the direct line of flight of
authority to the golf ball hit by the defendant. Therefore, the facts of the
the facts) present case fall squarely within the holding in Allen.
Conclusion: Since the defendant hit a golf ball that hooked toward the
plaintiff who was on an adjacent fairway and was in the direct
line of flight of the golf ball, the defendant had a duty to shout
“fore” to the plaintiff.
 The conclusion at the end is not just a simple paraphrase of the
conclusion at the beginning. It should be developed more fully and should
include the relevant, concrete facts of the case.

§6.03. APPLYING THE LAW TO THE FACTS

As you may have surmised from the preceding discussion, a legal
argument is meaningless unless you apply the relevant legal authority
directly to the facts of your case. The most important aspect of legal
argument is taking the general rule of law and applying it to the particular
situation. Applying the law to the facts makes your argument concrete and
tells the court how you think it should resolve your case. The rest of this
chapter shows you in detail how to do this. After a brief overview of the
process, you will see a legal analysis of an issue arising out of a case similar
to the McAvoy v. Medina case presented in Chapter 5. We will then proceed
step-by-step through two examples of legal analysis, one relying solely on
cases and one adding statutory construction to the mix. As we go along, you
will be asked to write out the analysis that follows from the discussion.
1. The Basic Approach
The single most important thing to remember about legal analysis is
that completeness is everything. The goal is not to arrive at an answer as
quickly as possible, but to lay out, in what often seems like excruciating
detail, how you got from the question to the answer. In most cases, if a
thought goes through your head that helps you arrive at a conclusion, it
should appear on the paper. Readers of legal analysis, generally busy
practitioners and judges, do not want to work at analyzing the problem
while they read. They want to pick up the document you have submitted,
read through it quickly, and understand instantly how you reached every
conclusion you present.
How does this process work? Assume you have been asked to predict
the outcome of a particular client’s situation. You have identified the
relevant case law and are preparing to write out an analysis that explains
how the case law applies to your client’s situation. Until you become
comfortable with this analytical process and develop your own personal
style, you should go through the following steps in writing. First, brief the
cases you will be analyzing. Summarize the facts, holding, and rationale of
each decision. Find and identify the rule of law applied by the court in each
case. Add the procedural history, if it is relevant to the discussion.
Once you have the building blocks, try to formulate a general principle
or principles that explain the decisions reached by the courts. Are they
applying the same rules? If the courts seem to be arriving at the same end
by different routes, compare and evaluate the various approaches. If the
courts arrive at different results, try to figure out what distinguishes the
cases. Are the facts different? Are the courts trying to implement different
policies?
When you have figured out why the courts reached the decisions they
did, look for analogies between the decided cases and the case you have
been asked to analyze. Compare the facts. Identify the policy or policies
behind the decisions, and try to decide what outcome that policy would
mandate in your case. By policy, we mean the societal interest or goal that
is served by the decision. Look at the equities—did the courts seek out the
“fair” result, and what would that be in your case? How do these policy and
equity arguments relate to the legal rules announced or applied by the
courts?
After you have gone through these steps, it is time to begin writing out
your analysis. When you do, integrate your analysis of your case with your
discussion of the decided cases. Integration means you do not present all of
the relevant law and then discuss its application to your case. An effective
legal analysis will make comparisons between the decided cases and the
case being discussed wherever appropriate, whether those comparisons are
of facts, applicable policies, or equities. You want to synthesize the existing
law and your client’s situation by demonstrating how they fit together, and
by explaining how what has happened in the past will or should inform the
decisions of those faced with the current situation.
2. An Example of Legal Analysis
This section will present a sample legal analysis of a question
regarding whether a piece of property was “lost” or “mislaid,” and thus who
can claim ownership of it. First, reread the McAvoy v. Medina case from
Chapter 5. Assume that the only other relevant authority is the following
case:
Durfee v. Jones
11 R.I. 588 (1877)
 July 21, 1877. DURFEE, C.J. The facts in this case are briefly these: In
April, 1874, the plaintiff bought an old safe and soon afterwards instructed
his agent to sell it again. The agent offered to sell it to the defendant for ten
dollars, but the defendant refused to buy it. The agent then left it with the
defendant, who was a blacksmith, at his shop for sale for ten dollars,
authorizing him to keep his books in it until it was sold or reclaimed. The
safe was old-fashioned, of sheet iron, about three feet square, having a few
pigeon-holes and a place for books, and in back of the place for books a
large crack in the lining. The defendant shortly after the safe was left, upon
examining it, found secreted between the sheet-iron exterior and the
wooden lining a roll of bills amounting to $165, of the denomination of the
national bank bills which have been current for the last ten or twelve years.
Neither the plaintiff nor the defendant knew the money was there before it
was found. The owner of the money is still unknown. The defendant
informed the plaintiff’s agent that he had found it, and offered it to him for
the plaintiff; but the agent declined it, stating that it did not belong to either
himself or the plaintiff, and advised the defendant to deposit it where it
would be drawing interest until the rightful owner appeared. The plaintiff
was then out of the city. Upon his return, being informed of the finding, he
immediately called on the defendant and asked for the money, but the
defendant refused to give it to him. He then, after taking advice, demanded
the return of the safe and its contents, precisely as they existed when placed
in the defendant’s hands. The defendant promptly gave up the safe, but
retained the money. The plaintiff brings this action to recover it or its
equivalent.
The plaintiff does not claim that he acquired, by purchasing the safe,
any right to the money in the safe as against the owner; for he bought the
safe alone, not the safe and its contents. See Merry v. Green, 7 M. & W.
623. But he claims that as between himself and the defendant his is the
better right. The defendant, however, has the possession, and therefore it is
for the plaintiff, in order to succeed in his action, to prove his better right.
The plaintiff claims that he is entitled to have the money by the right of
prior possession. But the plaintiff never had any possession of the money,
except, unwittingly, by having possession of the safe which contained it.
Such possession, if possession it can be called, does not of itself confer a
right. The case at bar is in this view like Bridges v. Hawkesworth, 15 Jur.
1079; 21 L.J.Q.B. 75 A.D. 1851; 7 Eng. L. & Eq. 424. In that case, the
plaintiff, while in the defendant’s shop on business, picked up from the
floor a parcel containing bank notes. He gave them to the defendant for the
owner if he could be found. The owner could not be found, and it was held
that the plaintiff as finder was entitled to them, as against the defendant as
owner of the shop in which they were found. “The notes,” said the court,
“never were in the custody of the defendant nor within the protection of his
house, before they were found, as they would have been if they had been
intentionally deposited there.” The same in effect may be said of the notes
in the case at bar; for though they were originally deposited in the safe by
design, they were not so deposited in the safe, after it became the plaintiff’s
safe, so as to be in the protection of the safe as his safe, or so as to affect
him with any responsibility for them. The case at bar is also in this respect
like Tatum v. Sharpless, 6 Phila. 18. There it was held, that a conductor who
had found money which had been lost in a railroad car was entitled to it as
against the railroad company.
The plaintiff also claims that the money was not lost but designedly
left where it was found, and that therefore as owner of the safe he is entitled
to its custody. He refers to cases in which it has been held, that money or
other property voluntarily laid down and forgotten is not in legal
contemplation lost, and that of such money or property the owner of the
shop or place where it is left is the proper custodian rather than the person
who happens to discover it first. State v. McCann, 19 Mo. 249; Lawrence v.
The State, 1 Humph. 228; McAvoy v. Medina, 11 Allen, 549. It may be
questioned whether this distinction has not been pushed to an extreme. See
Kincaid v. Eaton, 98 Mass. 139. But, however that may be, we think the
money here, though designedly left in the safe, was probably not designedly
put in the crevice or interspace where it was found, but that, being left in the
safe, it probably slipped or was accidentally shoved into the place where it
was found without the knowledge of the owner, and so was lost, in the
stricter sense of the word. The money was not simply deposited and
forgotten, but deposited and lost by reason of a defect or insecurity in the
place of deposit.
The plaintiff claims that the finding was a wrongful act on the part of
the defendant, and that therefore he is entitled to recover the money or to
have it replaced. We do not so regard it. The safe was left with the
defendant for sale. As seller he would properly examine it under an implied
permission to do so, to qualify him the better to act as seller. Also under the
permission to use it for his books, he would have the right to inspect it to
see if it was a fit depository. And finally, as a possible purchaser he might
examine it, for though he had once declined to examine it. And the
defendant, having found in the safe something which did not belong there,
might, we think, properly remove it. He certainly would not be expected
either to sell the safe to another, or to buy it himself without first removing
it. It is not pretended that he used any violence or did any harm to the safe.
And it is evident that the idea that any trespass or tort had been committed
did not even occur to the plaintiff’s agent when he was first informed of the
finding.
The general rule undoubtedly is, that the finder of lost property is
entitled to it as against all the world except the real owner, and that
ordinarily the place where it is found does not make any difference. We
cannot find anything in the circumstances of the case at bar to take it out of
this rule. We give the defendant judgment for costs.
___________
Here are the facts of the case to be analyzed.
Fact Pattern: Lost or Mislaid?
While collecting books for reshelving, P., an employee at a law library,
discovered a black valise lying on its side on the floor between two
bookshelves. He picked up the valise and brought it to the circulation desk,
where he searched the contents for some identification of the owner.
A few days later, D., a student at the law school, came to the
circulation desk to find a black valise she had lost. P. showed D. the found
valise. D. said that it looked like her case but wished to check the contents
to be sure. P. agreed and opened the valise for D.
While examining the contents, D. discovered a secret compartment
that contained a diamond engagement ring. D. pocketed the ring, leaving
her name with P. in case the original owner should turn up, and left the
library. P. followed, requesting that D. return the ring to the valise. D.
refused. P. now sues for return of the ring.
D. claims that the ring was lost, so D., as finder, is entitled to it unless
the real owner claims it. P. claims that the ring was intentionally left in the
secret compartment and, as a result, was not “lost” in a legal sense. P. insists
that he is a custodian of the mislaid property and is entitled to keep the ring
unless the real owner claims it.
Analysis
The principal issues to be addressed in this case are whether either the
ring or the valise fits the legal definition of “lost,” and thus whether D.
could legally have “found” the ring. Although the valise was “lost,” and the
ring was not, D. does not have a legal claim to custody of either one.
The rule that “the finder of lost property is entitled to it as against all
the world except the real owner,” Durfee v. Jones, 11 R.I. 588 (1877),
applies to the valise. P. found the valise lying on its side, in a manner and in
a place suggesting it was not left there intentionally. Consequently, P.
acquired a legal interest in the valise analogous to the interest acquired by
the plaintiff in the Durfee case when he purchased a safe containing money
that had slipped into a crevice inside the safe. Durfee did not find the
money while the safe was in his possession. The defendant legally acquired
custody of the safe from Durfee, found the money, removed it and then
returned the safe. Durfee sought the return of the money as well, but the
court held that the money had not been intentionally placed into the crevice
and was thus “lost.” Therefore the defendant had title to the money, subject
only to the title of the true owner. The only difference between the interests
of Durfee and P. is that Durfee was entitled to the safe against all others
whereas P. is only entitled to the valise if the original owner does not turn
up.
Conversely, if the original owner places property in a particular
location, intending to retrieve it, the finder is not entitled to the property but
is expected to “use reasonable care for the safe keeping of [the property]
until the owner should call for it.” McAvoy v. Medina, 93 Mass. (11 Allen)
548 (1866). In that case the owner of a shop was held to have the obligation
to keep a pocketbook left on a table by a customer. The plaintiff “found” the
pocketbook and later attempted to obtain custody of the money inside it
from the defendant shopkeeper, but the court rejected the plaintiff’s claim.
These cases lead to the conclusion that an individual who acquires
possession of a piece of personal property assumes only a custodial interest
over any property intentionally hidden inside it. In the present case, D.
cannot argue that the position of the ring within the valise was the product
of some accident, as was the location of the money in Durfee. The ring had
been deliberately placed in a secret compartment in order that it be
protected. Since P., as finder, was entitled to the valise, D. could not lay
claim to anything intentionally hidden within it, even if P. did not know of
its existence.
Even if D. could legally “find” the ring, P. gave D. leave to look inside
the valise solely to determine the identity of its owner. D. did not have to
search for secret compartments to see if it was her case. The court in Durfee
indicates that a finder must have at least implied permission to examine the
property. In the present case, P. opened the case so that D. could check to
see if it belonged to her. P. did not give D. permission to conduct an
exhaustive search of the lining, and there was nothing inherent in the
determination of whether it was D.’s valise that would have implied
permission to do so.
Thus, P. may claim the valise against all but the true owner, but has
only a custodial interest in the ring. D. has no claim whatsoever to either the
valise or the ring.

§6.04. CASE ANALYSIS

Now that you have seen what the final product looks like, we will
break the process into its component parts so you can learn how to produce
a good legal analysis when you are assigned to do so. Assume that you are
an associate in a law firm and a partner has presented you with the
following situation:
A few days ago, a business client of ours came to us with a personal problem. Paul Trune,
an auditor for the Internal Revenue Service, was making a pilgrimage to Baraboo,
Wisconsin, to visit the birthplace of the Ringling Bros. & Barnum & Bailey Circus.
Unfortunately, while on the way to Baraboo, Paul became quite lost and ended up driving
down some unknown Wisconsin back road with an overheating radiator. Paul was forced
to pull off the road next to a stretch of woods. He grabbed an empty bottle that he kept in
the car for such emergencies and began walking in search of water. After a mile or so, the
woods gave way to a clearing in which there was a well. Paul looked around for a
farmhouse or any other building, but he didn’t see any. Seeing no fences or signs either,
Paul walked up to the well to take some water.
Just as Paul was raising the bucket from the bottom of the well, he heard a voice ring
out behind him. Paul turned to see a farmer gesticulating wildly and yelling at him about
“trespassing.” As the farmer got closer, Paul saw he had a dead, bloody rabbit in his left
hand and a rifle slung around his back. The farmer then bellowed at Paul that he “knew
how to take care of trespassers,” and ordered him to start walking in the direction of a
small hill. Seeing that the farmer had a gun and the ability to use it, and given the man’s
irate state, Paul decided that it was best not to say anything and just obey.
 Once at the crest of the hill, Paul saw a small farmhouse and barn below. The farmer
marched Paul into the barn and told him to wait until he called the sheriff. The farmer
closed the door to the barn, but didn’t lock it. Paul feared for his safety so he stayed put.
After about two hours in the barn, with no sign of the farmer or a sheriff, Paul peeked
outside. Not seeing the farmer anywhere in sight, he took off.

Paul now wishes to know if he has a cause of action against the farmer
for the intentional tort of false imprisonment.
Next, assume that there are only two cases in Wisconsin that address
the tort of false imprisonment. Here they are, in relevant part:
Dupler v. Seubert
69 Wis. 2d 373, 230 N.W.2d 626 (1975)
OPINION: WILKIE, C.J. This is a false imprisonment action. On April
23, 1971, plaintiff-appellant Ethel M. Dupler was fired from her job with
the defendant-respondent Wisconsin Telephone Company. She was
informed of her discharge during an hour-and-a-half session with her two
superiors, defendants-respondents Keith Peterson and Helen Seubert, who
Dupler claims, falsely imprisoned her during a portion of this time period.
A jury found that Peterson and Seubert did falsely imprison Dupler and
fixed damages at $7,500. The trial court gave Dupler the option of
accepting a lower amount—$500—or a new trial on the issue of damages.
The option was not exercised, judgment for $500 was entered, and Mrs.
Dupler appeals. We reverse and remand for a new trial on the issue of
damages, but give plaintiff-appellant an option to accept $1,000 damages in
lieu of a new trial.
Dupler had worked for the Telephone Company as a customer service
representative since 1960. At approximately 4:30 on April 23rd, Seubert
asked Dupler to come to Peterson’s office. When all three were inside,
sitting down, with the door closed, Seubert told Dupler the Telephone
Company would no longer employ her and that she could choose either to
resign or be fired. Dupler testified that she refused to resign and that in the
conversation that followed, Peterson discussed several alternatives short of
dismissal, all of which had been considered but rejected.
At approximately 5 o’clock, Dupler testified, she began to feel sick to
her stomach and said “You have already fired me. Why don’t you just let
me go.” She made a motion to get up but Peterson told her to sit down in “a
very loud harsh voice.” Then, Dupler testified, she began to feel violently ill
and stated “I got to go. I can’t take this any more. I’m sick to my stomach. I
know I’m going to throw up.” She got up and started for the door but
Seubert also arose and stood in front of the door. After Dupler repeated that
she was sick, Seubert allowed her to exit, but followed her to the men’s
washroom, where Dupler did throw up. Following this, at approximately
5:25, Seubert asked Dupler to return to Peterson’s office where she had left
her purse to discuss the situation further. Dupler testified that she went back
to the office and reached for her purse; Seubert again closed the door and
Peterson said [in] a loud voice, “Sit down. I’m still your boss. I’m not
through with you.” At approximately 5:40 Dupler told Peterson her husband
was waiting for her outside in a car and Peterson told her to go outside and
ask her husband to come inside. Dupler then went outside and explained the
situation to her husband who said, “You get back in there and get your coat
and if you aren’t right out I’ll call the police.” Dupler returned to Peterson’s
office and was again told in a loud tone of voice to sit down. She said
Seubert and Peterson were trying to convince her to resign rather than be
fired and again reviewed the alternatives that had been considered. Dupler
then said: “What’s the sense of all this. Why keep torturing me. Let me go.
Let me go.” She stated that Peterson replied, “No, we still aren’t finished.
We have a lot of things to discuss, your retirement pay, your vacation, other
things.” Finally, at approximately 6:00 Peterson told Dupler they could talk
further on the phone or at her house, and Dupler left. When asked why she
had stayed in Peterson’s office for such a long time, Dupler replied:
Well, for one thing, Helen, Mrs. Seubert, had blocked the door, and tempers had been
raised with all the shouting and screaming, I was just plain scared to make an effort. There
were two against one.

Peterson and Seubert did not dispute that Dupler had been fired on
April 23rd, or that the conference lasted from 4:30 to 6 p.m., or that Dupler
became very upset and sick to her stomach and had to leave to throw up.
Peterson admitted that Dupler had asked to leave and that he requested that
she stay and continue talking so she could indicate whether she wished to
resign or be fired. Seubert said Dupler did not so indicate until “within three
minutes of her leaving.” Both denied that any loud or threatening language
had been used, or that Dupler was detained against her will. Peterson said
neither he nor Seubert even raised their voices. He said the session was so
lengthy because Dupler continued to plead for another chance, and to
request reasons for the dismissal.
 The jury found that both Peterson and Seubert falsely imprisoned
Dupler and fixed her damages at $7,500. At the same time, the jury found
that Dupler’s co-plaintiff husband was not entitled to any damages. It found
that Peterson and Seubert had not acted maliciously and thus did not award
any punitive damages.…
The issue raised by a motion for review filed by defendants-
respondents is: Is the jury’s verdict, finding that Dupler was falsely
imprisoned, supported by the evidence?
The essence of false imprisonment is the intentional, unlawful, and
unconsented restraint by one person of the physical liberty of another. In
Maniaci v. Marquette University, the court adopted the definition of false
imprisonment contained in sec. 35 of the Restatement of Torts 2d, which
provides in part:
False Imprisonment

(1) An actor is subject to liability to another for false imprisonment if

(a) he acts intending to confine the other or a third person within boundaries
fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.

Secs. 39 and 40 provide that the confinement may be caused by

physical force or the threat of physical force, and the comment to sec. 40
indicates the threat may either be express, or inferred from the person’s
conduct. As Prosser comments:
Character of Defendant’s Act
The restraint may be by means of physical barriers, or by threats of force which intimidate
the plaintiff into compliance with orders. It is sufficient that he submits to an apprehension
of force reasonably to be understood from the conduct of the defendant, although no force
is used or even expressly threatened.…This gives rise, in borderline cases, to questions of
fact, turning upon the details of the testimony, as to what was reasonably to be understood
and implied from the defendant’s conduct, tone of voice and the like, which seldom can be
reflected accurately in an appellate record, and normally are for the jury.

This is precisely such a case and we conclude that the record contains
sufficient evidence from which the jury could have concluded that Mrs.
Dupler was intentionally confined, against her will, by an implied threat of
actual physical restraint. She testified that defendant Peterson ordered her in
a loud voice to remain seated several times, after she expressed the desire to
leave. She reported being “berated, screamed and hollered at,” and said the
reason she did not just walk out of the room was that “Mrs. Seubert had
blocked the door, and tempers had been raised with all the shouting and
screaming, I was just plain scared to make an effort. There were two against
one.” The jury obviously believed Mrs. Dupler’s rather than the defendants’
account of what transpired, as it had the right to do, and we conclude her
testimony was sufficient to support the jury’s verdict.
Herbst v. Wuennenberg
83 Wis. 2d 768, 266 N.W.2d 391 (1978)
OPINION: ABRAHAMSON, J. Carol Wuennenberg appeals from a
judgment entered by the trial court on a jury’s special verdict finding that
she falsely imprisoned Jason A. Herbst, Ronald B. Nadel, and Robert A.
Ritholz (“plaintiffs”). Because there is no credible evidence to sustain a
finding of false imprisonment, we reverse the judgment and order the cause
remanded so that plaintiffs’ complaint can be dismissed and judgment
entered in favor of Wuennenberg.
I
In April 1975, plaintiffs initiated a civil action charging Wuennenberg
with false imprisonment, malicious prosecution, and abuse of process.
Plaintiffs’ cause of action for false imprisonment arose from an incident
which took place on September 19, 1974 in the vestibule of a three-unit
apartment building owned and lived in by Wuennenberg and located within
the district which Wuennenberg represented as alderperson in the city of
Madison. Plaintiffs’ causes of action for malicious prosecution and abuse of
process arose from trespass actions brought against the plaintiffs by the city
of Madison after Wuennenberg had registered a complaint about the
September 19, 1974 incident.
On September 19, 1974, the plaintiffs were comparing the voter
registration list for the City of Madison with names on the mailboxes in
multi-unit residential dwellings in Wuennenberg’s aldermanic district.
Plaintiffs’ ultimate purpose was to “purge the voter lists” by challenging the
registrations of people whose names were not on mailboxes at the addresses
from which they were registered to vote.
The plaintiffs and Wuennenberg gave somewhat differing accounts of
the incident which gave rise to the action for false imprisonment, but the
dispositive facts are not in dispute.
 According to Ritholz, whose version of the incident was corroborated
by Herbst and Nadel, when the plaintiffs reached Wuennenberg’s house at
approximately 4:30 p.m. they entered unannounced through the outer door
into a vestibule area which lies between the inner and outer doors to
Wuennenberg’s building. The plaintiffs stood in the vestibule near the
mailboxes, which were on a wall in the vestibule approximately two feet
inside the front door to the building. Neither he nor the other plaintiffs
touched the mailboxes, stated Ritholz; he simply read the names listed for
Wuennenberg’s address from a computer printout of the registered voters in
Wuennenberg’s district, and the others checked to see if those names
appeared on the mailboxes.
When they were half way through checking, testified Ritholz,
Wuennenberg entered the vestibule from an inner door and asked plaintiffs
what they were doing. Ritholz replied that they were working for the
Republican party, purging voter lists. According to Ritholz, Wuennenberg
became very agitated and told the plaintiffs that she did not want them in
her district. “At first she told us to leave,” testified Ritholz, “and we agreed
to leave, but she very quickly changed her mind and wanted to know who
we were. Since we already agreed to leave, we didn’t think this was
necessary.”
After the plaintiffs had refused to identify themselves to her,
Wuennenberg asked them whether they would be willing to identify
themselves to the police. Ritholz replied that they would be willing to do so.
Nonetheless, testified Ritholz, he would have preferred to leave, and several
times he offered to leave. Both Nadel and Herbst, who agreed that Ritholz
was acting as spokesman for the group, testified to Ritholz’s statement to
Wuennenberg that the plaintiffs were willing to identify themselves to the
police.
Subsequently, Wuennenberg’s husband came to the vestibule to see
what was going on, and Wuennenberg asked him to call the police. About
this time Wuennenberg moved from the inner door to a position in front of
the outer door. According to Nadel, Wuennenberg blocked the outer door by
“standing there with her arms on the pillars to the door to block our exit.”
The plaintiffs agreed that Wuennenberg had not threatened or intimidated
them and that they neither asked her permission to leave nor made any
attempt to get her to move away from the doorway. When asked why he had
not attempted to leave the vestibule, each of the plaintiffs answered, in
effect, that he assumed he would have had to push Wuennenberg out of the
way in order to do so.
The plaintiffs waited in the vestibule, stated Ritholz, until the police
came some five minutes later. They gave their names and explained their
errand to a police officer who told them that they were not doing anything
wrong and that they could continue checking the mailboxes in the district.
Wuennenberg testified that she and her husband were in their living
room watching television and reading the paper when she heard the
plaintiffs enter her vestibule. She came to the inner door, noted Herbst with
his hands on the mailboxes, and asked the plaintiffs if she could be of any
assistance to them. Ritholz answered “No.” She next asked if they were
looking for someone in the building. Ritholz again answered “No.”…
Ritholz…stated that the plaintiffs were election officials, volunteering their
services. At this point, stated Wuennenberg, she told the plaintiffs that it did
not seem proper for citizen volunteers to be interfering with mailboxes and
that she considered the plaintiffs to be trespassing on her property. Ritholz,
speaking in “an authoritative tone,” replied that the vestibule to
Wuennenberg’s building was “just like a public street” and that he had a
right to be there.
After Ritholz told Wuennenberg that the plaintiffs would not identify
themselves to her, but that they would identify themselves to the police,
Wuennenberg’s husband came out to see what was happening. She
explained and then told him, “It looks like you’ll have to call the police.”
Her husband looked at the plaintiffs, and they “nodded their approval to
this.”
After her husband left to call the police, testified Wuennenberg, she
positioned herself in front of the outer doorway because she could watch for
the arrival of the police from that vantage and because “I didn’t want
someone trying to run away at that point.” She stated she did not brace her
arms against the door frame. She would not have made any effort to stop
the plaintiffs had they attempted to leave, stated Wuennenberg, because,
“I’m not physically capable of stopping anybody.”
Plaintiffs’ causes of action for false imprisonment, abuse of process,
and malicious prosecution were tried before a jury. At the close of the
evidence, the trial court granted Wuennenberg’s motion for a directed
verdict on the causes of action for malicious prosecution and abuse of
process but denied Wuennenberg’s motion for a directed verdict on the
cause of action for false imprisonment.
The jury returned a special verdict finding that Wuennenberg had
falsely imprisoned the plaintiffs and awarded Herbst, Nadel and Ritholz a
total of $1,500 in actual damages. The jury found that Wuennenberg’s acts
had not been malicious and thus declined to award punitive damages.
II
We reiterate the rule which this court must follow in reviewing the
record to determine if the jury verdict is supported by the evidence: A jury
verdict will not be upset if there is any credible evidence which under any
reasonable view fairly admits of an inference supporting the findings. The
evidence is to be viewed in the light most favorable to the verdict. A jury
cannot base its findings on conjecture and speculation. We hold that the
evidence adduced in the case before us does not support a finding that the
plaintiffs were falsely imprisoned, and accordingly we reverse the judgment
of the trial court.
The action for the tort of false imprisonment protects the personal
interest in freedom from restraint of movement. The essence of false
imprisonment is the intentional, unlawful, and unconsented restraint by one
person of the physical liberty of another. Dupler v. Seubert, 69 Wis. 2d 373,
381, 230 N.W.2d 626 (1975). There is no cause of action unless the
confinement is contrary to the will of the “prisoner.” It is a contradiction to
say that the captor imprisoned the “prisoner” with the “prisoner’s” consent.
Harper & James, The Law of Torts sec. 3.7, p. 227 (1956).
In Maniaci v. Marquette University, 50 Wis. 2d 287, 295, 184 N.W.2d
168 (1971) and in Dupler v. Seubert, supra, 69 Wis. 2d at 381, we adopted
the definition of false imprisonment given by the Restatement of Torts,
Second, sec. 35:
(1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by
the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.

After review of the record we conclude that the evidence is not

sufficient to support the conclusion that Wuennenberg’s acts “directly or
indirectly [resulted] in…a confinement of the [plaintiffs],” a required
element of the cause of action.
The Restatement lists the ways in which an actor may bring about a
“confinement”: “by actual or apparent physical barriers”[Sec. 38, Comment
a]; “by overpowering physical force, or by submission to physical
force”[Sec. 39]; “by submission to a threat to apply physical force to the
other’s person immediately upon the other’s going or attempting to go
beyond the area in which the actor intends to confine him”[Sec. 40]; “by
submission to duress other than threats of physical force, where such duress
is sufficient to make the consent given ineffective to bar the action” (as by a
threat to inflict harm upon a member of the other’s immediate family, or his
property) [Sec. 40A]; “by taking a person into custody under an asserted
legal authority”[Sec. 41].
The plaintiffs do not contend that confinement was brought about by
an actual or apparent physical barrier, or by overpowering physical force, or
by submission to duress, or by taking a person into custody under an
asserted legal authority. The parties agree that the central issue is whether
there was confinement by threat of physical force and thus argue only as to
the applicability of section 40 of the Restatement, which we cited and
applied in Dupler v. Seubert, 69 Wis. 2d at 382. Section 40 provides:
§40. Confinement by Threats of Physical Force
The confinement may be by submission to a threat to apply physical force to the other’s
person immediately upon the other’s going or attempting to go beyond the area in which
the actor intends to confine him.

The comments to section 40 provide that a person has not been

confined by “threats of physical force” unless by words or other acts the
actor “threatens to apply” and “has the apparent intention and ability to
apply” force to his person.1 It is not a sufficient basis for an action for false
imprisonment that the “prisoner” remained within the limits set by the actor.
Remaining within such limits is not a submission to the threat unless the
“prisoner” believed that the actor had the ability to carry his threat into
effect.2
Dean Prosser comments on the elements of false imprisonment as
follows:
Character of Defendant’s Act
The restraint may be by means of physical barriers, or by threats of force which intimidate
the plaintiff into compliance with orders. It is sufficient that he submits to an apprehension
 of force reasonably to be understood from the conduct of the defendant, although no force
is used or even expressly threatened. The plaintiff is not required to incur the risk of
personal violence by resisting until it actually is used. It is essential, however, that the
restraint be against the plaintiffs will; and if he agrees of his own free choice to surrender
his freedom of motion, as by remaining in a room or accompanying the defendant
voluntarily, to clear himself of suspicion or to accommodate the desires of another, rather
than yielding to the constraint of a threat, then there is no imprisonment. This gives rise, in
borderline cases, to questions of fact, turning upon the details of the testimony, as to what
was reasonably to be understood and implied from the defendant’s conduct, tone of voice
and the like, which seldom can be reflected accurately in an appellate record, and
normally are for the jury.

As plaintiffs state in their brief, the question before this court is

whether there is any credible evidence which supports a conclusion that the
plaintiffs did not consent to the confinement and that they remained in the
vestibule only because Wuennenberg indicated by standing in the doorway
that she had “the apparent intention and ability to apply” force to their
persons should they attempt to leave. We have reviewed the record, and we
find that it does not support this conclusion. Ritholz testified that
Wuennenberg had not verbally threatened the plaintiffs, and since none of
the plaintiffs asked Wuennenberg to step aside, it could be no more than
speculation to conclude that Wuennenberg would not only have refused this
request but also would have physically resisted had the plaintiffs attempted
to leave. At best, the evidence supports an inference that plaintiffs remained
in the vestibule because they assumed they would have to push
Wuennenberg out of the way in order to leave. This assumption is not
sufficient to support a claim for false imprisonment.
We do not intend to suggest that false imprisonment will not lie unless
a “prisoner” attempts to assault his captor or unless he fails to make such
attempt only because he fears harm. The plaintiffs in the case at bar were
not required to obtain their freedom by taking steps dangerous to
themselves or offensive to their reasonable sense of decency or personal
dignity. See Restatement of Torts, Second, sec. 36. At a minimum, however,
plaintiffs should have attempted to ascertain whether there was any basis to
their assumption that their freedom of movement had been curtailed. False
imprisonment may not be predicated upon a person’s unfounded belief that
he was restrained. White v. Levy Brothers, 306 S.W.2d 829, 830 (Ky. 1957).
Cf. Riggs National Bank v. Price, 359 A.2d 25 (D.C. App. 1976).
…Plaintiffs were not “berated, screamed, and hollered at”; they
outnumbered Wuennenberg three-to-one; and they gave no testimony to the
effect that they were frightened of Wuennenberg or that they feared she
would harm them.
Viewed in the light most favorable to plaintiffs, the evidence shows
that the plaintiffs were willing to identify themselves to the police, but that
they would have preferred to leave Wuennenberg’s premises. It is not a
sufficient basis for an action for false imprisonment that the plaintiffs
remained on the premises although they would have preferred not to do so.
Because plaintiffs did not submit to an apprehension of force, they were not
imprisoned.
Judgment reversed, and cause remanded with directions to the trial
court to enter judgment in favor of Wuennenberg dismissing plaintiffs’
complaint.
___________
You are now faced with something of a dilemma. You have only two
cases, and they reach opposite conclusions. You must decide which case is
more like Mr. Trune’s situation, and why. If you feel strongly that Mr.
Trune’s case is more like either Herbst or Dupler, try to figure out why.
Identify the key facts, and the rule that makes those facts relevant.
Alternatively, you may have noted similarities (and differences) to
both cases, and may be thinking that Mr. Trune’s case could go either way.
If so, welcome to the reality of law practice! In our adversary system, there
will always be lawyers on both sides of a case, using the same facts and law
to argue for opposite results. Your job is to make your argument more
persuasive than the other side’s.

Exercise

1. Identify the issue(s) in Herbst and Dupler.

2. State the rule each court applies.
3. Write down the relevant facts from each case.
4. Write down the holdings of both cases.
5. Write out the rationales for both decisions.
6. Identify the policy or policies served by the decisions.
7. Decide whether the results are fair, in a purely equitable sense. Why
or why not?
 8. Identify the similarities and differences between Herbst and Dupler
and Mr. Trune’s case.

Now you must make a prediction. Will Mr. Trune be able to make out
a case of false imprisonment? Why or why not? One of the most difficult
ideas to get used to is that it almost does not matter which way you answer
these questions. There is no right or wrong answer, only strong or weak
analysis. Even so, you should still try to reach a conclusion about the most
likely result. It is almost never enough merely to describe the applicable
precedents; your reader will want you to predict the most likely result when
those precedents are compared to the case under consideration.
Once you choose a position, you should be prepared to explain it.
Identify factual analogies, previous applications of legal rules, and policy
and equity considerations that make your predicted result seem likely. You
should start with a statement of the applicable legal rule as presented by the
courts, explain how that rule has been applied in the past and why, and then
explain how it applies to your case.
The structure of your analysis will depend on the type of question you
are discussing. In our case, dealing with the tort of false imprisonment, the
courts tend to break the tort down into specific elements that must be
satisfied. See Dupler and Herbst excerpts. Where the decisions give you
this kind of structure, use it. The format of your analysis should generally
track the format of the analysis presented by the courts. It is always easier
for a reader to process a message if it is structured in a familiar manner.
If you structure your analysis by elements, instead of case by case, you
will probably find that you discuss each case more than once. You can
avoid redundancy by presenting the facts and any other relevant aspects of
the case in detail the first time you cite the case, and then referring to the
case subsequently using a shorthand form, offering detail only on the
portion(s) of the case on which you are relying at that point in the
discussion.
You should discuss the application of each element to your case at the
same time you discuss the application of that element to previously decided
cases. Do not wait until you have discussed all the elements to go back and
try to explain all at once how the elements apply to your case. If you save
all of your application for the end, you force the reader to remember too
much at once. It is much easier to deal with one element at a time, and to
thoroughly understand the application of that one element, both to the
decided cases and to the case being discussed.
In a truly good legal analysis, you will not stop at supporting the result
you think is most likely. You will also identify, explain, and respond to the
arguments likely to be made by the other side. You do not want to make
better or more persuasive opposing arguments than are likely to be made by
opposing counsel, but you must deal with any arguments you know must be
made on behalf of the other party. A good lawyer understands that there are
two sides to almost every argument and acknowledges the legitimacy of the
other side, while at the same time explaining why the preferred result is
more likely. Consider: Are the factual differences between the adverse
authority and your case more significant than the factual similarities? Are
the policy goals behind the rule better served by a decision along the lines
you advocate? Is fairness better served by the result you have predicted?
These are the questions you must answer if your legal analysis is to be
considered complete and persuasive.

Exercise
Write out a full analysis of Mr. Trune’s case in essay form. Can he
make out a case for false imprisonment? Why or why not? What is the
applicable rule? What do the decided cases hold? What are the reasons for
those decisions? What policies are served by the decisions? How are the
facts of those cases similar or dissimilar to Mr. Trune’s case? How do those
factual similarities or dissimilarities affect the rationales for the decisions
and the policy goals being served? Why is the result you predict equitable?
What are the arguments on the other side? Why are they less persuasive
than the arguments in support of the result you advocate? (Remember, you
should reach a conclusion regarding the most likely result in Mr. Trune’s
case.) If you answer all of these questions, you will be well on your way to
writing good legal analysis.

§6.05. STATUTORY ANALYSIS

Here is another example, this time adding the variable of a statute that
must be interpreted and applied to the client’s situation. These are your
facts:
I was visited today by the son of an old client who found himself in a bit of trouble over
the weekend. Apparently there was a gathering of Vietnam veterans at the Vietnam
Veterans’ Memorial on the Mall [in Washington, D.C.] on Saturday. This young man, R.
Abel Rowser, chose this occasion to protest what he sees as continuous U.S. aggression
against weaker powers around the world. Wearing a sign on his back that said “Vietnam,
Iraq, Afghanistan—NO MORE!!!,” he climbed to the top of the wall, pulled out an
American flag, poured kerosene on it, and ignited it.
Mr. Rowser says that he truly believed that most Vietnam veterans would agree with
him that U.S. military involvement in places such as Iraq and Afghanistan is a mistake. He
believes that the Vietnam experience should have taught us to keep our noses out of other
people’s business. He used the flag burning to get their attention and then fully expected
to lead a rally and perhaps even a march on the White House in support of his position.
We may, perhaps, question his grip on reality, but I honestly believe that his description of
his intent is sincere.
Mr. Rowser’s recollection of what happened after he burned the flag is a bit fuzzy,
perhaps because he was running for his life at the time, but he recalls a great deal of
yelling and shouting. Several of the gathered veterans apparently started running in his
direction in a manner that led him to believe he may have made an error in judgment, and
he took off. He escaped, so there were no face-to-face confrontations with any of the
veterans.
Mr. Rowser is also not entirely clear about what was happening when he arrived, but
he thinks it may have been some sort of religious service. There was a man standing at the
front of the crowd wearing a clerical collar, and the group was singing something.
Please read the D.C. disorderly conduct statute and the applicable cases and let me
know whether you think the statute applies to Mr. Rowser’s conduct under these
circumstances.
This is the relevant statute:
§22-1121. Disorderly conduct.1
(a) In any place open to the general public, and in the communal areas of multi-unit
housing, it is unlawful for a person to:
(1) Intentionally or recklessly act in such a manner as to cause another person to
be in reasonable fear that a person or property in a person’s immediate possession is
likely to be harmed or taken;
(2) Incite or provoke violence where there is a likelihood that such violence will
ensue; or
(3) Direct abusive or offensive language or gestures at another person (other than
a law enforcement officer while acting in his or her official capacity) in a manner likely
to provoke immediate physical retaliation or violence by that person or another person.
(b) It is unlawful for a person to engage in loud, threatening, or abusive language, or
disruptive conduct, with the intent and effect of impeding or disrupting the orderly
conduct of a lawful public gathering, or of a congregation of people engaged in any
religious service or in worship, a funeral, or similar proceeding.
(c) It is unlawful for a person to engage in loud, threatening, or abusive language, or
disruptive conduct, which unreasonably impedes, disrupts, or disturbs the lawful use of a
public conveyance by one or more other persons.
(d) It is unlawful for a person to make an unreasonably loud noise between 10:00 p.m. and
7:00 a.m. that is likely to annoy or disturb one or more other persons in their residences.
(e) It is unlawful for a person to urinate or defecate in public, other than in a urinal or
toilet.
 (f) It is unlawful for a person to stealthily look into a window or other opening of a
dwelling, as defined in §6-101.07, under circumstances in which an occupant would have
a reasonable expectation of privacy. It is not necessary that the dwelling be occupied at the
time the person looks into the window or other opening.
(g) It is unlawful, under circumstances whereby a breach of the peace may be occasioned,
to interfere with any person in any public place by jostling against the person,
unnecessarily crowding the person, or placing a hand in the proximity of the person’s
handbag, pocketbook, or wallet.
(h) A person who violates any provision of this section shall be guilty of a misdemeanor
and, upon conviction, shall be fined not more than $500, imprisoned not more than 90
days, or both.

Whoever, with intent to provoke a breach of the peace, or under circumstances such
that a breach of the peace may be occasioned thereby: (1) Acts in such a manner as to
annoy, disturb, interfere with, obstruct, or be offensive to others; (2) congregates with
others on a public street and refuses to move on when ordered by the police; (3) shouts or
makes a noise either outside or inside a building during the nighttime to the annoyance or
disturbance of any considerable number of persons; (4) interferes with any person in any
place by jostling against such person or unnecessarily crowding him or by placing a hand
in the proximity of such person’s pocketbook, or handbook, or handbag; or (5) causes a
disturbance in any streetcar, railroad car, omnibus, or other public conveyance, by running
through it, climbing through windows or upon the seats or otherwise annoying passengers
or employees, shall be fined not more than $250 or imprisoned not more than 90 days, or
both.

Assume that the only relevant cases are these two (edited here to
include only those parts of the discussion useful for our purposes).
Rodgers v. United States and District of Columbia
290 A.2d 395 (D.C. 1972)
OPINION: HOOD, Chief Judge: In a concurrent trial before a judge and
jury, the judge found appellant guilty of disorderly conduct, and the jury
found him guilty of destruction of property but acquitted him of assault.
Appellant makes a feeble attack on the destruction of property conviction,
but we find no merit in it. His attack on the disorderly conviction requires
more consideration.
Appellant was arrested following a series of incidents which occurred
in and around the Crampton Auditorium on the Howard University campus.
On that night a blues concert was being held in the auditorium outside of
which a large crowd had gathered.
Appellant, who had no ticket, made numerous attempts to gain entry to
the concert. He first presented an invalid press pass which was not
accepted. He then repeatedly attempted to enter the auditorium by carrying
instruments for band members. This ploy also failed. Appellant then
attempted to enter through the basement accompanied by a large group of
people. He finally kicked the glass out of a portion of one of the doors in
the main entrance. In the course of attempting to gain entry appellant sought
the assistance of the crowd outside by shouting obscenities at the campus
policemen inside the auditorium and by threatening to kick down one of the
doors if the crowd would follow. These activities continued for
approximately 2 hours until three members of the University Special Police
Force approached appellant, placed him under arrest after a scuffle and
turned him over to the Metropolitan Police Department.
Appellant attacks his disorderly conduct conviction on four grounds.
He first claims the information was insufficient. The information, filed
under D.C. Code 1967, §22-1121, the pertinent part of which is set out
below, charged that appellant did:
…under circumstances such that a breach of the peace might be occasioned thereby act in
a manner as to annoy, disturb, interfere with, obstruct and be offensive to others by loud
boisterous [conduct] and fighting in violation of Section 22-1121(1) of the District of
Columbia Code.

It is appellant’s contention that the information is insufficient in that it fails

to charge that he engaged in any activity with an intent to provoke a breach
of the peace or under circumstances which threaten a breach of the peace.
We disagree. This court has held that an intent to provoke a breach of the
peace is not an essential element in the proof of disorderly conduct. Sams v.
District of Columbia, D.C. App., 244 A.2d 479 (1968); Rockwell v. District
of Columbia, D.C. Mun. App., 172 A.2d 549 (1961). It has likewise been
held that proof of an actual breach of the peace is not required under §22-
1121. Stovall v. District of Columbia, D.C. App., 202 A.2d 390 (1964);
Scott v. District of Columbia, D.C. Mun. App., 184 A.2d 849 (1942). It is
sufficient that the alleged conduct be under circumstances such that a
breach of the peace might be occasioned thereby.
Appellant further contends that the evidence presented at trial was not
sufficient to support his conviction. It is argued that the conviction should
be reversed because appellant’s “conviction is unsupported by any evidence
to show…that anyone other than the police were annoyed or disturbed.” We
disagree. Appellant was not convicted merely for conduct which was
annoying or disturbing to the policemen present, but rather, he was
convicted for disorderly conduct carried out under circumstances whereby a
breach of the peace might have been occasioned.
The Supreme Court in Cantwell v. Connecticut, 310 U.S. 296 (1940),
concluded that not only violent acts but acts and words likely to produce
violence on the part of others were included within the purview of breach of
the peace. Here we have evidence of a course of action including both acts
and words which can be said to be likely to produce violence among some
or all of a crowd estimated at between 300 and 400 persons. Appellant’s
conduct over the 2-hour period with which we are concerned included
several instances falling within the purview of §22-1121 which may be
deemed disorderly conduct. In examining his conduct as to interfering with
others, it is readily apparent that appellant’s conduct interfered with the
orderly progression of events related to attendance at a concert where such
attendance was limited to those persons holding valid tickets, a requirement
which appellant did not meet at any time during the course of the evening.
The record plainly reveals numerous attempts by appellant to gain entry
into the auditorium. Each attempt invoked counterefforts by the special
police whose task it was to maintain order during the concert. These actions
on the part of the appellant were obstructive to persons holding valid
tickets.
By their very nature appellant’s actions would tend to slow down and
even halt orderly ingress to the auditorium. The holders of valid tickets,
seeking orderly admission, have a right to peaceful enjoyment of the
concert without unwarranted disturbances by trespassers. It is these same
ticket holders to whom appellant’s actions would be patently offensive, as
well as annoying and disturbing. Heard v. Rizzo, 281 F. Supp. 720, 741
(E.D. Pa. 1968), aff’d, 392 U.S. 646 (1968).
Rockwell v. District of Columbia
172 A.2d 549 (D.C. 1961)
HOOD, Associate Judge. Appellant, the leader of the American Nazi
Party, was arrested for disorderly conduct on July 3, 1960, after rioting and
fighting broke out at a rally he and his followers were holding in the park
area at Ninth Street and Constitution Avenue, N.W. While awaiting trial on
that charge he was again arrested for disorderly conduct on July 24, 1960,
this time at Judiciary Square during the course of another outdoor gathering
which he was attempting to address.
 The two informations were consolidated for trial without a jury, and
appellant was found guilty on both charges. He appeals the two convictions
claiming that his freedom of speech, as guaranteed by the First Amendment,
was obstructed by the arrests for disorderly conduct; that he was unable to
obtain service of process on key defense witnesses; and that a certain letter
he offered in evidence was wrongfully excluded by the trial court.
At trial the evidence revealed the following circumstances leading to
the arrests. On July 3, 1960, appellant and his followers held a rally at Ninth
Street and Constitution Avenue, N.W. At about 2:00 p.m. appellant began to
speak from a platform within a roped-off area. Standing inside the enclosure
were appellant’s followers, some of whom wore red swastika armbands.
Numbering 100 to 300 people, the audience outside the enclosure included
many opponents of appellant’s theories and party. Fourteen members of the
U.S. Park Police were also in the audience, though only eight of them were
in uniform. The spectators greeted appellant’s opening words with hissing,
booing and derisive chanting, the noise at times growing so loud that
appellant could not be heard. This turmoil continued for about an hour and
a half until suddenly an unknown number of spectators breached the
enclosure and attacked appellant and his followers. As the fighting began
the police moved in and arrested appellant, all of his followers and
apparently some of the spectators who had participated in the attack.
During the trial there was a great deal of prosecution testimony
concerning appellant’s reaction to the crowd noises interrupting his speech.
Witnesses testified that at different times they heard appellant shouting
[various negative and offensive comments regarding Jews].…
One Government witness also stated that at one point appellant started
shouting, “Jews, Jews, sick—dirty Jews, filthy Jews…,” and shortly
thereafter the spectators broke through the ropes and attacked appellant and
his followers. Another prosecution witness testified that in the course of his
speech appellant referred “to the Jewish race as traitors; or labeled the race
as traitorous to our country.”
Conceding he impatiently shouted, “Dirty Jews. Rotten Jews.
Miserable Jews. Shut up, Jews. Go on and yell, Jews,” appellant denied he
made the other statements attributed to him. He stated he had been
forewarned of possible disorder by Government officials and had done all
in his power to prevent trouble, short of refusing to exercise his
constitutional right of free speech. Even during the course of his speech he
sent several of his men to warn the police that the crowd was getting
dangerously unruly. According to appellant, the police replied to his
warning by informing his men that the way to restore order was for
appellant to stop talking.
On the second occasion that appellant was arrested he was conducting
another rally in Judiciary Square. This time appellant—his followers in two
ranks directly behind him—began to address an audience of about fifty
people. As soon as appellant began his speech the spectators started to
heckle him. Appellant responded by calling them “Jews” and “cowards,”
thereby increasing the intensity of the badgering from the audience.
According to one prosecution witness, appellant “sort of lost his temper,
and he turned around, and he says, ‘Go get ‘em, boys.’ ” At the command
appellant’s followers with their arms folded in front of them moved into the
audience. One spectator was struck under the chin, and as a result appellant
and his men were arrested for disorderly conduct.
Denying that anyone in the audience had been assaulted, appellant
explained his actions on July 24 by referring to the near riot on July 3.
Conscious that more trouble was to be expected if he spoke again, he had
trained his men to move out into the audience at the first sign of possible
disorder. Apparently these men were to surround hecklers and shout back at
them, all the time under strict orders to keep their arms folded in front to
avoid any suggestion of an invitation to combat. As to the command he
gave on July 24, appellant testified he merely said, “First and second squads
move out,” which was the signal for his men to go into the audience in the
manner described above.…
The conviction that grew out of the July 24 charge of disorderly
conduct does not even raise a constitutional question. It is clear from the
record that appellant ordered his followers into a hostile audience to stop
the heckling that was interrupting his speech. Under the circumstances we
cannot conceive of a better way to cause disorder than that adopted by
appellant. Whether appellant intended that result is not controlling. An
assault on one of the spectators did occur as a direct result of appellant’s
command to his followers to move into the audience and the trial court
could without error convict appellant of disorderly conduct.…
…Appellant, however, was charged and convicted under a statute
which reads in part as follows: “Whoever, with intent to provoke a breach
of the peace, or under circumstances such that a breach of the peace may be
occasioned thereby.…” Code 1951, §22-1121, Supp. VIII. It is clear that the
language quoted is to be read disjunctively, and that one lacking an intent to
be disorderly may nevertheless be guilty of the charge if his conduct is
“under circumstances such that a breach of the peace may be occasioned
thereby.…” The only question the trial court had to decide was did
appellant’s statements constitute disorderly conduct under the
circumstances of July 3. As we have indicated, we believe there was
sufficient evidence for the trial court to answer as it did.
Affirmed.
___________
While both Rockwell and Mr. Rowser’s case have fairly obvious free
speech implications, confine your analysis to the question of whether Mr.
Rowser’s actions amount to disorderly conduct. Any time you are analyzing
a legal question involving a statute, you should begin with an analysis of
the language of the statute itself. The relevant language of the D.C.
disorderly conduct statute seems to be the following:
Whoever, with intent to provoke a breach of the peace, or under circumstances such that a
breach of the peace may be occasioned thereby: (1) Acts in such a manner as to annoy,
disturb, interfere with, obstruct, or be offensive to others.…

Look at the statute and be sure you understand why we have chosen this
language.
Did Mr. Rowser intend to provoke a breach of the peace? Does that
matter? Why or why not? What do the cases say on this point?
Did Mr. Rowser act under circumstances likely to occasion a breach of
the peace? How do you know? Can you answer this question without
reference to the decided cases?

Exercise

1. Identify the issue(s) in the Rodgers and Rockwell cases.

2. Identify the statutory language applied by the court in each case.
3. Identify the relevant facts of each case.
4. State the holdings of those cases.
5. Describe the rationales of those cases.
6. Identify the policy or policies served by the decisions.
 7. Decide whether the results are equitable. Why or why not?
8. Identify the similarities and differences among the Rodgers case, the
Rockwell case and Mr. Rowser’s situation. Consider facts, issues,
policies, and equitable issues.

Now go through the same process you went through with Mr. Trune’s
case. What is the most likely outcome? Why? Have you identified the
arguments on both sides? (Be careful here—since both of the decided cases
find disorderly conduct, many people have a tendency to find it
automatically in Mr. Rowser’s case as well.) How will you structure your
discussion? Since there are no elements here, you may find it useful to deal
briefly with the intent question first, then analyze the decided cases in detail
in the context of whether they took place under circumstances likely to
cause a breach of the peace, comparing Mr. Rowser’s situation to each case
as you go along.
If another approach seems more logical to you, try it—you will find
that your written product is better and more persuasive if you structure it in
a way that makes sense to you. Many students make the mistake of trying to
copy examples or to write the way someone else writes. Use your own
instincts, while observing the guidelines discussed here and following any
instructions offered in your legal writing class.

Exercise
Write out, in essay form, your analysis of Mr. Rowser’s case. Predict
whether he will be convicted of disorderly conduct and justify your
prediction, using both the language of the statute and the decided cases.
Focus on important facts, and use policy and equity arguments where
appropriate. Don’t forget to discuss and analyze the arguments on the other
side, explaining why you find them less persuasive.

§6.06. LEGAL ANALYSIS CHECKLIST

Until you have performed enough legal analyses that the process
becomes second nature to you, you might want to refer to this checklist to
be sure you have not left out any important steps that your reader will be
expecting to see in your written product. There is no magic format that will
work in every context or for every style, so you will have to experiment
until you find the right structure for you, the case you are addressing, and
the particular audience for the document. Nevertheless, any good legal
analysis must contain the following information, presented in some logical
order.

— Make your prediction. Your written analysis should begin with a

statement of your ultimate conclusion.
— Identify the rule that governs your case and cite to its source,
whether statutory or common law.
— Identify the structure of your argument, using elements of a tort,
statutory requirements, or any other method that will help the reader
understand how your ideas relate to each other.
— Identify the key facts of your case.
— Discuss the facts, holdings, and rationales of all important relevant
cases.
— Compare the facts of those cases with the facts of your case and
explain why the courts’ rationales apply or do not apply. Do not
forget to argue the equities of the case or the policies behind the
courts’ decisions, if such arguments are helpful to your position.
— Identify any persuasive adverse authority or arguments likely to be
presented by the other side. Explain why your predicted result is the
better outcome. Be careful here; remember not to make arguments
that are better than opposing counsel is likely to make.
— Summarize the key points in your argument. Persuade the reader of
the overall strength of your position by reminding him or her of the
highlights of what you have presented.

1. Restatement of Torts, Second, Section 40, Comments:

a. Under the rule stated in sec. 35, the actor’s threat may be by words as well as by
other acts. It is not necessary that he do any act actually or apparently effectual in carrying
a threat into immediate execution. It is enough that he threatens to apply and has the
apparent intention and ability to apply force to the other’s person immediately upon the
other’s attempting to escape from the area within which it is the actor’s intention to
confine him.
b. The submission must be made to a threat to apply the physical force immediately
upon the other’s going or attempting to go beyond the area within which the threat is
intended to confine him. Submission to the threat to apply physical force at a time
appreciably later than that at which the other attempts to go beyond the given area is not
confinement.
c. Submission to threats. The other must submit to the threat by remaining within the
limits fixed by the actor in order to avoid or avert force threatened to the other. The other’s
 remaining within such limits is not a submission to the threat unless the other believes that
the actor has the ability to carry his threat into effect unless prevented by the other’s self-
defensive action or otherwise, and that it is, therefore, necessary to remain within these
limits in order to escape or avert the violence threatened.
d. It is not necessary that the force threatened be such that a reasonable man would
submit to confinement rather than sustain the harm threatened; it is sufficient that the actor
threatens physical force with the intention of confining the other and that the other
submits to the threat.
2. Other commentators have agreed that submission must be to an apprehension of force and
that a voluntary submission to a request does not constitute an imprisonment. For example, Harper
and James have stated that:
…In ordinary practice, words are sufficient to constitute an imprisonment, if they
impose a restraint upon the person and the party is accordingly restrained; for he is not
obligated to incur the risk of personal violence and insult by resisting until actual violence
is used.…If the plaintiff voluntarily submits there is no confinement, as where one accused
of crime voluntarily accompanies his accusers for the purpose of proving his innocence.
And where no force is used, submission must be by reason of an apprehension of force or
other unlawful means, mere moral persuasion not being sufficient. 1 Harper & James,
Torts sec. 3.8 (1956).
1. This statute is currently codified at D.C. Code §22-1321.
§7.01. INTRODUCTION
In their eagerness to get on with the writing process, many writers
forget to think about the “big picture” aspects of what they are writing
about. If you consciously address the elements of purpose, context, and
structure before you start constructing sentences and paragraphs, your
finished product will be much more polished and comprehensible. This
chapter will discuss each in turn and offer strategies for incorporating this
kind of thinking into your writing process.

§7.02. PURPOSE
It seems fairly obvious to say that you should understand why you are
writing a document before you begin putting words on paper. Surprisingly,
many writers are so anxious to get their ideas into concrete form that they
do not stop to think about what the document must accomplish and what the
intended reader needs from the document. Here are two key questions to
ask yourself before you begin writing (or, for that matter, before you begin
researching):

• For whom am I writing this?

— Client (consider education, level of sophistication about legal matters,
anxiety level, stage of case, nature and length of relationship between
you and client)
— Supervising attorney (consider what you know about expectations
based on your and others’ previous experiences)
 — Judge (consider what you know about judge, level of court, stage of
proceeding)
• What am I trying to accomplish?
— Answer a specific question (keep that question in mind at all times
and be sure you actually answer it)
— Advise reader generally on the state of the law in a particular area
(consider why reader needs information and tailor presentation to
what you know about that need)
— Persuade reader to adopt a particular course of action (Do you want
your client to do something? Do you want the trial court to grant or
deny a motion? Do you want the appellate court to affirm or reverse
the trial court? Do you want opposing counsel to respond to a
settlement offer?)

Your answers to these two questions should go a long way toward

dictating the structure and tone of the final document. For example, a letter
to a client who wants to know if she has a malpractice claim will have very
little in common with a motion for summary judgment to the trial judge on
that same claim. If you keep the intended audience and goal in mind at all
times, you should be able to avoid the trap of going on at great length about
issues the reader does not care about, or simply has no need to think about.
Likewise, you will be sure that you actually do address the issue or issues
that are of primary importance to the reader.

§7.03. CONTEXT
Context is closely related to purpose, but it encompasses a few
additional elements. In addition to remembering for whom you are writing
and what you need to accomplish, you need to consider the forum in which
you are writing. Is this a memo in a law office? A brief to a court (trial or
appellate)? A letter to a client? Each type of document involves different
expectations regarding format, tone, amount and type of information, and
writing style. A brief to a court will be presented in a very formal tone and
must conform to fixed and specific rules regarding format, while the tone
and format of a letter to a client are more flexible. An office memorandum
should be presented in a tone and format that are consistent with the
expectations of the particular office in which it is written.
 We will discuss several different types of documents in this book, but
if you need to draft a document not covered in this book, you should find
similar documents intended for the same or a similar audience, and learn
whatever you can about the contextual expectations. Read the samples, ask
questions (preferably of the intended reader, if possible), and look at any
written guidelines, such as court rules, that may govern the final product.

§7.04. STRUCTURE
The structure of a document is much like the foundation and
framework of a building. Both need to be carefully constructed, and, if done
well, both will strengthen and define the finished product. All of the many
aspects of the structure of a written piece require conscious thought and
strategic planning. We will discuss structural issues such as outlining and
the placement of arguments, and signaling tools such as road map
paragraphs, thesis sentences, and transitions. We will also briefly touch on
the placement of authorities and different types of argument within an
argument or discussion. Because we do discuss the specifics of particular
types of documents in later chapters, the approach here will be to present
more general rules that should guide your preparation every time you write.
1. Outlining
For most people, the really important thing to know about an outline is
that you should do one.1 There is no formula for outlining that will work for
everyone. What is crucial is that you sit down before you begin to write and
plan the flow of your discussion. Here are some considerations you should
take into account in that planning process:

• What are the key points to be analyzed?

• How many points do you need to make?
• What is the most logical order in which to make those points?
• How do the different parts of your discussion relate to each other?
• Which are your strongest and weakest points?
• How does the legal authority you intend to rely on fit into your
arguments? Are there different cases or statutes on each point, or do you
need to use the same authority to support several arguments?
 Once you have done enough research to get a preliminary idea of the
types of arguments you need to make, you should make a sketchy outline.
There is no need to write out full sentences in the outline at this point; you
will most likely be identifying only the major points to be made. You
should keep this preliminary outline with you as you continue your research
and analysis. It will help to keep you focused as you sort through the
available authority.
You may find that the initial outline is incomplete or that it does not
present the parts of the discussion in the most logical order. You should be
flexible enough to recognize this and to adjust your outline in any way and
as many times as seems appropriate. Even in the midst of writing, you may
need to rethink your outline and restructure your presentation.
When you have collected all the authority you intend to rely upon, go
back to your outline and “plug in” the authorities. Decide which cases or
statutes are most helpful on particular points, and add them to the outline in
the appropriate places. Then organize the authorities into the proper order.
As you finalize the outline, you may want to flesh out your major
points. You can do this by writing them out in full sentences and by adding
subpoints. Some writers need to, and should, construct very detailed
outlines, while others can write just as efficiently with less thorough
guidance. Regardless of your approach, do not forget to identify the
purpose, audience, and context of your document before constructing your
final outline. Now you are ready to begin writing.
Keep your outline in front of you at all times during the writing
process. This will keep you from trying to make all of your points at once
or in the order they occur to you as you are writing, which may or may not
be the order that makes the most sense. Also, referring to the outline when
you are struggling to develop a point may help you understand how that
point relates to the rest of the document, which may sometimes be enough
to get the writing process back on track.
If the outlining approach discussed here does not work for you, there
are alternatives. You can create a very general heading-only outline, write
up the discussion, and then rearrange sections of the discussion as
necessary. You can write the sections in a different order than set forth in
the outline if one or two points are giving you particular trouble. Starting
with the easier section or sections will at least get the writing process
started, and you may then discover that the difficult sections become more
manageable. You also can write without an outline to get the ideas down on
paper and then superimpose an outline on the discussion after you have
written it, to be certain your final structure makes sense.
Let’s go back to the lost ring case discussed in Chapter 6 and outline
the analysis in Section 6.03. Remember that there are many ways to outline
any discussion, but here is one approach.

I. Was the valise lost?

A. Durfee—definition and rule for lost property
B. McAvoy—definition and rule for mislaid property
II. Was the ring lost?

[Note that you will only apply the rules here since you have already
defined them in Section I, and it would be unnecessary in such a short
document to repeat your discussion of the cases]

III. Who gets the ring?

Durfee—finder must have permission to examine property

This is obviously a very simple discussion, and the outline is likewise

simple. You can apply the same process and principles to a much more
complex discussion, and it will give you a clearer picture of where the
document is going and what it will accomplish when you are finished.

Exercise
Select a memorandum from Appendix I in the back of the book and
outline the discussion.
2. Deciding on a Structural Strategy
One of the decisions about structure you need to make as you begin
writing is the order in which you will present the arguments. Sometimes
there will be an inherently logical approach to ordering the arguments; for
example, if you are discussing a tort or statute that sets forth specific
elements that must be, or always are, discussed in a particular order, you
should order your discussion accordingly.
 The false imprisonment problem discussed in Chapter 6 presents just
such a situation. Both cases rely on the Restatement (Second) of Torts,
which presents the elements in a specific order: (1) intent to confine, (2)
actual confinement, and (3) consciousness of confinement. In this situation,
it is easier and more likely to meet the expectations of your reader to follow
this structure. However, do not feel that you must devote equal time to each
element. If there is a genuine issue as to whether one or two elements are
present in your case, while the other element or elements are clearly
satisfied, you can allude only briefly to the elements not at issue and devote
the bulk of your analysis to the elements in dispute. If you are writing an
advocacy document, most experts will advise you to start with your
strongest argument. This is good strategic advice, as long as it does not
create a conflict with the type of inherent order discussed above, and so
long as it does not cause you to make the argument in an order that does not
make logical sense.
Some people will also advise you to end your discussion on a strong
note, so that you leave a favorable impression with the reader. Again, if you
can do so logically, this is sound advice. If you have not already guessed,
this strategic approach to ordering your arguments will leave your weaker
points in the middle of the discussion, where they are most likely to be
forgotten.
For a concrete example of strategic structuring of an argument, look at
the following outlines of an argument from two appellate briefs on opposite
sides of the same issue. The issue addressed by both briefs is whether a
decedent’s estate can bring a tort action against the hospital that employed
the decedent. The decedent was murdered while working at the hospital on
the late shift. The hospital sought to bar the claim by arguing that the only
available remedy lay in the applicable workers’ compensation statute. The
crux of the argument was whether a statutory exception to the exclusivity of
the workers’ compensation remedy applied.
In the hospital’s brief, the statutory argument is outlined as follows in
the table of contents:

I. WORKERS’ COMPENSATION SHOULD BE THE EXCLUSIVE

REMEDY FOR INJURIES SUSTAINED BY AN EMPLOYEE IN
THE COURSE OF HER EMPLOYMENT FROM AN ATTACK
BY A THIRD PERSON WHEN NO RELATIONSHIP BETWEEN
 THE THIRD PERSON AND EMPLOYEE EXISTED PRIOR TO
THE ATTACK.
A. Workers’ Compensation Is Intended to Be the Sole Remedy for
Injuries Sustained in the Course of One’s Employment.
B. The Attack upon Charla Louis Was Not for Reasons Personal
Within the Meaning of the Workers’ Compensation Act and Is
Only Compensable Through Workers’ Compensation.

Here is the outline of the statutory argument from the Estate’s

perspective:

I. THE ESTATE OF A HOSPITAL EMPLOYEE WHO WAS

ATTACKED AND MURDERED WHILE WORKING, BY AN
ASSAILANT WITH PERSONAL MOTIVATION TO COMMIT
SEXUAL ASSAULT, IS NOT LIMITED BY THE REMEDIES OF
THE WORKERS’ COMPENSATION ACT.
A. An Exception Provided by the Act Disallows Compensation for
All Personally Motivated Assaults by Third Parties.
B. The Fact that the Victim Was Present on the Premises of the
Employer as Required by Her Job Does Not Limit Recovery to
that Provided by the Act When the Third Party Attack Is
Personally Motivated.
1. Preexisting personal animosity is not dispositive or even highly
indicative of the assailant’s motivation since his motivation at
the time of attack is at issue.
2. The nature of sexual assault indicates personal motivation in
the form of anticipated sexual gratification; rape is not usually
motivated by work-related activity.
C. An Employee Who Is Not Required by Her Job to Have Personal
Contact with the Public Does Not Assume the Risk of Personal
Assault so as to Bring Sexual Assault by a Third Party Under the
Provisions of the Act.

The exception is most helpful to the Estate, and you will notice that it
appears prominently in the outline of the estate’s argument—as the first
subpoint of the argument. While the Hospital’s argument deals with the
issues raised by the exception, it is not even mentioned explicitly in the
outline, thus diminishing its apparent importance. The first point in the
Hospital’s argument is the exclusive nature of the workers’ compensation
remedy.
In addition to thinking strategically about the order in which you
present your arguments, you should consider how much space you will
devote to each argument. A reader is likely to assume that an argument that
occupies a substantial amount of room is important. Why would a writer
spend a lot of time and effort developing a point that is of only passing
significance? No writer would, unless that writer got so caught up in
developing a tangential or tenuous analogy that the writer lost sight of the
need to do a cost-benefit analysis during the writing process. Ask yourself
whether the amount of time and space you spend on an argument is
proportional to the persuasive impact the argument will have in the context
of your overall presentation. If not, consider whether the argument can be
edited substantially, or perhaps cut altogether.
3. Roadmaps, Topic Sentences, and Transitions
It is not enough to have a structure for your document. You must let
the reader know what that structure is. If the reader knows up front where
the document is going and gets messages along the way that help to orient
him or her, the document will be easier to read and the analysis will seem
more logical and possibly even more persuasive.
The simplest way to orient the reader early on is to provide a
“roadmap” paragraph. This introductory paragraph highlights the most
significant parts of your analysis and states your ultimate conclusion. At the
risk of abusing our analogy, by identifying the destination and the major
landmarks at the beginning of the journey, you make the trip easier and
more comfortable for the traveler.
A roadmap paragraph can be very explicit, as is this paragraph:
The Estate’s action is premised on a negligence theory of liability. However, as the court
emphasized in Murphy v. Penn Fruit Co., 274 Pa. Super. 427, 418 A.2d 480 (1980),
negligence is not established by the mere happening of an attack on the decedent. Id. at
432, 418 A.2d at 483. The Estate must plead and prove each element of the tort to
establish liability. The necessary elements to maintain a negligence action are a duty or
obligation recognized by the law, requiring the actor to conform to the standard required; a
failure to conform to the standard required; a causal connection between the conduct and
the resulting injury; and actual loss or damage resulting to the interests of another. Morena
v. South Hills Health System, 501 Pa. 634, 642, 462 A.2d 680, 684 (1983), quoting
 Prosser, Law of Torts, §30 at 143 (4th ed. 1971). Each of these elements will be examined
in turn as they apply to the facts of this case.

You can also take a slightly less detailed approach, as the writer of this
memo does:
Ms. Holmes was falsely imprisoned by Dean James. Dean James had probable cause to
question Ms. Holmes about the materials found in her locker, but he acted unreasonably in
confining Ms. Holmes and causing her to miss her exam. Dean James’s conduct was
without legal justification, and the confinement was therefore unlawful.

Both examples inform the reader of the writer’s ultimate conclusion,

and provide information about how the argument will progress. That is all a
roadmap paragraph needs to do.
Topic sentences and transitions are the landmarks that let readers know
where in the discussion they are at any given point. The first sentence of
any paragraph should give the reader a clue as to what the rest of the
paragraph will be about. As a general rule, a single paragraph should not
develop more than one idea, and the purpose of that first, or topic, sentence
is to identify that idea. We discuss paragraph construction in greater detail
in Chapter 8.
As you shift between the major points you identified in the roadmap
paragraph, make a conscious effort to put distinct transitions between them.
Sometimes the transitions will be as simple as an introductory sentence that
identifies the element you are about to discuss, as you will see if you look at
the first memo about false imprisonment in Appendix I.

Exercise
Choose one of the remaining memos in Appendix I, and identify all
thesis sentences and transitions. Are there any paragraphs that do not begin
with topic sentences signaling what the paragraph is about? If so, does this
cause confusion or frustration as you try to pull the central idea from each
paragraph? If not, it may be that the topic has been implicitly signaled in
some other way. Do the transitions act as landmarks that relate back to the
roadmap? Does this help you, as a reader, understand the progression of the
discussion and where you are in the analysis at any particular point?
4. Organizing Within Arguments
Thus far, we have explored ways of structuring your document at the
“macro” level—outlining the progression of the discussion, choosing the
order in which to present your points, and making your organizational
scheme apparent to the reader. In this section, we will discuss organization
at a more “micro” level. How do you decide where to present authorities
within an argument or part of a discussion, and how much space do you
devote to each? How do you integrate law, policy, and equity arguments?
The answer is that you apply the same principles we discussed earlier, that
is, you start with the stronger authorities and arguments, and devote
proportionally more space to them as well.
How do you know which authorities are strongest? We discussed the
different types and weight of authority in Chapter 3. Here is a summary that
should help:

1. On-point decisions by higher courts in your jurisdiction are binding and should be
featured conspicuously. If such decisions go against you, first look for a relevant way to
distinguish them, pointing out differences between the facts or policies at issue in those
cases and your case. If they cannot be distinguished, you need to deal with them in other
ways, perhaps by arguing that they were wrongly decided or that times have changed
sufficiently that a new rule is called for. Unless such adverse decisions are truly
dispositive of your case, you can still place them strategically in the middle of your
argument, using the more prominent beginning and ending positions for authority that is
more helpful to you.
2. Decisions by lower courts in your jurisdiction are very persuasive and should also
be given appropriate space and position. The same rules about distinguishing or otherwise
dealing with adverse authority apply.
3. Recent decisions are generally more persuasive than older decisions, all other
things being equal (i.e., if the facts in the older decision are significantly more analogous
to your case, you might want to spend more time on the older decision).
4. Federal decisions interpreting state law are persuasive and should be given some
attention if they fill in gaps in the state decisions or articulate the rationale for the state
decisions particularly clearly. Unless you have no better authority, you do not want to use
disproportionate amounts of space on such decisions.
5. Decisions from other jurisdictions and secondary authorities are only as persuasive
as you make them. This almost inevitably means that you will have to devote considerable
space to making analogies or articulating policy justifications for adopting rules from such
sources. If you have no other authority, perhaps because the question you are addressing is
a novel one in your jurisdiction, it may be worth your effort to do so. You may be able to
discover and argue a developing trend in the law that supports adoption of the rule you
advocate. If, however, you have other authority that the reader is likely to find more
useful, you should think twice about using valuable space and reader energy on such
subordinate points. Remember that the reader is likely to equate the time needed to
develop and understand an argument with the importance of that argument, so make your
decisions accordingly.

5. Placement of Policy and Equity Arguments

 Keep your strategic sense working on the question of integrating law,
policy, and equity arguments as well. As you learned in Chapter 6, policy
arguments are based on societal goals that would be served by the result
you seek, and equity arguments are based on notions of general fairness as
applied to the particular facts of your case. Remember that courts of law are
essentially conservative institutions, bound to a large extent by precedent
and notions of stare decisis. This means that you should feature your legal
arguments in the prominent positions and devote more time to them. Policy
and equity arguments are supportive and will seem more persuasive if they
are closely tied to your legal arguments. Therefore, on any given point, you
should start with your legal arguments and authorities, and then follow
immediately with related and reinforcing policy and equity arguments.
If you do not have on-point authority to support your position, you
may be able to find authority to support pure policy arguments. Think about
other areas of the law that have important similarities to yours and that
serve the same policy goals. Look for cases in those areas that have similar
facts and the result you want. Policy arguments should generally be given
more prominence than purely equitable, fact-based arguments. While
equitable arguments are useful, and judges generally like to feel that they
are being fair in rendering their decisions, you do not want to devote a lot of
time to such arguments or lead off with them, unless you have nothing else.

§7.05. CONTEXT AND STRUCTURE CHECKLIST

— Identify and articulate the goal of your document.

— Identify your audience and any expectations you know or suspect
that audience has for your document.
— Outline the major points you need to make in the document to
accomplish your goal.
— Fill in details such as legal authorities and revise the outline as
necessary as you go along.
— Make sure you start and end with a strong point, to the extent logic
permits.
— Organize your legal authorities according to the appropriate
hierarchy, giving more space to more persuasive authorities.
— Organize your legal, policy, and equity arguments so that the more
persuasive arguments receive greater prominence in terms of both
 position and space.
— Write your roadmap paragraph and check your document for
transitions and thesis sentences that will let the reader know where
in the analysis you are and where the analysis is going.

1. We say “for most people” because there are those who can construct a perfectly coherent,
logical discussion every time they sit down to write. If you are one of those rare people, the extra step
of creating an outline may not be a terribly useful or efficient way to spend time. For most of us,
however, whether we are writing memos, briefs, or law school exams, making the effort to outline the
structure of our argument before we flesh it out in full paragraph form is the only way to ensure that
the final product is a sensible, focused communication to the intended reader. This is true even
though outlining is a more natural process for some than for others. There may be writers for whom it
is a sufficiently foreign way of thinking as to be almost counterproductive, but in the context of legal
writing it is usually a necessary, if difficult, endeavor, because it is the only way to ensure that our
ideas will be communicated in a way that is useful to our busy readers.
§8.01. INTRODUCTION
Sometimes we read a court opinion, a memo, or an appellate brief and
do not understand its message until we reach the end. After we finish
reading the document, we think about the conclusion and try to synthesize
all the information and analysis that we have read. As we synthesize, we
may find ourselves returning to earlier paragraphs in the document and
puzzling over them. If we think about this process of digesting information,
we probably will conclude that it is inefficient and creates the risk that the
reader will misunderstand the message that the writer seeks to convey.
When it comes to writing, we may conclude, there must be a better way.
There is a better way. From the very beginning of the document, let the
reader know what your message is. Instead of waiting until the end to pull
the rabbit out of the hat, make your main themes stand out throughout the
document. Let the reader know where you are going.
To accomplish this task, apply three principles: make the outline of
your argument or discussion stand out; put your conclusions first; and write
well-organized paragraphs.
First, as suggested in Chapter 7, make an outline of your writing. An
outline will clarify your organization for you, and your reader will benefit
because of it. Because your first draft is never your best work, you should
revise your outline and your writing several times.
Second, in any legal document, put your conclusions at the beginning
of your writing. At the outset, the reader wants to know your conclusions
about the law as applied to the facts of your case. Although you may well
decide to recapitulate your conclusion at the end, the end is not the place to
state your conclusion for the first time.
Third, write well-organized paragraphs. Within your document,
paragraphs are major units of discourse. If the reader easily grasps the idea
of each paragraph, follows the discussion of that idea, and can make a
smooth transition to the idea in the next paragraph, he or she will
understand your message.

§8.02. MAKE THE OUTLINE OF YOUR ARGUMENT OR

DISCUSSION STAND OUT
As we discussed in Chapter 7, to make the outline of your argument or
discussion1 stand out, you should begin with an outline. Many students are
not accustomed to making outlines of their writing in advance. They write
first and outline later. For most people, this approach just does not work.
Make an outline.
Your initial outline is a simple listing of the major points in your
discussion or argument. As your research and analysis progress, you can
develop a more comprehensive outline using full sentences. You also may
decide to reorganize your outline.
Here is part of a sample sentence outline in an appellate brief
concerning a case that takes place in Pennsylvania. The plaintiff in the case
is attempting to take ownership of a property from the owner who has a
deed to that property. Under Pennsylvania law a trespasser can gain
ownership of property by possessing it for twenty-one years and performing
certain acts of ownership. The doctrine is called “adverse possession.”

Sample Sentence Outline:

I. SMITH HAS ACQUIRED SUFFICIENT INTEREST IN THE

DISPUTED TRACT OF LAND TO ENTITLE HIM TO OWN THE
LAND BY ADVERSE POSSESSION.
A. Smith’s Possession of the Disputed Tract of Land Has Been
Actual, Continuous, Visible, Notorious, Exclusive, Distinct, and
Hostile for the Statutory Period of Twenty-One Years as Required
to Satisfy the Elements of Adverse Possession.
1. Because Smith intends to hold this land for himself and has
manifested his intention by many acts of possession, his
 decision to discontinue one act, grazing sheep, during the
requisite period does not break the continuity of his possession.

Here is another example. In this case, two workers had a verbal dispute
that was work related. Six months later, they engaged in a personal fight
during working hours. One of the workers was injured and now seeks
recovery under the Pennsylvania Workers’ Compensation Act. An outline
for part of a memorandum on the case might look like this:

Sample Sentence Outline:

I. BECAUSE THE FIGHT WAS PURELY PERSONAL, THE

INJURED WORKER CANNOT RECOVER UNDER THE ACT.
A. As interpreted by case law, the Act excludes injuries arising
when the attacker acts for purely personal reasons.
B. As interpreted by case law, the Act is remedial and should be
liberally construed in favor of the injured worker.
C. Nonetheless, all similar cases permitting recovery were over
work-related issues with no mention of personal matters.
D. In light of the case law, the earlier dispute is too remote to permit
describing the fight as work related. Therefore the injured worker
probably will lose.

To complete this outline, you would fill it out by including throughout some
information about the cases that you plan to discuss.
To make the outline of the argument stand out, you should follow it in
your writing. With the outline in hand, you should find that you will write
more easily. If you run into difficulties, you may decide that your outline is
faulty and that you need to revise it.
After you turn your outline into a draft, do not let the first draft be your
final writing. First-year students face many time pressures and often want to
save time by not revising their writing. Many students who receive lower
grades in legal writing than they expected readily admit, “Well, I didn’t
revise my writing. I wrote only one draft.”
The usual reason the student gives is lack of time. Lawyers face just as
many time pressures. Bear in mind that you will be working for clients
when you become a lawyer, and your best writing is never the first draft.
Your rule of thumb should be to go through at least three drafts, if not more.
Make the time to go through as many revisions as necessary to make your
final product the best it can be.
Once you have written a first draft, go back over it and make sure it
follows your outline perfectly. If you find that the outline is forcing you to
organize your discussion in an awkward way, revise your outline.
Structure your discussion so that your organization is clear to the first-
time reader. In this book you will learn and relearn many rules that will help
you achieve this goal. As you go through your revisions, make sure you
apply each rule.

§8.03. PUT YOUR CONCLUSION FIRST

A conclusion is usually at the end of a writing. To make your theme
stand out, however, put it at the beginning. Depending on what you are
writing, you may find it desirable to also recapitulate it at the end.
The basic rule of expository writing is:
Tell your readers what you are going to say.
Say it.
Tell them what you just said.

Tell your reader your conclusion at the outset. Then discuss the
rationale for your conclusion. Then remind the reader of the conclusion you
have justified in your discussion.
The reader wants to know, right up front, what the law is as applied to
the given situation and does not want to be “held in suspense” until the end
of the memorandum, brief, or letter. You are not writing a mystery novel!
Do not make the reader wait until the end to see where you are going.
If you think your writing will become repetitive, you are right. Some
repetition is necessary to make your point.
The following is an edited excerpt from a student’s legal
memorandum. In this sample, the student stated the conclusion at the
beginning of the discussion and provided an emphatic recapitulation at the
end.
In this case, a court should hold the minor operator of a rider mower to an adult standard
of care because the fourteen-year-old’s operation of the mower was a dangerous activity
that adults normally perform. Courts generally require a minor to exercise the same
standard of care that would be exercised under similar circumstances by a reasonably
 careful minor of the same age, intelligence, and experience. Nonetheless, they make an
exception in the case of motor vehicles.
In two cases involving the operation of motor vehicles by minors, the Supreme Court
of Arkansas decided to hold minor operators to an adult standard of care. In one decision
the court required an adult standard of care from a fifteen-year-old boy who was riding a
motorcycle on a public street. Harrelson v. Whitehead, 365 S.W.2d 868 (Ark. 1963). In a
second decision the court held that a fourteen-year-old boy operating a farm tractor in a
cotton field should adhere to the same standard of care as a reasonably careful adult.
Jackson v. McCuiston, 448 S.W.2d 33 (Ark. 1969). In Jackson, the court recognized that
applying an adult standard of care to a minor who operates a motor vehicle is “an
exception to our general rule that a minor owes that degree of care which a reasonably
careful minor of his age and intelligence would exercise under similar circumstances.”…
The court should impose an adult standard of care on a minor operator of a rider
mower. This activity requires an adult standard of care for the safety of the operator as
well as for the safety of anyone else in the vicinity. The exception to the general rule is
justified because rider mowers are inherently dangerous, and adults normally operate
them. A minor who undertakes the operation of a dangerous adult activity in the business
world of adults cannot avoid the standard of care of a reasonably careful adult.

Some lawyers would call the first paragraph of this excerpt a “thesis
paragraph,” because it states the conclusion and indicates how the writer
reaches it. More specifically, in stating the conclusion, it presents the issue
in concrete terms by using the facts of the case and justifies the conclusion
by identifying the applicable rule, statute, or case precedent and briefly
explaining how it applies.
Putting the conclusion first creates a roadmap in the reader’s mind.
Because the reader knows where the writer is going, the reader finds the
discussion more meaningful from the outset. As readers, we find nothing
more frustrating than plodding through a legal memorandum or brief that
does not give us this roadmap. Without it, we find ourselves silently asking,
“Now where is this writer taking me?”
Even though the student stated the conclusion at both the beginning
and end of the discussion, the discussion is not too repetitive. The writer
tells you what the conclusion is, explains the rationale for the conclusion,
and then restates the conclusion at the end as justified by the discussion.
You do not have to guess at the outset where the writer is taking you—there
is no mystery here.
Note that the writer’s conclusion at the end does not simply repeat the
conclusion at the beginning. Instead, it makes clear the justification for the
court decisions. Often the conclusion at the end will be more concrete or
more emphatic than the conclusion at the beginning. Frequently, it will
contain new information or a new insight.
 Sometimes you will decide not to place a conclusion at the end
because you find it superfluous. In such instances, the conclusion is so
dominant throughout the discussion that you see no need to repeat it. Still,
do not let your ending trail off. End with some emphasis, perhaps by using a
pithy sentence, a compelling example that justifies your conclusion, or a
suggestion on what to do next.
Compare the following edited excerpt from another memorandum on
the same subject with the one above:
Courts have tended for the past twenty years to create exceptions to the general rule
governing minors’ responsibility for their negligent actions. In this society with rapid
technological change, courts have faced the necessity of changing many rules to keep up
with the use of sophisticated equipment in the form of farm machinery, automobiles, and
the like. Public policy has compelled these changes in the interest of safety in a changing
world.
Although minors have had to adhere to a minor’s standard of care, exceptions have
evolved. Today’s minors operate very sophisticated equipment, and public policy requires
a higher standard of care from them. Minors do have accidents as a result of their handling
sophisticated equipment, and safety requires that they be responsible to a greater extent
than they were in the past.

The writer gives you no idea at the outset what the memorandum will
conclude. After reading two paragraphs, you have no idea what this
memorandum will say about the case involved. The main theme does not
stand out. In comparison, the first sample memorandum excerpt requires
only a quick glance for the reader to know what the writer’s conclusion is.
At the outset, always let the reader know what your conclusion is.
Then explain that conclusion within the context of the discussion. Finally, if
desirable, present a recapitulation at the end.

§8.04. WRITE EFFECTIVE PARAGRAPHS

In making your main theme stand out, you must pay attention to how
you present and develop ideas. You present and develop them within your
primary units of discourse: sentences and paragraphs. In this section, we
discuss writing effective paragraphs. You will learn how to present the idea
in a paragraph, how to develop that idea, how to give the paragraph unity
and direction, and how to connect sentences and paragraphs so that your
analysis flows smoothly.
1. Use Topic Sentences
 Every paragraph should present one major idea. In most paragraphs,
you will first present that idea in one sentence or in a group of sentences
called topic sentences. (Most of the time, you will use one topic sentence.)
These sentences provide the topic for the discussion that goes on in the rest
of the paragraph.
Here is an example of a paragraph with a topic sentence in its most
typical location, the very beginning. The writer is arguing against a court
decision that upholds a statute as constitutional.
The majority defines the right at stake too narrowly and treats the developmentally
challenged as second class citizens with second-class rights. No legislature would even
consider drafting a provision like §4693(c) and applying it to legally competent adults.
Just as with the legally competent, individuals like D.T. must enjoy their fundamental
liberty and privacy rights if they are to develop to their maximum economic, intellectual,
and social levels.

In this paragraph, the topic sentence clearly states the point. The rest of
the paragraph develops the point by explaining why the writer disagrees
with the majority.
Here is the same paragraph with the sentences arranged in a different
order:
No legislature would even consider drafting a provision like §4693(c) and applying it to
legally competent adults. The majority defines the right at stake too narrowly and treats
the developmentally challenged as second-class citizens with second-class rights. Just as
with the legally competent, individuals like D.T. must enjoy their fundamental liberty and
privacy rights if they are to develop to their maximum economic, intellectual, and social
levels.

This paragraph is unsatisfactory because the topic sentence is in the

wrong place. A paragraph works well when the topic sentence states the
idea and the remaining sentences develop that idea. Here, the paragraph
begins with the development, then states the topic, and then continues the
development. In its original form, the paragraph succeeds because it begins
with the conclusion and then develops it.
Instead of being at the beginning of the paragraph, the topic sentence
can be at the end. In this instance, the paragraph builds to a conclusion.
Here is an example:
Just as with the legally competent, individuals like D.T. must enjoy their fundamental
liberty and privacy rights if they are to develop to their maximum economic, intellectual,
and social levels. Their development, however, is frustrated by §4693(c). No legislature
would even consider drafting a similar provision and applying it to legally competent
 adults. By upholding this statute, the majority defines the right at stake too narrowly and
treats the developmentally challenged as second-class citizens with second-class rights.

You often will write this type of a paragraph as an introductory or

concluding paragraph to a document or to a large section of a document. In
these locations, readers frequently prefer a paragraph that builds to a
conclusion. However, in other locations, be cautious about putting the topic
sentence at the end. As you know, readers normally like conclusions to
come first and therefore like topic sentences at the beginning.
Consider this paragraph:
The State and the independent counsel for D.T. filed identical motions requesting the
Probate Court to dismiss the parents’ petition. They argued that §4693(c) bars the relief
requested and that it is constitutional. The court granted the motions and dismissed the
petition. On appeal, the Superior Court issued a brief per curiam opinion affirming the
Probate Court’s opinion.

This paragraph lacks an explicit topic sentence. Nonetheless, we know

the theme of the paragraph: the procedural history of the case. As the
paragraph illustrates, sometimes a paragraph has no topic sentence.
You can omit a topic sentence when the general idea of the paragraph
is clear to the reader. In a sense, the idea is present by implication. Narrative
paragraphs are the most typical example.
Although you sometimes can forgo a topic sentence, do not be too
quick to do so. Readers like topic sentences because they make a
paragraph’s theme unambiguous. Err on the side of including topic
sentences.
2. Write Cohesive Paragraphs
Although writing a good topic sentence will go a long way toward
making your theme stand out, you also must make certain that the
discussion part of your paragraph supports and develops the topic sentence.
When the topic sentence and the discussion work together, your paragraph
will have unity and direction.
a. Write Focused Discussion Sections
In different paragraphs, the discussion sections serve different
purposes. For example, the discussion section may offer an example to
illustrate the point of the topic sentence, elaborate on the topic sentence,
furnish a logical argument supporting the point of the topic sentence, or
provide a narrative that the topic sentence introduces. In each case, the
discussion section discusses the idea in the topic sentence and focuses the
reader’s attention on it.
In the next paragraph, the discussion section offers an example. The
topic sentence tells us that a court has declined to apply strict liability when
the plaintiff is an expert in dealing with a potentially dangerous product.
The discussion section discusses one case in which the court refused to find
strict liability for this reason.
The Washington Supreme Court has refused to extend strict liability to cases in which
expert handlers suffer injury while working with a potentially dangerous product. For
example, in Spellmeyer v. Weyerhauser, 544 P.2d 107 (1975), a longshoreman was injured
when a bale of wood pulp fell on him. According to the court, strict liability was
inappropriate because only expert loaders and carriers were required to deal with the bale.
The court found that because of the plaintiff’s status as such an expert, the policy
considerations favoring strict liability were too diluted to be persuasive. Id. at 110.

Here is a paragraph in which the discussion section elaborates on the

topic sentence:
In Seay v. Chrysler Corp., 609 P.2d 1382 (Wash. 1980), the Washington Supreme Court
refined the Spellmeyer holding to permit some expert handlers to successfully invoke
strict liability. In Seay, a worker, an expert handler, was injured while loading a truck
chassis onto a convoy trailer. He was operating a temporary device that was placed on the
chassis specifically for the purpose of moving and unloading. The court imposed strict
liability on the manufacturer of the temporary device, but only because the expert handler
was the device’s intended ultimate user. Id. at 1385. Although the court extended strict
liability to an expert handler, it still limited the doctrine to situations in which a finished
product is not safe for its intended use.

In this paragraph, the topic sentence tells us that a court used a case to
refine its holding in an earlier case. The rest of the paragraph tells us about
the new case and how the court used it to clarify its position on strict
liability.
In the next paragraph, the discussion section presents a logical
argument in support of the proposition in the topic sentence.
When the user of a product is an expert in the care and handling of such products, the
product is not unreasonably dangerous if the manufacturer fails to furnish instructions on
its care and handling. By definition, an expert handler knows how to handle and move a
wide variety of products. The handler possesses the experience, knowledge, and judgment
necessary to protect himself or herself. Although, presumably, a significant percentage of
products do not come to the docks equipped with loading instructions, it would be absurd
to term all these products unreasonably dangerous to their handlers.
 Note that the sentences in the discussion section appear in a carefully
arranged sequence. The writer thought out the argument and made it one
step at a time. If we were to rearrange the sentences in the discussion group,
we would upset the logical order and seriously weaken the argument.
In the next paragraph, the discussion section provides a narrative that
the topic sentence introduces.
The injury occurred when the longshoremen attempted to load two steel drafts onto a
barge. After both drafts arrived at the dock, the loaders safely loaded them onto the barge
by using a sling of chain steel suspended from a shoreside crane. The loaders then
determined that the drafts would fit better if loaded in the opposite direction. Therefore,
they directed the crane operator to rehoist the drafts above the barge. Despite the
availability of a nearby forklift and the obvious danger posed by the weight of the drafts,
the loaders swung the drafts around in midair. The drafts collided with the forklift, slipped
free from the sling, and crushed Mr. Smyth under their combined weight.

In this paragraph, the topic sentence tells you that the rest of the
paragraph is going to describe the circumstances of the accident. When you
read the paragraph, you may have thought that the topic sentence provided
you with some help, but that it was not essential to your understanding. As
discussed in Section 8.04[1], in narratives, topic sentences are not always
necessary. The reader usually knows the idea of the paragraph—to tell the
story. The theme of the paragraph is implicit.
b. Avoid Extraneous Sentences
In writing the discussion section, make sure that all the material in the
discussion relates to the topic sentence.
Consider this paragraph:
Because the plaintiff failed to employ a sheriff to serve the garnishment writ on the
defendant, the service was ineffective. Rule 402(a) permits a plaintiff to make service
without a sheriff only when the plaintiff makes service within the Commonwealth.
Because the plaintiff chose to make service at the defendant’s Illinois office, Rule 402(a)
cannot be successfully invoked. The plaintiff requests the court to overlook any error in
service because plaintiff could have served the writ at the defendant’s office in the
Commonwealth.

In this paragraph, the first sentence is the topic sentence. It states that
the plaintiff’s service of process was ineffective because the plaintiff failed
to employ a sheriff. The discussion section provides the supporting
argument. It gives us the rule for when a plaintiff can make service without
a sheriff and explains why that rule does not apply here. However, the last
sentence of the paragraph is not part of that discussion. Instead of
supporting the argument in the topic sentence, it puts forth the plaintiff’s
argument why the court should accept the service as valid. Although this
sentence is about service of process, it does not directly relate to the topic
sentence and is not part of the argument in the discussion section. As a
result, it detracts from the unity and direction of the paragraph. It belongs in
another paragraph.
Consider this paragraph:
The discovery rule would not excuse the Johnsons from failing to satisfy the two-year
statute of limitations. Under the rule, the statute would have begun running when the
Johnsons should have known all the relevant facts. Although they had this knowledge
shortly after their child’s birth, they did not bring their action for another four years.
However, the Johnsons could prevail under another exception to the two-year statute of
limitations: the concealment exception. This exception tolls the statute of limitations when
the defendant’s fraud or concealment causes the plaintiff to relax his or her vigilance or
fail to inquire further. In the present case, fraud and concealment were present and lulled
the Johnsons into a false sense of security. Therefore the exception should apply.

The point of the topic sentence is that the discovery rule will not assist
the Johnsons. We would expect the discussion section to explain why the
discovery rule does not apply here. The first part of the discussion section
satisfies our expectations. However, in the middle of the paragraph, the
discussion shifts to the concealment rule. The rest of the paragraph fails to
support the point of the topic sentence. Therefore, it belongs in a separate
paragraph. In fact, the last four sentences of the paragraph should stand by
themselves as a separate paragraph.
As the last two examples demonstrate, each paragraph can present only
one central idea. Every sentence in the paragraph should deal directly with
that idea. The focus on a single idea is what gives the paragraph unity and
direction. Sentences that focus on some other idea are extraneous and must
be omitted or placed in a different paragraph.
3. When Necessary, Use Transitions and Repeat Words
If the reader does not find a connection between the ideas within
paragraphs and among paragraphs, he or she will not follow your analysis
or argument. You create continuity by arranging your ideas in a logical or
chronological order and by using transitional words—“for example,”
“however,” “therefore,” “in addition,” “consequently,” “in contrast,” and
“moreover”—and repeating words and ideas that you have used in earlier
sentences and paragraphs. Here, we focus on transitions and repetition.
 This paragraph illustrates how to use transitions and repetition:
The Supreme Court of Puerto Rico has adopted the principle that rights and liabilities in
tort must be determined according to the law of the jurisdiction having dominant contacts
with the parties and the occurrence. By adopting this approach, the court has accepted the
approach of the Restatement (Second) of Torts, which calls for applying the law of the
state with the most significant relationship to the parties and the event. The court thus
appears to conform to the Restatement’s assertion that, in a personal injury case, a court
should choose the law of the state where the injury occurred, unless another state’s
relationship to the injury is more significant.

The italicized words provide continuity between the sentences. The

first sentence introduces the court. The remaining sentences make repeated
references to the court and force the reader to remember that the paragraph
is focusing on the Puerto Rico Supreme Court’s resolution of a legal issue.
The first four words of the second sentence refer back to the idea in the first
sentence and let the reader know that the second sentence builds on the
first. The third sentence contains the transitional word “thus” and tells the
reader that the third sentence reaches a conclusion based on the preceding
sentences. Repetition and transitions thus give this paragraph cohesiveness.
The sample paragraph contains only one transitional word, “thus.” As
you work on your writing, you will discover that when you place your
sentences in the proper sequence and repeat words and ideas that you
introduced earlier, you will not need to clutter up your sentences with a
large number of transitional words.
You also may have been concerned that the subject of every sentence
in the paragraph is the same. You may have been taught that if you begin
sentences with the same subject, you will bore the reader. Yet, you probably
did not realize the repetition the first time you read the paragraph, and you
probably did not become bored. Concern over excessive repetition is greatly
exaggerated. Using the same subject for a series of sentences usually gives
legal writing great continuity.
We will use the next paragraph to learn about transitions between
paragraphs.
Ms. Joseph should be able to make out a prima facie case for disparate treatment. To make
out her case, she must persuade the court that there is sufficient evidence to prove four
elements: (1) that she belongs to a protected class; (2) that she applied for an available
position for which she was qualified; (3) that she was rejected; and (4) that after the
rejection, the employer continued to seek applicants. She should be able to provide
sufficient evidence to establish these elements. First, as a woman, she is a member of a
protected class. Second, she applied for a position as a firefighter for which she was fully
 qualified. Third, she was rejected under circumstances that give rise to an inference of
discrimination. Fourth, after she was rejected, the city continued to seek applicants.

Suppose the writer believes that it is necessary to elaborate on Ms.

Joseph’s evidentiary proof for each of the elements. The writer then might
follow this paragraph with four paragraphs, one for each element. The first
of these paragraphs might begin: “As for the first element.…” The second
might begin: “As for the second element.…” In each case, the new
paragraph begins with a repetition of relevant words from the first
paragraph.
Suppose the writer does not believe that these four paragraphs are
needed and wishes to move directly to the defendant’s response. The writer
might begin the second paragraph with this sentence: “If Ms. Joseph
establishes her prima facie case, the defendant has the opportunity to rebut
the presumption of discrimination.” The first clause in the sentence repeats
the idea in the preceding paragraph. It thus connects the paragraphs.
Alternatively, the writer might begin the second paragraph with this
sentence: “However, the defendant should not necessarily admit defeat.” By
using “however,” a transitional word, the writer connects the paragraphs. As
you can see, repetition and transitional words also are tools for connecting
paragraphs.

Exercise
Here is a sequence of three paragraphs. Please rearrange the sentences
to make the paragraphs more effective. You may move sentences from one
paragraph to another and, if necessary, revise the sentences slightly.
Since two years have passed since the last permissible filing date, the
statute of limitations, strictly read, would bar the action. Although this
state’s law normally imposes a two-year statute of limitations for personal
injuries, the Johnsons still may be able to bring an action for wrongful birth.
In medical malpractice cases, the courts have recognized an exception
called the “discovery rule.” The rule does not require the plaintiff to know
that the physician was negligent. This exception may apply to the Johnsons’
action.
In applying the rule, the courts use a three-pronged test. The discovery
rule applies to plaintiffs in medical malpractice actions. Under the rule,
when the plaintiff cannot reasonably ascertain the existence of an injury, the
statute of limitations does not begin to run until the injury’s existence is
known or discovered or becomes knowable or discoverable through the
exercise of due diligence.
The statute begins to run when the plaintiff knows or, through
reasonable diligence, should know of: (1) his or her injury (2) the operative
cause of the injury; and (3) the causal relationship between the injury and
the operative.

1. The word “argument” here means arguing your client’s case in a brief that goes to the court.
You will learn more about writing effective briefs in Chapters 28-32. The word “discussion” here
means an objective discussion of the law, without argument, in legal memoranda and client letters.
You will learn more about writing effective memoranda and client letters in Chapters 11-17.
§9.01. INTRODUCTION
In this book you will learn to write documents such as legal
memoranda for internal use in a law office, briefs for the courts’ use in
deciding your cases, and opinion letters for distribution to your clients.
Each form of legal writing has only one goal: to inform the reader in a
clear and concise way. Help the reader out in every way you can. You
should not try to impress your reader with your lawyering skills and
language, but tell your reader your interpretation of the law in clear
language.
Always assume that

1. the senior attorney who reads your internal legal memorandum may
know little or nothing about the law as applied to the current case;
2. the judge who reads your brief may know little or nothing about the
law as applied to the current case; and
3. the client who reads your opinion letter probably knows little or
nothing about the law as applied to the current case.

Chapter 8 explained how to make your theme stand out. It thus

explained one method of helping your reader to understand your writing. In
this chapter you will learn other, often more subtle, methods for expressing
your points clearly in writing.
Writing clearly, briefly, and precisely requires attention to detail. Many
law students and young lawyers learn this lesson the hard way. A poor
choice of words or a badly constructed sentence here and there really makes
a difference.
We have organized this chapter into three topics: general advice,
sentence structure, and sentence content. We also have included exercises to
help you apply what you have learned.

§9.02. GENERAL ADVICE

1. Get to the Point
If you do not get to the point immediately, you will lose your reader at
the outset. The reader is most often a very busy person who does not have
the time or patience to ferret out what you are trying to say.
In Chapter 8 you learned one of the best ways of getting to the point:
State your conclusions first. Suppose a senior attorney asks you to write a
memo to address how the courts in your state would resolve a particular
dispute. In the course of your research, you may learn a historical lesson on
how the relevant law developed. In the relevant cases, you also may come
across dozens of pithy quotations. You also may summarize dozens of
cases. You may be tempted to begin your memo with a historical essay, fill
the remainder with quotations, and include a series of paragraphs each
furnishing a mini-brief of each case you read. However, before you fall into
these traps, remember your assignment. The senior attorney asked you to
answer a specific question. Instead of loading your memo with irrelevant
information, include only information that answers the question.
First, state your conclusion. Then, state the controlling rule or holding
in your jurisdiction and explain how the courts have applied the rule to
cases with facts similar to yours. Distinguish adverse cases with different
facts. Include your historical information, your quotations, and your cases
only to the extent that they help you answer the question that you were
asked. In other words, get to the point. Use information only to help you
explain your point.
2. Use Concrete Language
Your writing should paint a picture in the reader’s mind. You will not
paint this picture unless you use concrete language and avoid abstractions.
Do not try to achieve a lofty tone in legal writing. Your goal should be just
the opposite. Follow these rules:
 (1) Use the simplest language possible, as if you are telling a story
orally.
(2) Use language the reader is least likely to have to look up in a
dictionary.
(3) Use words that describe things in concrete terms.

Test your writing for concrete language and simplicity by reading it

aloud. Does it sound interesting? Better still, read your writing to a
nonlawyer, or a nonlaw student. Does that person understand it completely?
These examples illustrate how to change abstract to concrete language:
Bad: On the day the defendant’s automobile collided with the minor, the precipitation
level was very high, and the automobile hydroplaned.

Better: On the day Ms. Smith’s car hit Sally Jones, it was raining hard and the car skidded
off the road.

___________
Bad: The landlord had an obligation to secure the premises by preventing the entry of the
criminal element into the domicile.

Better: The landlord should have provided adequate locks and windows on the doors to
the apartment.

___________
Bad: Mr. Jones committed his signature to writing on the document conveying the real
estate to the new record title holder.

Better: Mr. Jones signed the deed to the land, transferring it to Ms. Smith.

___________
Bad: The assailant brandished the weapon in the air at the victim, inflicting severe
emotional distress and injuries to his person.

Better: The robber waved a gun at Mr. Jones, frightening him and severely gashing his
forehead.

___________
In each of the examples, abstract language became concrete language,
and complex concepts became clear pictures.
 Look at each sentence you write and check to see whether you have
used the simplest, most direct language possible. This instruction may
appear contrary to what you think you should be learning at the professional
school level. The poor writing you often see in case opinions reinforces the
assumption that you should use complicated words and phrases and write
abstractly. But this sort of writing is the opposite of what you should strive
for. Only by writing simply and clearly can you communicate your ideas
effectively.
3. Use the Active Voice
This rule is one of the hardest for writers to follow. Read the following
examples:
Passive Voice: Mary was hit by Sarah.

Active Voice: Sarah hit Mary.

Passive Voice: The ball was thrown by Jeff.

Active Voice: Jeff threw the ball.

In the passive voice examples, the sentences focus on the objects of the
action (Mary and the ball). The subject or actor in each sentence (Sarah and
Jeff) that does something to the object takes a secondary role. In the active
voice, the subject appears before the verb. It may be helpful to diagram the
first example:

The more powerful, compelling way to express ideas in English is to

use the active voice. There will be times when the passive voice is
necessary, and there is no better way to express what you have said. But
most of the time you can eliminate it with a little time and effort.
A few examples from legal writing may illustrate the effectiveness of
the active voice. Suppose you are a district attorney prosecuting a criminal
case. Which of the following would sound more persuasive in your brief for
the case?
 Passive Voice: The victim was hit by the defendant. Then she was raped by the defendant
and shoved into the trunk of his car.

Active Voice: The defendant hit the victim, raped her, and shoved her into the trunk of his
car.

The sentence in the active voice is more forceful. It makes a

declarative statement, emphasizes the defendant’s actions, and implies
knowledge and purpose on the defendant’s part.
Suppose you represent Mr. Smith in a case in which he claims a parcel
of land. Which of the following would sound more persuasive in your brief
for the case?
Passive Voice: Mr. Smith’s intentions were evidenced by the facts that the land was
occupied by him, the land was used by his sheep for grazing, and the land was used by
him for planting crops.

Active Voice: Mr. Smith showed his intentions by occupying the land, using it for sheep
grazing, and farming it.

Use of the active voice connotes concrete actions by Mr. Smith. The
active voice also helps eliminate some unnecessary words to streamline the
sentence.
Passive Voice: It was found by the court that the defendant was guilty, and he was
sentenced to three years in prison.

Active Voice: The court found the defendant guilty and sentenced him to three years in
prison.

___________
Passive Voice: Title was quieted in Mr. Smith by the court, and Mr. Jones was found to no
longer own the land.

Active Voice: The court quieted title in Mr. Smith and found that Mr. Jones no longer
owned the land.

___________
Passive Voice: The defendant was frisked by the detective, and this frisk turned up a
loaded semi-automatic pistol, which was forcibly taken from his person.

Active Voice: The detective frisked the defendant, and this frisk turned up a loaded semi-
automatic pistol, which the detective forcibly took from the defendant.
 It is often difficult to eliminate the passive voice from writing. The
best method is to go over your last draft, sentence by sentence, and read
each sentence again for only one purpose—to eliminate the use of passive
voice. As you find each use of passive voice, ask yourself, “Would
converting this to active voice improve this sentence, and if so, how can I
do that?”
___________
Once you have learned how to eliminate passive voice, then you will
begin to learn when you can use it effectively in certain situations. For
example, the following passage by the famous lawyer Clarence Darrow
depends on the passive voice (italicized) for dramatic effect:
I don’t believe in man’s tinkering with the work of God. I don’t believe that you and I can
say in the light of heaven that, if we had been born as he was born, if our brains had been
molded as his was molded, if we had been surrounded as he has been surrounded, we
might not have been like him.1

In this example, Darrow is using the passive voice to put emphasis on

the verbs. One way to emphasize a word or phrase is to place it at the end of
a sentence or clause. Here, Darrow places the verbs in these positions. If he
used the active voice, he would have been unable to place the verbs in these
positions. The desire to emphasize the verbs prevailed over any
disadvantages of using the passive voice.
4. Avoid Legalese
Lawyers and judges too often use the jargon of the law, “legalese,” in
their writing. The frequent use of legalese is unnecessary and can result in
unclear writing. You should avoid legalese not only because it results in
ambiguity, but also because you may not yet fully understand the meanings
of legal terms. Legal dictionaries do not always explain the full meanings of
those terms. You will have opportunities to use the new language you are
learning, but try to suppress the urge to overuse it in your writing.
A true story might be helpful here. Many first-year students love to use
the word “dicta.” They use “dicta” proudly and profusely in writing
assignments. One student had been using the word in writing assignments
throughout his first year of law school. At the end of the year, he told his
professor that it was only then that he realized the full meaning of the word.
 This student had used a dictionary definition of the term but, because
of his limited experience, he did not understand precisely what that word
meant. The word “dicta” refers to language in a court opinion that is
unnecessary to the holding of a case. However, the student had been using
the term to refer to actual holdings on issues other than those he had
researched for his own research projects. He had not understood the term
and had applied it too broadly.
Aside from this practical reason for not using legalese, the most
important reason to avoid it is that you must write clearly, and use of
legalese defeats this purpose. Legalese has developed over many centuries
and stems from several languages—notably, Latin, French, and Old and
Middle English. Very little legalese is plain, simple, modern English that
everyone can understand.
However, do not avoid using necessary terms of art, which you cannot
replace with everyday words. The term “assault,” for example, is a term of
art; and you cannot use another term such as “hit” to replace it. “Proximate
cause” is a term you will learn, and you should not attempt to find a
substitute for it. “Exigent circumstances” is a term in criminal procedure
that has its own special meaning, and you should not attempt to simplify it.
Aside from certain terms of art such as these, you can eliminate most
legalese from your writing.
Do not strive to impress your reader with your newly learned legalese.
Strive to impress your reader with your ability to communicate effectively.
Examples
Legalese: The parties agree only to the terms and conditions set forth herein.

Plain Language: The parties agree only to the terms and conditions in this agreement.

___________
Legalese: The plaintiff instituted legal proceedings against the defendant.

Plain Language: The plaintiff sued the defendant.

___________
Legalese: In the event that the defendant defaults on her obligation, she will forfeit her
rights.

Plain Language: If the defendant defaults on her obligation, she will lose her rights.
 ___________
Legalese: Subsequent to his decision, the judge changed his mind.

Plain Language: After his decision, the judge changed his mind.

___________
Legalese: She is to pay him $10,000 per annum.

Plain Language: She is to pay him $10,000 a year.

The examples show that you can substitute simple words and phrases
for most of the terms and phrases that are peculiar to the law. Always read
over your final draft of a legal document to purge it of all legalese.
5. Define Technical Terms
In the last subsection, you learned that you should avoid legalese.
However, at times you cannot escape the use of technical terms. If you must
use a technical term, define it immediately so you are sure the reader
understands it. Of course, always consider your audience. Use your
judgment when you decide whether the reader will understand the terms
you use. A lawyer or judge may understand certain terms that a client
would not understand. If you decide that it is necessary to define a term for
your readers, either you can follow the term with a parenthesized definition,
or you can define the term with a phrase or a sentence.
The following are examples of how to define technical terms in your
writing:

• Mr. Barnes filed suit against Mr. Ewing to quiet title in the land. To “quiet
title” means to ask the court to decide who owns the land.
• Mr. Barnes filed a suit against Mr. Ewing claiming adverse possession of
the land. By invoking adverse possession, Mr. Barnes claimed he had
gained ownership of Mr. Ewing’s land by conducting certain acts with
regard to the land for a certain time period.
• The defendant argued that a parent-child testimonial privilege should
apply in this case. She argued that the court should not allow her son to
testify against her in court because of the family relationship.
• Mr. Kramden argued that the insurance company’s employee had
apparent authority to bind the company. “Apparent authority” means that
 the insurance company represented to the public that the employee could
make promises that the company must keep.
• The court ruled that the child should adhere to an adult standard of care
(that is, that the child should have acted as a reasonable adult under the
circumstances).

Never assume that your reader, whether another attorney or a judge,

knows the meaning of every technical term you use. You do not want to
insult your reader’s intelligence, but you do not want to confuse your reader
either.
6. Write in the Appropriate Tone
Much of what you have learned thus far may appear to work against
using any formality in legal writing. Nevertheless, legal writing is formal
writing. Although you must strive for simplicity, clarity, and brevity, you
still must achieve the appropriate tone.
Setting the appropriate tone in your writing is where you can be
“lawyerly” and sound “like a lawyer.” Later in this chapter, you will learn
the mechanics of tone at the word and phrase level—you will learn to avoid
colloquialisms and contractions and not to personalize your writing with
first (“I,” “we”) and second (“you”) person pronouns. Learning those
mechanics will help you write in the appropriate tone.
The tone in legal writing is similar to that in good business writing.
Some helpful hints:

1. Do not use colloquialisms or slang.

2. Do not use contractions.
3. Do not personalize your writing.
4. Do not sound “preachy” or take the “soapbox” approach.
5. Do be serious. Legal documents are serious matters, and your clients
have serious concerns. Legal documents are generally not the place
for humor or lightness.

Although the cases you read in your casebooks may not always be the
best examples of good legal writing, they usually illustrate the tone you
should set in your writing. They are usually good examples for you to study.
Exercises
The following exercises give you an opportunity to put into practice
some of the rules that we have just covered. Identify the errors and, to the
extent possible, rewrite the sentences to eliminate those errors. You may
have some difficulty rewriting some of the sentences as the original author
would have because they are taken out of context. Do the best you can. For
these exercises, you may assume facts not given if they are necessary.
(1) Although Pennsylvania does not provide for depositions in these
circumstances, other state and the federal courts call for depositions. In
United States v. Linton, 502 F. Supp. 878 (D. Nev. 1980), the court stressed
that where testimony can be adequately secured by deposition, an
incarcerated witness should not be further detained. In Linton the witness
had been in jail for two months. At that time the trial was postponed. The
court held that this was an “exceptional circumstance,” and that it was “in
the interest of justice that his testimony be taken by deposition.” Id. at 879.
The court delineated a comprehensive method of deposition-taking that
includes videotaped examinations and cross-examinations.
Therefore, considering that Pennsylvania statute and case law strongly
indicate material witnesses may not be held indefinitely, that the brothers
were not afforded counsel to challenge their incarceration, and that
deposition is a viable alternative to incarceration, the Fernandez brothers
should be released from jail.
(2) The said canine caught the minor child’s (Sally’s) hand in his
mouth, inflicting an injury that required ten sutures.
(3) The patient listed his unhealthy habits as the consumption of
tobacco and alcoholic beverages and a lack of physical activity.
(4) The Texaco signs were put up by Bi-Rite Oil Company, which is
Butterbaugh’s distributor out of Monroeville and is independent of Texaco;
the signs were provided by Bi-Rite free of charge.
(5) A criminal complaint was filed against defendant by the district
attorney on November 5, 2013, charging the defendant with indecent
assault. A preliminary hearing was scheduled by the district magistrate on
November 14, 2013, but the hearing was not held because the defendant
was not ready. Another hearing was scheduled for November 21, 2013, but
was continued by the magistrate because a government witness was
unavailable. The preliminary hearing was rescheduled for November 26,
2013, but was continued by the magistrate because defendant’s attorney was
unavailable. Finally, on December 10, 2013, a preliminary hearing was held
by a district magistrate, and a prima facie case was established by the
district attorney at that time. On December 12, 2013, the magisterial
transcript was sent to the court by the clerk and was received by the district
attorney on December 19, 2013. The information was filed on January 14,
2014, and the date for arraignment was set for January 22, 2014, on which
date arraignment occurred.
(6) FINDINGS OF FACT

(1) The aforesaid respondent, [], Esq., is an attorney admitted to practice law in the
Commonwealth of Pennsylvania, and his last place of business was located at [].
(2) Subsequent to February 2012, respondent’s wife died suddenly, leaving him with
two minors to care for.
(3) The sudden demise of respondent’s spouse resulted in extreme mental trauma
and shock to respondent thereafter.
(4) Respondent entered a period of severe depression and began heavy consumption
of alcohol at or about the time of his wife’s demise.
(5) Subsequent to March 2013, respondent attempted suicide and was in a state of
severe psychotic depression.
(6) The suicide attempt closely paralleled the first anniversary of his wife’s demise.
(7) During the period following his wife’s death, and at all times material herein,
respondent suffered an impairment of judgment and a diminished mental capacity.
(8) During the period of impaired judgment and diminished mental capacity,
respondent committed the wrongful acts hereinafter set forth.
(9) All conditions precedent and contained in the aforesaid Agreement of Sale have
been met, have been waived by defendant’s aforesaid conduct or have been prevented by
the defendant’s aforesaid conduct.
(10) The court requested further investigation as to whether decedent was ever
married or had issue. Mr. Lochner questioned, inter alia, whether decedent’s father,
Robert F. Atkinson, was in fact the uncle of Franklin A. Allen, and mentioned other
possible discrepancies in the family tree. Mr. Lochner’s correspondence was referred to
the trustee ad litem. Franklin A. Allen died testate on March 19, 2014.
(11) In that case, where plaintiff sued a bank for conversion of checks payable to
plaintiff which were paid over alleged forged endorsements to plaintiff’s bookkeeper, the
bank’s joinder of plaintiff’s accounting firm alleging negligence in permitting the
embezzlement may be properly dismissed since the theory of such joinder was distinct and
unrelated to the theory of plaintiff’s original complaint. Moreover, the defendant and
additional defendant are not joint tortfeasors.
(12) This court should not allow the lower court’s decision to stand. You have a
duty to protect kids from dangerous people like the defendant. You also have a duty to
support the cops, who work hard to catch people like the defendant. If you don’t overturn
the lower court’s decision in this case, you’ll negate everything we prosecutors work for.
The defendant didn’t even provide an excuse for her actions. Our case against her should
be the winner here.

§9.03. STRUCTURE
 When you put sentences together, the most important guideline is to
limit each sentence to one thought. Plan your sentences before you commit
them to paper. After several weeks of intensive research and thought about
a problem, you may find yourself trying to say too much too quickly. The
result can be long, rambling, almost “stream of consciousness” strings of
words that obscure the central idea. Here are some ways to avoid this result.
1. Write Short Sentences
The easiest way to keep your writing clear and readable is to write
short sentences. The basic sentence includes a subject, a verb, and usually
an object. In most cases those elements are all you need to express a single
idea. Choose your words with care and work to communicate rather than
impress. You then should have no trouble writing short, precise sentences,
and your reader will understand you quickly and easily.

Bad: In this case, there was no public controversy involving the concert because the
concert affected only its small number of participants, and even if there was plaintiff did
not thrust himself to the forefront of the controversy—he was involuntarily drawn into it
either by virtue of his position as promoter of the concert or by the defendant’s cablecast.
Better: In this case no public controversy involving the concert existed. The concert
affected only its small number of participants. If a public controversy existed, plaintiff did
not thrust himself into it. He was involuntarily drawn into it, either because of his position
as the concert’s promoter or because of the defendant’s cablecast.

___________
Bad: The court in its opinion, however, found that the record indicated that hospital
security was “more lax than it could have been,” sufficiently so that the court decided to
hold the hospital liable based solely on the issues of law presented in the pleadings, and on
the facts as revealed in the deposed testimony of the hospital’s own employees.
Better: However, the court found that, according to the record, hospital security was
“more lax than it could have been.” Therefore, it held the hospital liable solely on the
pleadings and on the facts revealed in the depositions of the hospital’s employees.

___________
Bad: Appellant’s failure to respond to the motion, however, goes to the heart of the
suit, and, if he is allowed to ignore proper procedure, the judicial process will be
threatened with paralysis as the court will be unable to determine when it is appropriate to
assume no response will be forthcoming from appellant.
Better: Appellant did not respond to the motion. This failure goes to the heart of the
suit, because it paralyzes the judicial process. When a court does not know whether a
litigant plans to respond to a pleading, it is unable to proceed.
 The repairs to these sentences took several forms: dividing the long
sentence into several smaller sentences, removing unnecessary phrases, and
rewording sentences to make them more direct. Correcting one long
sentence occasionally results in a longer discussion. It is an acceptable
result to have more words and sentences if the final product is clearer.
Not all the revised sentences are short one-clause sentences. Legal
writing does not look like the text of a book for grade school children. If
you need to use a complex sentence, use it. First, however, try to reduce
your ideas to short sentences that flow.
2. Put the Parts of Your Sentence in a Logical Order
One of the most common errors writers make is failing to put
sentences together in a logical sequence.

Bad: First, this court properly dismissed plaintiff’s claim for fraud since plaintiff’s
injury, the job loss, was due to the use of information by the employer supplied by the
defendant and not due to the defendant’s alleged misrepresentation.
Better: First, this court properly dismissed plaintiff’s claim for fraud since plaintiff’s
job loss was not due to the defendant’s alleged misrepresentation, but rather to the
employer’s use of information that the defendant supplied.
Comment: Rewriting this sentence as at least two shorter sentences
would be an even greater improvement.

The problem stems from “stream of consciousness” writing.

Sometimes thoughts make perfect sense in a certain order in your mind but
become confusing when you write them. The problem generally results
from not planning sentences and trying to put too many ideas into too few
words.
Avoid confusing sentences by taking the time to read what you have
just written. Put yourself in the reader’s shoes. Will the reader understand
the sentence easily? Will the reader understand it more easily if you place
the ideas in a different sequence, perhaps a sequence more chronological or
logical?
The best way to catch logical errors is to put the writing aside for a
while and read it later when you have greater objectivity. Then, be willing
to revise it. One of the writer’s hardest tasks is to proofread with a
willingness to make substantial changes. It also is one of the most
profitable.
Here is another example.
 Bad: Any disposition of property to a third person who had notice of the pendency of
the matrimonial action or who paid wholly inadequate consideration for such property
may be deemed fraudulent and declared void.
Better: A court can declare fraudulent and void any disposition of property to a third
person when the third person knew that a matrimonial action was pending or when that
person paid wholly inadequate consideration for the property.

3. Avoid Intrusive Phrases and Clauses

Writers sometimes burden their sentences with clauses and phrases that
are not needed to convey the main idea. These inserts break the sentence
flow and create difficulty for the reader. Intrusive phrases appear when
writers rush onto paper the many thoughts cluttering their minds.

Bad: While the Third Circuit test is on its face similar, it can lead to results such as
the issue at bar, that are inconsistent with the limited public figure status determination by
this Court in Gertz.
Better: While the Third Circuit test is facially similar to this Court’s, it can lead to
results that are inconsistent with this Court’s definition of limited purpose public figure in
Gertz.
Comment: The rewrite eliminates the intrusive phrase “such as the issue at bar.”
Awkward phrases “on its face” and “status determination” become the simpler words
“facially” and “definition.” To clarify the comparison between the tests of the two courts,
the writer inserted “this Court’s” in two appropriate locations.

___________
Bad: The Third Circuit erred in determining plaintiff was a limited purpose public
figure, because in reality, under the approach taken by the United States Supreme Court,
plaintiff at best would be classified as an involuntary public figure at the extreme.
Better: The Third Circuit erred in determining that plaintiff was a limited purpose
public figure. Under the Supreme Court’s approach, plaintiff is an involuntary public
figure at best.
Comment: The rewrite eliminated the intrusive phrase “in reality.” The
passive “could be classified as” became “is.” For further clarification, the
long sentence became two shorter sentences.
___________
Bad: With keeping the above in mind, the court of appeals notes that Plaintiff thrust
himself into the public eye by actively seeking publicity for the event.
Better: As the court of appeals noted, plaintiff thrust himself into the public eye by
actively seeking publicity for the event.
Comment: The phrase eliminated, “with keeping the above in mind,” could almost be
described as “throat clearing” before getting to the point.
 Writers occasionally use intrusive phrases as a substitute for more
detailed analysis. Avoid phrases like “such as the issue at bar” in the first
example. Instead, make the comparison in a clear and concrete way. Other
phrases, such as those removed from the second and third examples, serve
no useful purpose and may create confusion.
4. Use Full Sentences
The occasional result of convoluted phrasing and writing too fast is a
sentence that is not a sentence at all. Here are some examples:

• The estate failed to meet its evidentiary burden because sufficient

evidence from which the trial court could have reasonably concluded that
the decedent’s death was the result of preexisting animosity between the
assailant and the decedent.
• A position that this Court soundly rejected in Gertz.
• The way in which the average person viewing the statement in its
intended circumstances is of critical import.

5. Use Parallel Structure

Maintain a consistent structure when joining phrases or clauses.
Writers sometimes change verb tenses or use different introductory words
for clauses that require the same word.

Bad: The hospital owes its invitees reasonable protection or to warn its invitees to the
potential acts of third parties.
Better: The hospital owes its invitees reasonable protection or a warning about the
potential acts of third parties.
Comment: The writer shifted from the noun “protection” to the verb
“to warn” when discussing what the hospital owed its invitees. Using two
nouns makes the sentence correct and comprehensible.
___________
Bad: The plaintiff did not allege that the defendant acted specifically for the plaintiff
to lose his job, but rather acted to induce the plaintiff’s cooperation.
Better: The plaintiff did not allege that the defendant acted with the specific intent to
have the plaintiff lose his job. He alleged only that the defendant acted to induce
plaintiff’s cooperation.
Comment: The failure to include some form of the verb “allege” in both parts of the
sentence made the original sentence difficult to understand. Dividing the sentence into two
shorter sentences clarifies it further. However, the final version still takes some effort for
 the reader to understand. Although revising complicated sentences makes them easier to
understand, it does not remove the inherent complexity of the underlying idea. We can
improve comprehensibility, but the reader still may have to do some work.

___________
Bad: The security guard had no recollection of checking the laundry room doors
before the murder and he also did not check the doors to the medical records office to see
if they were locked.
Better: The security guard did not recollect checking the laundry room doors or the
doors to the medical records office before the murder to see if they were locked.
Comment: In the first version, the combination of “had no recollection of checking”
and “he also did not check” makes the sentence more complicated than it needs to be.

___________
Bad: The definition established three criteria: there must exist a public controversy,
into which an individual has become voluntarily or involuntarily involved for the purpose
of assuming special prominence in the resolution of that issue within the controversy.
Better: The definition established three criteria: (1) a public controversy must exist;
(2) the individual must become involved in that controversy voluntarily or involuntarily;
and (3) the individual must intend to assume special prominence in the resolution of the
controversy.
Comment: When providing a list, make sure the elements of the list are immediately
apparent to the reader.

As you can see, mistakes involving parallel structure often center

around verbs. Writers either use too many verbs in different forms or do not
repeat the necessary verbs when they should.

§9.04. CONTENT
This section focuses on choosing the right words. Make sure that you
choose the words that express your idea most precisely. Your words also
must be appropriate for your medium of communication and your audience.
They should be more formal and technical for briefs and memoranda and
less formal for letters to clients. Writers sometimes choose words that
obscure meaning, that are inappropriate for their intended audience, and,
occasionally, that do not mean what the writers intended. Careful attention
to your own writing will help you avoid these problems.
1. Use Positives Rather Than Negatives
If you emphasize the positive and avoid qualifiers, the reader probably
will understand you better. Your writing also will set a tone that encourages
the reader to agree with you. If you sound as if you believe what you are
saying, the reader will be more likely to believe you.
Sometimes a negative word or phrase is necessary to express an idea
precisely or to emphasize a point. However, use care to prevent a negative
from making your message unclear or incorrect. Some writers use negatives
when they are unnecessary or inappropriate. Occasionally, a writer will
commit that unpardonable sin that our first grammar teachers warned us
against—the double negative.
Here is an example of an awkward use of negatives:
The district court exercised its discretion in allowing seventeen days to pass before
treating our opponent’s nonresponse as not contesting the motion.

The sentence conveys the same idea but is easier to understand if

phrased as follows:
When our opponent failed to respond, the district court exercised its discretion in allowing
seventeen days to pass before treating the motion as uncontested.

Another aspect of using positive rather than negative language is the

avoidance of qualifying words. Students and lawyers are sometimes less
than totally confident in their positions. They reflect their insecurity in their
choice of words. Avoid phrases like “it would seem,” “it would appear,”
and “we would argue.” These phrases are rarely necessary. They may even
highlight areas of your argument that are particularly vulnerable.
2. Avoid Ambiguous Words and Phrases
Students and young lawyers have a natural desire to “sound like
lawyers.” They sometimes use ambiguous words or phrases that obscure the
intended meaning but sound more “professional.” Sometimes you will want
to obscure the exact meaning of your message, such as when you make an
argument that is less than airtight, but normally you should strive for clarity
and ease of understanding. In the following examples, the writers failed to
convey their meaning clearly. It is therefore not possible to rewrite the
sentences in “better” form.

Bad: In such cases as Hutchinson and Wolston, this Court stressed that it is not the
quantity of the relationship of the individual to the media but also the quality to which the
individual subjects himself to the public.
Comment: Although there are several problems with this sentence, one of the most
glaring is that the words “quantity” and “quality” are virtually meaningless. Although, in
 this context, these words may have a particular meaning for the writer, they do not have
the same meaning for the reader. In trying to set up a stylistic contrast, the writer leaves
the reader at a loss in trying to determine what the writer means.

___________
Bad: However, as stated earlier in reference to access to the media, this would be
inconsistent with this Court in the position taken in Time for much of the same rationale.

Comment: The writer is trying to reinforce a point made earlier

without actually making the point again. The result is an almost
indecipherable sentence that requires the reader to do far too much work. If
you need to repeat yourself or to refer to an earlier point and explain it
briefly, do so.
___________
Bad: Plaintiff, for the most part, pleaded only conclusions that, while they may indicate
that the end result of defendant’s actions was outrageous conduct, do not indicate facts
that show that his actions were outrageous conduct in themselves.

Comment: The writer repeats the phrase “outrageous conduct” but gives the reader no clue
to what it means. The writer must provide more information.

___________
Bad: Defendant’s interview with plaintiff did not constitute the severity of an
ultimatum found in Richette.
Bad: The defendant did not constitute an employee.

Comment: The misuse of the word “constitute” in the examples above

represents the affinity some writers have for words they do not quite
understand. When in doubt, use a dictionary or use simpler words that
express the same idea. For example, the writer could reword the second
sentence above to say “[T]he defendant was not an employee.”
3. Avoid Colloquialism
Although we often hear that we should write the way we speak, certain
words and phrases should rarely find their way onto paper. You can rely on
common sense to identify language that is inappropriate for a written
document. For example, you should not say that a court has “come up with”
a particular definition. You also should avoid contractions such as “can’t,”
“don’t,” and “won’t.” They are too conversational for the vast majority of
written documents you will prepare. Here is an example from a student
brief that demonstrates language you should avoid:
While these matters might be interesting to some people, the events of a small loosely run
beauty pageant would hardly make a dent in the priority list of the public at large. Most
people don’t know when the pageant is held and a great number don’t really care.

4. Do Not Personalize
Some writers cannot resist the temptation to refer either to themselves
or to their readers with pronouns such as “I,” “we,” “our,” or “you.” These
words may be appropriate for this book, but they are not appropriate in
formal legal writing. Phrases such as “we submit,” “I believe,” or “our
position is” only weaken your argument by reminding the reader that you
are making arguments. When writing a brief or memorandum, make your
arguments sound like statements of law rather than statements of personal
opinion. A judge or a senior attorney may not care about your personal
opinion. That judge or attorney wants to know what the law is and how it
applies to your case.
When referring to the court to which a brief is addressed, use “this
court.” In a memorandum, you may refer to a senior attorney as “you,” but
many attorneys consider the pronoun too informal even for interoffice
memoranda. It is safer to avoid its use. You also should avoid the more
formal and often awkward “one.”
5. Avoid Excessive Variation
Many students learn to use a different word every time they refer to the
same person or thing. Using different words and phrases to refer to the same
thing serves the laudable goal of preventing the reader from getting bored
by repetition. Excessive variation, however, backfires. It is unaesthetic and
sometimes comical. It also creates confusion when the writer uses
inaccurate words rather than repeating accurate ones.
Legal terms of art offer an example. In torts, “standard of care” has a
precise meaning that many court decisions have developed. If you use the
phrase “standard of negligence” rather than repeat the term of art, the
educated legal reader will not understand what you are saying. Excessive
variation creates ambiguity.
In the following example, confusion results because the writer uses
different words to refer to the same litigants.
 According to the record, Sam Spade had never before met the plaintiff. Although the
plaintiff alleges that Mr. Spade already possessed some information about the plaintiff,
there is no indication of any reason why this information might lead our client to
maliciously intend to injure the appellant or to inflict losses upon him.

You might think that this excerpt mentions four people. It actually
mentions two. “Sam Spade” and “our client” are the same person, as are
“plaintiff” and “appellant.”
In summary, the lessons are twofold. First, avoid boring the reader
with repetition. Be creative, but do not overdo it. Second, be repetitive
rather than imprecise or confusing.

Exercises
The following exercises are sentences taken from student briefs and
memos. They give you an opportunity to put into practice some of the
principles discussed above. Identify the errors and, to the extent possible,
rewrite the sentences to eliminate those errors. You may have some
difficulty rewriting some of the sentences as the author would have since
they are taken out of context. Do the best you can.
(1) However, since the issue has been raised it has become necessary
to demonstrate that even though a second motion to dismiss was not
required, by submitting a letter of request to the judge and providing
opposing counsel with a copy of the letter, the judge correctly found that the
letter was sufficient to comply with all applicable rules of procedure
regarding motions.
(2) The fundamental principle of the Fourth Amendment is ensuring
“one’s privacy against arbitrary intrusions by the police,” Wolf v. Colorado,
338 U.S. 25, 27 (1949), and “intended as a restraint upon the activities of
sovereign authority, and was not intended to be a limitation upon other than
governmental agencies.…” Burdeau v. McDowell, 256 U.S. 465, 475
(1921).
(3) Taking into consideration the Pennsylvania Rules of Civil
Procedure, which limit the amount of time in which an affirmative request
for a jury trial must be made and the rulings of the courts in these cases
concerning the implications of failing to file for a jury trial at all, it would
be difficult, after not requesting a jury trial within the past 30 days and the
trial date approaching so soon, to convince the court to allow Olive
Holmes’s case to be heard by a jury.
 (4) The question thus is whether our client’s promise that she would
return to talk to the police signified voluntary willingness to be confined, or
whether the Dean’s refusal to allow her to leave is a detaining force
sufficient from which she has no legal obligation to resist in order to prove
lack of consent.
(5) In Medico, the court held that a press defendant could relieve itself
of liability without establishing the truth of the substance of the statement
reported by claiming the fair report privilege when its publication contains
matters of public concern and is based on acts of the executive or
administrative officials or governmental reports.
(6) Ms. Holmes can establish the tort of false imprisonment against the
Law School due to the fact that Ms. Holmes’s nonconsensual confinement
by the school dean can be predicated as false imprisonment since Ms.
Holmes was exonerated of the charge establishing the basis for the school
dean’s confinement of Ms. Holmes.
(7) The security guard deposed that the assailant entered the hospital
through the emergency room when he confronted him about an hour before
the murder and that there was no other security guard on duty who was
monitoring the emergency entrance.
(8) Insofar as the court moved for a summary judgment in the Estate’s
favor based on the evidence in the depositions, it decided that a negligent
breach of duty was shown as a matter of law and that the only reasonable
inference was that its negligence, and not the criminal act of the assailant,
was the proximate, legal cause of plaintiff’s death.
(9) The state’s patient-physician privilege imputes such information as
being highly confidential and personal.
(10) The key issue to be determined is whether the Law School’s
answer to the complaint for false imprisonment is the last pleading directed
to such issue or whether the dean’s answer to the Law School’s third party
complaint for indemnification is not the last pleading directed to that issue,
but only to the issue of indemnity.
(11) Nor is there liability if the plaintiff fails to show that the private
matter of the alleged publicity is not of legitimate public concern.

1. Clarence Darrow, in defense of William D. Haywood for the murder of ex-governor Frank
Steunenberg of Idaho, on the night of December 30, 1905. From G. J. Clark, Great Sayings by Great
Lawyers (Vernon Law Book Co., 1926).
§10.01. INTRODUCTION
You may wonder why we talk about client interviewing and counseling
in a text about legal research and writing. We do this because we want you
to always remember why you research and write. Almost all lawyering
work is done in the service of clients (except for government lawyers such
as prosecutors, although in some sense “the people” are their clients). Keep
this in mind, even when you are not working for real clients.
Most first-year legal writing programs introduce the idea that the
information lawyers work with comes from clients. Some programs stage
interviews for students to observe, while others allow the students to
actually do the interviewing. Others do not require you to actually interview
someone to get the information you need to write your memorandum or
other legal writing assignments. Even if you get the facts that form the basis
of your assignments from a piece of paper, you should remember that in the
real world, legal research and writing are based on the information provided
by clients, which may be incomplete, self-serving, or confusing.
We offer this introduction to the process of gathering information from
clients to better prepare you to get the information you need to research and
write documents that will provide the best possible assistance to your
clients.

§10.02. PURPOSE OF THE INITIAL INTERVIEW

As you plan for the initial interview with a client, ask yourself what
you need to accomplish in that interview. Remember that the client is not a
walking, talking legal problem, but a living, breathing human being with
feelings, goals, and priorities, who happens to have a current problem that
may have some legal dimensions. Of course you do need to ascertain the
scope of the problem that brings the client to you, but you need to find out
more than the legally relevant facts. You need to understand the client.
What kind of person is the client? What does he or she hope to accomplish
by coming to see a lawyer?
You also need to lay the groundwork for a working relationship.
Clients need to feel comfortable with you. They need to be able to trust that
you will handle the problem appropriately and with sensitivity. Since the
only way you will be able to make a living as a lawyer is if clients retain
you, you must sell yourself. In most cases, you do not sell yourself best by
overselling yourself. You sell yourself best by creating trust, by opening the
channels of communication in both directions, and by conveying
confidence and competence.
Remember that this is also a business relationship. It is sometimes
difficult to bring up the subject of money when a client is presenting you
with what may be the most pressing and difficult situation in his or her life
at that moment. If you do not address the business aspects of the
relationship early on, however, you open yourself up to the very real
possibility of misunderstandings and unnecessary problems later. Although
this may sound obvious, you need to get a clear commitment from the client
to hire you before you begin working on the client’s behalf.
The client will also likely want an initial assessment of the legal
situation. Clients frequently ask questions such as “What are my rights?”
“Can he do that?” “How can I get my money back?” “Will I have to go to
jail?” Because you are a lawyer, clients expect you to have the answers to
those questions. As you go through law school, you learn that there are far
more questions than answers, and that you have to do research before you
can answer most questions. One of the most delicate tasks to accomplish
with a new client is to let the client know that you need more information,
both factual and legal, before you can give an accurate answer to the
problem. At the same time, you should try to give the client some idea of
what might happen. What are some available dispute resolution options?
How does the legal system treat these kinds of problems? Can you provide
a preliminary assessment of the client’s problem based on your existing
legal knowledge?
§10.03. PLANNING THE INITIAL INTERVIEW
Here are some goals for an initial interview with a client:

• Get the facts.

• Get to know the client.
• Understand the client’s feelings, goals, and priorities.
• Begin building trust.
• Explain your fees.
• Get hired.
• Offer a preliminary assessment of the problem.

You cannot accomplish these tasks without a plan. This is not the type
of conversation where you can just sit back and see where it goes. As you
gain more experience, you will develop a pattern for approaching
interviews that allows you to accomplish your goals, but at first you must
consciously structure your approach to the conversation. Plan a strategy for
building trust, getting information, getting the client to retain you, and
beginning to address the client’s problem. It is probably a good idea to have
a written form of some kind in front of you that reminds you of the various
components of the initial interview. The rest of this chapter offers advice on
how to structure the initial interview so you do not forget any critical steps.

§10.04. GREETING THE CLIENT

It may sound artificial to suggest that you plan your greeting to the
client. However, as we all know, first impressions are frequently lasting
impressions, and you should consider whether you want the client’s first
impression of you to be that you are cold, calculating, and money-hungry,
or that you are a considerate, caring human being. You will be easier to
confide in if you spend a bit of time in casual conversation about neutral
topics such as the weather or traffic or similar “elevator” conversation. It
may seem awkward and forced, particularly at first, but it does allow the
client to settle down, assess the surroundings, and prepare to discuss more
difficult topics. If you seem comfortable and genuinely interested in a
relaxed approach to the conversation, usually the client will follow your
lead. You will find it easier to get information if the tension level in your
office is low.
 Be careful about accomplishing your atmospheric goal by commenting
on any aspect of the client’s appearance. Besides being a bit personal, you
never know what might be a sensitive subject. For example, if the client is
coming to you about a divorce, you may start the interview off on exactly
the wrong note by commenting on what a beautiful diamond ring she is
wearing.

§10.05. PREPARATORY EXPLANATION

It is generally a good idea to offer a roadmap of the interview before
you start questioning the client. You might ask whether the client has ever
seen a lawyer before, as a means of gauging what the client’s expectations
are likely to be. If the client has never seen a lawyer before, it is a good idea
to outline the procedure you intend to follow during the interview. For
example, explain how long the interview is likely to last, what your goals
are, that you will be asking questions and taking notes, that the client will
have a chance to ask questions, that you will try to begin developing
options for resolving the client’s problem, and that you will discuss the
likely cost of handling the problem. You may also want to remind the client
of your ethical obligations relating to confidentiality.
If the client has seen a lawyer before, it is a good idea to get a feel for
whether that was a positive or negative experience. If the client comes in
skeptical or suspicious about lawyers because of a previous bad experience,
it is helpful for you to know that sooner rather than later. If the client has
had prior negative experience with attorneys, your goal is to persuade the
client that you are a valuable ally, not a necessary evil. You can best do this
by taking the time to show the client that you care about him or her as a
whole person, not just as a legal problem or a source of money.

§10.06. GETTING THE CLIENT’S PERSPECTIVE

As lawyers, we frequently are in a hurry to find out what the legal
problem is. We are trained in law school to spot issues, to sift through the
facts presented until we find the ones that matter, and then offer an analysis
of how the law applies to those facts. That is only a small part of what you
must accomplish with a client. Avoid the temptation to become impatient
when the client seems to ramble or starts talking about feelings. You cannot
adequately represent a client without knowing how the client feels about the
problem, what the client hopes to accomplish in coming to see you, and
what the client’s priorities are.
You will be tempted to substitute your own value system for the
client’s, causing you to think about how you would handle the problem if it
were yours. It is not your problem, and you must never lose sight of that
fact, even if the client tries to hand you the problem. Clients frequently
come to you and ask “What should I do?” The only good answer to that
question is the one the client arrives at after being given a full
understanding of the likely consequences of different approaches. Your job
is to inform the client so that he or she can make a decision based on his or
her own value system. You will do this more effectively if you understand
the client’s perspective on the problem.
1. Getting Started
The easiest way to begin the interview is to ask a simple, open
question such as, “What brings you here today?” Or “How can I help you?”
Let the client know that you want to hear the story in his or her own words
and then let the client tell it. Resist the temptation to break in with constant
questions. If you are afraid you will forget to ask about a needed detail, jot
it down. If you derail the client’s story with questions, you may end up
missing key facts or elements in the story. Do not try to put legal labels on
the client’s problem too soon: “Oh, this is a contracts problem.” If you do
that you will start focusing on questions you were trained to ask about
contracts, and you may never find out that the client has also brought you a
tax problem and a criminal problem, or you may find out at a time and in a
manner that is awkward and difficult.
If the client has difficulty knowing where to start, you might suggest a
time frame. “Start at the beginning.” “What event made you decide to come
see a lawyer?” If the client offers unhelpful generalizations such as “I have
a problem with my partner,” then you want to try a few direct questions to
get the story going. “Do you mean a business partner?” “What kind of
business do you have?” “Does the problem relate to the business?” Once
the client gets into the story, stop the questions and let the client talk.
2. Keeping Track
It is difficult to balance your need to keep track of information the
client is giving you with the client’s need to feel that you are listening. You
will probably want to take some notes, but try not to spend the entire
session staring at your legal pad as you write. Eye contact is a very
important part of the conversation, not only for the client but for you. You
may gain valuable clues to the client’s personality and sensitive aspects of
the problem by watching the nonverbal channels of communication. If you
can, listen for a while and then write down only the most important aspects
of the story. Jot down details such as names and dates, but don’t try to
record every word the client says. If you do not think that you will be able
to accurately remember the client’s message if you wait too long, ask the
client if you may record the conversation. Having a tape recording will free
you to really concentrate on the client’s message and the way it is being
communicated.
3. Getting the Details
You do need some details. You need detailed information about the
client, including addresses and phone numbers so that you will be able to
contact him or her throughout your handling of the matter. You may also
need names, addresses, and phone numbers of other individuals who are
involved in the matter or who may be potential witnesses. You need dates,
times, places, and relevant documents. Thus you will need to ask focused,
closed questions at some point in the interview. Try not to interrogate the
client. If the client becomes defensive, you will likely not get information
you need. It is a good idea to explain to the client why you need so much
information. You may also want to have a written questionnaire for the
client to take home, at least for cases such as divorce or bankruptcy, where
you need a great deal of detail about personal and financial matters.
Try to get a chronological version of events. Ask for the sequence of
events, and ask for dates. Find out who else is involved, and who else
knows what is going on. Find out if there are any documents you need to
look at and if the client can get them for you. It is a good idea to recap the
client’s story, perhaps several times, depending on the complexity of the
story and the organization (or lack of organization) of the information
provided. Telling the client what you have understood lets the client know
that you were listening, and often provides an opportunity to get additional
information. You may discover that you got some aspect of the story wrong,
or your recap may prompt the client to fill in gaps in the story.
 You will also need information the client may not think to give you
because the client does not know it is important. Clients do not know the
law or may have incorrect ideas about what the law says. Therefore they
may have a different idea of what information is relevant than you do. They
may also have personal reactions or priorities that give them a different
sense of what is relevant or important. For example, it may be very
important to the client that you understand that he was treated
disrespectfully, while that fact may have no legal significance. Do not
dismiss facts that the client thinks are important, but stay focused enough to
get the facts you need.
The client may be embarrassed about certain facts; the client wants
you to think that he or she is a good person and has a good case, so there
may be a temptation not to tell you about things that reflect negatively on
the client’s character or the case. Remind the client that what is said to you
will be kept in confidence (subject to certain exceptions such as information
relating to imminent harm to another, which you may disclose), and that
you can provide the best possible representation only if you have the full
story. It is frequently a good idea to ask the client what the other party is
likely to say about the situation. This allows the client to give you necessary
and possibly damaging information without having to acknowledge its
accuracy or validity.
4. Goals and Priorities
We have emphasized the need to get the client’s perspective on the
problem and potential solutions. How do you accomplish this? The simplest
way is to ask: “What would you like to see happen?” or, “If you had to
choose between X and Y, which would you choose?” The client may not
have thought about the answers to these questions, assuming that you would
tell him or her what to do or what would happen next. Do not succumb to
the temptation to do that; explain the importance of understanding the
client’s wants and needs to your representation. If you do not accomplish
this important step, you may very well present the client with what you
think is a very good settlement offer, only to have the client reject it because
it does not meet some fundamental need you were unaware of. For
example, in a defamation case, if you think the client wants as much money
as possible but it turns out the primary concern is the client’s reputation,
you may get a good monetary settlement but not push for an apology or
retraction or some other measure that might rehabilitate the client’s
damaged reputation. These are the kinds of misunderstandings that lead to
malpractice actions.

§10.07. PRELIMINARY ASSESSMENT OF THE CLIENT’S

PROBLEM
You should try to offer a preliminary assessment of the client’s
problem, at least to the extent of determining whether it is an appropriate
situation for legal intervention. Some problems simply do not lend
themselves to legal solutions (some neighborhood or family disputes come
to mind), or you may find that the client presents a problem you are not
qualified or do not wish to handle. If so, you should tell the client that. If
you think the client presents a problem with potential, you need to be
honest about your expertise in the area. There is no shame in needing to do
research or further investigation before deciding how to proceed with a
matter, and you need to develop the confidence to present this need for
further inquiry as part of your competence rather than something you need
to apologize for. You should, however, share with the client any judgments
you are able to make about likely actions or events that might resolve the
client’s problem, and you should offer some assessment of the likelihood
that the client’s goals can be met. You should also be very clear that these
assessments are preliminary and may very well change as additional facts
and law are discovered.

§10.08. DEVELOPING OPTIONS

Once you have preliminarily assessed the client’s problem, you may
begin a discussion of options to be pursued. For example, you can try to get
a sense of whether the client is interested in litigating the matter or prefers a
more amicable and informal resolution such as negotiation or mediation.
You should take any nonlegal concerns of the client (such as a desire for an
apology or to redeem his reputation) into account in developing the options,
and you should encourage the client to participate in this process with you.
Has the client thought about desirable outcomes, and possibly even ways to
accomplish them? As you begin to develop options, explore the likely
consequences of pursuing each option. What are the advantages and
disadvantages? How likely is it that the option will actually work out? For
example, if the dispute involves a lot of anger or other negative emotions on
both sides, a quick and amicable negotiated resolution is unlikely.

§10.09. FEES
As we said previously, you must deal with the subject of money. There
are several ways to structure fee agreements. You may bill your time at an
hourly rate or charge a flat fee. In an appropriate case, where you are
hoping to recover a sum of money for the client, you may take your fee out
of the recovery. This is called a contingent fee because you will not get paid
if the client does not recover. Many jurisdictions require that you present
the client with a written statement of your fees at the outset of the
relationship, at least in matters where you intend to charge a contingent fee.
You should put in writing your entire agreement with the client about
the scope of your representation, including fees. This is called a retainer
agreement. Even if it is not required, it demonstrates good business sense to
agree in writing with the client what you will and will not do. In addition,
signing the agreement will bring home to the client the necessity of paying
the fee.
Most clients understand that this is a business relationship, and they
will be relieved to get that part of the transaction out of the way. All you
have to sell is your time and expertise, and you should not be embarrassed
about that fact. If a client genuinely cannot pay or wants to work out a
contingency arrangement, you will have to decide whether this is an
appropriate case to handle on a reduced-fee or pro bono basis, or whether
any possible recovery justifies the contingency fee. Regardless of the fee
arrangement you work out, you should present it to the client in writing and
get it signed, so that it is clear from the outset what you will be charging
and what the client has agreed to pay.
When do you bring up the subject of money? It is not advisable to start
the interview by talking about fees. This is partly because you will only
reinforce negative stereotypes of “moneygrubbing” lawyers by doing so,
and partly because you cannot possibly assess the most appropriate fee
structure or the likely ultimate cost to the client without having some sense
of what the problem is. We advise you to get the client’s story and begin the
assessment process before you get to the subject of fees. The beginning of
the discussion regarding your client’s legal and nonlegal options is a very
logical point at which to bring up the subject of cost.
 Remember that the client’s ultimate cost concern will be the total
amount of money needed to resolve the problem, so do not simply quote
your hourly rate, if that is how you propose to charge the client. Try to
estimate the likely total cost of the case, always remembering (and telling
the client) that the final cost will depend on many factors that you may not
be able to anticipate right now, such as the stubbornness of the other side,
whether the other party hires a lawyer who likes to generate lots of paper
and drag things out, the difficulty of finding necessary witnesses and
evidence, and the like. At a minimum provide an estimate of the cost of
handling the initial stage(s) of the matter. For example, tell the client how
long it will take you to conduct preliminary research and generate a letter
explaining the situation to the client or to other involved parties.

§10.10. CLOSING THE INTERVIEW

At the end of the interview, it can be very easy to simply end the
conversation and say good-bye. This may be the most important point in the
interview for the client’s long-term confidence in you, if you handle it
correctly. Clients’ most frequent complaint about their lawyers is that
lawyers do not keep them informed about the process. Clients who are
insecure about the status of their case and who do not understand the steps
in the process may make frequent phone calls to get answers. Nervous
clients may make phone calls anyway, but well-informed clients should be
less likely to contact their attorneys when there is nothing happening in the
case that justifies contact.
Do not let the client leave without carefully explaining what happens
next, when it will happen, and whose responsibility it is. If you are going to
contact the attorney for the other side, tell the client when you will do so,
and when you will let the client know about any response you receive. Give
the client some “homework.” This may sound odd, but if there is a way the
client can help with the case, perhaps by retrieving documents or phone
numbers, you give the client some measure of control over a difficult
problem, which is usually reassuring. Handling the end of the interview in a
concrete way gives the client confidence in you and gives you specific and
immediate goals to achieve on behalf of the client.
Remember that you must also formalize the attorney-client
relationship and confirm that the client wants you to handle the matter. If
the client has not decided to hire you, do not agree to do any work for the
client, unless the terms and conditions under which you will do some work
are clearly specified, preferably in writing. Set a time frame within which
the client must decide to hire you or you will close the file. This should help
to reduce the possibility of misunderstandings about whether you were
hired, the scope of your representation, and any deadlines involved. The
best possible scenario is that you give the client a written retainer
agreement that includes fees, and it is signed on the spot, or the client
agrees to return it to you within a few days.

Exercise
Here is a draft intake form for an interview with a client who is
coming to see you about a personal injury case. The only thing you know
before the interview is that the injury is the result of an automobile
accident. What would you add to this form? Is there another approach to
structuring the interview that makes more sense to you? How will you
begin the interview? What kinds of questions will you start with? What
kinds of details will you need? What do you need to know about the law of
your jurisdiction (e.g., is yours a comparative or contributory negligence
jurisdiction)? What sorts of documents might be available that will help you
prepare the case? What sorts of fee agreements might be appropriate? Write
out your answers to these questions and redraft the form so you could
actually use it effectively during the interview.
Client Intake Form
Name:
Address:
Phone number(s):
Email address:
Client’s description of events:

Date of accident:

Other parties:

Potential witnesses:

Client’s stated goal(s):

Fee structure discussed and agreed to:

§10.11. CLIENT INTERVIEW CHECKLIST

— Planning the initial interview: How will you get necessary

information? What topics do you need to cover? Do you have fee
agreements ready to be executed?
— Greeting the client: How might you best put the client at ease? Does
the client seem nervous or eager to get down to business?
— Preparatory explanation: Roadmap the interview; talk about process
and confidentiality.
— Getting the client’s perspective: Ask about the client’s goals and
priorities. Let the client tell the story his or her own way! Ask what
the client would like to see happen.
— Preliminary assessment: Is this problem appropriate for legal
action? Is it a problem you are qualified or prepared to handle?
How much additional legal or factual research do you need to do?
— Developing options: Is this matter headed for litigation, or can it be
resolved amicably? What ideas does the client have for resolving
the problem? What are the advantages and disadvantages of
pursuing various options?
— Fees: What fee structure is appropriate for handling this case? Did
you get a written fee agreement signed? Did you give the client an
estimate of the likely total cost of the matter?
— Closing the interview: Was it clear what will happen next, when it
will happen, and whose responsibility it is? Did you ask the client
to provide you with any information or documents? Does the client
understand the immediate plan of action?
§11.01. WHAT IS A MEMO?
The memorandum of law, or memo, is a traditional internal office
document. It is a research tool that analyzes the law as it applies to the facts
of a client’s case and offers an unbiased evaluation.1 A memo includes both
helpful and damaging information. It suggests solutions to a legal problem
or predicts the outcome of a dispute. It is the precursor to informed decision
making about a case.
The memo once was the most basic of legal documents and was
essential to the practice of law. In the modern practice of law, formal
memos of the type we teach are not as common as they once were.
Supervising attorneys may ask for the results of your research in a variety
of formats. Your responses to those requests will vary in length and in
approach, depending on how such communications are handled in your
office.
Even though you may never write a formal memo that looks exactly
like the ones we teach here, the analytical approach is important for you to
learn. The steps you go through in preparing these memos are the same
steps you should go through even if your written product is in a different
format. The memos you write in your legal research and writing class will
help your instructors determine whether you are learning the fundamentals
of good legal analysis; they will serve as a gauge of your ability to analyze
and present a legal problem. Once you master this type of writing, you will
draft other kinds of legal documents with greater skill and ease.
 This chapter introduces you to the memo. It describes the purposes of a
memo, the parts of a memo, and the hallmarks of a well-written memo.
Chapters 12, 13, 14, and 15 focus on the parts of a memo in more detail and
demonstrate how to draft each section effectively.

§11.02. THE PURPOSES OF A MEMO

The purpose of a memo is to provide a realistic analysis of the law as it
applies to the facts of the client’s case. That analysis will be the basis for
giving advice or making decisions about the case.
A memo can serve many purposes. Its purpose determines how
extensive the research should be, what the nature of the analysis should be,
and how it should be written. The memo should be written to serve the
specific purpose for which it was requested. By way of example, an
attorney may use a memo to

• evaluate the merits of a case;

• decide whether to settle or try a case;
• decide whether to accept a case;
• inform the reader of the status of the law;
• present recommendations as to how to proceed with a case;
• conclude that more information is needed to properly evaluate the case;
• identify the legal theories applicable to the case;
• decide whether to file any motions;
• prepare for trial;
• form the legal foundation of motions, pleadings, and briefs;
• prepare a contract, will, settlement agreement, or corporate papers;
• prepare for negotiations; or
• prepare for an appeal.

The memos you prepare during the course of a case will provide a
convenient summary of the facts, issues, legal theories, and arguments
involved in the case. You and any other attorneys on the case will refer to
them to refresh your memories as the case progresses.2

§11.03. THE PARTS OF A MEMO

 The memo is a structured document that is divided into distinct but
related sections. Each section is labeled and performs a particular function.
Memos do not use a universal format or a mandatory order in which their
parts appear. Many law firms, corporate legal departments, and government
offices prescribe a standard form. You should find out whether your office
uses a standard format or, if not, whether the attorney for whom you are
preparing the memo prefers a certain format. Although there are many
variations in the structure of a memo, the following format is widely used:

1. Heading
2. Brief statement of the issue to be discussed
3. Conclusion
4. Brief statement of the facts
5. Discussion of the pertinent authorities

Appendix I contains sample memoranda. Please review those

memoranda in conjunction with this chapter.
1. The Heading
The heading indicates the type of document, the person to whom the
memorandum is addressed, the person who wrote it, its date, and its subject
matter, in the following form:
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT: (or RE:)
2. The Issue
The issue, sometimes called the question presented, frames the legal
question to be resolved by the memo. If there is more than one issue or
several subparts to an issue, number each issue and subpart separately. The
issue section of the memo informs the reader of the scope of the memo. A
memo should not go beyond the scope of the issue.
3. The Conclusion
 The conclusion, sometimes called the short answer, provides a
complete, but brief, answer to the issue. At times an attorney will refer only
to the conclusion, at least initially. The conclusion includes a concise
statement of the reasons for your conclusion. It also orients the reader to the
general thrust of the discussion. The conclusion does not contain a detailed
discussion of how you reached the conclusion. Citations to authority and
cross-references to the body of the memo are inappropriate. In a memo that
discusses more than one issue, number the conclusions to reflect the issues
to which they refer.
4. The Facts
This section requires a clear and concise statement of the facts relevant
to the legal analysis presented by the memo. The facts let the reader know
what happened. The purpose of the memo is to evaluate the soundness of a
particular legal position given certain facts. Therefore, present the facts
objectively and include both favorable and unfavorable information.
Include all the facts that you will raise in the discussion section.
5. The Discussion
The discussion section is the heart of the memo. In it you analyze the
pertinent legal authorities and apply them to the facts of the problem. If
there is more than one issue, address each issue separately. The discussion,
like the facts, should be objective, not argumentative. Evaluate both helpful
and damaging authorities. At the end of the discussion, summarize the
findings presented by the memo.

§11.04. THE HALLMARKS OF A WELL-WRITTEN MEMO

The purpose of a memo is to inform and explain. If your memo bears
the hallmarks enumerated below, it will achieve this dual purpose.
1. Thorough Research
Thoroughly research the question you are assigned. Evaluate the law
you find within the context of the facts of your case. Find and analyze all of
the pertinent legal authorities, those that are helpful to your case and those
that are damaging, to it. Do not cite or rely on any authority without
critically reading it yourself. Treatises and encyclopedias state the law only
in general terms. Look up the cases on which they rely. Never rely on
headnotes to cases. Remember that major decisions about the case will be
made based on your memorandum, and that incomplete or inaccurate
research will have far-reaching implications.
2. Good Judgment
Be certain that the memorandum you prepare is what the assigning
attorney wants. When you are given the assignment, be sure you understand
what purpose the memo is to serve, when it is to be submitted, and how
detailed it should be. Also be certain that you understand the question that
you are to research. Even if the initial instructions are clear, problems may
arise later. As your research progresses, the issue may take on a different
focus, unanticipated questions may arise, or additional facts may become
important. Return to the assigning attorney and resolve these problems. But
use good judgment. Do not trouble the attorney with questions you should
be able to resolve yourself or with the help of one of your peers.
3. Objective Analysis
A memo must be objective. This is as crucial as it is simple. Your
analysis of the legal authorities must be realistic and comprehensive.
Examine your own arguments. Evaluate those you anticipate from opposing
counsel. Consider the issues from every perspective. Honestly and
thoroughly assess the strengths and weaknesses of your position. A memo
is not the forum for persuasion, or for advocacy. Major choices and
decisions will be made on the basis of the memo you write. Those choices
and decisions can be made intelligently only on the basis of an objective
memo. Indeed, the client’s interests would not be served if the appraisal of
his position were anything less than scrupulously realistic and objective.
4. Clear Writing Style
A memo is a complete and independent document. Another attorney
who reads it should be able to fully understand the matter and make a
decision. The memo memorializes, for all future readers of the file, the
reasons those handling the case chose a particular course of action. By now
you have read enough cases in your classes to appreciate the importance of
writing style. Any poorly written legal document leads to confusion and
uncertainty. A memo should be precise, accurate, and well-organized to
explain a legal question effectively.
a. Good Organization
The foundation of a good memo is careful, detailed organization. The
memo must be organized and written so that your thoughts are clearly
presented and precisely stated. Skillful writing, thoughtful analysis, and
clear presentation will be wasted unless your work is organized
intelligently. The reader should not have to work at comprehending your
discussion. No one reads memos for entertainment. Your legal analysis and
your approach to the problem should be apparent from your organization.
Make the reader’s task as easy as possible.
As with other types of legal writing, memo writing requires a
particular organizational framework. State your conclusions first. Follow
them with your reasoning. Use mechanical aids such as headings and
subheadings to help you organize the memo.
As we discussed in Chapter 7, outlining is a necessary organizational
technique and one that will save you time. Outlining forces you to develop
your analysis one step at a time and will expose the gaps in your discussion.
Chapters 12, 13, 14, and 15 will instruct you in the principles of
organization as they apply to each section of the memo.
b. Write for the Reader
Analyze and consider the problem and your memo in detail.
Remember that your primary audience is the attorney who requested it. You
are not writing for yourself.
Include all of the facts that you were given when you were assigned
the problem. Do not assume that because the assigning attorney is familiar
with the matter, he or she will remember exactly what you were told. You
must include every fact you rely on in your analysis.
Explain the significance of the legal authorities in the context of the
facts of the problem. Be certain that your conclusions do not appear without
the benefit of the analysis that preceded them. Your discussion must
progress logically. Carefully and clearly guide the reader through the memo.
One way to do this, as you learned in Chapter 8, is to provide the reader
with a “roadmap,” a guide to the discussion contained in the memo.
The memo is the end product of your exploration of the problem and
its implications. Put yourself in the position of the person for whom you are
writing the memo. Ask yourself whether your memo provides that person
with a thoughtful analysis of the problem. Only when you are satisfied that
the memo is complete, that it fully answers the question put to you, and that
it is your best work, should you submit it.
c. Precision and Clarity
To communicate your thoughts effectively, you must be precise and
clear. You have been asked to resolve a concrete problem. Make certain that
you provide a concrete answer and specific reasons for it. Be precise about
the facts and the law, but do not miss the forest for the trees. Make it clear
why the authorities you rely on are relevant. Do not just tell the reader that
they are pertinent. Show how those authorities apply to your case. Draw the
conclusions yourself. When reading your memo, the reader should fully
understand it and should be satisfied with your resolution of the problem.
5. Creativity
Your memo should present a comprehensive and organized analysis of
the law in the context of the facts of your client’s problem. On occasion, it
might also display some legal creativity in regard to your recommendation
for further action. When you are researching and writing the memo, be alert
for alternative theories or creative approaches to the problem. Because you
are the one who is most immersed in the issue and who is most aware of its
permutations, you are the ideal person to provide a fresh perspective.
Manifesting such creativity will demonstrate your initiative, even where
your theory may ultimately not be workable.
6. Correct Citation Format
Your memo must include citations to the authorities on which you rely.
Moreover, the cites must be complete, accurate, and in proper citation form.
Correct citation form is important for at least two reasons. First, sloppy and
incomplete citations give the reader cause to suspect that the substance of
your analysis is equally weak. Second, if you include an inaccurate citation
in the memo, you probably will copy that citation in subsequent documents
that rely on the memo’s research. Simply put, bad citations can haunt you
and create an extremely negative impression of your work.

1. This chapter concerns interoffice memos only. There also are memoranda of law that are
submitted to the court. They are more akin to briefs and should not be confused with the office
memo.
2. Many law firms index and file the memoranda of law prepared by their attorneys. These
memos are a valuable asset. A question may arise in a pending case that a previous memo already
addresses. The attorney need only update the research in the memo. This procedure saves the
attorney time and the client money.
 As you learned in Chapter 11, the memo is a structured document that
is divided into distinct sections. Each section has a label and performs a
particular function. In Chapters 12, 13, 14, and 15, you will learn how to
write each of these sections.

§12.01. THE HEADING

The heading uses the following format to set out the most basic
information about the memo.
MEMORANDUM
To: Leslie O’Brien-Wallace
FROM: Michael R. North
DATE: August 7, 2013
Smith v. Lapp; file no. 56432-007; Recovery for negligent
RE:
infliction of emotional distress under Pennsylvania law.

The centered heading indicates that the document is a memorandum.

“TO” indicates the person to whom the memorandum is addressed.
“FROM” indicates who wrote the memorandum. Although practices vary
from one office to the next, the recipient and the sender of the memo are
usually referred to by their full names. Occasionally the tone is more formal
and titles are used, for example, Ms./Miss/Mrs. O’Brien-Wallace and Mr.
North. Do not include job titles such as senior partner or associate after the
name of the recipient or sender.
 “DATE” indicates the date you submitted the memo. Including the date
is important. Any reader of the memo must be able to assume that the
research and analysis contained in the memo are accurate and complete as
of the date of the memo. The law, however, may have changed by the time
you or another attorney next refer to the memo. The date will advise the
reader whether the research requires updating.
“RE” indicates the subject matter of the memo. You may also see
“SUBJECT” used instead of “RE.” Include the case name, or the client
name if no case is pending, and the office file number. Describe briefly and
broadly the legal question the memo addresses. Because most case files
contain a large number of documents, including numerous memoranda, this
information will make it easy to locate a particular memorandum in the
future. In addition, the explanation of the subject matter facilitates indexing
and filing of the memorandum for general research purposes so that it may
be used for future reference in other cases.
Suppose for purposes of illustration that you have just been called into
the office of a more senior attorney and given the following facts.
Wilbur Smith has retained the firm to file suit for injuries he sustained in an automobile
accident. Mr. Smith also would like the firm to file suit on behalf of his fourteen-year-old
daughter, Edna. Edna witnessed the automobile accident. The accident occurred on June
10, 2012. Mr. Smith had volunteered to take Edna to school. At 8:00 a.m. Mr. Smith
dropped Edna off at school and drove away, intending to go to the grocery store. Edna
waved good-bye to her father and turned to talk to some friends. As she was walking
through the schoolyard with her friends, Edna heard a loud crash, followed by an
explosion. When she turned to see what had happened, Edna saw that a car had collided
with her father’s car at an intersection one block away from the school. Her father’s car
was on fire. Edna ran to the scene of the accident. By the time she arrived, her father had
been pulled from his car. Edna saw that her father had been severely burned and that he
had a large gash on his forehead. Ever since the accident, Edna has suffered from
recurring nightmares, a debilitating fear of automobiles, and chronic stomach problems.
These conditions did not exist prior to the accident. An investigation of the accident
disclosed that Mrs. Donna Lapp, the driver of the other car, had run a red light while
intoxicated.

You have been asked to research whether, under these facts, Edna can
make out a cause of action for negligent infliction of emotional distress
under Pennsylvania law. The sample heading at the beginning of this
section incorporates the information that would be required in the heading
of the memo concerning this case.
Before writing the heading for your memo, review a few recent memos
prepared by other attorneys in your office to determine the preferred style.
You may find that there are minor variations from the format we describe.

§12.02. THE ISSUE

The memo begins with the issue section, also called the question
presented. The issue section of the memo states the legal question presented
in your case. Here is an example of an issue concerning the Smith case:
Whether, under Pennsylvania law, a daughter who witnesses the aftermath of an
automobile accident involving her father from a block away can recover for negligent
infliction of emotional distress when she arrives at the scene and observes his severe
injuries.

Here is another equally acceptable way to frame the issue:

Under Pennsylvania law, can a daughter recover for negligent infliction of emotional
distress if she is one block away when an automobile accident involving her father occurs
and, immediately after the accident, arrives at the scene and observes her father’s severe
injuries?

The issue section informs the reader of the scope of the memo. The
scope of the memo should never exceed the scope of the issue. Frame the
question precisely. Failure to do so will mislead the reader about the limits
of your discussion and analysis.
Identifying the issue is the foundation of effective analysis. On some
occasions, the attorney who requests the memo will identify the issue
clearly for you. More often, you will be able to identify the precise issue
only after you have thoroughly researched and thoughtfully analyzed the
problem. For this reason, finalize your draft of the issue only after you have
written the discussion section of the memo.
To frame an issue, you must do two things. First, identify the precise
rule of law. Second, identify the key facts. Key facts are legally significant
facts. Key facts are those facts that determine whether and how a particular
rule of law applies to your situation. These facts are of crucial importance
to the outcome of the case. Once you have fully researched the law within
the context of your facts, you can determine which facts are key. Finally,
after identifying the precise rule of law and the key facts, draft the issue to
ask whether the rule of law applies under the particular facts of your case.
Consider the following examples of poorly phrased issues, and ask
yourself what the writers have done incorrectly:
 Whether a bystander to an accident can recover for negligent infliction of emotional
distress under Pennsylvania law.
Whether a bystander at an automobile accident will be able to bring a tort action to
recover for negligent infliction of emotional distress.
Whether, under current Pennsylvania law, a bystander at an automobile accident can
successfully bring a tort action for negligent infliction of emotional distress.

Comment: Although the writers properly identified the ultimate legal

question, they failed to include the key facts. The reader is left to wonder
about the circumstances that prompted the question. The reader should
understand the question without having to refer to the facts section. If you
fail to include key facts, you will draft an abstract question, a question
without context. The writers of two of the issues include a reference to
Pennsylvania law. When possible, state the jurisdiction since the law may
vary dramatically from one state to the next.
___________
Whether a daughter who witnesses the aftermath of an accident involving her father will
be able to state a cause of action for negligent infliction of emotional distress.

Comment: The writer of this issue omitted one very significant fact:
the daughter’s distance from the accident. The writer should also have
included a reference to Pennsylvania law as the controlling jurisdiction.
___________
Whether Edna can recover damages for negligent infliction of emotional distress as a
result of witnessing an accident involving Mr. Smith.

Comment: When including the key facts in your issue, avoid

identifying any of the people, places, or things in your case by proper name.
Names may have no meaning to your reader because the facts section of
your memo does not come until later. Even if you, the author of the memo,
return to the file after the case has been dormant, you may not recall who all
the players are. Instead of using proper names, use general categories to
describe the people, places, or things in the issue.
___________
The issue should consist of a concise, one-sentence question. The issue
usually starts with “whether” and should call for a yes or no in response.
The issue also may begin with an interrogative such as “is” or “can.” Be
certain that your issue is precise and complete. Do not, however, draft a
question that is so complex, lengthy, and awkward that your reader cannot
follow it. Ask yourself whether the rule of law is stated clearly and
succinctly. Examine your facts and critically evaluate which are essential to
the issue. Do not generalize because you will risk distorting the issue.
A memo can address several questions. The questions might be distinct
or related and can consist of several individual questions or a question with
subparts. Writing and rewriting the questions and their subparts often
promotes a more thorough understanding of the problem. Generally, the
more specifically the question is phrased, the more precisely it will be
understood. Do not, however, divide the issue into so many questions and
subquestions that the reader will become confused. Do not use a single
subquestion. If the question is divided into subparts, there must be at least
two subparts.
Do not forget that the memo is an informative document that
realistically evaluates your client’s position. Adopt an objective,
nonpartisan tone. Even if a key fact is unfavorable to your client’s position,
you must include it. Do not draft a question to suggest a certain answer.
Avoid advocacy in issue writing.
Here are two good examples of issue statements. They come from
different cases:
Under the Pennsylvania Workers’ Compensation Act, can an employee recover for
injuries that he sustained in a personal fight with a coworker during working hours when,
six months earlier, he had a work-related dispute with the same coworker?

Under New Jersey law, can the parents of a child born with Down’s
syndrome rely on the “discovery rule” or the “concealment exception” to
bring an action for wrongful birth two years after the statute of limitations
has run when:
A. before the birth, their physician stated that amniocentesis would detect any genetic
defects in the fetus;
B. the mother underwent amniocentesis; and
C. after the birth, the physician stated that the amniocentesis had not detected Down’s
syndrome, even though he knew that the technician had made errors in performing the test
and had arrived at an incorrect result?

These issues are well written. Both include the legal question and the
facts that are key, according to the case law. The questions are precise and
objective. They advise the reader of the scope and focus of the memo. As
the samples demonstrate, there is no one correct way to draft an issue.
Simply be certain that your issue contains all of the necessary elements, that
you have framed it succinctly and accurately, and that you have made it
comprehensible.

§12.03. THE CONCLUSION

The conclusion, sometimes called the brief answer or short answer,
provides a short answer to each question that the issue section poses. In
addition to answering the question, this section includes a concise statement
of the reasoning that supports the conclusion. The conclusion section
provides immediate answers to the questions that the memo raises.
The conclusion section immediately follows the issue section. For that
reason, some attorneys begin with a direct response to each of the
questions, such as “yes,” “no,” “probably,” “probably not,” and “maybe.”
Because few things in the law are ever absolutely clear, and because a
noncommittal answer adds little to a well-written conclusion, we prefer
memoranda without this type of response. Nevertheless, opinions and
practices vary; therefore, be alert to the preferences of those for whom you
are working.
In writing the conclusion section, accommodate the reader. In a memo
discussing more than one issue, identify each conclusion with a number
corresponding to the issue to which it refers. Be certain that each answer is
self-contained. While each answer should contain a succinct explanation of
the reasoning that supports your conclusion, do not discuss the details of
your analysis. Do not include citations to cases, statutes, regulations, or
other types of authority on which you rely. Only on the rare occasion when
an authority is dispositive of the question, should you note it in the
conclusion. Relegate all suppositions and hypotheses to the discussion
section.
You may find it helpful to draft the conclusion after you have drafted
the issue and written the discussion. Drafting these sections will force you
to understand fully the reasons for your conclusion. Writing the conclusion
is a two-step process. First, begin the conclusion by restating your issue as a
declarative sentence. Second, add a brief explanation of the reasoning
supporting your conclusion. The conclusion should be ten to fifteen lines.
 Consider again the facts of the Smith matter, the illustrative case for
this chapter. Then, please review the following sample conclusions from
student memoranda.
Under Pennsylvania law, a daughter will be able to recover damages for negligent
infliction of emotional distress if the emotional distress was foreseeable to the defendant.
The factors determining foreseeability include: (1) whether the plaintiff was near the scene
of the accident, (2) whether the shock resulted from the direct emotional impact upon the
plaintiff from the sensory and contemporaneous observance of the accident, and (3)
whether the plaintiff and the victim were closely related.

Comment: The writer has done only part of the job. This conclusion
sets out the elements of the test that a plaintiff must meet to recover. The
recitation of the law is correct. The conclusion, however, fails to answer the
question.
___________
A Pennsylvania court would hold that the bystander at the automobile accident could
recover for negligent infliction of emotional distress because such emotional distress was
reasonably foreseeable.

Comment: Strictly speaking, the writer has answered the question and
provided a succinct explanation of the reason for the answer. The
conclusion, however, lacks key facts. When the issue is devoid of key facts,
the conclusion is often similarly defective. Key facts are as critical to a
conclusion as they are to an issue. While you need not reiterate every key
fact in your conclusion, include enough facts to give the conclusion context
and meaning. Legal conclusions are based on interpretations of facts in the
context of the applicable law.
___________
Edna will be allowed to recover for her emotional distress because of her close proximity
to the accident, her shock as a result of the perception of the accident, and her relationship
with Mr. Smith.

Comment: The writer has answered the question and summarized the
reasons for it. The writer’s use of proper names, however, deprives the
reader of the ability to identify the players and their roles.
A daughter bystander can recover for negligent infliction of emotional distress because the
emotional distress was reasonably foreseeable to the defendant. Pennsylvania, in Sinn v.
Burd, 486 Pa. 146, 404 A.2d 672 (1979), adopted a three-step test to evaluate whether the
emotional distress was foreseeable: (1) whether the plaintiff stood near the scene of the
 accident, (2) whether the emotional impact and distress followed sensory observance of
the accident, and (3) whether the plaintiff and the victim were closely related. The
daughter stood only one block from the accident. The daughter saw her father
immediately before the event, heard the event, and saw the scene and her father
immediately after the event. The father/daughter relationship is a close relationship. All
elements of the test are therefore satisfied and a claim for negligent infliction of emotional
distress is made out.

Comment: In the conclusion, do not set out the governing standard, or

the applicable law, in such detail. Do not apply the law to your facts.
Application in the conclusion section is usually ineffective because it is too
general. It can be misleading because it is usually incomplete. If the
attorney reading the conclusion develops a misimpression, you are
responsible. Do not condense your analysis. The discussion section should
be the sole source of analysis. Provide only the answer and a brief statement
of your reasoning. This conclusion is too long given the nature of the
question. Moreover, citations to authority are improper in the conclusion.
Here are two good conclusions:

(1) A Pennsylvania court would allow a daughter who witnessed an

automobile accident involving her father from one block away to
recover for negligent infliction of emotional distress because: (1)
she was near the location of the accident, (2) her shock was a
result of her direct sensory perception of the accident, and (3) she
is closely related to the victim.
(2) A Pennsylvania court would permit a daughter who heard a car
accident involving her father from a block away and who then
immediately witnessed his severe injuries to recover for negligent
infliction of emotional distress.

As with the issue, there is no one correct way to write a conclusion. Be

certain that you answer the question and that you provide a brief statement
of the reasoning that supports that answer, as the writers of the above two
samples have done.
Writing good conclusions and issues is difficult. If you follow the
principles that have been discussed, review the sample memoranda in
Appendix I, and practice by writing and rewriting your conclusions and
issues, you will soon master the task.
 In this chapter, we offer you four exercises to help you learn how to
draft the initial parts of an interoffice memo. The exercises should help you
develop attention to formalities and precision in writing and thinking.

§13.01. EXERCISE I
Suppose a more senior attorney, Dewey D. Delaney, has called you
into his office and told you the following:
The Firm has recently been retained by Jack Montagne to file suit
against Asten Lift Company, Ltd. (“Asten”), a manufacturer of double and
triple chair ski lifts based in Colorado. The file number is 98876-001. The
basis of the suit he seeks to bring is an accident that occurred on Devil’s
Mountain, located in Pennsylvania. The accident involved his stepsister,
Monica Gordon, who was thrown out of a triple chair lift and killed when a
cable broke. Due to the circumstances of the accident, I think we might be
able to state a cause of action for negligent infliction of emotional distress.
The facts of the case as I understand them are as follows. Jack, who is
apparently an avid skier, took a ski vacation last winter with his stepsister,
Monica. The two went to Devil’s Mountain, as I said, where they rented a
chalet for two weeks. Every morning they would have a quick breakfast,
step outside, snap on their skis and ski the one hundred yards to the base of
the mountain and the Diamond Triple Chair Lift, which would take them to
the midpoint of the mountain. From there they would ride the Devil Triple
Chair Lift (the “Devil Chair”) to the peak. Once at the peak, they would
separate, Jack to ski the wide open “bowls” on the back of the mountain and
Monica to ski the trails on the face of the mountain. However, they had a
standing agreement to meet for lunch at one o’clock at Tipler’s, the
restaurant at the top of the Devil Chair. They had consistently followed this
schedule for seven days, and would not have deviated from it on the eighth
day but for the accident.
On the day of the accident, Jack was standing near the top of the Devil
Chair waiting for Monica and enjoying the sunshine. It was 12:50 p.m.
Waiting for her there had become his habit. Ever since their first day on the
mountain she had timed her skiing so that her last run before lunch was
down Go Devil, the trail which wound back and forth under the Devil
Chair, and ended at the midpoint. A run down Go Devil would take
approximately half an hour. Then she would take the Devil Chair back to
the top and Tipler’s, a ride that took approximately twenty-five minutes.
Jack had met her at the top of the chairlift every day, and she had
consistently arrived within five minutes of the appointed time. Jack had
been scanning the skiers as they came into view for about five minutes
when he heard a loud noise that sounded like a large branch breaking off of
a tree. The lift slowed to a stop and the chairs rolled back approximately 25
feet. Then, as Jack and those around him watched in horror, a wave raced
up the cable, abruptly pulling the chairs ten or twelve feet up into the air
and dropping them again just as suddenly. The chairs had no safety bar and
Jack, who could see approximately ten percent of the chairs from his
vantage point, saw people hurled out of their chairs and to the ground,
which he knew was at times a 35 foot drop. Some skiers were miraculously
able to hold on and remain in the chairs.
Jack could think only of Monica, who he knew had been riding the lift
but who might now be lying injured or dead on the mountain. Jack started
down the mountain, frantically seeking Monica in her polka-dotted ski
jacket. Other skiers and the ski patrol were rushing to help those who had
been thrown to the ground. Screams and moans filled the air and while
some skiers writhed in pain, others seemed not to move at all. Dark blotches
of blood stained the snow.
When he had gone approximately one hundred yards down the
mountain, Jack still had not seen his stepsister and the trail wound away
from the lift. He was almost frantic with fear and worry. Abandoning the
trail to continue his search, Jack skied down directly under the chair. As he
made his way through the crunchy snow and around the rocks, Jack
reassured the skiers lying on the ground and those clinging to the chairs that
help was en route, but he did not stop. Then he saw her. She lay on the
ground, perfectly still, near a large rock. Jack took off his skis and made his
way to her side. She made no sound. As he held her, he saw the gash and
the blood caked to the back of her head. Her pulse was weak and irregular.
Jack covered her with his jacket. Within ten minutes help arrived, and
Monica was taken down to the base of the mountain in a stretcher. Jack
never left her side. Within minutes of reaching the makeshift emergency
center she died of head injuries sustained in the fall. She had never regained
consciousness. Less than four minutes had passed from the moment Jack
witnessed the skiers being thrown from their chairs and the moment he
reached Monica.
Since the accident, Jack has had recurring nightmares, has suffered
severe depression, and has experienced significant weight loss. He has been
under continuing medical supervision for these conditions, none of which
afflicted him prior to the accident.
Jack and Monica had been close since his mother and her father were
married when he was 16 and she was 15. Both were only children who had
longed for a sibling. At the time of the accident, both were in graduate
school in Philadelphia. They talked often and met regularly for meals. Ever
since Monica’s father had died three years ago, and Jack’s mother six
months later, the two had taken a skiing vacation around Christmas and
New Years so that they could spend the holidays together.
Suppose you are to prepare a memo on whether Jack Montagne could
successfully state a cause of action for negligent infliction of emotional
distress.

1. Write the heading of the memo.

2. Review the material in Chapter 12 on the Smith case, the illustrative
case in this chapter, and:
a. identify the key facts in the Montagne case;
b. write the issue as it would appear in the memo;
c. write the conclusion as it would appear in the memo.

§13.02. EXERCISE II
Patricia Brennan, your supervising attorney, has written you this note,
which tells you about one of her cases (file no. 1945-9) and asks you to
draft some sections of a memo:
We are representing the Jefferson City Transit Authority, which is the
defendant in a false imprisonment case. I need your help in drafting an
interoffice memo on a particular issue in the case. I will use the memo in
discussing the case with other lawyers in our firm. I also will use it in
preparing my arguments.
Here are the facts. June 20 of this year was the last day of school for
the term at Hamilton Junior High. At the end of the day, a large group of
students from that school boarded a bus owned by our client and driven by
its employee, William Duer. One of the student-passengers was 15-year-old
Jack Jay. On that day, the students were exuberant and ultimately unruly. A
number of students broke windows, ceiling panels, advertising poster
frames, and dome lights. At this point, we do not know if Jack Jay was one
of the vandals.
After several unsuccessful attempts to establish order on the bus, Duer
stopped the bus, inspected the damage, and announced that he was taking
the students to the local police station. He then resumed driving and
bypassed several normal stops on the way to his announced destination. As
he turned one corner, several students jumped out of a side window at the
rear of the bus. As he turned the next corner (New York Road and Federalist
Avenue), Jay positioned himself to jump out the window. However, as the
bus turned, the right rear wheels hit the curb, and Jay either jumped or fell
to the street. The right rear wheels then rolled over Jay’s midsection and
caused him serious injuries.
Jay and his father John have begun a legal action in the state of
Madison to recover damages for false imprisonment. As you know, in our
jurisdiction, to succeed in a claim for false imprisonment, the plaintiff must
prove that (1) the defendant intended to confine the plaintiff, (2) the
plaintiff was conscious of the confinement, (3) the plaintiff did not consent
to the confinement, and (4) the confinement was not otherwise privileged. I
plan on a defense of justification: a restraint or detention is not unlawful if
it is reasonable under the circumstances and in time and manner, and is
imposed for the purpose of preventing another from inflicting personal
injuries or interfering with property in one’s lawful possession or custody or
damaging that property.
Jack Jay is seeking damages for mental anguish and bodily injuries.
His father is seeking damages for loss of services and medical expenses.
 Even if the court or jury rejects the defense of justification and finds
that there was false imprisonment, we still may have a defense against
damage awards. Even if a person is falsely imprisoned, that person still has
a duty to use reasonable care in trying to extricate himself or herself from
the unlawful detention. Here, we will argue that Jack Jay placed himself in
an unreasonably perilous position when he tried to leave a moving vehicle
by placing himself in the bus window.
I would like your help in getting started on one of the memos for this
case, the memo concluding that even if there is false imprisonment, no
damages should be awarded. Please limit your work on this memo to the
issue of defense against damages in the case of false imprisonment. Other
memos will deal with other issues.
I would like you to draft the three initial parts of the memo: the
heading, the issue, and the conclusion.

§13.03. EXERCISE III

Patricia Brennan, your supervising attorney, is pleased with your work
on the memo concerning Jack Jackson's ability to recover damages for false
imprisonment. She is so pleased that she gives you another assignment.
Here is her note to you:
Thanks so much for your work on the Jay case. Now I need more help. I asked another
associate to draft the beginning of a memo on another aspect of the case: whether
justification would be a successful defense to false imprisonment under the facts of this
case. At this point, I am assuming that the memo will conclude that justification would be
a successful defense here. I was not pleased with what I received. Here is a copy of the
heading, issue and conclusion. I would be appreciative if you would revise them. I do not
want to create a conflict between you and the associate, so please leave his name on it as
author and do not include your name. I will make sure you get credit for the work. Here is
the draft:

FROM: Mike Smith

TO: Patti

DATE: (Supply the date you completed revising this memo.)

RE: Jay v. Jefferson City Transit Authority; file no. 1945-9; Justification Defense to False
Imprisonment

ISSUE:
 Under the law of the State of Madison, can Jack sue for false imprisonment when he
jumped out of the school bus window after the bus driver started driving the school bus to
the police station when the students started acting up?

CONCLUSION:
When students on the school bus are acting up and breaking things, the bus driver has the
right to turn them over to the police. This defense is called justification, and it is a good
defense against false imprisonment.

§13.04. EXERCISE IV
Laura Johann, the mid-level associate who supervises you, has emailed
you the following memo:

Hi. I hope you can give me a hand on a difficult case. Let me start by asking you to
read this memo from our client, Attorney Kathy Clare:

In early December, William Silton telephoned me at my office and told me that he

was suffering from cancer and wanted to write a will that would pass his estate to his
brother Jack. He said that he was estranged from his other brother Jim and wanted to
make sure that none of his estate would go to Jim. At no time did Mr. Silton tell me that
he was in immediate danger of dying or that he wanted to execute the will by a certain
date.
On January 15, I mailed the will and related documents to Mr. Silton. A few days
later, I learned that Mr. Silton had been injured in a car accident and was now in a
nursing home. The documents reached him on January 23. On January 25, I was
informed that Mr. Silton was in a rapidly deteriorating condition and was anxious to
sign the will. I brought the will to Mr. Silton on February 1. Mr. Silton reiterated his
testamentary intent. However, he wanted to change the contingent beneficiary. In other
words, in case his brother Jack predeceased him, he wanted his estate to go to a charity
as the contingent beneficiary. He had changed his mind on which charity to designate. I
told Mr. Silton that I would revise the will and get back to him.
On February 4, I returned to the nursing home with the revised will. When I spoke
with Mr. Silton, I determined that he lacked the competence to sign the will and
returned to my office. On February 16, Mr. Silton died. Because he died without a will,
his estate passed to his heirs according to this state’s intestacy statute. Thus, his two
brothers (including Jim) and a nephew each gained a share of his estate.

Now, Jack Silton is suing Kathy for malpractice. He claims she was negligent in failing to
have Mr. Silton sign the will promptly and to advise him on February 1 of the risk of
dying without a will if he did not sign the document as drafted at that meeting. Thus, he
argues that Kathy had a duty to insure that the will was executed promptly under the
circumstances, that the duty extended to him as the intended beneficiary, and that the
breach of that duty injured him financially.
The estate involved here is quite large, and, therefore, this is a big case. My partner
asked me to draft an in-house memo on the primary legal issue. I am having trouble
drafting the issue. I wonder if you could give me a hand by suggesting a well-phrased
issue. I really appreciate your help.

How would you draft the issue?

§14.01. FACTS
When you receive an assignment to write a memo, either the attorney
tells you the facts of the case or you go through the case file to get the facts.
Once you know the facts, you must determine which of those facts belong
in the memo’s facts section. Include only those facts that affect the outcome
of your analysis, and enough background facts to allow the reader to
understand the analytically significant facts.
To determine which facts are analytically significant, research the
relevant legal authority. As you read the cases, identify the facts upon
which the courts rely in reaching their holdings. After you complete your
research, determine which facts in your case are analogous to the important
facts in the decided cases. Also determine which of your facts are
distinguishable from important facts in adverse holdings. Include those
facts in the facts section. Include the facts even if you think the reader
knows them.
The facts section must be objective. Include facts that are both
favorable and unfavorable to your case. Just as you analyze adverse case
law in the discussion section, you must include unfavorable facts in the
facts section.
Organize the facts section logically so that the reader understands what
happened. The most logical organization is a chronological organization. A
chronological organization is also an objective organization because it
emphasizes no one fact or set of facts.
 Make the facts section clear, concise, and complete. After you write
the facts section, read it again and streamline it by eliminating all
unnecessary facts. Do not make your reader hunt through the facts section
to find the relevant facts. At the same time, make certain you have included
all relevant facts. If you discuss a fact in the discussion section of your
memo, it should also appear in the facts section.
Here is an example of how to write a facts section. In order to write a
facts section, you must get the facts from the client and analyze those facts
in light of the relevant legal authority.
Here are all of the facts provided by the client:
On June 10, 2013, Edna Smith witnessed an automobile accident in which her father,
Wilbur Smith, was injured. Edna suffered and has continued to suffer emotional distress as
a result of witnessing that accident.

On the day of the accident, Mr. Smith drove Edna to school. Edna’s
mother usually drove her to school, but her mother was sick. Edna attended
Central High School and was a ninth grader.
Mr. Smith drove a 2001 Honda Civic. He was a good driver and had
never received any speeding tickets.
Mr. Smith dropped Edna off at school at 8:00 a.m. and drove away to
get some groceries for Edna’s mother. Edna waved good-bye and turned, to
talk to her friends, Gertrude Jones and Florence Kramer.
Shortly thereafter, Edna heard a loud crash. She turned around and saw
that a car had crashed into her father’s car in an intersection located one
block from the school. Her father’s car was on fire.
By the time she arrived at the accident, her father had been pulled from
the burning car. She saw that he was severely burned and had a large gash
on his forehead.
Mrs. Donna Lapp was the driver of the car that hit Mr. Smith. She was
intoxicated at the time of the accident and ran a red light.
Edna now suffers from recurring nightmares, a debilitating fear of
automobiles and chronic stomach problems. None of these conditions
existed prior to the accident.
Here is a synopsis of the governing case law:

1. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

 In Sinn, the court held that a bystander at an automobile accident has a
valid cause of action for negligent infliction of emotional distress if the
injury to the bystander is reasonably foreseeable to the defendant. The court
formulated a three-part foreseeability test to determine whether the
bystander’s injury was reasonably foreseeable:

a. whether the bystander was located near the scene of the accident,
b. whether the shock resulted from a direct emotional impact upon the
bystander from sensory and contemporaneous observance of the
accident, as contrasted with learning of the accident from others
after its occurrence, and
c. whether the bystander and the victim were closely related.

2. Anfuso v. Smith, 15 Pa. D. & C.3d 389 (Northampton Co. 1980).

In Anfuso, the court held that a mother, who was inside her home when
she heard a car accident occur outside and rushed out to see her daughter
injured in the accident, could recover for negligent infliction of emotional
distress. The court applied the Sinn v. Burd three-part test to determine
whether the mother’s injury was foreseeable. The court found that the first
part of the test was satisfied because the mother was sufficiently near the
scene of the accident even though she was inside her house and the accident
occurred on the street. The court further found that the second part of the
test was satisfied because the mother heard the accident happen and then
ran out and witnessed her daughter’s injuries. The mother, therefore, had a
sensory and contemporaneous observance of the event rather than learning
about it from others. Finally, the court found that the third part of the test
was satisfied because a mother-daughter relationship is a sufficiently close
relationship.

3. Brooks v. Decker, 512 Pa. 365, 516 A.2d 1380 (1986).

In Brooks, the court held that a father did not have a valid cause of
action for negligent infliction of emotional distress because he did not
witness the car accident in which his son was injured, nor did he hear the
accident. Instead, he merely saw his injured son lying on the ground after
the accident occurred.
 4. Bliss v. Allentown Public Library, 497 F. Supp. 487 (E.D. Pa. 1980).

In Bliss, the court held that a mother who heard a metal sculpture fall
on her child but did not see it fall had a sensory and contemporaneous
observance of the event. The mother thus satisfied the second part of the
Sinn v. Burd test to recover for negligent infliction of emotional distress.

5. Blanyar v. Pagnotti Enters., Inc., 512 Pa. 266, 516 A.2d 672 (1986).

In Blanyar, the court held that a cousin could not recover for negligent
infliction of emotional distress after watching his cousin drown since the
cousin was not a member of the victim’s immediate family.

6. Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986).

In Mazzagatti, the court held that a mother could not recover for
negligent infliction of emotional distress after learning about the accident
from another person through a telephone call. The court recognized that the
prior knowledge serves as a buffer against the mother observing the full
impact of the accident.
Model Facts Section
On June 10, 2013, Edna Smith’s father, Wilbur Smith, drove her to school. He dropped her
off at the school at 8:00 a.m. and then drove away. Edna turned to talk to some friends.
At an intersection located one block from the school, Donna Lapp, the defendant, ran
a red light and crashed into Mr. Smith’s car. Edna did not see the accident occur, but she
heard it. Edna turned around and saw the accident scene. She could see that her father’s
car was on fire.
By the time she arrived at the accident, her father had been pulled from the burning
car. She saw that he was severely burned and had a large gash on his forehead.
Edna now suffers from recurring nightmares, a debilitating fear of automobiles, and
chronic stomach problems. None of these conditions existed prior to the accident.

In the above example, the writer included only the facts that are
relevant under the applicable case law and enough background facts so that
the reader can understand what happened to Edna. For example, since
distance from the accident is an important factor under Sinn v. Burd, the
writer described Edna’s distance from the accident. The writer eliminated
extraneous facts, such as the year of the car Mr. Smith was driving and the
names of Edna’s friends. The writer included all of the unfavorable facts,
such as the fact that Edna did not see the accident. Finally, the writer
organized the facts clearly and logically by stating them in chronological
order.
Here is an example of a bad facts section. Compare it with the model
facts section.
Edna Smith suffers from severe emotional distress as a result of witnessing an automobile
accident. The accident was the fault of Donna Lapp. In the accident, Edna’s father, Wilbur
Smith, was horribly injured and he almost died.
The accident occurred on June 10, 2013. Edna’s father drove her to school. He
dropped her off at school at 8:00 a.m. and drove away.
Donna Lapp, the defendant, ran a red light and slammed into Mr. Smith’s car. His car
exploded, and Edna heard the explosion. Edna saw his car enveloped in flames. Edna also
saw his severely burned body and the large gash on his forehead that was spurting blood.
Edna now suffers from horrible, recurring nightmares, she is terrified of cars, and she
has excruciating stomach pain. Donna Lapp negligently caused Edna’s injuries.

The above example of a facts section is poorly written because it is not

objective. The writer left out adverse facts, such as Edna’s distance from the
accident. In addition, the writer used value-laden words, such as “horrible”
and “excruciating” to describe Edna’s and her father’s injuries.
The writer also made legal conclusions, instead of just stating facts.
For example, the writer stated that the defendant negligently caused Edna’s
injuries. Moreover, the writer did not organize the facts clearly and
logically.

§14.02. DISCUSSION
The discussion section is composed of legal arguments resolving the
issues and sub-issues. Use the methods for writing legal arguments you
learned in Chapter 6:

1. Use deductive reasoning.

2. Apply the law to the facts.
3. Make analogies.
4. Make policy and equity arguments.

Ideally, you want to use all of these types of arguments in the discussion
section. Circumstances may limit the types of arguments available to you or
may dictate that you emphasize one form of argument over another.
 Divide the discussion into sections that correspond to the issues and
sub-issues. In each section, discuss the law applicable to the issue or sub-
issue, and apply it to the facts that are relevant to the issue or sub-issue.
Remember that all the facts to which you refer in the discussion should be
in the facts section of your memo.
Write the discussion clearly and logically. As we suggested in Chapter
8, give your reader a roadmap paragraph at the beginning of the discussion,
including a statement of your ultimate conclusion. As noted previously,
readers of legal prose are not looking for suspense, they are looking for
explanations. Explain the organization of the discussion so the reader can
follow it easily.
The discussion section must be objective. Include both favorable and
unfavorable facts and legal authority. Discuss arguments in favor of your
client first, and then potential counterarguments. If you can, distinguish
cases that are unfavorable to your client’s position.
Be objective, but think strategically. If any argument supports your
client’s position, discuss that argument. The senior attorney who assigned
the memo wants you to find a way for your client to win. Do not, however,
misrepresent the strength of your client’s position. The reader relies on your
research and analysis. If your client is going to lose, do not assert that the
client will win. You do not want a senior attorney to take the wrong action
for a client. It will come back to haunt you.
Remember to come to conclusions and make recommendations. Do
not simply present the information and force the reader to reproduce your
analysis. At the end of the discussion section, summarize all the conclusions
you reached and recommend actions the reader can take. The conclusion at
the end of the discussion should be brief but may offer more detail than the
conclusion section of your memo.
Here is an example of how to write a discussion. The example is
drawn from the case discussed in Chapter 12 and in the first section of this
chapter.
Edna Smith has a valid cause of action for negligent infliction of emotional distress. In
Sinn v. Burd, the court held that a bystander at an automobile accident has a valid cause of
action for negligent infliction of emotional distress if the injury to the bystander is
reasonably foreseeable to the defendant. 486 Pa. 146, 173, 404 A.2d 672, 686 (1979). The
court formulated a three-part test to determine whether the bystander’s injury was
reasonably foreseeable:
 1. whether the bystander was located near the scene of the accident;
2. whether the injury resulted from a direct emotional impact upon the
bystander from sensory and contemporaneous observance of the
accident, as contrasted with learning of the accident from others
after its occurrence; and
3. whether the bystander and the victim were closely related.

Id. at 170-171, 404 A.2d at 685. The present case meets all three parts of
the Sinn v. Burd test. Each part of the test is discussed separately below.

a. Distance from the Scene of the Accident

The issue in Edna’s case is whether someone standing one block from the scene of the
accident is located near the scene of the accident. The decided cases suggest that one
block is close enough to meet the test.
In Sinn, the court held that a mother who witnessed an accident on the street from the
front door of her house was located near the scene of the accident. Id. at 173, 404 A.2d at
686. Similarly, in Anfuso v. Smith, the court held that a mother who was inside her home
when she heard an accident occur on the street was located near the scene of the accident.
15 Pa. D. & C.3d 389, 393 (Northampton Co. 1980). In Bliss v. Allentown Public Library,
the court held that a mother who was twenty-five feet away from her child when she heard
a metal sculpture fall on him was located near the scene of the accident. 497 F. Supp. 487,
489 (E.D. Pa. 1980).
In Sinn, Anfuso, and Bliss, the bystanders were close enough to the accident to see it
happen or to see its aftermath. None of the cases required the bystander to be standing at
the accident site in order to be located near the scene of the accident. In the present case,
Edna was close enough to the scene of the accident that she could see its aftermath.
Accordingly, Edna was located near the scene of the accident, and the first part of the test
has been met.

b. Direct Emotional Impact

The issue here is whether someone who heard an accident rather than saw it had a sensory
and contemporaneous observance of the accident. Edna’s emotional distress was a direct
result of hearing the accident as it occurred and, therefore, the relevant case law supports
the conclusion that the second part of the Sinn v. Burd test has been met.

In Bliss, the court held that a mother who heard a metal sculpture fall on her child but
did not see it fall had a sensory and contemporaneous observance of the event. Id. at 489.
The court stated that it would not deny a suit simply because of the position of the
plaintiff’s eyes at the split second the accident occurred. Id. The court found that the entire
incident produced the emotional distress the plaintiff suffered. Id. Similarly, the Anfuso
court held that a mother who heard a car accident while inside her home and rushed out to
see her daughter injured in the accident had a sensory and contemporaneous observance of
the event. 15 Pa. D. & C.3d at 393.
 The facts of the present case are similar to the facts of Bliss and Anfuso. Edna heard
the accident and then turned and saw its aftermath. Her emotional distress resulted from a
direct emotional impact on her from both hearing the accident and seeing its aftermath.
Her observance of the accident was both sensory (hearing and sight) and
contemporaneous (she heard it as it happened and then turned and saw its aftermath).
Therefore, the second part of the Sinn test has been met.
The present case is distinguishable from Brooks v. Decker, 512 Pa. 365, 516 A.2d
1380 (1986). There, the court held that a father did not have a valid cause of action for
negligent infliction of emotional distress. Id. at 365, 516 A.2d at 1383. In Brooks, the
father did not hear or see the car accident in which his son was injured. Id. at 367, 516
A.2d at 1381. Instead, he followed an ambulance, which passed him. Id. On arriving at the
scene, the father saw his injured son lying on the ground. Id. The court found that he did
not have a valid cause of action because he did not hear or see the accident as it occurred.
Id. at 365, 516 A.2d at 1383. Moreover, the present case is distinguishable from
Mazzagatti v. Everingham because there the court held that a mother who learned of an
accident from a telephone call was not directly impacted by the accident and could not
recover damages. 512 Pa. 266, 269, 516 A.2d 672, 674.
In the present case, however, Edna heard the accident occur. She did not learn that an
accident had occurred by seeing an ambulance nor did she learn about the accident from
another person. Therefore, the holdings in both Brooks and Mazzagatti are inapplicable to
the present case.

c. Close Relationship
The final issue is whether a father-daughter relationship is a sufficiently close relationship
to satisfy the third part of the test. Relevant decisions suggest that Edna and her father are
closely enough related to meet the third part of the Sinn v. Burd test, although none of the
cases involved a directly analogous relationship.
In Sinn, the court held that mother-child relationship was a sufficiently close
relationship to satisfy the third part of the test. 486 Pa. at 173, 404 A.2d at 686. In Anfuso,
the court held that a mother-child relationship and a sibling relationship were sufficiently
close relationships to satisfy the third part of the test. 15 Pa. D. & C.3d at 391.
In Sinn and Anfuso, the courts held that the two types of blood relatives satisfied the
third part of the test. Edna and her father are blood relatives. Parents, children, and
siblings are immediate family members. However, since none of these courts suggest that
immediate family members cannot satisfy the third part of the test, we should argue that a
father-daughter relationship is sufficiently close.
The present case is consistent with Blanyar v. Pagnotti Enters., Inc., 512 Pa. 266, 516
A.2d 672 (1986). There the court recognized that only immediate family members can
recover for negligent infliction of emotional distress.
In the present case, Edna is Mr. Smith’s daughter. Therefore, the holding in Blanyar
supports Edna’s claim.

D. Conclusion
Edna Smith has a valid cause of action for negligent infliction of emotional distress. Edna
was located near the scene of the accident, her injury was a result of a direct emotional
impact from sensory and contemporaneous observance of her father’s accident, and Edna
and her father are closely related. Since all three parts of the Sinn test have been met, the
firm should file suit on Edna’s behalf.
 In the above example, the writer divided the discussion into sub-issues that
correspond to the three parts of the Sinn test. In each section, the writer discussed the law
applicable to the specific part of the test and applied that law to the facts relevant to that
part of the test. All of the facts referred to in the discussion came from the facts section
example in the first part of this chapter.
At the beginning of the discussion, the writer provided a roadmap for the sections
discussing the individual parts of the test. The writer gave conclusions at the beginning of
each section and summarized those conclusions at the end of the discussions. The writer
also recommended an action for the reader to take—to file suit.
Finally, the writer discussed unfavorable facts and cases. In addition, the writer
distinguished an unfavorable case, Brooks v. Decker.
Now that you have seen an example of a well-constructed discussion section, the
next segment of this chapter offers some tips on how to avoid mistakes that students and
young lawyers commonly make when writing legal memoranda.

§14.03. MAKE YOUR REASONING READILY APPARENT

“Ambiguous” is a word that writing instructors often write on first-
year law students’ papers. The student will often respond by pointing out
the intended meaning, perhaps not even seeing the alternate meaning that
made the expression ambiguous to the reader.
Always put yourself in your reader’s shoes. Assume your reader
knows nothing about the subject, and strive for a self-contained document
that treats your subject thoroughly. Your reader should have no trouble
understanding your reasoning in applying the law to the case at hand.
1. Avoid the “Digest” Approach
A writer who uses the digest approach recites a series of mini-briefs of
cases and fails to integrate the law and the facts.
In the following example of the “digest” approach, the writer “recites”
the law but does not apply it.
Article 2, §8, of New York State’s Bill of Rights (McKinney 2006) reiterates the “right of
the people…against unreasonable searches and seizures” provided by the Fourth
Amendment to the United States Constitution. “Searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under the
fourth amendment…subject only to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347 (1967).
The application of the “plain view doctrine” is contingent upon a showing by the
state that the officer’s vantage point is a place in which it is lawful for that officer to be.
Ker v. California, 374 U.S. 23 (1963).
The court sets forth the guidelines that govern the application of the
“emergency” exception to the warrant requirement in People v. Mitchell, 39
N.Y.2d 173, 347 N.E.2d 607, cert. denied, 426 U.S. 953 (1976), as follows:
 (1) The police must have reasonable grounds to believe that there is
an emergency at hand and an immediate need for their assistance
for the protection of life or property.
(2) The search must not be motivated primarily by intent to arrest and
seize evidence.
(3) There must be some reasonable basis approximating probable
cause to associate the emergency with the area or place to be
searched.

Id. at 176, 347 N.E.2d 177–78.

In People v. Gallmon, 19 N.Y.2d 389, 280 N.Y.S.2d 356 (1967), the
police officer’s entry without obtaining a warrant was justified by his
obligation to assist people in distress.
Under the “fruit of the poisonous tree doctrine” the government cannot use information
obtained during an illegal search. Wong Sun v. United States, 371 U.S. 471 (1963);
Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).

In this example, the writer has included several paragraphs about the
law, but the reader still knows nothing about the case at hand. Each time a
rule is articulated, the rule should be applied to the facts of the case being
discussed, using the previously decided cases to explain the application.
2. Avoid the “Historical Development of the Law” Approach
The “historical development of the law” approach, as it implies, goes
through the history of the law, often needlessly. Sometimes it is necessary to
give some history of the development of a rule—but not often. This
approach is often appropriate in a law review article but has limited
usefulness in a legal memorandum or brief. The reader—whether a lawyer,
a judge, or a client—usually will care little about where the law came from
or what led to its development, but will want to see what the law is and how
it applies to the current situation.
Here is an example of the “historical development of the law”
approach:
At common law, an action for wrongful death did not exist. Nevertheless, the Ohio
General Assembly recognized such an action in title 21, section 25.01, of the Ohio Rev.
Code Ann. §2125.01. Werling v. Sancy, 17 Ohio St. 3d 45, 46, 476 N.E.2d 1053, 1054
(1985).
 Section 2125.01 provides as follows:
When the death of a person is caused by wrongful act, neglect, or default which would
have entitled the party injured to maintain an action and recover damages if death had not
ensued, the person who would have been liable if death had not ensued…shall be liable to
an action for damages, notwithstanding the death of the person injured.…

Ohio Rev. Code Ann. §2125.01.

Since §2125.01 refers only to a “person,” a key question is whether a viable, unborn
child is a “person” within the meaning of §2125.01. Werling, 17 Ohio St. 3d at 46, 476
N.E.2d at 1054.
The most recent case involving an action for wrongful death under §2125.01 where
the decedent is a stillborn fetus is Werling v. Sancy, 17 Ohio St. 3d 45, 476 N.E.2d 1053
(1985). In Werling, the Supreme Court of Ohio reaffirmed the position of the Court of
Appeals for Madison County in Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106
(1959). The Supreme Court held in Werling that a viable fetus that is negligently injured in
its mother’s womb and subsequently stillborn may be the basis for a wrongful death action
pursuant to §2125.01. Werling, 17 Ohio St. 3d at 49, 476 N.E.2d at 1054.
Notice that you have read several paragraphs and still know nothing
about the case the writer is discussing. You cannot even be sure of the
specific issue being discussed. Unless it is actually relevant to your
discussion to explain how the rule got to its present form, simply state the
rule and begin your discussion at that point.
3. Avoid the Use of Too Many Quotations from Legal Authorities
Many court opinions contain numerous quotations from other cases,
legal periodicals, and treatises. It is easier and faster to quote from
authorities than to paraphrase them, so some writers tend to use many
quotations.
Too many quotations distract the reader, and often the quotations
themselves are not clear. A frequent flaw in legal writing is overuse of the
“block quote,” the indented, single-spaced quote. Many judges, attorneys,
and students tend to skip over them. Avoid overuse of block quotes in
particular, and avoid overuse of all quotations. Here is an example from a
student memo:
Mr. Walker has a valid cause of action for false imprisonment. In Roth v. Golden Nugget
Case/Hotel, Inc., 576 F. Supp. 262, 265 (D.N.J. 1983), the court found that “in order to
support a claim for false arrest, the plaintiffs must allege two elements: First, that there
was an arrest, and second, that the arrest was without proper legal authority, which has
been interpreted to mean without legal justification.” In New Jersey, false imprisonment
and false arrest are merely separate names for the same tort. Roth v. Golden Nugget
Case/Hotel, Inc., 576 F. Supp. 262, 265 (D.N.J. 1983),

The court held in Barletta v. Golden Nugget Hotel Casino, 580 F. Supp. at 617-618, that:
 A taking into custody need not be done violently to constitute an arrest.…The inquiry
goes to whether there was any unlawful restraint upon a person’s freedom of
movement.…Further, the assertion of legal authority to take a person into custody, even
where such authority does not in fact exist, may be sufficient to create a reasonable
apprehension that a person is under restraint.

Therefore, applying the law to the facts of the present case, we can
conclude that an arrest was made.
The student should have used his own words instead of quoting the
court. When you read the excerpt, you probably read the first quote hastily
and wondered if you could avoid reading the block quote. Most people tend
to skip over long quotes. The student also used quotations in place of
analysis. He wanted to argue that Mr. Walker has a valid cause of action for
false imprisonment. The student should have applied the rule of law to the
facts in his case and compared his client’s circumstances with those of the
plaintiff in Barletta. Instead, he quoted generalities from the Barletta
opinion.
4. Avoid the “Abstract Writing” Approach
The “abstract writing” approach reads like an essay. This form of
writing is easy for students who have written essays in undergraduate
school that earned “A’s” in English or social sciences. Writers who use this
form often discuss their viewpoints on what the law should be, but never
get to what the law actually is. The following is an example of the “abstract
writing” approach:
The Court should uphold defendant’s conviction for selling cocaine as a matter of public
policy. This society is permeated by drugs, and courts should not allow drug dealers to go
free.
The President has recently declared a war on drugs. The use of drugs is so prevalent
that recently many celebrities in the entertainment and sports worlds have either died or
admitted drug abuse, setting a bad example for young people.
Defendant’s conviction should stand because she is a mother who is a bad example
for her children. The evidence against her was overwhelming, and her guilt is
indisputable. To let her go free to protect her constitutional rights would be an injustice
not only to her drug customers but also to her family.
That defendant’s having to go to prison may split up her family should not be the
court’s major consideration. Her children will be better off in a drug-free environment.
The defense argues that the police deprived defendant of her constitutional rights but
ignores the fact that she is taking others’ lives by selling dangerous drugs.
For all these reasons, defendant’s conviction must stand.
 The memorandum above could also be called the “soapbox” approach
to legal writing. The student quite rightly addresses public policy issues, but
fails to back up any ideas with constitutional provisions, statutes, or judicial
rulings. There is no legal analysis.
5. Avoid the “Law Discussion Only” Approach
The next rule concerns the opposite of the “abstract” or “soapbox”
approach—the “law discussion only” approach with no factual, policy, or
equity considerations. This approach often gives a very accurate recitation
of the law but fails to discuss policies and equities underlying the law or the
case on which the writer is working. Here is an example:
Ohio Rule of Evidence 501 allows Ohio courts to use their discretion in deciding what
privileges they will allow. The rule states that “[t]he privilege of a witness, person, state or
political subdivision thereof shall be governed by statute enacted by the General
Assembly or by principles of common law as interpreted by the courts of this state in the
light of reason and experience.” Ohio R. Evid. 501.
The Ohio courts have been consistent in their refusal to extend the privileges beyond
those that are specifically listed in the statute. Section 2317.02 recognizes as privileged,
communications between attorney and client, physician and patient, clergyman and
parishioner, husband and wife, and professional counselor and client.
In Whipple v. Render, C.A. No. 2480, 1989 Ohio Ct. App. LEXIS 3493, at *3 (Sept.
13, 1989), the court refused to extend the privilege of physician-patient to include dentists
or dental surgeons.

The student tells us about an evidentiary rule that gives Ohio courts
discretion in making certain decisions. The student tells us that the courts
have not exercised that discretion liberally. We also learn about the holding
in one case. The student, however, omits vital information. We need to
know what policy considerations guide the court in deciding how to
exercise its discretion. We also need to know why the court decided the
Whipple case as it did. The “law discussion only” approach fails to give us
the information we need to engage in legal analysis.
6. A Good Example
The following is an edited excerpt from a good discussion of the law,
accompanied by appropriate discussion of policies and equities, but
avoiding abstraction or “soapboxing”:
Ohio Rule of Evidence 501 allows Ohio courts to use their discretion in deciding what
privileges they will allow. The rule states that “[t]he privilege of a witness, person, state or
political subdivision thereof shall be governed by statute enacted by the General
 Assembly or by principles of common law as interpreted by the courts of this state in the
light of reason and experience.” Ohio R. Evid. 501.
Because the statutory privileges of §2317.02 controvert the general policy that
disclosure of all information in the possession of witnesses in trials is necessary to insure
the disclosure of the truth, the Ohio courts have been consistent in their refusal to extend
the privileges beyond those which are specifically listed in the statute. Section 2317.02
recognizes as privileged, communications between attorney and client, physician and
patient, clergyman and parishioner, husband and wife, and professional counselor and
client.
In Whipple v. Render, C.A. No. 2480, 1989 Ohio Ct. App. LEXIS 3493, at *3 (Sept.
13, 1989), the court followed Ohio precedent and refused to extend the privilege of
physician-patient to include dentists or dental surgeons. The court noted that the Ohio
statute “is a derogation of the common law and must be strictly construed. Consequently,
the aforementioned section affords protection only to those relationships which are
specifically named therein.” Id. That court thus aligned itself with the earlier case of
Belichick v. Belichick, 37 Ohio App. 2d 95, 307 N.E.2d 270 (1973). That court stressed the
importance of the disclosure of all information necessary to discover the truth. “The
granting of privileges against disclosure constitutes an exception to the general rule, and
the tendency of the courts is to construe such privileges strictly and to narrow their scope
since they obstruct the discovery of the truth.” Id. at 96-97, 307 N.E.2d at 271. Further, the
court said, “R.C. 2317.02 is in derogation of the common law and must be strictly
construed and consequently, the aforementioned section affords protection only to those
relationships which are specifically mentioned therein.” Id. at 97, 307 N.E.2d at 271.
Several other Ohio decisions have refused to extend the privileges of §2317.02. See
Weis v. Weis, 147 Ohio St. 416, 423, 72 N.E.2d 245, 252 (1947) (no physician-nurse
privilege); State v. Hallech, 24 Ohio App. 2d 74, 81, 963 N.E.2d 917, 922 (1970) (no
parole officer-parolee privilege); Arnovitz v. Wozar, 9 Ohio App. 2d 16, 21, 222 N.E.2d
660, 665 (1964) (no attorney-witness privilege when witness was not client).
The Ohio courts’ refusal to recognize privileges outside those authorized by statute is
based on the policy that justice cannot be served if vital information is kept out of the
record. The court so firmly believes this that it will refuse to recognize even those
privileges authorized by statute where such recognition would protect criminal conduct. In
State v. Tu, 17 Ohio App. 3d 159, 478 N.E.2d 830 (1984), a defendant who was being
criminally prosecuted for vehicular homicide claimed the physician-patient privilege to
prevent the introduction of a blood-alcohol test result into evidence at his trial. The court
held that the privilege was not absolute and that “statutory privileges, unless they
expressly provided otherwise, were simply not designed or intended to shield criminal
conduct.” Id. at 163, 478 N.E.2d at 833.
It follows that even if Ohio did recognize a parent-child privilege, it would never
uphold the privilege in a case such as this one, where a defendant seeks to use the
privilege to exclude vital evidence in a criminal prosecution for possession and sale of
cocaine.
If you apply the lessons of this chapter, and the approach to legal
analysis discussed in Chapter 6, to all legal memoranda you write, you
should find that your writing will be well received by those who use it to
guide their decisions in practice. You will write clear, concrete, and concise
yet thorough documents that will earn you a reputation as a knowledgeable
and thoughtful lawyer.
Exercise
Below is a poorly written example of part of the discussion of Edna
Smith’s case. Identify what is wrong with it.
In Sinn, the court held that a mother who witnessed an accident on the street from the
front door of her house was located near the scene of the accident. Id. at 173, 404 A.2d at
686. Similarly, in Anfuso v. Smith, the court held that a mother who heard a car accident
while inside her home and rushed out to see that her daughter had been injured in the
accident was located near the scene of the accident. 15 Pa. D. & C.3d 389, 393
(Northampton Co. 1980). The Anfuso court further held that the mother had a sensory and
contemporaneous observance of the event. Id. In Bliss v. Allentown Public Library, the
court held that a mother who was twenty-five feet away from her son when she heard a
metal sculpture fall on him was located near the scene of the accident. 497 F. Supp. 487,
489 (E.D. Pa. 1980). The Bliss court also held that the mother had a sensory and
contemporaneous observance of the event. Id.
In Brooks v. Decker, the court held that a father did not have a valid cause of action
for negligent infliction of emotional distress. 512 Pa. 365, 516 A.2d 1380, 1383 (1986). In
Brooks, the father did not hear or see the car accident in which his son was injured. Instead
he saw an ambulance race past him with its lights flashing and its sirens on. When he
arrived at home, he saw his injured son lying on the ground. Id. The court found that the
father did not have a valid cause of action because he did not hear or see the accident as it
occurred. Id.
Edna was located near the scene of the accident, and the first part of the Sinn test has
been met. Edna had a sensory and contemporaneous observance of the accident, and the
second part of the Sinn test has been met. Therefore, Edna will win her case.
§15.01. INTRODUCTION
This chapter will give you the opportunity to practice developing a
facts section and a discussion section of a memo. The legal issues to be
developed here are similar to those covered in the previous chapter, but with
a new set of facts and case law.

§15.02. DRAFTING THE FACTS SECTION

After meeting with the client, you dictated the following notes of the
interview:
Lisa Ellington has come to see us because she was devastated by the
recent death of her son Josh. A couple of weeks ago, her husband John
Ellington, a ten-year veteran of the City of Chapman police department,
shot and killed seven-year-old Josh and himself. He also wounded Lisa and
their three-year-old daughter Katie. There was a long history of trouble in
the nine-year marriage. John beat Lisa frequently, usually when he was
drunk.
Lisa called the police whenever John got out of control, including at
least seven or eight times over the last two or three years. All calls were
responded to, and John was taken into custody twice. She doesn’t know
whether he was ever actually arrested, and he was never formally
prosecuted because he always promised to change and get help with his
drinking and she wanted to work things out, so she didn’t press charges.
Lisa was hospitalized once last year with broken ribs and other injuries and
contusions. John took her to the hospital that time, and they both lied and
said she had fallen down the stairs. John had seemed really upset that he
had hurt her so badly, and she really thought that might be a turning point in
the relationship. John had never before threatened Lisa or the children with
a weapon.
On the night of the shootings, Lisa called 911, asking for immediate
assistance because John was drunk and threatening her with a gun. John
was yelling that she was no damn good and needed to be “taught a lesson.”
She doesn’t know exactly what set him off, but he came home drunk and
missed dinner. The children were crying, and she wanted to send them to
their rooms, but John said no. After she called 911, John punched her in the
face three or four times and threw her against a wall, right in front of the
children.
Two officers responded to her 911 call. They knocked on the door, and
John answered. He was holding his service revolver. The officers, Randy
Miller and Jake Holmes, asked John to step outside. He complied, and they
asked him what was going on. He started yelling again about how Lisa was
no good and needed to be “taught a lesson.” Randy and Jake took John’s
gun.
At this point, Lisa went to the door, bleeding from the nose and with a
split lip, and told Randy and Jake that she had had enough, and she wanted
John arrested. She said that she would follow through with the prosecution
this time, and that she was going to take the children and go to her
mother’s. She also said she was finally going to divorce John. This seemed
to enrage John even further, and he reached for his gun while screaming and
cursing at her, calling her an “ungrateful *****” among other things. Randy
and Jake took John away.
Lisa went back into the house to calm the children and clean up her
face. She called her mother and told her they were coming. Lisa’s mother
was very relieved because she had been worried about the situation with
John for some time. Lisa began to pack up some things for herself and the
children. After about two hours, John returned home, came into the
bedroom and found her packing, drew his gun, and fired at her, hitting her
in the stomach. He then left the bedroom to find the children. Lisa heard the
gunshots that killed her son and wounded her daughter, but did not actually
see the shootings. John then took his own life.
Josh was shot in the head and died immediately. Katie was shot in the
leg and will be physically okay, but she is showing signs of serious
emotional trauma. She has nightmares every night and is always looking
over her shoulder in fear. She jumps and screams at any sudden noise, like
the phone ringing or a door slamming. She was always an outgoing child,
but now Lisa can hardly get her to say three words. She hangs onto Lisa all
the time. The doctors had to remove part of Lisa’s spleen, but she should be
okay physically as well. She has also been having nightmares and is having
a lot of trouble coping. She feels as though she could have saved Josh if
only she had left sooner, but it never occurred to her that the officers would
keep John for only two hours. The last time they took him into custody,
they kept him at the station overnight and then let him call her to see if she
wanted him to come home.
Lisa believes that the officers did not take the situation as seriously as
they should have, and that they gave John a break because he was a fellow
officer. She told them about wanting to divorce John and taking the kids to
her mother’s because she wanted them to understand that she was really
serious this time, and that she wanted them to treat him like they would any
other criminal.
Lisa wants the police department and maybe the city to pay—it won’t
bring Josh back or give Katie back her smile, but she is really hurt and
angry, and she is going to have a lot of bills to pay, including counseling for
Katie and maybe herself. She can work as a secretary, but hasn’t since Josh
was born because John wanted her at home with the children. He always
said he was man enough to provide for his family. Lisa doesn’t know how
much life insurance or pension John had, and she doesn’t know whether the
department will continue to pay for the health insurance she had before.
You can draft a facts section for your memo now, but it would
probably be better to wait until you have read the applicable law because
you won’t know for sure which facts are relevant until you understand the
law. When you do draft the facts section, be sure to include all facts that are
legally relevant or otherwise necessary to tell a coherent story. Omit facts
that do not meet those criteria. Remember to keep the tone of the facts
section objective and to tell the story in a logical order.

Here is a synopsis of the governing case law:

1. Elden v. Sheldon, 46 Cal. 3d 267, 758 P.2d 582, 250 Cal. Rptr. 254
(1988)
 In Elden, the court held that damages may be recovered for reasonably
foreseeable emotional distress and physical injury resulting from plaintiff’s
witnessing of an accident in which a closely related person is injured or
killed by the negligent act of the defendant. In determining whether
defendant should reasonably foresee the injury to the plaintiff, the court
took into account the following three factors:

(1) whether plaintiff was located near the scene of the accident as
contrasted with one who was a distance away from it;
(2) whether the shock resulted from a direct emotional impact upon
the plaintiff from the sensory and contemporaneous observance of
the accident, as contrasted with learning of the accident from
others after its occurrence; and
(3) whether plaintiff and the victim were closely related, as contrasted
with an absence of any relationship or the presence of only a
distant relationship.

2. Hoyem v. Manhattan Beach City School District, 22 Cal. 3d 508, 585

P.2d 851, 150 Cal. Rptr. 1 (1978).

In Hoyem, the court held that a mother, who was not present at the
scene of an accident where her ten-year-old son was struck by a motorcycle,
could not recover for the emotional distress that she suffered upon
observing such injuries in the hospital a few hours after the accident. The
plaintiff urged the court to apply the Dillon rule that “courts should allow
recovery to a mother who suffers emotional trauma and physical injury to
her child for which the tortfeasor is liable in negligence.” Dillon v. Legg, 68
Cal. 2d 728, 730, 441 P.2d 912, 914; 69 Cal. Rptr. 72, 74 (1968). The court
declined to extend the Dillon rule, holding that “Dillon requires more than a
mere physical presence:…the shock must also result from a ‘direct
emotional impact’ on the plaintiff caused by a ‘sensory and
contemporaneous observance of the accident.’” Justus v. Atchison, 19 Cal.
3d 564, 584, 565 P.2d 122, 135; 139 Cal. Rptr. 97, 110 (1977). Therefore,
the plaintiff mother’s cause of action for NEID was properly dismissed.
3. Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916, 616 P.2d 813,
167 Cal. Rptr. 831 (1980).

In Molien, a doctor misdiagnosed a patient as having syphilis and

advised her to tell her husband so he could be tested and treated if
necessary. Since the doctor’s negligence was expressly directed at the
husband as well as the wife, the husband was permitted to pursue a claim
for negligent infliction of emotional distress. The risk of harm to the
husband was reasonably foreseeable, therefore the defendant owed the
plaintiff husband a duty to exercise due care in diagnosing the physical
condition of his wife.
The Molien court also found that the plaintiff was not barred from
recovery by the fact that he did not suffer a physical injury. The court held
that “the underlying purpose of such an action [loss of consortium arising
out of infliction of emotional distress] is to compensate for the loss of
companionship, affection and sexual enjoyment of one’s spouse, and it is
clear that these can be lost as a result of psychological or emotional injury
as well as from actual physical harm.” Agis v. Howard Johnson Co., 371
Mass. 140, 355 N.E.2d 315, 320 (1976).
4. Thing v. La Chusa, 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865
(1989).

In Thing, a mother who did not witness an accident in which a car

struck and injured her child could not recover damages from the driver of
the car for emotional distress she suffered when she arrived at the accident
scene. The court held that in the absence of physical injury or impact to
plaintiff himself, damages for emotional distress should be recoverable only
if

(1) plaintiff is closely related to the injury victim,

(2) plaintiff is present at the scene of the injury-producing event at the
time it occurs and is then aware that it is causing injury to the
victim, and
(3) as a result, plaintiff suffers emotional distress beyond that which
would be anticipated in a disinterested witness.
 The court applied this three-part test to determine whether the mother’s
injury was foreseeable. The undisputed facts established that the plaintiff
was not present at the scene of the accident in which her son was injured,
did not observe defendant’s conduct, and was not aware that her son was
being injured. Therefore, the plaintiff mother could not establish a right to
recover for the emotional distress that she suffered when she learned of the
accident and its consequences.

5. Ess v. Eskaton Properties, Inc., 97 Cal. App. 4th 120, 118 Cal. Rptr. 2d
240 (2002).

In Ess, the plaintiff, sister of a nursing facility patient, brought an

action for negligent infliction of emotional distress against the nursing
facility, alleging that she suffered severe emotional distress as a result of the
injuries her patient sister received when sexually assaulted by an unknown
intruder.
The court held that damages for negligent infliction of emotional
distress (NIED) may be permitted in a “bystander” case where the plaintiff
is closely related to the victim of a physical injury, is present at the scene of
the injury-causing event and is then aware that it is causing injury, and
suffers emotional distress beyond that which would be anticipated in a
disinterested witness. In Ess, the plaintiff could not pursue a bystander
cause of action because she was not present at the event that caused the
injury to her sister.
The court also stated that recovery for NIED may be permitted if the
plaintiff is a “direct victim.” Direct victim cases involve the breach of a
duty owed the plaintiff that was assumed by the defendant, imposed on the
defendant as a matter of law, or arose out of a preexisting relationship
between the two. In this case, the plaintiff alleged that she had a close
familial relationship with her sister and had undertaken care for her since
her sister’s diagnosis with Alzheimer’s disease. However, the court held
that when the sister became a resident of the nursing facility, the defendants
undertook to provide care to the sister. Therefore, the plaintiff incidentally
benefited from defendants’ duty of care to her sister, but this was not
sufficient to support a direct victim cause of action for emotional distress.

6. Powers v. Sissoev, 39 Cal. App. 3d 865, 114 Cal. Rptr. 868 (1974).
 In Powers, the plaintiff sought damages for emotional distress
resulting from seeing her daughter thirty to sixty minutes after the daughter
was struck by a truck. The court found that the mother could not recover
because the circumstances were not materially different from those
undergone by every parent whose child has been injured in a non-observed
and antecedent accident.
7. Ochoa v. Superior Court of Santa Clara, 39 Cal. 3d 159, 703 P.2d 1, 216
Cal. Rptr. 661 (1985).

In Ochoa, the plaintiffs sought damages for emotional distress arising

out of the death of their thirteen-year-old son. The parents were present
when the medical needs of their son were allegedly ignored by personnel of
the county juvenile hall. The court found that the parents could bring an
action for emotional distress under the “percipient witness” theory pursuant
to the court’s holding in Dillon v. Legg, (1968) 68 Cal. 2d 728, 441 P.2d
912, 69 Cal. Rptr. 72. Mrs. Ochoa [the mother] was a foreseeable plaintiff,
looking on “as a helpless bystander as the tragedy of her son’s demise
unfolded before her.” Ochoa, at 173.

8. Fife v. Astenius, 232 Cal. App. 3d 1090, 284 Cal. Rptr. 16 (1991).

In Fife, the parents and brothers of an automobile accident victim

sought damages for emotional distress. From their family home, the
plaintiffs heard the automobile crash and saw debris fly. The court held that
the plaintiffs could not recover because they did not know that the victim
was involved in the accident at the time they heard the crash.

9. Campanano v. California Medical Center, 38 Cal. App. 4th 1322, 45 Cal.

Rptr. 2d 606 (1995).

In Campanano, a patient’s family brought a cause of action for NIED

under the “bystander” theory pursuant to the court’s holding in Dillon v.
Legg. The family sought damages alleging that the hospital had improperly
placed an intravenous line in the patient’s arm, and that this negligence
resulted in the swelling, blistering, and eventual amputation of that arm.
The court held that “the only recoverable damages are those which arose
from plaintiffs’ observation of the injury-producing event, the infusion. Any
distress which arose from observations of subsequent injuries…is simply
not compensable.” Campanano, at 1329.

10. Moon v. Guardian Postacute Services, Inc., 95 Cal. App. 4th 1005, 116
Cal. Rptr. 2d 218 (2002).

In Moon, the plaintiff sought damages for NIED after he observed

abuse to his elderly mother-in-law in a skilled nursing facility. While at the
nursing facility, the plaintiff observed that his mother-in-law had become
“malnourished and dehydrated, had lost significant weight, had become
immobile and bedridden, had contracted infection, and had become
incontinent.” The court held that the plaintiff was not “closely related” to
his mother-in-law, such as was necessary for him to establish a claim to
recover for negligent infliction of emotional distress under the “bystander”
theory. Id. at 1008.

§15.03. EDITING THE FACTS AND DISCUSSION SECTIONS OF

A MEMO
Assume that an associate drafted the following facts and discussion
sections of a memo on the Ellington case. What feedback would you give
the associate?
Facts:
Mrs. Lisa Ellington (hereinafter “Lisa”) is interested in filing a claim
against the police department and possibly the City of Chapman for
negligent infliction of emotional distress (“NIED”). Lisa desires to bring
said claim as the result of a tragic incident which occurred at her home two
weeks ago whereupon her husband John, a ten-year veteran of the police
department, went gun-crazy and killed their seven-year-old son, Josh, and
injured Lisa, as well as their three-year-old daughter Katie before he shot
and killed himself. John was a wife-beater whose violent tendencies flared
when he became intoxicated. There is a recorded history of domestic
violence that occurred throughout John and Lisa’s troubled nine-year
marriage, resultant in numerous injuries, including Lisa’s hospitalization
one year ago for broken ribs. Lisa reportedly called the police when John
was “uncontrollable,” which occurred at least seven or eight times over the
last two-three years. However, in typical victim fashion, Lisa never pressed
charges against John, idealistically believing his promises that he would
change. Prior to this event, John had reportedly never injured the children
or threatened Lisa with a weapon.
On the night of the incident, Lisa telephoned 911 for emergency
assistance and reported that John was drunk and had threatened her with a
gun. The children were present and John refused to allow them to go to
their rooms. The crying children were therefore present to witness Lisa
being punched in the face several times and thrown against the wall by
John. When the police arrived John answered the door holding his gun. The
officers, Randy Miller and Jake Holmes, took John outside and took his gun
away.
Lisa was visibly injured, with blood streaming down her face when she
came to the door. She informed the police that she wanted John arrested and
prosecuted. Lisa conveyed to the police that she was going to file for
divorce and that she could no longer handle John’s violent beatings. Lisa
told the police that she was going to take the children and go to her
mother’s, and John was taken to the police station. About two hours after
the incident had ended, while Lisa was preparing to leave for her mother’s
house, John entered the bedroom and shot Lisa in the stomach; he then went
to find the children. Lisa heard the gunshots that killed her son and
wounded her daughter, but did not actually see the shootings. John then
took his own life.
Lisa believes that the police were negligent in failing to hold John at
the police station given their knowledge of the danger that John presented
to Lisa and the children. Lisa believes that the police violated standard
protocol by allowing John, a fellow cop, to leave only two hours after he
was taken into custody, when in times past, he was not released until the
following day contingent to Lisa’s permission. While both Lisa and Katie
are predicted to have a successful physical recovery, there are still many
medical bills to pay and the emotional scars are likely to plague them
forever. Lisa and young Katie suffer regular nightmares and are having
difficulty coping, and Katie is easily frightened and unusually withdrawn as
a result of the incident.
Discussion:
Recovery under an NIED claim is an unquestionable challenge given
its elemental requisites, but not an impossible one under our factual
situation. Case history reveals some mixed results regarding recovery for
plaintiffs who are mothers under a theory of NIED, and an often essential
element is whether the plaintiff actually witnessed the trauma-inducing
event, a fact which Lisa does not have in her favor, but Katie might.
California’s liberal courts seem to reserve a certain amount of sympathy for
mother/child scenarios such as ours.
In Elden v. Sheldon, 46 Cal. 3d 267, 758 P.2d 582, 250 Cal. Rptr. 254
(1988), the plaintiff boyfriend sued a negligent driver who unlawfully drove
his vehicle into the plaintiff’s vehicle, which resulted in the injury and
subsequent death of plaintiff’s cohabitant girlfriend who was the
automobile’s driver. The plaintiff boyfriend claimed that as a result of their
close relationship, and the fact that he witnessed the accident, he suffered
foreseeable harm. Although the court recognized “[i]t is manifest…that a
mother will suffer severe emotional trauma from the death or serious injury
of her child in an accident whether or not she is present at the scene,” not
every relationship is close enough to warrant recovery. Elden v. Sheldon,
(1988) 46 Cal. 3d at 274. While the relationship between plaintiff and
victim is undoubtedly one of the primary factors for allowing recovery
under negligent infliction of emotional distress (NIED), the additional
elements of proximity and whether the plaintiff actually witnessed the event
are becoming more of a concern for the courts.
For example, in Hoyem v. Manhattan Beach City School District, 22
Cal. 3d 508, 585 P.2d 851, 150 Cal. Rptr. 1 (1978), the California Supreme
Court affirmed the trial court’s dismissal of plaintiff mother’s claims of
emotional distress at having seen her son, injured in his hospital bed, hours
after the event occurred. In this case, plaintiff’s son was severely injured by
a motorcycle while crossing the street. The trial court dismissed all causes
of action, and on appeal, although the Supreme Court allowed the plaintiff
to collect damages for medical expenses, recovery for emotional distress
was not allowed because of the sheer fact that time and distance separated
the plaintiff from the actual event and the defendant was therefore not
proximately liable for plaintiff’s emotional state as she was not a reasonably
foreseeable victim. In the instant case, our facts are distinctly more
favorable than in Hoyem, considering that time and distance are not
mitigating factors. The son was shot in the same house as Lisa, separated
only by a thin wall. Lisa was present, without being actually in the room;
she heard the fatal gunshot and was able to witness the horrific results of
John’s brutal act within moments of him committing it. A case similar to
Hoyem is Powers v. Sissoev, 39 Cal. App. 3d 865, 114 Cal. Rptr. 868
(1974), where the court refused to allow the plaintiff mother to recover for
emotional distress after she saw her child almost an hour after she was hit
by a truck. The court held, “we do not think that this court should extend
the rule to a case such as this where the shock, as claimed, resulted from
seeing the daughter 30 to 60 minutes after the accident and thereafter under
circumstances not materially different from those undergone by every
parent whose child has been injured in a non-observed and antecedent
accident.” Our facts can be distinguished from both cases on the basis of
location. There was little to no time separating Lisa from the inevitable
shock that she would suffer as a result of seeing her seven-year-old son
dead. And her presence in the home, hearing the sequence of events unfold
but unable to do anything about it, made the experience that much more
visceral.
Another favorable case is Molien v. Kaiser Foundation Hospitals, 27
Cal. 2d 916, 616 P.2d 813, 167 Cal. Rptr. 831 (1980). In this case, a
physician misdiagnosed a patient with syphilis and encouraged the patient
to warn her husband so that he could be tested and treated if necessary.
After the trial court dismissed the complaint pursuant to the defendant’s
demurrer, the California Supreme Court, with Justice Mosk writing,
determined that the plaintiff husband had stated an appropriate cause of
action based on the doctor’s misdiagnosis and the husband’s resultant
emotion distress and loss of consortium. Thus, even though the plaintiff was
not present when the doctor informed his wife of her misdiagnosis, and
therefore was not in the “zone of danger,” he was still entitled to recover
under NIED. “In order to limit the otherwise potentially infinite liability
which would follow every negligent act, the law of torts holds defendant
amenable only for injuries to others which to defendant at the time were
reasonably foreseeable.” Thing v. La Chusa, 48 Cal. 3d 644, 685, 771 P.2d
814, 842 257 Cal. Rptr. 865, 893 (1989) (citation omitted). And the
foreseeable risk may entail not only actual physical impact, but emotional
injury as well. (Id. at 666, 771 P.2d at 828, 257 Cal. Rptr. at 879). In our
situation, it was reasonably foreseeable to the police that John was clearly a
dangerous man who was likely to cause severe emotional and physical
injury to Lisa and her children if he was to be released on that night. The
police were aware of the danger that John posed to his family. Nevertheless,
they negligently released him despite his lengthy and brutal record of
domestic violence coupled with Lisa’s pleadings that he be arrested and
prosecuted.
Thing v. La Chusa, 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865
(1989), is another leading case on NIED. This case also involves a mother
plaintiff, who did not witness the accident wherein an automobile struck
and injured her infant child. The Supreme Court held that damages for
emotional distress, absent physical injury, are available only if (1) plaintiff
is closely related to the victim, (2) plaintiff is present at the scene of the
injury-producing event at the time it occurs and is aware that it is causing
injury to the victim, and (3) as a result, the plaintiff suffers emotional
distress beyond that which would be anticipated in a disinterested witness.
Due to the mother’s absence from the scene of the accident and the fact that
she was unaware that it was occurring, she was unable to recover under
NIED. Our plaintiff is mother and/or sister to the victim; both were present,
in the home, at the time the injury producing event occurred and aware of
what was happening; and lastly both suffer extreme emotional distress,
including regular nightmares, difficult coping, and other depressive
symptoms.
The final case for analysis of Lisa’s position is Ess v. Eskaton
Properties, Inc., 97 Cal. App. 4th 120, 118 Cal. Rptr. 2d 240 (2002),
wherein the plaintiff was the sister of a nursing facility patient who brought
an action for NIED against the nursing facility after her sister was sexually
assaulted by an unknown intruder while under the facility’s care. The court
acknowledged that bystanders are able to bring claims for NIED and
referenced the three-factor test for recovery in Thing v. La Chusa. However,
in this case, because the plaintiff was not a bystander when the incident
occurred and was not aware of what was happening to her sister, her claim
was not recognized. As has been established, Lisa was in the home with her
children when John returned to the house; he had already shot Lisa and
charged off to find the other children. Lisa was a bystander in this situation
in every possible way; she was present and aware of what was happening in
her home. While the defendant police department may offer the argument
that its officers were informed, by Lisa, that she was going to be taking her
children to her mother’s house that evening, it is nonetheless extremely
reckless and professionally negligent behavior for them to release a drunk
wife-beater to undoubtedly seek out his family and finish the job only two
hours after he was brought into custody. The police took a risk in allowing
John to leave early that night, and it was reasonably foreseeable that a mere
two hours after the incident, an understandably shaken and upset Lisa
would still be at the house. She would have had to calm down two small
children and herself, as well as pack for all three of them.
Pursuant to the three-factor test in Thing v. La Chusa, Lisa’s claim for
NIED will survive any demurrers filed by the defendant, and she will
successfully recover damages for all medical bills resultant of the incident,
and any additional claims for emotional damage. The police department
made a grave mistake in allowing John to go early that night, and it was
likely because he was a police officer too. John was reportedly visibly
drunk, obviously dangerous, and threatening to continue to harm his family;
the police department would not have allowed another person in this state to
be released prematurely. The law favors Lisa, and NIED is definitely a
viable theory for recovery based on an analysis of precedent, but also
because of the particularly egregious conduct by the police.

§15.04. DRAFTING THE DISCUSSION

Now write your own discussion section (and facts section if you have
not already done so). After you have analyzed all of the case law, predict
the most likely outcome for your client’s claim of NIED. Your discussion
should begin with a statement of your conclusion and a roadmap paragraph
that describes how the analysis is organized. Your analysis must be
objective—acknowledge and address weaknesses in your claim as well as
strengths. Where important questions are not directly addressed by the case
law, you should explain them as well.
§16.01. INTRODUCTION
Writing and speaking to your client is perhaps the most important
communicating you will do in your career as a lawyer. Attorneys sometimes
become so involved in their cases that they forget the human element. Learn
to communicate well with clients and you will have more work than you
know what to do with. Clients like to be told what is happening in a case,
why it is happening, and what is going to happen next.
One important way to keep the client informed is the opinion letter. An
opinion letter advises a client how the law applies to a particular case and
suggests action to be taken based on that law. The letter serves as a record
of the progress of a case for the attorney and the client. This chapter gives
you some simple guidelines to follow in preparing these important
documents.

§16.02. WRITE IN AN APPROPRIATE STYLE

1. Focus on Your Audience
Remember to write for your reader. In the case of an opinion letter,
your reader will usually be either an individual who does not have a great
deal of legal knowledge or another lawyer, perhaps your client’s general
counsel, who is legally sophisticated. Such sophisticated clients often
request “formal” opinion letters that involve analysis of, and citation to,
relevant legal authority, much like the office memorandum. Each client is
different. Your goal must be to write a letter that will help the individual
client in a particular case. The better you know your client, the more likely
it is that you will be able to achieve that goal.
2. Be Concrete
Your clients want to know what is likely to happen in their cases. A
lengthy, abstract discussion of the law without applying it to the client’s
case will have very little meaning for the client. Explain the applicable rules
to the client, but do it in the context of the case at issue.
In this chapter we use examples from student assignments. All of the
examples in this chapter are taken from student opinion letters discussing a
single case. The case involved a criminal attack on two guests at a hotel.
The issue is whether the guests can sue the hotel for negligence. Under tort
law, to find negligence in such a case, four elements are required:

1. The hotel must have a duty to protect its guests from criminal
attacks.
2. It must unreasonably fail to perform that duty.
3. The failure must have caused the attack at least in part.
4. Damage must result.

Read this passage as if you were the clients to whom it is addressed. In

this case, the clients are the hotel guests who were attacked.
Although Florida law has no statutes for a tort action for the criminal acts of third parties
committed on a hotel’s premises and no security standards have been adopted by the hotel
industry, we think that you can bring a successful negligence action against Palm Court
Hotel. Our opinion is based on past cases tried in Florida that are similar to your case and
that set precedent for the courts to follow. In these past cases both motels/hotels and
landlords were held liable for assaults committed by third parties on their premises when
plaintiffs could prove that the hotel/motel or landlord had acted negligently in protecting
its guests. These rulings are supported by Florida statutes for landlords and innkeepers.

As the clients, what have you learned? Do you understand how

previous cases will help the court decide your case? Do you understand the
significance of the presence or absence of statutes or industry standards?
These are the kinds of questions to which clients should be able to answer
“yes” after reading a letter from you. The clients who read this letter would
answer “no.”
Compare the next two examples and decide which you would prefer to
receive if you were the same clients.
 FIRST EXAMPLE
A hotel has a duty to protect its guests from harm based on the nature of the business and
the social policies involved. In general, a hotel’s duty is to exercise reasonable care in
protecting its guests. The test for “reasonableness” is whether a reasonable person knew or
should have known that there was potential danger based on the circumstances (for
example, area crime rate, occurrence of similar crimes on the premises, design of the
hotel, etc.) and whether appropriate precautions were taken to prevent or deter such
danger. This determination is made on a case-by-case basis.

SECOND EXAMPLE
Generally, in cases like yours two things are required to find the hotel liable. First, the
hotel must have had cause to believe that such an attack might occur. Second, a court must
find that the hotel did not take reasonable steps to prevent such an attack.

The second example is much more concrete. The sentences are shorter
and the language is simpler. Obviously, the analysis must be fleshed out and
the law applied to the case, but at least you have a better understanding of
the legal test. The concrete examples provided in parentheses in the first
example would fit nicely in this paragraph. What else would you add?
3. Avoid Sounding Colloquial
Even when you are writing for lay clients and want to use language
they can understand, maintain a formal tone. The rules for opinion letters
are the same as for other legal documents. Avoid contractions, slang, and
other colloquialisms. You do not want to sound stuffy or cold, but you do
want to sound professional. Avoid sentences like these:

I don’t see any problem with this.

We have several things going in our favor.
I believe we can nail down a favorable settlement.
FYI, the courthouse closes at 2:00 p.m. on Fridays.

4. Avoid Jargon and Stilted Language

You should avoid using unnecessary legal jargon and stilted
construction. Again, remember your audience. If you are writing to a
layperson, avoid legal terminology altogether if possible. But if you are
writing to another attorney, he or she will expect you to use appropriate
legal terminology. For example, you might include this passage in a letter to
the general counsel for the Palm Court Hotel:
 Palm Court Hotel had a legal duty to exercise reasonable care for the safety of its guests.
The hotel was obligated to use whatever security devices the average reasonable person
would have used in the same circumstances. In view of the hotel design and location, and
the criminal activity in the area, there should have been some control over access to the
building.
By failing to control or even monitor access to the guest building, Palm Court
negligently breached its duty of reasonable care for the Smiths’ safety.

Conversely, if you were writing to the Smiths, you would use simpler
language, and explain legal concepts rather than using terms of art.
Palm Court failed to provide chain locks on the guest room doors. While no hotel industry
standard requires a chain lock, providing a lock in your case would have enabled Mr.
Smith to keep the door locked when checking to see who was at the door.
The extent of a hotel’s liability depends in large part on the crime rate in the area
surrounding the hotel and the occurrence of similar crimes on or near the premises. If
Palm Court was not aware of the sharp increase in the crime rate in the area surrounding
the hotel, it should have been. Palm Court was also aware of several similar crimes that
had taken place at the Seaside Inn, a sister resort located directly across the street.
A hotel’s response to foreseeable danger and its attempts to exercise reasonable care
can be measured most easily by the security measures and personnel it provides. Palm
Court provided only one guard to patrol the entire resort, including the main buildings,
four outlying guest buildings, and the grounds. The hotel also kept the access doors to the
guest buildings unlocked at all times. Our security expert will testify that such security
measures are clearly inadequate to protect a facility as large as Palm Court.

5. Use Correct Spelling and Grammar

It is just as important to spell correctly when you write to a client as it
is when you write to the courts or to other lawyers. Avoid the grammatical
errors we discuss in this book. Failure to write proper English will destroy
your credibility as a professional. A client quite rightly will wonder about
the impression you will make on judges and other attorneys if it appears
that you cannot write grammatically or spell accurately. A few extra
minutes will help you avoid this problem.

§16.03. ANSWER THE QUESTION

Usually a client’s specific question prompts you to write the letter.
Make certain that your letter gives the client all of the information
necessary to make an educated decision. Here are five guidelines that will
help you provide this information effectively.
1. Include Important Facts Provided by the Client
 Before you analyze the problem presented by your client, you should
restate the important facts the client previously provided. The client knows
what happened, but your job is to connect those events to the law and give
your professional opinion on the probable outcome of the case. It is
important to be certain that you and the client have the same understanding
of the facts. Recording the known facts in a letter to the client may jog the
client’s memory about something else important that happened. If other,
less helpful, facts surface later, you will be able to remind your client that
your more optimistic assessment of the case was based on the facts that
came from the client, as outlined in the letter. Your presentation of the facts
in our case might look something like this:
I understand the facts of your case to be as follows: Palm Court is a Florida resort
complex with 200 rooms and extensive grounds. It is illuminated mainly by pathway
lights, and none of the five buildings have exterior lights. The access doors of the building
in which you were staying were never locked. Although the steel door of your suite was
spring-locked and had a doorknob with an anti-picking device, there was no safety chain
on the door. The door’s observation port did not permit you to see to the sides of the door.
No trained security guard was on duty at the time of the attack, though there had recently
been a dramatic increase in the crime rate in the area, including several thefts at Palm
Court and several assaults on persons at the Seaside Inn across the street. On the evening
of the attack, you heard a knock on your door. You did not see anyone when you looked
out the port, so you opened the door. The attack then took place.

2. Be Accurate
You should have legal authority to support any argument you make.
Although you do not cite that authority in a letter to a lay client, you should
be prepared to cite appropriate authority in a formal opinion letter. In either
case, you must be confident that the relevant authority supports the
conclusions you state. The client will make decisions about future actions
based on your advice. Provide the best guidance you can.
In our sample case, one writer declared:
One of the areas of law that pertains to your case involves the responsibility of Palm Court
for the acts of your assailants. Palm Court is responsible for the crimes you suffered while
you were its guests. A hotel is in the business not only of providing lodging but also of
providing its guests with reasonable care for their safety.

The last sentence in the paragraph states the law fairly accurately, but the
middle sentence creates a misleading impression. It is up to a court, not the
lawyer, to decide whether the hotel is legally responsible for an attack on its
guests.
3. Explain Your Answer
It is not enough to tell a client that you advise a certain course of
action. Explain the reasons for your recommendation. The reasons may be
legal or practical. In either case, make sure you explain the reasons clearly
in the letter. In explaining the legal basis for an opinion, be sure you apply
the law to your client’s case. You learned to integrate your discussion of the
law and the facts in Chapter 6. Apply the same rules here.
FIRST EXAMPLE
We must prove that the hotel failed to exercise reasonable care. Though the hotel
exercised some degree of care in the safety measures and procedures adopted, we believe
this security was inadequate. We believe that there was a need for not one, but two,
patrolling security guards whose shifts would start at 7:00 p.m., not 10:00 p.m. This
proposed level of security would have been sufficient to deter the type of crimes which
occurred. In addition, Palm Court was or should have been aware of the increasing crime
rate in the area and the recent assaults in the vicinity that make this type of crime
foreseeable. Palm Court will probably say that the security provided was adequate under
the circumstances and, therefore, that it exercised the reasonable care required.

SECOND EXAMPLE
The security provisions of the hotel, both guards and physical security devices, were
found to be inadequate. The number of guards was insufficient for a hotel of that size, and
the hours patrolled were too few. The physical security devices were also insufficient,
since Mr. Smith had to open the door to see who was there when he heard the knock.

As far as the clients could tell from either of these examples, all the
writers have presented are their personal opinions. In the first example, the
writer even said “we believe” in two separate places. In the second
example, the writer says the security measures “were found to be
inadequate.” By whom? In both cases, the writer should have given the
client some legal basis for the conclusions reached. The idea is not
necessarily to cite cases or other authority, but to explain the legal standards
by which a court will judge the actions of the parties. Here is a revision of
the second example.
A hotel has a legal obligation to take reasonable steps to ensure the safety of its guests.
What is reasonable depends on the circumstances. In this case, the increase in crime in the
area and the attacks at the Seaside Inn made the attack on you more likely and therefore
legally foreseeable. Our security expert will testify that these facts made the security
provisions of the hotel inadequate. The number of guards was insufficient for a hotel of
that size, and the hours patrolled were too few. The physical security devices were also
 insufficient, since Mr. Smith had to open the door to see who was there when he heard the
knock.

4. Do Not Promise What You Cannot Deliver

In addition to making sure that your conclusions are accurate, be
certain that your advice is honest. One student wrote:
In regard to your claim against Palm Court Hotel for the attack that occurred on May 31,
2014, I have concluded that if you decide to proceed, you will probably recover a large
sum of money in damages because the hotel was negligent in failing to prevent the crime.

This is a dangerous approach. You may create expectations that you will not
be able to fulfill. Even though the law may appear to be in your favor, there
are many other factors that can affect the outcome of a legal proceeding.
You do not have control over some of these factors, such as the judge or
jury who ultimately decides the case, so you should not make promises you
may not be able to keep.
Do not interpret this rule to mean that you should take a negative
approach when you advise your client. As explained by one writer:
Not only should advice be affirmative, but the giving of it, as of all things, should be
cheerful. Even as with the physicians, while clients come to us for advice, it is usually
more for comfort and assurance that they seek us and this is so whether the client be a
poor widow or the president of a wealthy corporation. While we must not close our eyes
to the bad or disadvantageous or dangerous aspects of the client’s problem or situation, we
should endeavor to find its most favorable aspect and, from that vantage point, advise him
cheerfully and affirmatively what to do. One who has a problem which seems dark and
hopeless is not helped by a lawyer who sheds only new darkness upon it. We should
remember that the leaders of lost causes were never men of dismal minds. No opinion
letter should import fear into the client’s mind, unless the writer of it at once eradicates
that fear by strong affirmative advice.1

As with most legal tasks, you must strive to find the proper balance when
you give honest advice to your client.
5. Address Your Client’s Concerns
If you are aware of any special concerns of your client, address them
in your letter. If your client is a cost-conscious businessperson, you might
want to stress the cost-effectiveness of a particular course of action. If your
client has never had any contact with the legal system and is somewhat
afraid of it, be especially reassuring. Tell the client that you are available to
answer questions and that you will be there every step of the way.
 Clients like to feel that their lawyers think of them as human beings
and not just as files or cases. It does not take much effort to add the little
touch that lets a client know you have paid attention to what the client has
told you. Listen carefully, be considerate, and communicate effectively.

§16.04. TELL THE CLIENT WHERE YOU ARE GOING

As you conclude the letter to your client, continue to think concretely.
What is the next step? Who should take that step, and when will it happen?
Use the final paragraph of your letter to give the client a clear idea of what
happens next, so he or she feels more confident. It is not necessary to
summarize what you have said previously in the letter. The document is not
that long. Do not offer general predictions about what might or might not
happen in the case. Avoid writing something like this:
For all of these reasons our case against the hotel is strong. Because of previous attacks at
the Seaside Inn and the size and expanse of Palm Court we should be able to prove the
hotel should have realized the possibility of an attack on its patrons. Whether the judge or
jury believes our security expert will be crucial to our case; however, established law does
support our expert. The lack of TV monitoring equipment and security access doors also
supports our case. Although I cannot assure a decision in our favor, I feel confident that
the hotel will be found liable if we bring this action.

The writer could have concluded more effectively by offering to begin

legal action upon instructions from the client. In some situations you might
suggest a meeting with the client. Sometimes the next step is to wait for
action from the court or the opposing party. If so, tell the client that you
advise doing nothing and why. Tell the client what will happen next as
precisely as possible. The client then will feel more comfortable with the
progress of the case and with your representation.

Exercise
Rewrite the following letter using the rules you have just studied. The
letter discusses the same case you have read about throughout this chapter.
Dear Mr. and Mrs. Smith:
This letter pertains to the suit we are bringing against the Palm Court Hotel where
you both were assaulted in May of 2014. We are asserting that the hotel was negligent of
its required duties to the two of you as guests. To establish negligence we must first prove
that the hotel was negligent of its required duties to the two of you as guests. To establish
negligence we must first prove that the crime committed against you was foreseeable.
Secondly, we must show that the hotel responded inadequately to that foreseeable crime.
 In establishing foreseeability of the crime, we will try to show that criminal activity within
the community and within the immediate vicinity should have alerted the management
that a similar crime may occur on its premises. After establishing that the crime was
indeed foreseeable, we must then assert that the Palm Court Hotel took insufficient
security measures to deter or prevent the occurrence of the crime. An analysis of the
security precautions taken by the hotel and testimony from an expert witness will be
instrumental in deciding whether the hotel instituted the necessary security system to deter
or prevent the foreseeable crime.
We expect the outcome of the suit to be in your favor. There is ample evidence of
similar crime within the immediate area of the Palm Court Hotel. We feel that the court
will find that the hotel neglected its duties to secure the grounds in light of the
foreseeability of the crime. We have evidence that the security staff was insufficient and
that the premises were vulnerable to crime. With a judgment in your favor, we can request
compensatory and punitive damages. Compensatory damages are damages to compensate
you for some of the injuries you sustained and some of the grief you have suffered,
however inadequate this may be in reality. Punitive damages are a form of punishment
levied upon the hotel for negligence.
Sincerely,

_______

1. Arthur Littleton, Writing an Opinion Letter to a Client (unpublished, 1959).

§17.01. INTRODUCTION
This chapter will give you the opportunity to practice drafting and
editing a client letter, using the principles you learned in the previous
chapter. Assume that you received a memo outlining the facts and law you
need to know before drafting a letter to your client, Sandy Harmon. Sandy
came to you looking for advice on what to do about a coworker who has
been making her life difficult. The facts and legal analysis from the memo
are reproduced below.
MEMORANDUM
Facts
Sandy Harmon and Kris Martin both work for a software company,
Playtime, Inc. Martin asked Mrs. Harmon out several times, and she refused
each time. His behavior progressed into repeated telephone calls to her
home and hanging up on her husband. He told Mrs. Harmon he would
convince her husband there was something going on between her and
Martin so that her husband would divorce her. Shortly after, she started
receiving phone calls from strange men making “seriously lewd
propositions.” She found out from a coworker that Martin had put her
phone number and later her address on his webpage. She asked Martin to
stop, and he just laughed. More recently, guys have actually come to her
house wanting to engage in sex. Her husband has had to chase them off
their property. Some of the men even asked if the husband would join. At
one point they had to call the police for assistance. Finally, Mrs. Harmon
went into work one day and threatened Martin with a lawsuit, and he
responded by laughing. She began to cry and yell, trying to convince him to
stop. She then had to speak to her boss and explain her situation, and she
took the rest of the day off. Mrs. Harmon has suffered emotionally, from
lack of sleep and from not knowing what these strange men will do to her or
when they will next show up at her doorstep. She is quite frightened and
wants this to stop. She wants to know if she has a viable claim against
Martin for stalking, either criminally or as a tort, or even both.
Discussion
In California, one can be liable for stalking either criminally or as a
tort. Stalking as a crime is defined by California Penal Code §646.9, which
defines stalking as willfully, maliciously, and repeatedly following or
harassing another person and making a credible threat with the intent to
place the victim in reasonable fear for her safety, or the safety of her
immediate family. Id. The three elements of the crime are (1) repeatedly
following or harassing another person (2) making a credible threat (3) with
the intent to place that person in reasonable fear of death or great bodily
injury. People v. Ewing, 76 Cal. App. 4th 199 (1999).
Stalking as a tort is defined under California Civil Code §1708.7.
Although there are no cases dealing specifically with the tort of stalking, it
would be appropriate to use the current cases dealing with the crime of
stalking since the elements of the two are essentially the same. Under
California Civil Code §1708.7 the elements are:

(1) The defendant engaged in a pattern of conduct the intent of which was to follow,
alarm, or harass the plaintiff.…
(2) As a result of that pattern of conduct, the plaintiff reasonably feared for his or
her safety, or the safety of an immediate family member.…
(3) [That the defendant did] one of the following: (A) The defendant, as part of the
pattern of conduct specified in paragraph (1), made a credible threat with the intention to
place the plaintiff in reasonable fear for his or her safety, or the safety of an immediate
family member and, on at least one occasion, the plaintiff clearly and definitively
demanded that the defendant cease and abate his or her pattern of conduct and the
defendant persisted in his or her pattern of conduct. (B) The defendant violated a
restraining order.…

The main distinguishing factor is that the tort of stalking requires that
the victim demand the defendant to stop his conduct.
Finally, in proving the stalking charges there are two ways the facts of
the case can be interpreted. One approach would be that Martin is guilty of
stalking based on his conduct of making repeated calls to Mrs. Harmon’s
home, hanging up on her husband, telling her that he will convince her
husband there is something going on so that her husband will leave her, and
publishing her phone number and address on his webpage. The second
approach that can be taken is that of a co-conspirator. Although Martin did
not actually make the lewd comments or appear at her doorstep soliciting
sex, he knew that by placing her information on his webpage such actions
would result. He actually intended those results, and as a result would be
criminally liable for stalking as a co-conspirator.
The first way the facts of the case can be interpreted to determine
whether Martin can be found guilty of stalking, either as a tort or criminally,
is based solely on Martin’s conduct. This approach is further developed
throughout this memorandum and is most practically the stronger of the
two. However, the second approach of viewing Martin as a co-conspirator
has a viable standing in this case as well.
When Martin placed Sandy Harmon’s phone number and address on
his webpage he arguably met all three requirements of the crime and tort of
stalking. He “harassed” Mrs. Harmon by taking her private information and
making it available to millions of people. Second, the credible threat
element is met through the conduct of the men who actually called her and
appeared at her doorstep. They had the apparent ability to follow through on
their credible threats and had to be chased away by her husband in order to
stop them from committing the act. Finally, we would need to prove that
both the strange men and Martin intended to place Mrs. Harmon in
reasonable fear of death or great bodily injury. If we can demonstrate that
Martin intended to inflict such injury, circumstantial evidence can also
show that these men could have had the same intent, since they had to be
chased away or the police had to be called. Martin knew that by invading
Mrs. Harmon’s privacy and publishing her private phone number and
address she would be vulnerable to a variety of dangerous situations, which
would not only put fear in a reasonable person, but actually caused Mrs.
Harmon to fear for her safety.
The first element of stalking requires “repeatedly following or
harassing another person, which causes that person to suffer substantial
emotional distress.” Ewing, 76 Cal. App. 4th at 199. In that case, the
defendant initially was storing his belongings in the victim’s garage, but
became more intrusive and began to ask for food and money. Id. at 203. He
then started to make explicit comments to the victim. Shortly after, the
victim noticed that the defendant had set up residence in her garage without
her permission. Id. He continued to stalk her by videotaping her home,
calling her repeatedly, and vandalizing her yard and garage. He was finally
arrested when he stole her television set and VCR. Id. at 204. The court
began its discussion by defining the term “harass” as outlined in §646.9(e)
“…a knowing and willful conduct directed at a specific person that
seriously alarms, annoys, torments, or terrorizes the person, and that serves
no legitimate purpose.” The court continued to elaborate that this course of
conduct “…must be such as would cause a reasonable person to suffer
substantial emotional distress, and must actually cause substantial
emotional distress to the person.” Id. at 206.
The court’s holding in Ewing was that the victim did not demonstrate
substantial emotional distress and therefore the defendant could not be
found guilty of stalking. This holding should concern our victim, Mrs.
Harmon, and we will need to get more detail from her about the nature and
extent of her emotional distress. The court in the Ewing case went to great
lengths to define every term in the statute. Id. at 207.
The rationale for the court’s decision appeared to be based on its in-
depth analysis and definition of each term in the statute, in order to
demonstrate whether both the defendant and the victim met the
requirements of stalking. The court went as far as analyzing what adverb
precedes and qualifies the terms in the statute. The court defined “alarm” as
“to strike with fear: fill with anxiety.” Id. at 207. By placing Mrs. Harmon’s
private information on his webpage, Martin clearly has placed Mrs. Harmon
in a position to be alarmed and anxious, not knowing who will show up at
her doorstep. “Annoy” is defined as “to irritate with a nettling or
exasperating effect.” Id. Once again, Martin’s conduct can easily be labeled
as annoying and has had an exasperating effect on Mrs. Harmon, to the
point where she had to take time off from work. The court continued to
define other terms such as “torment,” which is to “cause (someone) severe
suffering of body or mind: inflict pain or anguish on,” “terrorize,” which is
to “fill with terror or anxiety,” and “terror,” which is “a state of intense
fright or apprehension.” Id.
The court continued its analysis of these terms by pointing out that
they are preceded and qualified with the adverb “seriously.” So each term
should be read with “seriously” preceding it. Id. at 208. The court then
applies the reasonable person standard and rephrases the definition of
“harass” as “a knowing and willful course of conduct directed at a specific
person that [a reasonable person would consider as] seriously alarm[ing],
[seriously] annoy[ing], [seriously] torment[ing], or [seriously] terror[ing]
the person.” Id.
Additionally, the court clarified that the reasonable person standard
also applied to the victim when dealing with the course of conduct that
would cause a reasonable person to suffer. Id. at 208. This would thus
reduce the possibility that a victim’s subjective reaction to a certain
defendant would factor into play. Id. The court concluded that the
“definition of ‘harass’ in section 646.9(e) establishes a standard of conduct
which is ascertainable by persons of ordinary intelligence,” so that a person
could determine whether they are breaking the law by their conduct. Id. at
209. With that in mind, it is clear that we need to demonstrate that any
ordinary person would suffer substantial emotional distress from Martin’s
acts of harassing phone calls and taking private information like a phone
number and address and publishing them on the webpage for millions of
people to access. In addition, we must demonstrate that this conduct did
actually cause Mrs. Harmon to suffer substantial emotional distress.
The court in Ewing established guidelines to determine whether
someone actually did suffer substantial emotional distress. “At the very
least, we can safely assume that the phrase means something more than
everyday mental distress or upset…the phrase…entails a serious invasion of
the victim’s mental tranquility.” Id. at 210. The court continues its analysis
of substantial emotional distress since it is not defined in the statute. By
looking to the tort of intentional infliction of emotional distress as a
guideline, the court concludes that substantial emotional distress means
emotional distress of such substantial quantity or enduring quality that no
reasonable man in a civilized society should be expected to endure. Id. The
court wanted more than “sleepless nights” and “joining a support group.”
Id. at 211. The court concluded that “…there was insufficient evidence that
Ewing’s conduct, however offensive and annoying, actually caused
Ferguson to suffer substantial emotional distress, within the meaning of
§646.9.” Id. at 212. Mrs. Harmon has mentioned that she is “furious,”
“frightened,” and “short of sleep.” There needs to be more than a mere
inconvenience in her life. Therefore, more facts are needed to determine the
extent of her emotional distress in order to prove that she suffered
substantial emotional distress.
 The second element of stalking is the making of a credible threat.
Under §646.9(g), a credible threat is any verbal or written threat as well as a
threat implied by a pattern of conduct. In People v. Halgren, the defendant
stalked the plaintiff by repeatedly calling her at home and work, and saying
such things like “[b]itch, you don’t know who you are f *** ing with. I am
going to call you whenever the f *** I want to, and I am going to do to you
whatever the f *** I want to.” People v. Halgren, 52 Cal. App. 4th 1223,
1227 (1996). He also went to her place of work, watched her, called her,
and made statements like “God, I’ve missed you. You look great in black
today.” Halgren, 52 Cal. App. 4th at 1224. The court in that case found the
defendant guilty of stalking and stated, “[t]o meet the statutory definition
the threat must be made with the specific intent to cause the victim to
reasonably fear for her personal safety or the safety of immediate family.”
Id. at 1231. The issue in that case was whether his conduct constituted a
credible threat. The court held that the facts of the case do indeed present a
credible threat.
The court’s rationale was that the mere making of a credible threat was
not enough and that simply expressing one’s feelings or emotions does not
trigger the statute. The statute clearly specifies “(1) The credible threat was
made with the intent and apparent ability to carry it out so as to cause the
target to reasonably fear for personal safety or the safety of immediate
family; and (2) the threat was made in combination with willful, malicious
and repeated following or harassing of the target.” Id. at 1231. This
definition of credible threat gives the prosecution a broad range of activities
without having to prove that the stalker actually intended to execute what
he threatened he would do. Therefore, we will not have to prove that Martin
actually intended for Mrs. Harmon to be hurt by the strange men or that he
actually intended to convince her husband to leave her. All that is needed is
that he intended to make the threat, to cause her reasonable fear, and that he
did so by his willful and repeated phone calls and harassing.
The court in People v. Falck also followed this rationale. In this case,
defendant met the plaintiff when she was nineteen years old, while she was
working at a restaurant. People v. Falck, 52 Cal. App. 4th 287 (1997). The
stalking behavior began when he started to repeatedly visit the victim at the
restaurant. The stalking progressed to him sending her twelve black roses,
and then letters being sent to the restaurant, professing his love for her and
how he and the victim were meant to be together for eternity. Falck, 52 Cal.
App. 4th at 291. He was finally arrested when he ignored the manager’s
request to not come to the restaurant. The defendant was given six months
court probation and a court order to stay away from the defendant. Id. at
292.
Twelve years later the stalking commenced and by then the victim was
married. Id. The defendant began studying astrology, and the movements of
the planets convinced him that the time was right to try again. Id. After an
exhaustive search the defendant was able to locate the victim and called her,
identifying himself as George Frederick. Id. He said, “I found you. I can tell
by your voice.” Id. After her husband got involved the telephone calls
stopped, but he started to write her letters professing his great anticipation
of their impending wedding, sending pornographic pictures and astrological
references. Id.
The defendant was finally arrested, and the search of his apartment
found numerous photographs of the victim throughout his apartment. Id.
The defendant argued that he did not have the specific intent to make a
credible threat; he was just expressing his love for her and his need to marry
her. The court outlined the two-prong test detailed in Halgren and
concluded in its holding that “[b]y these requirements §646.9 limited its
application to only such threats as pose a danger to society and thus are
unprotected by the First Amendment,” and found the defendant guilty of
stalking. Falck at 297.
The court explained that it is not imperative that a threat be made with
the intent of actually carrying out the act that is threatened in order for it to
be a credible threat. Falck, 52 Cal. App. 4th at 291. The court’s rationale
was that a “…true threat includes a threat which on its face and in the
circumstances in which it is made is so unequivocally, unconditionally
immediate and specific as to the person threatened, as to convey a gravity
of purpose and imminent prospect of execution.” Id. at 295.
The court in Falck continued to explain the premise of its decision by
noting that §646.9 has “…withstood constitutional challenge for its
inclusion of the term repeatedly.” Id. at 294. The court continued to
highlight that the terms “harass,” “credible threat,” “willful,” and
“malicious” are all sufficiently defined and definite. Id. The defendant,
however, challenged the word “safety” and claimed that the term is not
defined by the statute and has no clear definition. Id. However, the court
dismissed this reasoning and stated that the term has a commonly accepted
usage and “…whether related to a defendant himself or to others,…has a
commonly understood meaning which gives adequate notice of the conduct
proscribed.” Id at 295.
Although Martin’s conduct was not as extreme as the defendant in the
Falck case, there is still sufficient evidence to show that a credible threat
was made and that the requirements of the two-prong test were also met. It
is true that no one act of Martin’s would be sufficient to trigger the statute.
However, when we look at his combined efforts and his intent to convince
Mrs. Harmon’s husband to leave her and to scare her by placing her private
information on his webpage, she not only feared him, but actually had
reason to fear him, especially since he reacted by laughing at her whenever
she pleaded with him to stop his stalking.
As noted earlier, there is no significant difference between the tort and
the crime of stalking. However, in the tort of stalking the third element
requires that “…on at least one occasion, the plaintiff clearly and definitely,
but unsuccessfully, demanded that the defendant stop his pattern of
conduct.” §1708.7. This element differs slightly from the crime of stalking
by adding the additional prong whereby the victim must clearly
communicate her desire for him to stop the pattern of conduct. The court in
the Falck case concluded that the defendant intended to cause fear in the
victim when he insisted on making contact with her even though she clearly
asked him to stop. Additionally, the defendant was warned by her husband,
the police and the court to stop his behavior, yet he ignored all requests. Id.
at 291. Similarly to our case, Mrs. Harmon has made it clear that she wants
the harassment to stop, her husband has made it clear, and Martin still
continued to harass her and cause her to fear for her life by not only
ignoring her repeated requests to stop but also continuing to make her
vulnerable to the strange men by not removing her phone number and
address from his webpage.
The third element for both the crime and tort of stalking requires that
the stalker have the intent to place that person in reasonable fear of death or
great bodily injury. The prosecution must prove that the stalker intended to
cause the victim to be afraid and that he had the ability to carry out his
threat. There is no specific intent requirement that the stalker intend to
execute the threat; the prosecution must only show the ability to execute the
threat if he wanted or had the opportunity to do so. Because Martin placed
her phone number and address on his webpage, Mrs. Harmon was swarmed
with strange men soliciting sex from her. This would clearly put any woman
and her family members in fear of bodily injury or death.
Martin may try to defend his actions and say that even if he had the
intent to scare her into leaving her husband, he did not have the apparent
ability to carry out the threats he made. Unfortunately for him, this line of
reasoning will fail. In People v. McClelland, the defendant and victim
married while the defendant was in state prison for attempting to murder his
former wife by burning down her house. People v. McClelland, 49 Cal.
Rptr. 2d 587 (1996). Soon after he was released, he became abusive with
the victim and the victim’s daughter. When the daughter went away to
college he became obsessed with her and wrote love letters to her, but those
letters then turned abusive. In one letter, the defendant stated that if he had
seen someone “’blow [Linda’s] head off,’ he would ‘spit on [her] carcass.’”
McClelland, 49 Cal. Rptr. 2d at 590. The victim got a restraining order, but
the defendant still continued to stalk her by making repeated telephone
calls, ramming into her front gate with his car, and even throwing explosive
objects at her house. The defendant was finally arrested after he parked his
car in front of her house. Id.
The defendant argued that there was not sufficient evidence that he
made a credible threat with the intent to place the victim in reasonable fear;
in other words, he did not have the apparent ability to carry out the threat.
Id. at 593. The court responded and held that “[t]he circumstances leading
to defendant’s attempted murder conviction, his threatening display of
matches to Erdman, his throwing of a bottle at the house, and his overall
behavior during the period in question, constituted substantial evidence of
his apparent ability to carry out the threat, a fire bomb at 6:00 o’clock.” Id.
The court’s rationale was that since the defendant was convicted of
attempted murder and other violent and harassing acts, he had shown he
would have the apparent ability to execute his threat on this current victim.
The court explained, “…a reasonable person, aware that the defendant had
been convicted of attempted murder in burning his former wife’s house,
would reasonably fear for her safety.…” Id. at 154. It would be very helpful
to Mrs. Harmon’s case if we can determine if he had done this to any other
women and, even more important, if she was aware that he is capable of
this type of conduct. This is not a required element, that he stalked before or
that she was aware that he was capable of violent acts against women, but it
would certainly strengthen Mrs. Harmon’s case if this information was
known.
Our case is distinguishable from all the cases cited so far, in that the
stalker in our case has not demonstrated the level of violent, neurotic, or
obsessive behavior of the defendants who have been found guilty. However,
the medium Martin has chosen makes his actions even more dangerous. He
used his webpage, and by doing so, he has made Mrs. Harmon vulnerable to
several stalkers, all at the same time. The victims in the other cases had
only one deranged man after them; our plaintiff has had to deal with several
men each night. What Martin has done has brought stalking to a new level
by introducing a new level of fear in a victim, from several men at once.
The potential for danger is far greater from several deranged men than it
would be from one, who can possibly be traced because the victim knows
who the stalker is. Mrs. Harmon does not have the advantage of knowing
who her stalkers are or how dangerous they are.
The second approach we can take brings the analysis to another level
and makes the stalking case even stronger. One can be found guilty of
conspiracy to commit a crime when there is a meeting of the minds of two
or more persons with the intent of performing a crime. The meeting of the
minds element of conspiracy can be tacit, depending on the jurisdiction. We
would need to further investigate exactly what Martin’s webpage said and
how he presented her private information. If her private information was
portrayed in such a way that we could prove that whoever saw his webpage
had an understanding that they were agreeing to some type of behavior that
could be classified as stalking, then Martin would be guilty of conspiracy to
stalk, as well as stalking. All co-conspirators are responsible for actions of
their peers performed within the scope and in furtherance of the conspiracy.
As stated earlier, more facts are needed, but we do not have to prove that
Martin knew exactly what these men would do as long as their acts
constituted “furtherance of the conspiracy,” which in this case is stalking.
Mrs. Harmon has several avenues of retribution/justice available to
her. If Martin is found guilty of the crime of stalking, the California Penal
Code §646.9 mandates “…imprisonment in a county jail for not more than
one year or by a fine of not more than one thousand dollars ($1,000), or
both that fine and imprisonment, or by imprisonment in state prison.”
§646.9(a). If there is a restraining order, injunction, or any other court order,
any person who violates §646.9(a) will be “punished by imprisonment in
the state prison for two, three, or four years.Ӥ646.9(b). If a defendant is
found guilty of stalking after having been convicted of a felony under
§273.5, 273.6, or 422, he “…shall be punished by imprisonment in a county
jail for not more than one year, or by a fine of not more than one thousand
dollars ($1,000), or by both that fine and imprisonment, or by imprisonment
in the state prison for two, three, or five years.Ӥ646.9(c)(1). Finally, Martin
may also have “…to register as a sex offender pursuant to subparagraph (E)
of paragraph (2) of subdivision (a) of section 290.” §646.9(d).

§17.02. EDITING A LETTER

Assume that an associate drafted the following letter to Mrs. Harmon
based on the above analysis. What feedback would you give the associate
on the draft letter?
Mrs. Sandy Harmon
32441 Mediterranean
Monarch Beach, CA 92677
RE: Stalking charges against Kris Martin
Dear Mrs. Harmon:

Thank you for contacting our offices and giving us the opportunity to represent you.
The purpose of this letter is to explain your rights and remedies and tell you what we can
do for you. Please remember that we are here for you and if you should need any
assistance or have any questions, please do not hesitate to contact our offices.
Although we know you are aware of the facts of your case, we would like to reiterate
them, just to ensure that we have the facts correct. Also, if there is anything missing or
something you forgot to tell us, please be certain to notify our offices immediately.
According to our last meeting you explained to us that you and Kris both work for a
software company. Kris asked you out several times, but you refused each time. He then
started making repeated telephone calls to your home and hanging up on your husband.
He told you he would convince your husband there is something going on between the
two of you so your husband would divorce you.
A couple of weeks ago, you started receiving phone calls from strange men making
“seriously lewd propositions.” You eventually found out from a co-worker that Kris had
put your phone number on his webpage. So you confronted Kris and asked him to “knock
it off,” and he just laughed it off. He not only ignored your request, but Kris exacerbated
the situation by placing your address on his webpage. You explained that within the past
week men have actually appeared at your home wanting sexual favors from you. So, you
went on his webpage and found out that he put your address on his webpage. Kris went so
far as to say on his webpage that you would welcome all “comers” and that you would
play hard to get, but that was part of the game, and that you really meant yes. It has
become so bad that your husband has had to chase them off your property and at one point
you had to even call the police for assistance.
Finally, while at work one day you once again asked Kris to stop and even threatened
him with a lawsuit, and he again responded to your pleas to stop by laughing. You began
to cry and yell, trying to convince him to stop. But when that failed, you were forced to
speak to your boss about the situation and took the rest of the day off.
Mrs. Harmon, you have explained to us that you have suffered emotionally due to
lack of sleep and not knowing what these strange men will do or when they will next show
up. You have expressed how frightened you are and that you want this to stop. In our last
meeting, you asked us if you had a viable claim against Kris for stalking, either criminally
or as a tort, or even both. We believe you do; however we will need more facts from you
to make our case stronger. The law does support your claim for stalking, but there are
some weak points that we will discuss further with you. We will also discuss your
remedies and the options you may pursue.
In California, one can be charged with stalking as a crime or as a tort. The
requirements for the two are essentially the same, so you do have both options available to
you. The basic definition that could cover both would be: willfully, maliciously, and
repeatedly following or harassing another person and making a credible threat with the
intent to place that victim in reasonable fear for her safety or the safety of her immediate
family. The courts define “harass” as a knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, torments, or terrorizes the person, and that
serves no legitimate purpose. Additionally, “course of conduct” is defined as a pattern of
conduct composed of a series of acts over a period of time, evidencing a continuity of
purpose. Finally, the courts define “credible threat” as a verbal or written threat, including
that performed through the use of an electronic communication device, or a threat implied
by a pattern of conduct. The inclusion of the term “electronic communication” is
important for your case because the term includes the use of computer to make a credible
threat.
Kris willfully and it can be interpreted as maliciously called your house repeatedly,
hanging up on you and your husband. He also harassed you by taking your private phone
number and home address and placed it on his webpage. Furthermore, he made a credible
threat that he will convince your husband that there is something going on between the
two of you, with the intent to place you in fear. Also, by placing your private information
on his webpage he has clearly placed you and your husband in reasonable fear of physical
injury or death. We will argue that any reasonable person would be placed in fear if
strange men showed up at her doorstep soliciting sex. However, please be aware Kris can
defend his actions by saying that he did not intend to scare you or your husband and that
he was just expressing his love for you. Fortunately, the law has made it clear that there is
no longer free speech protection when you make a credible threat with the intent and
apparent ability to carry it out and the credible threat was made in combination with
willful, malicious, and repeated following or harassing of the target.
Although we went into great lengths regarding the facts of your case, we do need you
to provide more specific information about the emotional stress you have suffered. This is
one of the weakest areas in your case. The law is clear that you need more than sleepless
nights and a few sessions of therapy. It needs to be more substantial than that. In our last
meeting you explained to us that you have experienced sleepless nights and are frightened,
but we need more specifics from you about how you have coped with this trauma in your
life. Once we have all the details, we will be better prepared to move forward with your
case.
We can also look at your case from a different perspective. Kris can still be charged
with stalking, either as a tort or crime, or both; in addition, he can be charged with
conspiracy to stalk. This is not the strongest perspective on your case, but it is a viable
avenue. We can argue that by placing your information on his webpage Kris intended that
these strange men come to your house or call you over the telephone and solicit sex from
 you. We can further argue that he knew this would place you in reasonable fear of physical
injury or death and he intended for these men to place you in such fear for your life.
Depending on what else he said or conveyed on his webpage, we can possibly prove that
there was a tacit agreement between Kris and every guy who decided to telephone you or
come to your doorstep harassing and soliciting sex from you.
Now we would recommend that our first step should be to send Kris a letter, asking
him to stop his acts, remove your information off his webpage and to stay away from you
and your husband. Although this decision is entirely up to you we think it is in your best
interest that we make every attempt to convince him to stop his behavior, in order to avoid
the court system. This will not only save you money, but also time and frustration.
However, if he does not cooperate and insists on harassing you and continues his stalking
behavior, or if you want us to altogether bypass writing a letter, we can press forward with
a lawsuit against him. During this time we do ask that you document any new instances
from here on out, just in case he does not cooperate and we do have to go to court. We
need to have everything he has done to you well documented with dates and descriptions
of the conduct. This will help make your case stronger and give us more ammunition if we
have to go to court.
Finally, there are several remedies available to you. If Kris is found guilty of the
crime of stalking, we can ask the court to issue a court order for him to stop his behavior
and remove your private information off his webpage, in addition to facing imprisonment
in county jail for no more than one year or a fine of no more than one thousand dollars
($1,000), or both. If you get a restraining order before we go to court and he continues to
stalk you, then the court may punish him in state prison for no more than two, three, or
four years. Also, if he has committed a felony prior to this and is found guilty of stalking,
he can face county jail for up to one year, a fine of no more than one thousand dollars
($1,000) or both, or state prison of two, three, or five years. Additionally, he may have to
register as a sex offender. Now, if Kris is liable for stalking as a tort, he may be liable to
compensate you in damages, in addition to serving jail time.
Please advise whether you would prefer for our offices to first send him a letter,
which we would provide to you for approval before we send it to him, or if you would
rather we bypass that option and file suit immediately. Either way, please let us know of
your decision within a week from the date of this letter. Please contact our offices if you
have any further questions or information you need to provide to us. We will keep you
apprised of any new findings or developments in your case.
Sincerely,

_______

§17.03. DRAFTING A LETTER

Now write your own letter to Sandy Harmon. Remember to include a
brief synopsis of the facts to confirm that you understood them correctly
and to make clear that any legal analysis in the letter relies on those facts.
You should outline the legal analysis without jargon or excess detail. You
should give Sandy some options to consider, along with the advantages and
disadvantages of those options. You should clarify what the next steps are,
and what response you seek from the letter.
§18.01. PURPOSE OF THE CONSULTATION
Once you have researched the client’s problem and given the client
some preliminary feedback in the form of a letter, you are ready to meet
with the client again. This is the time to decide how to proceed with the
client’s matter. The process of decision making in a client-centered
approach to counseling requires patience and thoroughness. Remember that
the decision is not yours to make, but the client’s (Model R. Prof. Conduct
1.2). Your purpose at this point in the process is to help the client arrive at a
decision that will meet as many of the client’s articulated goals as possible.
Your purpose is not to tell the client what you would do or to substitute your
judgment or priorities for those of the client. Your job is to provide the
client with all relevant information so that he or she can make as informed a
decision as possible. This includes discussing the most likely consequences
of pursuing various options and the advantages and disadvantages of those
options. Your plan for a follow-up meeting with the client should take all
these considerations into account.

§18.02. THE SCENARIO

As we work through the planning process for a follow-up consultation,
assume that you have already interviewed a client and gathered this
information:
Susan Starkey is a member of a video dating service. On about December 20, she chose
John Partlow from the video dating service. After speaking for hours on the telephone, the
two agreed to meet at a dating service party on December 28. At the party, Partlow told
 Susan she was gorgeous, and she reported that she felt sparks, too. They exchanged email
addresses and sent more than a dozen messages back and forth.
After five days, Susan told Partlow to “get lost,” feeling that he was trying to get too
close too fast. He was already starting to talk about marriage and kids. On January 6,
Partlow left a message on Susan’s answering machine telling her he had secretly watched
her leave work. She became worried and filed a police report on January 7. Police told
Partlow to have no more communication with Susan, computer or otherwise, but no
official restraining order was issued.
On January 15, Partlow sent Susan another email message. “I’ve been trying to court
you, not stalk you. If you let me, I would be the best man, friend, lover you could ever
have. I just want to show you how well we go together. You’ve turned my innocent and
somewhat foolish love for you into something bad in your own mind.”
When Susan received the message, she replied via email. She sent Partlow a message
stating that if he did not leave her alone, he would be sorry.
On January 24, Partlow sent Susan another email, threatening to email the story to all
her computer friends, and mail it to her family and old boyfriends. He informed her that
“this is the least of the many things I could do to annoy you.” He said he knew she must
be seeing someone else, and that he had figured out her password and was monitoring her
email messages to find out who the other guy was.
This last message frightened Susan, but she is afraid that police action might not
deter Partlow, or that it might make things even worse. Since the incident, she canceled
her membership with the video dating service. She is afraid to use her computer for any
online services and gave a friend her password, asking that the friend delete any messages
from Partlow before she logs on. She also changed the hard drive on her computer and
completely rebuilt her system. She is having trouble sleeping and is considering
contacting a counselor to help her deal with the situation.
Susan wants to know whether there is any way she can sue Partlow, to make him pay
for all the disruption he has caused in her life. She would like compensation for her
distress. She feels that Partlow has diminished the quality of her life with his threats. She
told you that she wants her life back.
Susan also expressed interest in finding out if she has any claim against the dating
service, since it certainly seems to her that it could screen its clients better. When she
called the service to complain about Partlow, the person she talked to said, “Oh yeah, him.
You know, this is the second or third complaint we’ve had about him. We may just have to
cut him off.” The person she talked to was the receptionist, Sandy Adams. Ms. Adams
said she would relay Susan’s complaint to Tony Benton, the head of the dating service, but
she never heard anything from him. Susan made the original call three or four weeks
before she came to see you. Assume that the last email from Partlow arrived about two
weeks before Susan came to see you.

§18.03. PLANNING THE CONSULTATION

As you plan the consultation, start with your understanding of the
client’s goals and priorities as they have been articulated to you thus far.
Susan has told you that she wants compensation, both from Partlow and
from the dating service, and that she wants her life back. Compare these
goals and priorities with the results of your research as you have set them
out in your memo and letter. Assume that your research and analysis have
led you to the conclusion that you might be able to bring successful civil
suits, against Partlow for intentional infliction of emotional distress (IIED)
and against the dating service for negligence in screening customers.1 It is
also possible to contact the police and pursue criminal charges.
Try to estimate the likelihood of various events with some degree of
precision, and think through the consequences, positive and negative, of
making each decision. Then, outline the topics you and the client need to
discuss. Assume that you believe the suit against Partlow has about an even
chance of succeeding, and that the odds of a successful suit against the
dating service are slightly better. One distinct disadvantage of either suing
Partlow or trying to have criminal charges brought is that Susan will likely
have to face him in court at some point. You should also evaluate the
likelihood that Partlow will be able to pay a substantial judgment. What
other likely consequences can you think of? Advantages and disadvantages?
It is a good idea to find some way to keep track of all this complexity.
You may want to make a chart before you begin the consultation. The chart
should list the options you have considered in your planning process, and
perhaps leave room for other options that might be developed during the
consultation. You should identify any advantages and disadvantages that
occur to you before the consultation, and leave space for others that might
be identified by the client. You might want to include the client’s goals and
concerns in the chart, so that you will have a ready reference to check as the
option development process proceeds. Here is one way you might prepare
such a chart:

§18.04. BEGINNING THE CONSULTATION

You should begin this meeting, as with the initial interview, with a
friendly greeting and a little casual conversation. Again, you want the client
to relax and feel comfortable. You should also offer a brief preparatory
explanation, so the client knows what to expect of this meeting. Share your
outline of the meeting with the client, and ask if the client has any topics in
mind that you have not included. For example, your consultation with
Susan might begin like this:

You: Hi, Susan. How are you today?

Susan: OK, I guess.
You: Are you feeling any better?
Susan: I’m hoping you can give me some good news today, and then
maybe I will.
You: I hope so too. Can I get you something to drink?
Susan: No thanks.
You: Did you get the letter I sent?
Susan: Yes.
You: Do you have any questions about the letter?
Susan: I don’t think so; not right now anyway.
You: What I am hoping we can do today is discuss the options I
mentioned in the letter, and any other options or concerns that may
have occurred to you. I would like us to review the advantages and
disadvantages of all the options, and then try to make a decision
about how you wish to proceed. I prepared a little chart that we can
use to keep track of our discussion. Do you have any questions, or
is there anything you want to add before we get started?

§18.05. REAFFIRMING THE CLIENT’S GOALS AND

PRIORITIES
Early in the consultation, you should check to make sure that your
understanding of the client’s goals and priorities is correct, and that they
have not changed since you and the client last discussed the matter. If any
material facts have changed, or if the client has reassessed the desirable
outcomes, you want to know that before you get too deeply into the
discussion you have already prepared based on your earlier understanding.
Ask if the client has had a chance to review the letter you sent, and if she
has any questions about the letter.
To determine Susan’s priorities, you may want to ask some questions
about choices she would make. For example, ask her whether it is more
important that she never have to face Partlow again or that he be forced to
compensate her. Can you think of other questions that might help you
prioritize her goals?

§18.06. DEVELOPING OPTIONS

We have identified three preliminary courses of action:

1. A civil suit against Partlow for IIED

2. A civil suit against the dating service for negligence
3. Contacting the police in the hope of criminal charges being filed

1. Likely Consequences
In order to help Susan make a decision, you need to share with her
your estimation of the likely outcome of these options. You should identify
the most likely and least likely outcomes, and perhaps the “best case” and
“worst case” scenarios. Clients would obviously like you to predict the
likelihood of a particular outcome as precisely as possible, perhaps using
percentages—e.g., “we have a 50/50 chance of prevailing in the intentional
infliction of emotional distress suit, and a 70 percent chance of prevailing in
the negligence suit against the dating service.” Many lawyers are
uncomfortable with the idea of attaching numbers to their estimates, fearing
that there are simply too many variables to allow such precision. The law is
fundamentally a human process, and trying to predict what parties,
witnesses, judges, and juries are likely to do is often little more than an
educated guessing game.
If you are uncomfortable with the idea of assigning numbers to your
estimated chances of success, you must come up with some other way of
communicating your perceptions to the client in a way that will be
understood. Remember that the client will interpret whatever you say in a
way that makes it meaningful for the client. Thus, if you say “we have a
pretty good chance of succeeding on this claim,” what is that likely to mean
to the client? You may mean 50/50 or 60/40, but the client may hear 70/30
or 80/20. You may try to offer a range of numbers, or you may try to be
very conservative and guess low. Remember, however, that the client is
entitled to your honest assessment of the likelihood of success of the
options you discuss.
If you have previous experience in the area, or if you have researched
jury verdicts in similar cases, you can share that information with the client.
You can discuss the variables that make perfect prediction impossible. If the
client understands the complexity of the process, the client may also
understand why you can’t offer guarantees, or even odds, with any degree
of certainty. We do not have the perfect solution to the dilemma; you will
have to experiment to find a way of communicating the likelihood of
success that you are comfortable with and that gives the client a reasonable
opportunity to understand the situation.
2. Advantages and Disadvantages
You also need to discuss the advantages and disadvantages of each
option, and of the various ways of approaching each option. For example,
as you discuss the possibility of civil suits, you should always advise the
client about the time and costs involved, and of the various alternative
dispute resolution mechanisms available. You should discuss the advantages
and disadvantages of filing a complaint before attempting to negotiate, and
vice versa. You should explain the process of mediation, along with its
advantages and disadvantages. Can you think of other consequences,
advantages or disadvantages that should be discussed in this case?
You should also explore nonlegal considerations that create advantages
and disadvantages, and ask the client to help you think these through. For
example, in this case, Susan has obviously suffered a great deal of
emotional distress, to the point where she has taken the extreme and
possibly irrational action of rebuilding her computer. She needs to think
about how it would feel to have this matter occupy another several months,
if not years, of her life. Can you think of other questions you might want to
ask Susan that would help you understand the implications of the nonlegal
concerns that would affect the decision-making process in this case?
It should be clear by now that this option development process can get
quite complicated. It gets even more so as you actually discuss the details of
each option. You will find that the discussion of one option leads you into a
discussion of another, as you compare and contrast likely consequences.
You will move back and forth between the options and the client’s goals to
check whether proposed options are meeting the client’s needs. You will
shift back and forth between options, and you may discover that discussing
consequences leads you to other options you had not considered.

§18.07. CHOOSING A COURSE OF ACTION

Once you have gone through this process of option development, it is
time to make a decision. You and the client must sift through all the
information you have produced as you discussed the options and choose a
course of action. If your option development process has produced a clear
choice in the form of a single option that has many more advantages and
fewer disadvantages than other options, the choice will be easy.
Unfortunately, this is frequently not the case. All of the options are likely to
have advantages and disadvantages. You may find yourself with too many
good choices, too many bad choices, or something in between. You should
go back to the client’s goals and priorities and try to make a choice that
way. Is there one option that meets more goals, or does less damage to the
client’s goals, than other options? If not, ultimately the client will simply
have to make a decision, and make the best of it. Here is one way part of
your decision-making dialogue with Susan might go:

You: OK, Susan, we have discussed the advantages and disadvantages

of our three options. What do you think?
Susan: I don’t know. It all seems so complicated.
You: I can certainly understand that. Let’s try going back to what
brought you to see me in the first place. You wanted compensation,
and you wanted your normal life back. Do I have that about right?
Susan: Yeah, that’s about it.
You: Now, we have discussed the likelihood that you will have to face
Partlow at some point if you sue him or if you contact the police
about criminal charges. We have also discussed the possibility that
Partlow may not be able to afford a lot of money and that it may be
difficult to collect any judgment we do get. You also know how
long a lawsuit might take to get resolved. Can you help me balance
those concerns against what you were hoping to accomplish?
Susan: Well, that all makes suing Partlow seem like it might be more
trouble than it’s worth. And I don’t know if I want him to go to jail.
I just want him to leave me alone. What about suing the dating
service?
You: I’m glad you asked that; I was going to mention that next. You
would probably not have to deal with Partlow in that suit, but it
could still take a lot of time to resolve. Like I said, I am hopeful
that the dating service might be willing to negotiate a settlement,
but you never know. Would you like me to contact them, and see
how they respond?
Susan: Sure, let’s see what they say. I would hope they would understand
they made a mistake on this one.
You: So would I. Now, let’s get back to the question of how we get
Partlow to leave you alone.

If the client seems stymied, remind her that no decision is also a

decision. In other words, discuss the advantages and disadvantages of doing
nothing, and compare them to the other choices on the table. If the client
asks you what you would do, there are two ways to present your choice.
You can articulate the client’s values as you understand them and tell her
what choice you would make based on those values, or you can tell her
what your values are and tell her what choice you would make based on
those values. Either way, you should not tell her what you would do without
articulating the values that guide you to that choice. For example, how risk
averse are you, and how much are you guided by emotional as opposed to
rational factors in making choices? You may also refuse to tell the client
what you would do and insist that she make the choice.
What if you disagree with her choice? If you are satisfied that she has
made an informed choice, and her decision does not pose any ethical or
moral dilemmas for you, you should do whatever is necessary and
appropriate to implement her decision. If you think she has made a mistake,
perhaps because she does not understand some aspect of the likely
consequences of her decision, you can try again to educate her by running
through the advantages and disadvantages. Always remember, however,
that the decision is hers and not yours, and that you owe the client an
obligation of competent and diligent representation. Therefore, if you
deeply disagree with what the client wants done, to the point that your
representation is likely to be compromised, you should say so and offer the
client the option of seeking other counsel. If the disagreement is extreme,
you may seek to withdraw from the case.

§18.08. GETTING SETTLEMENT AUTHORITY

Once the decision is made, you should get explicit instructions from
the client about the limits within which you must operate. For example, if
you have decided to negotiate with the dating service on the negligence
claim, you should discuss with Susan the elements of a settlement
agreement that would satisfy her. How much money should you ask for, and
what is she willing to settle for? If the dating service wants confidentiality
of any settlement terms, does she have a problem with that? Can you think
of other elements that might come up in these negotiations? If you do not
have this conversation at this point, you may find yourself in a negotiation
with no authority to settle. This may frustrate you, your client, and the other
party. You will have to come back to her with simple questions that could
easily have been answered at this stage if only you had thought to address
them.
It should be obvious that we have touched only on the issues that go
into helping the client to reach an informed decision. The process is much
more complex, and the possibilities more numerous, than we can convey in
a few pages. However, if you keep the basic principles in mind that we have
discussed here, and come up with organizing strategies that help you and
the client keep track of important factors, you should be able to help your
clients reach informed decisions that offer as much satisfaction in the long
run as is possible given the difficult circumstances that brought the clients
to you in the first place.

Exercise
Make up a chart for your consultation with Susan Starkey that
incorporates the issues we have already touched on, and any others that
occurred to you as you were reading and answering the questions posed
throughout this chapter. There is no particular format that is appropriate for
such a chart; play with it until you come up with one that you think will
work for you.

§18.09. CONSULTATION CHECKLIST

— Plan for the consultation by identifying options based on your

understanding of the client’s goals and priorities and the applicable
law you have found. Think about likely consequences, advantages,
and disadvantages of those options.
— Prepare a chart outlining those options, consequences, advantages,
and disadvantages. Leave room on the chart for contributions in all
these areas that may come up during the consultation.
— Remember to greet your client warmly and have a bit of casual
conversation if the client seems to need an opportunity to settle
down and relax.
— Check with the client to see if anything has changed, if your
understanding of the facts is correct, and if you understand the
client’s goals and priorities. Give the client a chance to react to your
letter and to ask any questions.
— Go through the options you have developed, including likely
consequences, advantages and disadvantages, and give the client
ample opportunity to react and contribute. Give the client the best
assessment of the likelihood of success that you can.
— Get a decision from the client and discuss how you will act on it. If
you are going to negotiate, make sure you understand the limits of
your settlement authority.

1. Depending on your jurisdiction, you might identify other possible causes of action as well.
For example, in California it is possible to bring a civil action for stalking.
§19.01. INTRODUCTION
Negotiating skills are important in many aspects of life. We begin
negotiating with our parents at a very young age. We negotiate with
employers, with friends and colleagues. We negotiate major purchases such
as cars and houses. Lawyers negotiate constantly—plea bargains,
settlements, contracts, and many other types of transactions. Along with
client counseling, negotiation is the most frequently performed and critical
lawyering function. Nevertheless, most of us have never had any formal
training or organized learning on the subject. We frequently do not even
give much thought to the process. We don’t plan our negotiating strategy or
analyze how and why the process works the way it does. Nor do we reflect
on our negotiations after the fact to figure out how we might have done
better.
This chapter gives you an introduction to concepts that will allow you
to plan for and learn from your negotiations in an organized way. We help
you to begin to understand the inner workings of the negotiations process so
that you can control both the process and results to a greater extent, and
serve your clients better along the way.
As you study the material about negotiating, think about how the fact
that negotiations are so common might influence your approach to research
and writing. When you begin research for a memo, for example, think about
the fact that the lawyer on the other side of the case is doing the same thing
you are doing—looking for legal support for his or her client’s position.
Then imagine that after you have completed your research, you will be
trying to negotiate a resolution to the problem. You will want to have
thoroughly researched the law that supports both sides of the case, so you
can respond to any arguments that might be put forth by opposing counsel.
You will want your memo to reflect that research, so you can make cogent
arguments in support of your client, and anticipate arguments from the other
side. When you put your legal research and writing in the context of what
lawyers actually do with the information, you will research and write more
effectively.
One form of writing that is closely associated with negotiation is the
settlement agreement. We explore principles that are important to drafting
effective settlement agreements in Chapter 21.

§19.02. PURPOSES OF NEGOTIATION

The purpose of any negotiation is to reach an agreement. If that is not
your purpose, you might as well save your energy and go to court. The
essence of negotiation is compromise and problem solving. Whether you
are trying to decide custody and visitation or how much money an injured
victim is entitled to, you must assess the needs and interests of the parties
and try to reach a resolution that meets as many of those needs as possible.
Obviously some needs and interests will be in conflict, and there must be
some balancing and decision making. The likelihood that you will be able
to meet everyone’s needs is very small, as is the likelihood that one party
will walk away with all the marbles. Therefore, you must plan on giving as
well as getting.

§19.03. THEORIES OF NEGOTIATION

There are many approaches to negotiating, but we will focus on two
approaches here: the adversarial and problem-solving modes of
negotiating.1 Most lawyers, and probably most individuals, at least begin
with an adversarial approach to negotiating—that is, the idea that someone
must win while the other will lose. The problem-solving approach, which
requires a great deal of trust, is less common, particularly among
negotiators who have no history with each other. As you gain experience,
you will develop a flexible approach to negotiating. You will adapt various
methods of negotiating to suit your own personality and the many
contextual variables that determine which negotiating approach is most
appropriate in any particular situation.
1. Adversarial Models
We will briefly discuss three models for adversarial negotiating: game
theory, economic, and social-psychological. We present the outlines of the
theories so that you can gain a preliminary understanding of how theorists
look at the negotiating process, and perhaps identify some frameworks that
will help you in your negotiation planning. Understanding how and why the
other party may be approaching the negotiation may help you plan your
own strategy. Our belief is that models have some utility for
conceptualizing the process, but that ultimately the process is sufficiently
human and therefore unpredictable that you cannot rely too heavily on
artificial constructions.
a. Game Theory
The game theory approach to negotiation views the negotiation as
being composed of the usual components of a game: players and rules. If
you know the rules, you can predict what the players will do. You can plot
out the possible avenues of progress for the negotiation in advance because
the players have limited options based on the rules. The chief problem with
this approach to negotiation is that it can only really work in a world of
perfect information, where you know exactly what everyone else knows and
how that information will affect the decisions of all the players. Fortunately
or unfortunately, negotiation players do not all play by the same rules, they
tend not to share all their information, and they don’t behave predictably.
Nevertheless, constructing a model for negotiating that uses some of the
elements of game theory can be a useful organizing tool.
There are some “rules” of negotiation: for example, most negotiators
don’t start negotiating at the bottom line—they leave themselves some
room to bargain. Also, it is frequently the case that concessions get smaller
as bargainers approach their bottom lines. It is at least a convention of
negotiating that it is poor form to revoke a concession once firmly made.
You may learn or discover some other “rules” that offer some predictability
for the process. Let us see how the first two “rules” might help you to
predict the “moves” in a negotiation:
Assume that Party A, the plaintiff in a personal injury suit, demands $5
million to start. Because Party B, the defendant, knows that most
negotiators set their opening demands to leave bargaining room, B knows
that the next “move” is to make a counteroffer rather than simply offer to
write a check. If subsequent concessions by A follow this pattern: $4
million, $3.5 million, $3.25 million, $3.125 million, then B can apply the
“rule” of diminishing concessions to infer that A’s bottom line is
somewhere around $3 million. Of course, A can make strategic use of this
assumption to suggest a false bottom line. Negotiation is nothing if not a
complex strategy game!
You will rarely if ever negotiate in an environment of perfect
information. Negotiations frequently take place before discovery is
completed, perhaps even before it is begun. Even if discovery has been
completed, the likelihood that you know everything there is to know is very
small. People simply don’t provide complete information in response to
discovery requests—the requests may not seek the right information, the
respondents may not remember everything, or there may be reasons, such as
privilege, for not providing full information.
Finally, negotiators are human beings. They make decisions and
choose courses of action for all sorts of reasons. Individuals have different
priorities, different levels of risk aversion, and different personal styles. All
of these can make it difficult to predict what a negotiator will do. This
difficulty becomes compounded by the fact that a negotiator is representing
a client, who also has idiosyncratic goals and preferences that may
influence the negotiation.
b. Economic
The economic model of negotiation envisions a continuum along
which the negotiation progresses. Each party begins at one end of the
continuum, and the parties move together toward the middle until they
reach their stopping point, or bottom line. If there is overlap between the
stopping points, there is a “zone of settlement” within which the negotiation
should settle:
 This model of negotiation works reasonably well if the subject of the
negotiation is an easily measured or relatively fungible item such as money,
and the parties can take successive positions along the continuum. It does
not work as well where the negotiation involves multiple items, at least
some of which cannot be quantified or broken into pieces that can be given
up. For example, if the negotiation involves custody of a child, there is no
continuum to move along—one parent or the other will get custody, or they
will share joint custody. There are no other options.
c. Social-Psychological Bargaining
We refer to this approach to bargaining somewhat cynically as the
“head-game” theory of negotiation because it involves negotiation by
manipulation of perceptions. “Head-game” bargainers don’t bargain on the
merits of the facts or law; they try to make you uncomfortable in one way
or another or to affect your perceptions in a way that causes you to want to
give in. They may try to make you feel intimidated (“I went to an Ivy
League law school and have been practicing for twenty years”), or guilty
(“How can you represent a client who did such reprehensible things?”), or
physically uncomfortable or off-balance (turning up the heat or providing
uncomfortable furniture), with the idea that you may give up just to get
away.
There is virtually no limit to the aspects of negotiation process that can
be manipulated by a bargainer determined to approach negotiation from this
extremely adversarial position. The best defense against a “head-game”
bargainer is to recognize the game and ignore it. If you insist on bargaining
on the merits, you may be able to neutralize the tactics of your negotiating
opponent.
2. Problem-Solving Negotiation
The problem-solving approach to negotiating requires a paradigm
shift. The problem-solving negotiator does not think in terms of
concessions, compromise, and positions, but rather analyzes needs and
interests, and looks for solutions to the mutual problem facing the
negotiators. That mutual problem is the dispute between the parties. If you
can reframe your thinking to look at the dispute as the “enemy,” rather than
the party on the other side of the negotiation, you will be much more open
to a problem-solving orientation.
The problem-solving negotiator looks for ways to make the pie bigger,
rather than simply carving it up. A problem-solving negotiation involves
more free-flowing information and brainstorming of possible solutions. The
problem-solving negotiation is not constrained by the game board or the
economic continuum, but moves outside the lines to address as many needs
and interests as possible. Real brainstorming involves putting all possible
solutions on the table, without immediate judgment, and then discussing
them to see how they work with the various needs and interests at issue.
Since this mode of negotiating focuses on the parties’ needs and
interests rather than bargaining positions, using it should enhance the
probability of success. The challenge is to determine whether both the
personalities and the subject matter involved in the negotiation lend
themselves to this approach. If you determine that the subject matter is
appropriate, which is particularly likely in a multiple item, nonmonetary
negotiation, and that you are comfortable with your negotiating counterpart,
you might ask about the needs and interests of the other party. Of course,
you must be prepared to honestly share your client’s goals as well. Then the
negotiators can work together to devise options that take into account as
many of the needs and interests on the table as possible.

§19.04. STYLES OF NEGOTIATION

The basic personal approaches to negotiation are competitive and
cooperative.2 This is not to say that these are polar opposites; most of us
could place ourselves somewhere on a continuum from highly competitive
to highly cooperative. Most of us also tend to believe that other people
essentially behave the same way we do. Therefore, cooperative bargainers
may be vulnerable to exploitation when faced with competitive opponents
because the cooperative bargainer will tend to make concessions in an effort
to induce reciprocal behavior. The cooperative bargainer tends to assume
that sufficient cooperative behavior must induce reciprocity from an
opponent, while the competitive opponent, believing that all people are
essentially competitive, will take whatever is given and push for more. This
individual does not believe that cooperative bargainers exist, and therefore
assumes that the concessions made by the cooperative bargainer are not real
concessions—no rational person would give things away unless they did
not matter!
There are more effective cooperative negotiators than there are
effective competitive negotiators, at least in part because more people tend
to be cooperative. In addition, competitive negotiators can sometimes be so
abrasive that they cause breakdowns in the process, and so they are less
effective.
Cooperative negotiators can protect themselves by making contingent
concessions. In other words, do not actually give anything away until you
have gotten something in return. Make it clear that all proposals on the table
are contingent on the final agreement being satisfactory. For example, in a
collective bargaining negotiation over compensation, management’s
counsel might say, “My client might be willing to contribute more to the
pension plan, but we would need your client to relax the demand for a large
raise in salary. What is your client willing to give up?”
Negotiation models and personal styles can intersect in interesting
ways. Cooperative bargainers can adopt adversarial strategies, and
competitive negotiators can be problem solvers. The cooperative negotiator
using an adversarial model will offer concessions and compromise, while
the competitive negotiator trying to function as a problem solver will focus
only on his or her own client’s needs and interests, and will push solutions
that meet those needs and interests.

§19.05. PLANNING FOR NEGOTIATION

You should plan all aspects of the negotiation: the information
exchange, your opening offer or demand, and subsequent concessions. You
should establish an opening offer or demand, a target point at which you
would like to end up, and a bottom line below which you will not or may
not go. We will discuss each of these stages in turn.
1. Evaluating the Case
The first step in your planning process is to evaluate the case as
objectively as possible. In order to do this effectively, you need to have a
thorough understanding of the law and the facts, and how they intersect.
The beauty of negotiation is that you are not limited by what a court is
likely to do with your case, but assessing the likely result in court is a good
starting point for evaluating acceptable settlements. Therefore, you need to
research relevant law and, if possible, find jury verdicts in similar cases.
The general rule of thumb for establishing an acceptable settlement point is
the likely verdict multiplied by the likelihood of prevailing. For example, if
you think you could get a jury award of $800,000, but you think you only
have about a 70 percent chance of winning, you should settle for $560,000.
How do you figure out the likelihood of prevailing? In addition to the
strength of your legal support, look at factors such as the novelty of the
claim, the credibility of likely witnesses, the availability of admissible
evidence, and the track record of other players in the game, including
opposing counsel, judges, and juries. You should also evaluate opportunity
costs associated with litigating or not litigating. This is obviously not a
science, and it is impossible to calculate the value of the case with
mathematical precision, especially given that different people have widely
divergent value systems, but you must start somewhere.
2. Planning to Exchange Information
Inexperienced negotiators frequently underestimate the importance of
information exchange to an effective negotiation. You will feel much more
confident in your negotiated result if you have sufficient information about
the underlying events, needs, and interests. You will be more successful at
obtaining useful information if you plan for the process beforehand. It may
help to think about information as belonging to one of three categories:
information you want, information you don’t want to divulge, and
information you want your opponents to have.
You have control over the latter two categories, and it should be
relatively simple to categorize the information in your possession. You
should, however, think strategically about the dissemination of information.
People generally give more weight to information they have to work to get,
while ascribing lesser significance to information that is easily obtained.
This means that you may be able to get your opponent to devalue damaging
information by simply stating it up front. This may seem counterintuitive
initially, but if you think about it, it should make sense. Before fighting
information requests, you should be sure that information that seems
dangerous at first blush is really all that damaging. Frequently there are
perfectly logical explanations for facts that seem harmful, and sometimes
you may even be able to turn an apparently damaging fact into a useful tool.
You will find it easier to evaluate information objectively during your
preparation than you will in the heat of the negotiation.
Plan your questioning of your opponent. Identify categories of
information you want, and ask questions that are precisely designed to get
that information.
3. Establishing an Opening, Target, and Bottom Line
Much strategizing is done on the subject of where to begin a
negotiation. Some negotiators hesitate to begin negotiating at all for fear of
appearing weak. There is little evidence that either party to a negotiation
gains an advantage by starting or refusing to start the process. It is possible
that the party that makes the first concession will do less well in the final
result. Some experienced negotiators prefer to make the first offer or
demand because doing so allows them to set the stage for the negotiation
and begin to limit the playing field. Other negotiators prefer to draw an
opening offer or demand to respond to, on the theory that they can set the
midpoint of the opening positions (where many results tend to cluster) with
their response. You should probably do whatever feels most comfortable to
you or whatever is appropriate in the context of a particular negotiation. For
example, plaintiffs in personal injury actions frequently make the first
demand.
The trick in establishing an opening offer or demand is to set the
starting point at a place that is credible, but that also gives you some
bargaining room. Starting too close to your bottom line in an effort to be
fair or to make the negotiation more efficient may cause frustration all
around. Most negotiators simply will not believe that your opening position
is designed to be fair, and there will be quite a struggle to keep the final
result in the range you had in mind. Conversely, an outrageous opening
offer or demand may cause the other party to refuse to negotiate at all until
you have come down to a reasonable point. Outrageous starting positions
are difficult to defend and frequently require huge initial concessions just to
get the bargaining started. Find a starting point that you can justify with a
straight face and that leaves some room for bargaining, and even for the
possibility that you may have miscalculated the value of the case.
Remember that your opponent knows things you don’t know, and this may
affect the reasonable settlement point in ways you cannot anticipate.
Set a target point, a point at which you would like to settle and that you
believe is reasonable based on the information you have. Head toward this
target point during the negotiation and make a serious effort not to go below
it unless you are persuaded that there can be no settlement in this range.
Finally, set a bottom line before you go into the negotiation. This should be
the point below which you absolutely do not intend to go, and you should
hold firm at that point if you get there during the negotiation, unless you are
satisfied that you have seriously misanalyzed the problem. Negotiators who
do not preset bottom lines frequently find themselves “giving up the farm”
during the negotiation. Once you start giving, and begin to feel a
commitment to settlement, it can be difficult to refuse that final concession
in the interest of finalizing a deal.3
You should also think about a concession pattern in advance. How do
you plan to get from your opening to your target, and then ultimately to
your bottom line if you have to go there? Obviously the actual concession
pattern will to some extent be dictated by the events of the negotiation, but
you will feel more confident if you have thought about where you want to
go after the opponent rejects your opening offer or demand, as is virtually
inevitable. If the opening offer or demand is accepted, you have almost
certainly badly underestimated the value of the case!
4. Analyzing Needs and Interests
You should make an effort to identify the needs and interests of the
parties as accurately as possible before the negotiation. You may want to
classify the anticipated needs as essential, important, or desirable, and then
try to figure out whether those needs are likely to be shared, independent, or
conflicting.4 You should consider the importance of the needs and interests
to your client: some needs will be deal-breakers, or essential, and if your
client’s essential needs are not met, there can be no deal. Other needs and
interests will be important or desirable, and you should be able to categorize
them before the negotiation, so you can prioritize the more important needs.
You may find that needs and interests shift categories as the negotiation
proceeds—sometimes progress toward agreement can soften earlier
demands, and something that was previously essential can become
“merely” important.
You should look for shared needs; for example, both parties may need
to avoid litigation, or they may want to keep the agreement confidential, or
both parties to a custody dispute may want the best for the children—they
simply disagree about how to achieve it. Independent needs are those that
can be met without creating an adverse impact on the other party. For
example, if one party to a negotiation needs the terms of the settlement to
be confidential, and the other party has no desire to talk about the deal, the
need for confidentiality is an independent need. Independent needs are good
bargaining chips—use them in exchange for things your client wants.
Conflicting needs cannot be met without the other party having to give
something up. Conflicting needs are obviously where the most difficult
negotiating will happen.
If you can identify independent or shared needs, start the negotiation
there. It is easier to get the process started if you can get an agreement on
bargaining items that are not likely to create conflict. Beginning the
negotiation with difficult or contentious items can lead to early breakdown.
The most likely area of difficulty in the formulation we suggest is the area
where essential needs of the parties are in conflict. If you arrive at this point
in a negotiation, bring your creativity or prepare to go to trial!
This approach to categorizing needs is particularly appropriate for a
problem-solving negotiation, but it can be useful in virtually any situation.
Thinking of a negotiation in terms of needs and interests rather than
positions frequently makes the bargaining more flexible and the
conversation less strained. It may also open up possibilities for resolution
that would not have occurred to you otherwise.
5. Planning for Personalities
Try to find out what you can about your negotiating partners or
opponents. Negotiating style and personality can have a huge impact on the
progress of a negotiation. Some people have so much trouble
communicating that they simply cannot have lengthy face-to-face meetings.
If you find yourself in a negotiating situation with someone who makes you
so angry you cannot think straight, get out! You are likely to make mistakes
if you are angry or in some other emotional state that clouds your thinking
sufficiently that it becomes difficult to make rational decisions. Conversely,
if you are negotiating with someone who is fair and reasonable, the process
can be a pleasure. Remember that everyone’s job is to represent their client,
and try not to take it personally if you don’t get everything you want.

§19.06. BEGINNING THE NEGOTIATION

If you have prepared adequately, the beginning of the negotiation
should be easy. Try to establish a comfortable, constructive atmosphere for
negotiating. If the negotiators don’t know each other, a little small talk to
allow everyone to relax may be helpful. It may be a good idea to set an
agenda for the negotiation. For example, you may agree on an order of
topics to be addressed; you may agree in advance that all options put on the
table are contingent on an acceptable final settlement. The latter approach is
a good way to avoid deadlock later on if the only item left to be discussed is
a particularly difficult one, and you find yourself wishing that you had
something else left to ask for or to give away. A lot of negotiators try to
gain some sort of tactical advantage by playing “head games” in the early
stages of a negotiation; this may be effective for some in the short run, but
you will generally find that the process works better if everyone just gets
down to business and concentrates on trying to deal with the joint problem
to be solved that brought you to the table in the first place.

§19.07. INFORMATION EXCHANGE

As we mentioned earlier, this is obviously a critical phase of the
negotiation. How can you reach the optimal resolution of a problem if you
don’t really understand what the problem is? Again, if you have prepared
adequately, this phase of the negotiation should be productive. You want to
find out as much as you can about the other side’s needs, interests, and
priorities. You want to obtain any facts that will help you understand the
situation and that might be relevant if the case does go to trial. If you have
filed a complaint, you may be able to get some of this information through
discovery, but negotiations frequently take place before discovery is
completed, and perhaps before it is even begun.
 Open-ended questions, such as “What was your client doing right
before the accident?”, may get you more information, but they also allow
more opportunities for evasion if a party is determined to evade the
question. Listen very carefully to the answers you get. If the responder is
hedging or seems to be choosing words very carefully, think about the
precise words you used in your question and rephrase the question in a way
that leaves less wiggle room or that is morey precisely designed to get the
information you seek. For example, if you are negotiating a settlement of
the Smiths’ claim against the Palm Court Hotel, and you want to establish
the hotel’s knowledge of criminal activity in the area, you might ask if hotel
personnel were aware of any similar incidents in the area. This question
allows the responder to define “similar incidents.” If the negotiator chooses
to interpret that phrase in a very limited way, he or she might decide that
since there were no identical incidents, the answer is “no.” You should ask
instead whether the hotel is aware of any criminal activity within a
specified radius of the hotel.
If you get questions you prefer not to answer, there are many blocking
techniques available. You can answer with a question, you can
“misunderstand” and answer a different question, you can hide your answer
in a lot of irrelevant verbiage, you can refuse to answer, you can declare the
question irrelevant or out of bounds, or you can answer part of the question.
You should consider the likely effect of using too many blocking techniques
on your own ability to obtain information. Why should the other party
answer your questions if you refuse to answer theirs? You should also be
aware of the likelihood that these techniques may be used against you and
watch out for them. If you sense that information requests are being
blocked, don’t give up—rephrase your questions until you are satisfied that
the information does not exist or will not be forthcoming. It is frequently
disappointing or worse for negotiators to realize that critical information
was available if only they had asked for it in the right way.
All in all, the negotiation will be much more productive if there is a
constructive and thorough information exchange. If you want to obtain the
best result for your client, you want to provide the information that supports
the result you seek. The parties are much more likely to reach a mutually
satisfactory resolution of the problem if there is genuine understanding of
the issues on all sides. The exchange of information will frequently suggest
possibilities for resolution that may not have occurred to anyone during
preparation.

§19.08. TRADING
This is the point of the negotiation where the actual exchanges take
place. The key here is to keep track of the concessions and to explain them
in terms that are relevant and understandable. Do not make multiple
unreciprocated concessions. Do not make concessions that are
disproportionately large when compared to your opponent’s concessions.
Make sure that you explain the rationale for every concession and every
refusal to make a concession. Concessions that are not justified in terms of
the applicable law and facts are merely numbers or positions that come
from nowhere and have little credibility or persuasive effect. There is
nothing to distinguish one number from another if you cannot connect it to
something concrete.
For example, if you are seeking damages for the Smiths, explain how
you arrived at the number you request using factors such as lost wages and
medical expenses; if you agree to accept a smaller number, explain the
concession in terms if something that has happened during the negotiation
—a fact of which you were unaware or a trade-off for something else that
will benefit your clients. Negotiations will frequently get to a point where
everyone is simply “horse-trading” to arrive at a resolution, and finally
perhaps “splitting the difference” to finalize the deal. This should be the
natural evolution of the negotiation—not the starting point.

§19.09. CLOSING THE NEGOTIATION

Once you believe you have achieved a negotiated resolution, take a
few moments to find out if it is possible to adjust the agreement in some
way that benefits both parties or that allows one party to benefit without
damaging the other party. These few moments at the end of a negotiation
can make a large difference in the parties’ commitment to the agreement
and willingness to carry it out. They can also go a long way toward
preserving or rehabilitating the relationship between the negotiators. You
will discover that the importance of reputation cannot be overemphasized in
the legal community, and a reputation as a competent, fair negotiator will
take you far.
 You should also use this final stage of the negotiation to make sure that
you have actually reached an agreement. Go back over the terms in detail
and make sure that both parties have the same understanding of the
agreement. Get something in writing, even if it is only an outline of the
terms you plan to take to your clients for approval. You can follow up later
with a more detailed writing, a formal draft, or a confirming letter. Proper
handling of this crucial step will save you much grief later on.
Misunderstandings can cause serious problems and may end up unraveling
the whole deal if it turns out that the parties had very different feelings
about the meaning of a critical term or even different understandings of
what the deal actually was. If both sides are not “on the same wavelength,”
a thorough recap should make it clear very quickly, indicating a need for
further negotiation or recognition of an impossible situation.

§19.10. NEGOTIATION ETHICS

There are very few written rules that govern negotiations. There will
be no one there looking over your shoulder to see if you behave or not. One
rule that does apply is that you may not make a false statement of material
fact or law (Model R. Prof. Conduct 4.1(a)). This is obviously a simple
statement of a complex range of possibilities. For example, when does an
omission rise to the level of a misrepresentation? If you know that the
opposing party is relying on a misconception about what the facts are, and
you do nothing to correct it, are you misrepresenting the facts? Negotiators
frequently try to skate this line very closely; you will have to make your
own decisions about what kind of negotiator you want to be, and what kind
of behavior will allow you to sleep at night. Do remember that your
reputation will not only precede you, but will affect how and whether
people interact with you.
It is a convention of negotiating that the client’s value system is not
considered a material fact. Thus you may “lie” about what your client is
willing to accept and even about your bottom line. You do not have to
respond honestly to direct questions about what your client wants, as you do
to factual questions in other areas. You should know, however, that you may
do damage to the negotiating process and to your reputation by lying about
such things to the extreme. A certain amount of puffery is expected, but if
people learn that you will look someone in the eye with a wounded
expression and plead that you are being taken to the cleaners while you are
in fact cleaning out your opponents, you will find future negotiations
difficult.
Another type of behavior that causes damage to the process is lying
about what kind of negotiator you are. Many competitive “sharks” can
adopt the language of the cooperative problem solver while they are taking
advantage of genuinely cooperative negotiators. If discovered, however,
they may find later negotiations uncomfortable. Again, however trite it may
sound, you must let your conscience be your guide in negotiations.
We have obviously only skimmed the surface of the complex set of
interactions that is negotiation. However, we believe that we have given you
sound advice that will serve you well as you develop your own negotiating
style and ideas. You will learn a lot about the process through experience,
and there are plenty of books on the market if you wish to do further
reading.5

§19.11. NEGOTIATION CHECKLIST

— Prepare, prepare, prepare. Research the law. Know the facts. Plan
your information gathering and exchange. Analyze needs and
interests. Write down your opening, target, and bottom line, and
think about likely and acceptable concession patterns. Find out
whatever you can about your negotiating partners and opponents.
— Exchange information until you are satisfied that real bargaining
can take place in an informed environment.
— Keep track of concessions. Justify all requests and concessions with
thoughtful explanations of relevant facts and law.
— Close the negotiation by checking to see if you can adjust the
agreement to benefit one or more parties without damaging others.
Make sure all parties have the same understanding of the
agreement.
— Think about what kind of negotiator you want to be and what kind
of reputation you want to have in your negotiating community.

Exercise
 Here is the general information for a negotiation exercise. Your
instructor will distribute confidential information for each party and give
you further guidance regarding how to conduct the negotiation.
Landlord/Tenant Problem
General Information
Millie Graves is seventy-nine years old. For the past fifteen years, she
has lived in a second floor apartment in Garden Grove. About a month ago,
Millie was mugged outside the front door of her building. Her attacker had
apparently followed her from the street, waiting until just before she entered
the building, when she was in the shadow of the large bushes growing in the
front yard. There is a light over the front door, but it was not on that
evening. The attack took place sometime between 9:00 and 9:30 p.m. Millie
was not seriously injured, but she suffered bruises and scrapes when her
assailant knocked her to the ground after he grabbed her purse. She lost all
her identification, credit cards, and approximately $80 in cash. There is
normally a doorman stationed at the desk just inside the front door, but he
was not at his desk at the time of the attack.
Millie has never been a problem tenant. She doesn’t complain and she
pays her rent on time. For the past three months, however, she has withheld
$100 per month from her monthly rent of $500 in an effort to get the
landlord, Sam Simolean, to make several repairs to her apartment. There is
a leak in her shower, water damage to her kitchen ceiling from a leak in the
apartment above hers, and two broken windows. Her apartment has not
been painted in two years, and it shows. There are also quite a number of
insects running around the building, particularly in the common areas.
Millie has three cats, which was perfectly fine with her previous landlord,
but Simolean has instituted a “No Pets” policy for new tenants. Based on
Millie’s failure to pay her full rent for the past three months, he recently
served her with an eviction notice, giving her sixty days to vacate the
premises. The lease requires thirty days’ notice of termination for failure to
pay rent. Millie still has fifteen months to go on a two-year lease.

1. For a more in-depth discussion of the theories touched on here, see Robert M. Bastress &
Joseph D. Harbaugh, Interviewing, Counseling, and Negotiating (Little, Brown 1990).
2. See Charles B. Craver, Effective Legal Negotiation and Settlement (7th ed., LexisNexis 2012).
Nancy Schultz is grateful to Charlie Craver for many of the insights that guide her thinking and
teaching about negotiations.
 3. Remember that all of this takes place in the context of your instructions from your client. You
should know what your settlement authority is before you begin to negotiate, and you may not agree
to anything outside of that authority. At best, you can offer to take a proposal to your client that does
not satisfy the goals set by you and the client before the negotiation.
4. This formulation appears in a very useful chart in Bastress & Harbaugh, supra n. 1, at 483.
5. For example, you might want to take a look at the classic Getting to Yes by Roger Fisher &
William Ury (Houghton Mifflin 1981), or, for some very practical advice, Negotiating Your Salary:
How to Make $1000 a Minute by Jack Chapman (Ten Speed Press 1996).
§20.01. INTRODUCTION
Mediation is an increasingly important part of being a lawyer. The
odds are very high that at some point in your career you will participate in
mediations as an attorney representing a client. This chapter introduces you
to the process of mediation and also to the types of writing that accompany
mediation.1 We will introduce you to mediation briefs and agreements to
mediate. In Chapter 21 we discuss settlement agreements.

§20.02. WHAT IS MEDIATION?

Mediation is facilitated negotiation. When parties can’t resolve a
dispute in face-to-face negotiations (with or without attorneys), they may
seek the assistance of a neutral party who can help them reach agreement. A
mediation is a meeting among the disputing parties and the facilitator,
during which everyone works together to reach agreement. Mediations may
make sense in a variety of settings—for example, a divorce dispute, a
probate controversy, or a business matter. Mediations may take many
forms: The parties may all sit around a table together to try to work out a
resolution (conference mediation), or the mediator may engage in “shuttle
diplomacy”—a series of confidential meetings (called “caucuses”) between
the mediator and each party during which the mediator probes for
information and possible solutions and carries proposals back and forth
between the disputants. Or the mediation may be some combination of the
two formats.
 You may hear about different approaches to mediation: facilitative,
evaluative, and transformative. Facilitation is the purest form of mediation;
in that form, the mediator’s role is to encourage the parties to communicate
with each other in order to resolve the dispute at hand. But some parties
seek a mediator who will take a more evaluative role, more like a judge,
and give opinions on what the case may be worth and who has the stronger
legal position. Some lawyers use mediators to “talk sense” into clients who
have been unwilling to settle. Transformative mediation focuses on
relationships—it is less about resolving a dispute than it is about restoring
or rebuilding fractured relationships. It is possible for a single mediation to
include elements of all three forms of mediation, depending on the dispute,
the parties, and the mediator.

§20.03. WHAT DO MEDIATORS DO?

In the model of mediation generally used in the United States,
mediators cannot take sides; they must treat both parties equally at all times.
Mediators are both neutral and impartial; they have no preference between
the parties and no interest in the outcome. Mediators can be lawyers, but
they are not required to be—they just have to be trained, and good at
listening and problem-solving. Mediators should probe both sides to ensure
that strengths and weaknesses of positions and arguments are exposed and
understood. Mediators should encourage the parties and/or their attorneys to
come up with creative solutions that address the needs and interests of the
parties. Alternatively, the mediator may offer creative ideas if the parties
appear to be at an impasse. If agreement is reached, the mediator should
make sure that everyone’s understanding of the agreement is identical.

§20.04. CONFIDENTIALITY
Mediations are confidential in two ways. For the most part, anything
that is said during a mediation stays in the mediation; mediators and parties
normally cannot be forced to repeat and should not disclose things that were
said during mediation if the mediation fails and the dispute continues into
litigation. This does not mean that information that would otherwise have to
be disclosed during litigation can be protected from disclosure merely by
talking about it or presenting it during mediation. Each jurisdiction will
have its own laws and rules that govern the confidentiality of mediation.
 The other important aspect of confidentiality occurs during caucuses—
mediators may not reveal anything a party says during a caucus to the other
party without the first party’s consent.

§20.05. THE STAGES OF A MEDIATION

1. Preparation
Both the parties and the mediator need to prepare for mediation. Many
lawyers prepare for mediation the same way they do for litigation: they try
to figure out how to present their case in a winning way. That is not the best
approach to prepare for mediation, though. Lawyers and parties need to be
thinking about what is preventing the dispute from being resolved and what
real needs and interests are at stake. When mediators ask for written
submissions pre-mediation, those are generally the questions they want
answered.
Mediators may take a number of approaches to preparation. They may
have extensive contact with the parties or their lawyers to learn everything
they can about the dispute. Or they may prefer to know very little; one
excellent mediator asks only one question before mediation: Why haven’t
you been able to settle this matter? And mediators may take every approach
in between.
One common approach to pre-mediation written submissions (“briefs”)
is for the mediator to ask the lawyers to explain the factual background of
the case and to describe what is preventing resolution. Of course, most
lawyers will make their legal arguments no matter what, but in mediation
they do not really matter—there is no decision being made based on the
law. Pre-mediation “briefs” should really be brief—just a few pages that
help the mediator understand what is going on. Sample mediation briefs
appear in Appendix V.
Lawyers need to prepare their clients for mediation as they do for any
occasion where the client needs to make a good impression. Clients will
have ample opportunity to speak during a mediation; they should be
prepared to discuss the facts of the situation and to state their needs,
interests, and goals. Expressions of emotion can be helpful during
mediation, but they should not be the focus of communication. Often, the
reason a case goes to mediation is that the parties have simply stopped
communicating. Lawyers should prepare their clients to communicate in an
effective and appropriate manner, one that articulates what is at stake
without name-calling and accusations that do not move the conversation
forward.
2. Mediator Introduction
The mediator’s introduction at the beginning of mediation is a crucial
part of the process. It allows the parties to settle in and understand what is
happening. It should help to calm the parties and build confidence in the
process that is to follow. The mediator will generally introduce himself or
herself and explain the experience he or she has in mediating. The mediator
will also introduce the process of mediation, by explaining what mediation
is and the many benefits of mediation. The mediator will talk about
neutrality and confidentiality. The mediator will also explain what is about
to happen: opening statements, caucuses and/or conferences, and what
happens if agreement is reached. The mediator should also encourage
creativity, resolution, and commitment to the process. The mediator will
also likely set ground rules, such as no interrupting; the parties will be
encouraged to demonstrate mutual respect and listen to understand each
other’s needs and interests.
3. Party Opening Statements
In the opening statement, the attorneys explain their clients’ case. They
talk about what happened and what their client seeks from the mediation.
The clients contribute as appropriate—they may fill in details, add
explanations, and emphasize priorities. If there are no attorneys, the clients
present their stories and goals. These opening statements generally only
take a few minutes. The mediator may ask clarifying questions and may
allow the parties to respond to each other. The purpose of the opening
statements is to get the conversation started. If the parties have taken the
mediator’s instructions to heart, this may be the first time the parties have
actually listened to each other in a very long time.
4. Agenda Development
This is a step that not all mediators formally use, but it can be an
important step toward getting the parties working together. An agenda is a
simple list of issues to be discussed. Done properly, the list will be phrased
in neutral language so it does not reflect one party’s interests over the other.
If the parties can agree on the agenda, they are already working toward a
solution. Mediators want to get as many “yeses” as possible throughout the
process.
Some mediators will write an agenda themselves after they have heard
the opening statements. Others will involve the parties in developing an
agenda. Others skip the step entirely and just move into negotiations. There
is no one right way to do this—as with most things in mediation, being
flexible is key, and having as many tools in the toolbox as possible makes
all the difference.
5. Caucuses/Conferences
As noted above, there are two primary ways to organize the
negotiation part of a mediation: caucus and conference. Many mediators
will use both processes; others may have a strong preference for one or the
other.
In a caucus, the mediator will often ask if there is any additional
information not disclosed in opening statements. Caucuses can be a good
way to get additional information the parties did not feel comfortable
sharing in an open session. The mediator should probe each party’s
understanding of the strengths and weaknesses of the situation. Do the
parties really understand what is likely to happen if the case proceeds to
litigation? The mediator will seek concrete solutions and offers to take ideas
for resolution to the other side. This process may continue until the
mediator feels the parties can reach resolution together in an open session.
Some mediators believe strongly that all mediation should take place
in a conference, with all parties at the table at all times. They believe that
true resolution cannot happen if the parties are not hearing everything that
is said. Other mediators will save the conference for a time when it seems
that the parties are ready to communicate directly with each other.
Facilitative mediators are happiest when they are saying nothing and the
parties are doing all the talking. The most logical approach seems to be to
judge each situation on its own merits and use the approach most likely to
lead to resolution.
6. Brainstorming/Negotiating
As discussed in the previous chapter on Negotiation, brainstorming is a
particular approach to negotiating that requires parties to put ideas on the
table and explore them without instantly judging them. The possible
solutions should be explored for their ability to meet needs and interests,
not whether they favor one party or the other. If the parties can be coaxed
into exploring solutions together, and brainstorming ideas for how to get
past the dispute that is negatively affecting their lives, then resolution is
much more likely. Chances are that both parties will get some things they
wanted and go home without some things they wanted, but if the solution is
good enough, they can move on, and that is the real goal.
7. Resolution
When people talk about whether mediation is binding, this is where the
concept of a binding result is relevant. Any agreement the parties reach will
be a binding contract, or part of a judgment if the dispute is already in court.
The big question at this point may be who writes the agreement. If lawyers
are involved, they should take the responsibility for drafting the agreement.
We talk about Settlement Agreements in Chapter 21. If there are no
lawyers, the mediator has to decide whether to handle the drafting. Some
mediators prefer not to draft the agreement, leaving it to the parties. Others
believe they will do the better job of drafting a clear, enforceable
agreement, and so they take that responsibility. As with most things in
mediation, there is no “right” answer.

§20.06. WRITING FOR MEDIATION

As noted previously, writing takes several forms in mediation—
agreements to mediate, mediation briefs, and settlement agreements.
1. The Agreement to Mediate
Mediators will typically ask parties to sign an agreement to participate
in the mediation. The agreement may briefly explain what mediation is, but
it will almost always include an explanation of confidentiality, along with a
commitment by the parties to respect that confidentiality (which is likely
required by the law of whatever jurisdiction the mediation takes place in). It
may also include a commitment by the parties to participate in good faith,
and a provision protecting the mediator from being sued if the mediation
does not work. Below is an example of an agreement to mediate.
Mediation/Confidentiality Agreement
 Nancy Schultz has been asked to mediate the dispute between __________ and
__________ related to __________. The parties to the mediation are __________ and
__________. __________ has agreed to attend the mediation as a representative of
__________ with the authority to approve a mediated agreement if one is reached. The
parties agree to mediate in good faith with the intent of resolving the dispute, and also
agree to the following:

Role of Mediator

The mediator is an impartial, neutral intermediary, whose role is to assist the parties to
clarify the facts, to explore solutions to the dispute, and to reach a negotiated settlement.
The mediator cannot impose a settlement, but will assist the parties toward achieving their
own settlement. The mediator does not act as an attorney or advocate or give legal advice
to any participants. No professional-client or fiduciary relationship is created between any
participant and the mediator.

Mediation Is Voluntary

Any party can withdraw from or terminate his/her participation in the mediation at any
time, for any reason.

Confidentiality

The mediation is conducted in accordance with Sections 1115-1128 of the California

Evidence Code governing the confidentiality of mediation proceedings. The mediator may
not testify in any proceedings pursuant to these statutes and the parties shall not seek to
have the mediator testify. Pursuant to Section 1119 of the California Evidence Code, the
mediator and the parties agree that, except as otherwise provided by law,

(a) No evidence of anything said or any admission made in the course of a

mediation or a mediation consultation is admissible or subject to
discovery, and disclosure shall not be compelled in any arbitration,
administrative adjudication, civil action, or other noncriminal proceeding
in which testimony can be given.
(b) No writing that is prepared for the purpose of a mediation or a
mediation consultation is admissible or subject to discovery, and
disclosure of the writing shall not be compelled in any arbitration,
administrative adjudication, civil action, or other noncriminal proceeding
in which testimony can be given.
(c) All communications, negotiations, or settlement discussions among
participants in the course of a mediation or a mediation consultation shall
remain confidential.

Waiver/Indemnification
 The parties agree to release the mediator from any and all claims arising out of their
failure to reach agreement or their decision to enter any aspect of the mediation process.
Further, the mediator makes no representation that the parties will reach an agreement on
any of the issues discussed in the mediation. Any party who brings any claim of any
nature against the mediator or who seeks to have the mediator testify shall be responsible
to indemnify the mediator for any expenses, loss, or damage incurred, including attorney’s
fees and expenses incurred in connection with such claim.

2. Mediation Briefs
As discussed above, there is no set format for mediation briefs, and
there are no rules governing them. The purpose of the brief is to set the
stage for the mediation and help the mediator understand what is going on.
The mediator will ask the parties for what he or she wants. It may be an
outline of the facts, a short summary of the legal arguments, an explanation
of why the parties have not been able to settle, or some combination of all
of those. It is important to give the mediator what he or she asks for. There
is no point in trying to dazzle the mediator with the brilliance of your legal
arguments because the mediator has no power to issue a decision in your
case. The mediator’s role is to get the parties talking to each other.
If the mediator asks you to share your brief with opposing counsel,
there may be even more temptation to load the brief with legal argument
and attempts at persuasion. But if you haven’t persuaded opposing counsel
by the time of the mediation, it is highly unlikely your mediation brief will
suddenly do the trick. Keep the brief focused on what is important for
mediation—why the parties are in dispute, and what their underlying needs
and interests are. That will be the basis for discussion at the mediation. We
include some sample mediation briefs in Appendix V.

Exercise
 Let’s go back to the dispute between Susan Starkey and the dating
service discussed in Chapter 18. Plan an agenda for that mediation and
brainstorm some possible solutions that would allow both parties to move
forward from the dispute with as many of their interests satisfied as
possible.

1. For additional reading on the subject, see Harold I. Abramson, Mediation Representation:
Advocating as a Problem-Solver (3d ed., Aspen 2013); Douglas N. Frenkel & James H. Stark, The
Practice of Mediation (2d ed., Aspen 2012); Dwight Golann & Jay Folberg, Mediation: The Roles of
Advocate and Neutral (2d ed., Aspen 2011); James J. Alfini et al, Mediation Theory and Practice (2d
ed., LexisNexis 2006); and Christopher W. Moore, The Mediation Process: Practical Strategies for
Resolving Conflict (3d ed., Jossey-Bass 2003).
§21.01. INTRODUCTION
We have previously discussed the processes that result in settlement
agreements: negotiation and mediation. Once the parties have resolved their
differences, the agreement must be reduced to writing. Clarity and precision
in drafting are critical. An agreement that is ambiguous and open to
interpretation invites a return to litigation if the parties find themselves at
loggerheads again.

§21.02. WHAT DO SETTLEMENT AGREEMENTS LOOK LIKE?

In this section we show you the various parts of a settlement
agreement. We give you some good and some not-so-good examples from
actual settlement agreements, which you can find online. The overarching
principle to keep in mind is that the agreement needs the clarity and
precision referred to above, as well as an overall professional look that
requires attention to detail. And, needless to say, the terms of the settlement
agreement must accurately reflect the parties’ actual agreement.
A good settlement agreement is well organized and uses headings to
help the reader find specific provisions. It includes white space between the
paragraphs, so the agreement is not dense and hard to read. It uses short
sentences and simple language. It follows the golden rule of drafting: Never
change your language unless you wish to change your meaning, and always
change your language if you wish to change your meaning.1 The concept of
“elegant variation” that many of us learned in the early stages of our writing
instruction—the concept of changing your words to make your writing
more interesting—has no place in legal drafting. Precision is paramount, so
use the same word for the same meaning, no matter how often and how
boring it seems.
1. Descriptive Title
The first thing a settlement agreement needs is a title. The title should
describe the function of the agreement. The following are some samples
from the agreements we will be using throughout the chapter. Some titles
are very simple, and just label the type of agreement, or simply that it is an
agreement, like these:
AGREEMENT2
RESOLUTION AGREEMENT3
SETTLEMENT AND RELEASE AGREEMENT4
Other titles give more information and may be more useful when trying to
locate a specific agreement later in time:
SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
BEGINNING MONTESSORI ACADEMY, BALDWIN PARK,
CALIFORNIA5
SHOWING ANIMALS RESPECT & KINDNESS V. PROFESSIONAL
RODEO COWBOYS ASSOCIATION
N.D. ILL. CASE NO. 1:08-CV-03314
SETTLEMENT AGREEMENT AND MUTUAL RELEASES6
2. Caption
The function of the caption is to identify the parties. Here are the
captions of three of the five agreements referred to previously:

1. From the HHS agreement: Parties. The Parties to this Resolution

Agreement (“Agreement”) are the United States Department of
Health and Human Services, Office for Civil Rights (“HHS”) and
Affinity Health Plan, Inc. (“the covered entity”). HHS and the
Covered Entity shall together be referred to herein as the “Parties.”
 2. From the FDIC agreement: This Settlement and Release Agreement
(“Agreement”) is made as of this 15th day of July, 2013, by,
between, and among the fo11owing undersigned parties: The
Federal Deposit Insurance Corporation, as receiver for Rainier
Pacific Bank, Tacoma, Washington (“FDIC”), and Stephen Bader,
Edward Brooks, Charles Cuzetto, John Hall, Brian Knutson,
Carolyn Middleton, Victor Toy, Alfred Treleven, III, Bruce
Valentine, and Darrren Zemanek (collectively, the “Settling
Defendants”) (individually, the FDIC and the Settling Defendants
may be referred to herein as a “Party” and collectively as the
“Parties”).
3. From the Montessori agreement: The parties to this Settlement
Agreement (“Agreement”) are the United States of America and
Beginning Montessori Academy (Montessori Academy), located in
Baldwin Park, California.

The caption for the agreement between the USA and the Montessori
Academy is the simplest of the three, and it includes everything necessary.
Phrases such as “by and between” and compound prepositions such as
“herein” add nothing to the meaning of the agreement and are throwbacks
to an earlier time and means of communicating. You will see other
examples of this kind of language as we proceed through the parts of an
agreement. You will also learn that it is not necessary, and that plain English
is far preferable.
In addition to identifying the parties, the caption should provide the
short-form references to the parties that will be used in the rest of the
agreement. These short-form references may be specific and use some part
of the party’s name, or they may be generic and identify the party by a role
such as “employer” or “employee.” The reason for using generic identifiers
is that it allows the agreement to serve as a form agreement for future use
between similar parties.
3. Transition/Language of Agreement
“Transition” or “language of agreement” simply refers to language in
the agreement that specifically states that the parties agree to the terms of
the agreement. Here are examples of transitions from two of our settlement
agreements:
 1. From the Third Point agreement: NOW, THEREFORE, in
consideration of and reliance upon the mutual covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
2. From the HHS agreement: In consideration of the Parties’ interest in
avoiding the uncertainty, burden, and expense of further
investigation and formal proceedings, the Parties agree to resolve
these matters according to the terms and conditions below.

The second example above uses the clearest language and indicates the
agreement of both parties. The statement that starts with “now, therefore” is
following an old-fashioned approach that uses “whereas” for background
information and “now, therefore” to signal a transition to operative
language in the agreement. You will notice other rote language and
unnecessary jargon in that example as well. We recommend an approach
like the one used in the second example.
4. Recitals/Background
The recitals, or background, part of a settlement agreement sets forth
any information the parties believe is relevant to explain why they decided
to enter into the agreement. In old-fashioned settlement agreements, the
recitals look like this:
WHEREAS, each of the Company and the Third Point Group has determined that it is in
its best interests to enter into this Agreement and to terminate the pending proxy contest
for the election of directors at the 2012 Annual Meeting

WHEREAS, Plaintiff SHARK commenced the above-captioned litigation against the

PRCA by filing a Complaint on June 9,2008 (the “Action”) alleging violations of 17
U.S.C. §512(f) and for tortious interference with contract;

In a more modern, simpler settlement agreement, the recitals are

usually described as “background” (although the word “recitals” may still
be used, as it is in the HHS agreement) and look like this:
On April 15, 2010, the HHS Office for Civil Rights (OCR) received notification from
AHP regarding a breach of its unsecured electronic protected health information (EPHI).
On May 19, 2010, OCR notified AHP of OCR’s investigation regarding AHP’s
compliance with the Privacy, Security, and Breach Notification Rules.
 I. Background
3. The complainant, Ms. Kathy Castaneda, is the mother of a five-year-old, [redacted],
who has autism. In a letter dated June 11, 2008, Ms. Castaneda alleges that the Montessori
Academy notified her that [redacted] would not be accepted for the following school year
and that as of July 1, 2008, the Montessori Academy would no longer accept any child
with autism or any specialized condition or need.

We recommend the simpler approach, using clear language to explain

whatever background facts are important to setting up the agreement. Using
headings and clear language will let the reader know what part of the
agreement they are looking at. The “whereas…now, therefore” approach is
simply not necessary for clarity or precision.
5. Definitions
Definitions are useful if a word or phrase is subject to multiple
interpretations. If an otherwise ambiguous term is used throughout an
agreement, the term may be defined in a definitions section near the
beginning of the agreement. If such a term is used only once in the
agreement, it may be defined where it is used. None of our sample
agreements include a definitions section, presumably indicating the parties’
confidence that, in general, the language of the agreement is clear to both
parties. (You will find specific terms defined in context on pages 4 and 6 of
the Third Point agreement if you look at it online.)
Here are some sample definitions from another agreement:
“Action” refers to the putative class action identified in Section I.B above which is
currently pending in the Superior Court of the State of California for the County of Santa
Barbara.
“Claim form” refers to a document substantially in the form of Exhibit A hereto, or
as it may hereafter be modified by subsequent agreement of the Parties or order of the
Court. Eligible individuals who submit valid and timely claims in accordance with this
Agreement are referred to herein as “Claimants.”7

6. Operative Language
A settlement agreement, like any contract, is a series of promises.
Promises should be stated in the active voice, starting with the party making
the promise as the subject of the sentence. The verb should indicate the
nature of the promise, and the object should clearly identify what the party
has agreed to do. Here are some sample promises from the agreements we
have looked at throughout the chapter:
1. From the Third Point agreement: Each member of the Third Point
Group shall, and shall cause each of the Third Point Affiliates to,
immediately cease all efforts, direct or indirect, in furtherance of the
Stockholder Nomination and any related solicitation in connection
with the Stockholder Nomination. The Third Point Group and the
Third Point Affiliates shall promptly modify or disable (and not
permit to be re-enabled) any websites they directly or indirectly
maintain in order to comply with this section 2(b). At the same time,
the Company shall immediately cease all direct or indirect negative
solicitation efforts relating to the 2012 Annual Meeting concerning
Third Point Group, Third Point Affiliates and members of the slate
of nominees proposed by Third Point Group.
2. From the HHS agreement: Payment. AHP agrees to pay HHS the
amount of $1,215,780 (“Resolution Amount”). AHP agrees to pay
the Resolution Amount by electronic funds transfer pursuant to
written instructions to be provided by HHS. AHP agrees to make
this payment on or before the date it signs this Agreement.
3. From the FDIC agreement:
A. As an essential covenant and condition to this Agreement, the
Settling Defendants, collectively, agree to pay the FDIC the sum of
$375,000 (the “Settlement Funds”).
B. Within 10 days of the execution of an original, or originals in
counterpart, of this Agreement by all of the undersigned Parties to
this Agreement, but no later than August 15, 2013, the Settlement
Funds shall be delivered to the FDIC by direct wire transfer into an
account designated by the FDIC or by certified or cashier’s check
drawn upon a depository institution acceptable to the FDIC and
delivered to an address provided by the FDIC.
4. From the Montessori agreement:
10. The Montessori Academy agrees that it will not discriminate
against any individual on the basis of disability, including autism.
11. The Montessori Academy agrees to provide children with
disabilities, an equal opportunity to attend Settlement Agreement
between the United States and Beginning Montessori Academy,
Baldwin Park, California http://www.ada.gov/montessori_academy_
settle.htm [9/23/2013 4:48:46 PM] the Montessori Academy and to
participate in all programs, services, or activities provided by the
 Montessori Academy, except to the extent that they are unable to
reasonably participate due to their disability or unable to participate
after reasonable modifications in the policies and procedures have
been made as set forth in 28 C.F.R. §36.302. The Montessori
Academy agrees to make reasonable modifications in policies,
practices, or procedures when such modifications are necessary to
afford its child care services and facilities to children with
disabilities, unless the modifications would fundamentally alter the
nature of the program, service or activity as set forth in 28 C.F.R.
§36.302.
5. From the SHARK agreement: Compensation: Within five (5)
business days following the execution of this Agreement, PRCA
agrees to pay SHARK the amount of Twenty-Five Thousand Dollars
($25,000) by check made payable to the Electronic Frontier
Foundation, as attorneys for SHARK.

You will notice that the Third Point agreement uses the word “shall.”
Without getting into an ongoing debate about whether “shall” is ever a good
word to use, we suggest a simpler approach. “Shall” is generally used to
suggest a command and frequently connotes some imbalance in bargaining
power. When a party promises to do something, it is much easier, and less
directive, to use the word “will” to denote the promise, as in the Montessori
agreement, where the Montessori Academy agrees that it “will not
discriminate.”
You can also see that parties often “agree” to do something, such as
make a payment, as you see in the HHS, FDIC, and SHARK agreements
above. The important thing here is to make sure the party agreeing to do
something is denoted as the subject of the promise, so it is clear who
promised to do what. As an example of the passive voice we counsel
against, you see “the Settlement Funds shall be delivered to the FDIC by
direct wire transfer” in the FDIC agreement. The sentence does not
specifically say who will make the wire transfer happen. While it is
generally clear from the context who is responsible for doing something
stated in the passive voice, it is better practice to always state promises in
the active voice, so there can be no argument later about who promised to
do what.
7. Contingencies
 It is important to recognize that things can go wrong after a settlement
agreement is reached. While the parties are still in an agreeable frame of
mind, they should provide for what will happen if something does not go
according to plan. Contingencies may be spelled out specifically, or the
parties may agree on a form of dispute resolution to handle any
disagreements. Here are some examples from our settlement agreements:

1. From the Third Point agreement: Miscellaneous. The parties hereto

shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement and to enforce specifically the terms and
provisions of this Agreement exclusively in the Court of Chancery
or other federal or state courts of the State of Delaware, in addition
to any other remedy to which they are entitled at law or in equity.
Furthermore, each of the parties hereto (a) consents to submit itself
to the personal jurisdiction of the Court of Chancery or other federal
or state courts of the State of Delaware in the event any dispute
arises out of this Agreement or the transactions contemplated by this
Agreement, (b) agrees that it shall not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any
such court, (c) agrees that it shall not bring any action relating to
this Agreement or the transactions contemplated by this Agreement
in any court other than the Court of Chancery or other federal or
state courts of the State of Delaware, and each of the parties
irrevocably waives the right to trial by jury, (d) agrees to waive any
bonding requirement under any applicable law, in the case any other
party seeks to enforce the terms by way of equitable relief and (e)
each of the parties irrevocably consents to service of process by a
reputable overnight mail delivery service, signature requested, to the
address of such parties’ principal place of business or as otherwise
provided by applicable law.
2. From the HHS agreement: Corrective Action Plan. AHP has
entered into and agrees to comply with the Corrective Action Plan
(CAP), attached as Appendix A, which is incorporated into this
Agreement by reference. If AHP breaches the CAP, then AHP will
be in breach of this Agreement and HHS will not be subject to the
Release set forth in paragraph 8 of this Agreement.
3. From the FDIC agreement: In the event that the Settlement Funds
are not delivered to the FDIC (or its counsel) by August 15, 2013,
interest shall accrue on all unpaid amounts at the rate of 5% per
annum from August 15, 2013 until the date of payment. However, if
said Settlement Funds are not delivered to the FDIC by August 15,
2013 as a result of the FDIC’s failure to execute this Agreement, the
FDIC’s failure to designate an account for payment by wire transfer,
or the FDIC’s failure to accept or reject the sufficiency of the
depository institution upon which the Settling Defendants propose
to draw a certified or cashier’s check for the Settlement Funds, no
interest shall accrue until ten days after the FDIC cures such
failure(s).
4. From the Montessori agreement: The United States may review
compliance with this Agreement at any time. If the United States
believes that this Agreement or any portion of it has been violated, it
will raise its concerns with the Montessori Academy and the parties
will attempt to resolve the concerns in good faith. The United States
will give the Montessori Academy thirty (30) days from the date it
notifies the Montessori Academy of any breach of this Agreement to
cure that breach, before instituting any court action. If the parties are
unable to reach a satisfactory resolution within that period, the
United States may bring a civil action in federal district court to
enforce this Agreement or Title III, and may in such action seek any
relief available under law.
5. From the SHARK agreement:
Future Conduct.
a. With the goal of preventing disputes of the type underlying the Action from arising
in the future, the PRCA and SHARK will employ the following procedure:
i. SHARK will designate an Internet video contact for the PRCA, which contact
may be changed from time to time upon notice in writing to the PRCA in accord with
section 9 hereof.
ii. If the PRCA forms a good faith belief that any future SHARK video violates the
PRCA’s rights, the PRCA will notify SHARK’s Internet video contact.
iii. Once notified, SHARK will have five (5) business days to correct the problem
by taking down the video.
iv. If SHARK believes in good faith that the video does not violate the PRCA’s
rights, and therefore chooses not to take the video down, the PRCA may take further
action with respect to the SHARK video, including, but not limited to, going to court to
enforce its rights
 You can see that these contingency plans range from (1) filing in a
specific court, to (2) complete abrogation of the release (which will be
discussed later in the chapter), to (3) something as simple as requiring
interest on payments, to (4) making a good faith effort to correct any
breach, to (5) an entire process for dealing with a possible violation.
Dealing with contingencies can take many forms, depending on the intent
and creativity of the parties. The important thing is that they are dealt with
in some form in the settlement agreement. And, as always, we prefer
simpler, more direct language to the more convoluted, “jargon-y” approach.
8. Declarations
Declarations are the portions of the agreement sometimes referred to
as “boilerplate.” They are the provisions that appear in almost any contract:
governing law, integration clauses, notice provisions, and the like. Here are
some examples from our settlement agreements:

1. From the Third Point Agreement:

No Waiver. Any waiver by any party of a breach of any
provision of this Agreement shall not operate as or be construed to
be a waiver of any other breach of such provision or of any breach
of any other provision of this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on one or
more occasions shall not be considered a waiver or deprive that
party of the right thereafter to insist upon strict adherence to that
term or any other term of this Agreement.
Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof
and may be amended only by an agreement in writing executed by
the parties hereto.
2. From the HHS agreement: Effect of Agreement. This Agreement
constitutes the complete agreement between the Parties. All material
representations, understandings, and promises of the Parties are
contained in this Agreement. Any modifications to this Agreement
shall be set forth in writing and signed by both Parties.
3. From the FDIC agreement:
Choice of Law. This Agreement shall be interpreted, construed,
and enforced according to applicable federal law, or in its absence,
 the law of the State of Washington.
Entire Agreement and Amendments. This Agreement
constitutes the entire agreement and understanding between and
among the undersigned Parties concerning the matters set forth
herein. This Agreement may not be amended or modified except by
another written instrument signed by the Party or Parties to be
bound thereby, or by their respective authorized attorney(s) or other
representative(s).
Reasonable Cooperation. The undersigned Parties agree to
cooperate in good faith to effectuate all of the terms and conditions
of this Agreement.
Advice of Counsel. Each Party hereby acknowledges that it has
consulted with and obtained the advice of counsel prior to executing
this Agreement, and that this Agreement has been explained to that
Party by his or her counsel.
4. From the Montessori agreement:
Failure by the United States to enforce this entire Agreement or
any of its provisions shall not be construed as a waiver of its right to
enforce other provisions of the Agreement.
If any term of this Agreement is determined by any court to be
unenforceable, the other terms of this Agreement shall nonetheless
remain in full force and effect.
5. From the SHARK agreement:
Choice of Law and Venue. This Agreement shall be interpreted
in accordance with the laws of the State of Illinois. Any dispute or
controversy between the Parties arising under or in connection with
this Agreement shall be submitted to the court presiding over the
Action, or, if the court presiding over the Action declines
jurisdiction, to a state or federal court in the State of Illinois. Each
Party agrees to personal jurisdiction in the State of Illinois for such
purposes.
Severability: If any provision of this Agreement is found
invalid or unenforceable, the balance of the Agreement, and all
provisions thereof, shall remain in full force and effect. The failure
of any Party to enforce any term of this Agreement shall not be
deemed a waiver of that term or any other term of this Agreement.
 As you look at these examples, you see how easy it is to eliminate the
“heretos” and “herebys” and just say things in plain English. The choice of
what to include as declarations is, of course, up to the parties, but
integration clauses, severability provisions, choice of law provisions, and
notice provisions are very common.
9. Closing
Although many agreements offer convoluted language and outdated
formalities in their closings, the only thing that is really required is the
signatures of the parties, and perhaps an effective date. If you look at the
closings from our sample agreements, you will see that the HHS agreement,
the Montessori agreement, and the SHARK agreement follow the simple
approach. The Third Point agreement and the FDIC agreement include this
unnecessary and old-fashioned language:
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or
caused the same to be executed by its duly authorized representative as of the date first
above written. [followed by signatures]

IN WlTNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by each of them or their duly authorized representatives on the dates hereinafter
subscribed. [followed by signatures]

This language has no magic effect. It is simply not required and adds
nothing to the meaning of the signatures.

§21.03. WHO DOES THE DRAFTING?

There are no hard and fast rules concerning who should do the drafting
of a settlement agreement. A review of the literature dealing with the
subject reveals advice ranging from an absolute mandate that agreements be
drafted jointly to similarly strong advice that the parties prepare drafts that
can then be reconciled by the mediator, if the agreement is the result of a
mediation.8 Some mediators will come to the mediation with a draft or form
agreement that can be adjusted and then signed by the parties. This may be
appropriate for simpler mediations that have routine terms, where the
agreement will become part of the judgment if the mediation is the result of
a proceeding that is already in court.
In more complex matters, the question of who does the drafting can get
complicated. If lawyers are involved, they will usually want to handle the
drafting. But how? Should one party’s lawyer take the lead, and then send a
draft to the other lawyer for “redlining”9? Should the lawyers draft the
agreement together? Should the mediator handle the preliminary drafting?
There is no one right answer to these questions. Some mediators believe it
is inappropriate for them to draft an agreement, particularly where lawyers
are involved. Others believe it is part of their function as neutrals, and that
they may be in the best position to get the terms of the agreement precisely
correct. Some lawyers always want to control the drafting process, while
others prefer to take on the role of editor.
Use of a single text process, in which negotiations toward the final
agreement are based on a single document amended by the parties as
agreements are reached, can expedite the process.10 Where a neutral deals
frequently with similar subject matters, he or she may have basic clauses to
be included in agreements prepared in advance, for appropriate
modification.11
The most important thing is to have any agreement memorialized, in
writing, before the parties disperse. Even a rough statement of
understanding is better than no written agreement at all.12 It is simply too
easy for everyone to decide that they are tired after negotiating or mediating
and that they will work on the agreement later. Then they go home and
think about it, and start to have “buyer’s remorse” over parts of the
agreement with which they may be less than entirely happy. Then the
process may have to begin all over again. But if the parties sign something
that encapsulates the terms of the agreement, they will feel the commitment
that allows the full agreement to be drafted later.

§21.04. RELEASES
The release is the part of the settlement agreement where the parties
agree to end any litigation that may have started or to refrain from
commencing any litigation over the issues that have been settled by the
agreement. Here are releases from our settlement agreements:

1. From the Third Point agreement: The Third Point Group, for
themselves and for their members, officers, directors, assigns, agents
and successors, past and present, hereby agree and confirm that,
effective from and after the date of this Agreement, they hereby
 acknowledge full and complete satisfaction of, and covenant not to
sue, and forever fully release and discharge each Company Released
Person of, and hold each Company Released Person harmless from,
any and all rights, claims, warranties, demands, debts, obligations,
liabilities, costs, attorneys’ fees, expenses, suits, losses and causes
of action (“Claims”) of any nature whatsoever, whether known or
unknown, suspected or unsuspected, occurring at any time or period
of time on or prior to the date of the execution of this Agreement
(including the future effects of such occurrences, acts or omissions)
in connection with, relating to or resulting from the Proxy Contest
(as defined below) or the hiring or termination of employment of
Scott Thompson.
2. From the HHS agreement: In consideration and conditioned upon
AHP’s performance of its obligations under this Agreement, HHS
releases AHP from any actions it has or may have against AHP
under the Privacy and Security Rules arising out of or related to the
Covered Conduct identified in paragraph 2. HHS does not release
AHP from, nor waive any rights, obligations, or causes of action
other than those specifically referred to in this paragraph. This
release does not extend to actions that may be brought under section
1177 of the Social Security Act, 42 U.S.C. §1320d-6.
3. From the FDIC agreement: Effective upon receipt in full of the
Settlement Funds and, if applicable, any accrued interest described
in SECTION I above, and without any further action by anyone, and
except as provided in SECTION II.D. below, the FDIC, for itself
and its employees, officers, directors, representatives, successors,
administrators, agents, and assigns, shall be deemed to have, and by
operation of law shall have, irrevocably, absolutely, unconditionally,
fully, finally, and forever released, relinquished, waived, and
discharged each of the Settling Defendants and their respective
heirs, executors, administrators, agents, representatives,
predecessors, successors, marital communities, and assigns, from
any and all claims, demands, obligations, damages, actions,
liabilities, and causes of action, direct or indirect, in law or in equity,
whether based on federal law, state law, or common law, whether
foreseen or unforeseen, matured or unmatured, known or unknown,
accrued or not accrued, existing now or to be created in the future,
 that arise from or relate to the performance, nonperformance, or
manner of performance of the Settling Defendants’ respective
functions, duties, or other actions taken as employees, officers,
and/or directors of the Bank.
4. From the Montessori agreement: This Agreement fully and finally
resolves any and all of the allegations by the complainant and the
United States in this case. It is not intended to remedy any other
potential violations of the ADA by Montessori Academy.
5. From the SHARK agreement: Pursuant to and in consideration of
the Parties’ promises to comply with the terms and conditions of this
Agreement, including the mutual releases contained in this
paragraph, the Parties, and their respective officers, directors,
agents, servants, employees, parents, subsidiaries, affiliated
companies, attorneys, successors and assigns, hereby release each
other from any and all claims arising out of or related to the facts
alleged in the Action.

You will notice that the Third Point and FDIC agreements contain an
excess of verbiage, which used to be traditional in releases and which you
unfortunately will still see today. If you look at the other three releases, you
see that simpler language and sentence structure can accomplish the same
thing. The Montessori release in particular is short and sweet and to the
point. The only function of a release is to say that the parties have agreed
not to sue each other or otherwise proceed on whatever grievance caused
the dispute in the first place. One party will sometimes suggest language
that is broader than that and purports to release any claims the parties may
ever have against each other. Competent counsel, who reads carefully, will
not allow such a release. Simple language makes it much easier to detect if
one party is trying to secure an overbroad release.

Exercise
Let’s go back to our dispute between Susan Starkey and the video
dating service discussed in Chapter 18. Draft a settlement agreement based
on the following terms of agreement:
The video dating service (MatchesRUs.com) agrees to pay Sandy $10,000 for her
emotional distress.
MatchesRUs.com agrees to implement better screening procedures for prospective clients,
 and to block clients who receive two or more complaints from other clients.
Susan agrees not to sue MatchesRUs.com.
Susan agrees the terms of the agreement will be confidential.

Include a background section explaining why the parties have decided to

enter into this agreement. Also include a governing law section (you can
pick any state), an integration clause, and a severability provision. Don’t
forget to think about contingencies.
William Zakis
Hi Prof. Schultz, Attached are the full text versions of each agreement. In
addition, here are links to the locations of each agreement online.
Montessori http://www.ada.gov/montessori_academy_settle.htm HHS
http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/affinity_agree
ment.pdf

Mon 5:10 PM

1. Scott J. Burnham, Drafting and Analyzing Contracts, 227 (3d ed., LexisNexis 2003).
2. You can find the full agreement at http://contracts.onecle.com/yahoo/third-point-settlement-
2013-07-22.shtml (referred to elsewhere in the chapter as the “Third Point” agreement).
3. You can find the full agreement at
http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/ affinity_agreement.pdf (referred to
elsewhere in the chapter as the “HHS” agreement). The agreement also appears in Appendix III.
4. You can find the full agreement at
http://www.fdic.gov/about/freedom/plsa/wa_rainierpacificbank.pdf (referred to elsewhere in the
agreement as the “FDIC” agreement)
5. You can find the full agreement at http://www.ada.gov/montessori_academy_settle.htm
(referred to elsewhere in the chapter as the “Montessori” agreement). The agreement also appears in
Appendix III.
6. You can find the full agreement at
https://www.eff.org/files/filenode/SHARK_v_PRCA/SHARKPRCAsettlement.pdf (referred to
elsewhere in the chapter as the “SHARK” agreement).
7. The full agreement may be found at http://www.missionandstate.org/ms/wp-
content/uploads/2013/05/DarioPini-Settlementagreement-SantaBarbara-Alamar-ShoresInnandSuites-
ChanticoInn-VillaRosaInn.pdf.
8. Thomas Denver, Setting the Stage to Produce Comprehensive Settlements, 16 Alternatives to
High Cost Litig. 66 (1998).
9. The process in which an agreement is exchanged back and forth with the changes marked by
strikethroughs and additions in a visible way so everyone can see what has changed. For example,
using Track Changes in a Microsoft Word document.
10. Id.
11. Id.
12. Id.
§22.01. THE TREND: COMMUNICATING WITH EMAIL
Increasingly, short emails are replacing the traditional ten- to fifteen-
page memo. In your professional career, you will compose far more emails
than memos. Your supervisor may need a quick answer to a specific
question or may want to know how the law is trending in a certain area.
Your client may want an update on litigation or on a project. As you
compose responsive emails, you will discover that you are doing more than
typing a message that looks like a streamlined version of a memo or letter.
You will realize that email in a legal context has its own unique qualities.
In this chapter, we examine when an email is the appropriate vehicle
for communicating, what the audience for the email expects, and the format
for an email. We also review rules of email etiquette and conclude with
examples of legal emails.

§22.02. KNOW YOUR AUDIENCE

In your professional role, your audience is different than it is when you
are writing casually to a friend. If you start with a salutation, it will read
“Dear Barbara,” not “Hey Barb.” If you are emailing your supervisor,
consider what sort of response he or she expects. Your supervisor
undoubtedly wants a concise and precise answer to the inquiry. At this
point, he or she wants no more information or analysis than is necessary to
answer the question.
If you are emailing a client, you would expect that your client also
wants a short answer that quickly gets to the point and skips detailed
analysis. Depending on your message, you may want to consider whether
email is the best way to communicate your message. If you need to send
bad news, emotionally charged news, or sensitive information, you may
decide to use email or the telephone only to set up a time when you can
meet and discuss the matter in person.

§22.03. FORMAT YOUR EMAIL APPROPRIATELY

Although email has an informal feel to it, it still requires the
professional touch. For example, you want to include certain information
that you normally associate with an interoffice memo. You must fill in the
subject line. If you leave it blank so that it states only “RE:”, the recipient’s
email program may relegate the message to the “junk mail” or “spam”
folder. The subject heading also will help later on if you need to retrieve the
email.
As for the headings and organization of your email, different readers
prefer different formats. You should consult your supervisor beforehand so
that you know what he or she prefers. For example, the preferred format
might be: Issue; Conclusion; and Brief Explanation of Conclusion. Or it
might be Summary of Assignment, possibly including some facts of the
situation; Conclusion; and Explanation of Conclusion that includes citation
and significant analysis. Or it might consist of Short Answer and Citations
to Authorities with accompanying parentheticals. The degree of detail also
will depend on the complexity of the contents.
Likewise, depending on the desired format and the complexity of the
issue, the length will vary. Most likely, the email will equal a printed page
or two, at most.
You will want to construct a physical layout for a document that will
be easy to read on the screen of a mobile device. Long paragraphs are hard
to read on a small screen, as are paragraphs that do not have spaces between
them. You will want to limit the length of each paragraph to three or four
lines when possible and include a blank space between each paragraph. You
will want to experiment with different fonts. Some authorities state that for
emails, sans serif fonts (for example, Arial, Verdana, and Georgia) are
preferred over serif fonts (for example, Times New Roman).1
Students sometimes wonder what information to include in a signature
block. Though opinions differ, we believe that shorter is better. Certainly
you can note your school and year of graduation, but including your various
student activities likely will not impress anyone. If you are looking for a
job, send a resume to the potential employer.
Students also sometimes ask about deleting the “sent from my iPhone”
line or including a line apologizing for such shortcomings as typographical
errors and failings in the grammar department. There is no real value in
deleting information about your iPhone, and apologizing for sloppy work
will not tempt anyone to forgive you for deficient work. Instead of having
to apologize for your errors, carefully proofread every message before
pressing “Send.”

§22.04. SEND A MESSAGE THAT IS NOT TOO SIMPLE OR TOO

COMPLEX
To avoid sending messages that are too simple or too complex,
consider the needs of your supervisor at that moment. Your research might
result in a quick “yes” or “no” answer. However, it also may result in a
complex one. Your email then may begin by stating, “There’s no clear
answer.” Or it may state, “The research favors our side, but not
definitively.” In any case, you will want to be as accurate and to the point as
possible.
How much of an explanation follows your opening statement depends
on how detailed an explanation your supervisor wants. If your supervisor is
meeting with a client or opposing counsel and has just a minute or two to
read your email, he or she would appreciate a short and simple response. If
you want to keep your explanation short enough for an email, but fear that
such an email might be misleading or believe that a longer explanation
should be available, you can draft a longer response and include it as an
attachment.

§22.05. EMAIL WITH CAUTION

1. Anticipate the Unexpected Reader
Although you are emailing one person, you do not know who else will
be reading your email. The recipient may pass it on to others or accidentally
send it to an opposing party. In a sense, when you send an email, you email
the world. Consequently, be careful not to email more information or
opinion than is required. Moreover, you never know when a matter will go
to litigation and the opposing side will employ discovery to demand a copy
of relevant emails.
Such cautiousness can create a dilemma. Suppose you realize that the
facts of the case point to an unfavorable outcome for your client. You must
email an honest answer to your supervisor; however, you fear that it could
fall into the wrong hands. As a result, you should be cautious, but honest
with your wording. Perhaps you might mention to your supervisor that you
are keeping a copy of your email and the supporting research, so that your
supervisor should feel comfortable in deleting the sensitive email.
2. Maintain a Professional Tone
When you are starting out on your legal career, other people in your
firm or office are always evaluating your performance. Your performance
includes not just the analytical quality of your work. Among other things, it
includes your demeanor. Your demeanor is reflected in how you write. With
respect to emails, an exemplary demeanor demands a certain degree of
formality. Your professional email is no place for emoticons (such as happy
faces), vulgar words, or cute contractions of words (for example, “How r u”
or “imho”). And again, remember that your email may show up in a
discovery request or in courtroom testimony. Keep it professional.
The professional email is a formal document directed to a supervisor
or client and not to a close friend. Because of the nature of emails, the
writer can be tempted to drop his or her guard. Even if you think you have
developed a good relationship with your supervisor, you may forget that
your email may be forwarded to others who will find your tone
inappropriate.
Emails with an inappropriate tone can cause problems for the writer.
You may know the story of the New Zealand accountant who had to fight
her termination when she was fired for sending emails in all-caps with
words in red and bold, which her employer argued “caused disharmony in
the workplace.” You may also have heard of the unfortunate email that
former Federal Emergency Management Agency director Michael Brown
sent during the catastrophe that Hurricane Katrina caused in New Orleans.
Brown received an email stating that “thousands are gathering in the street
with no food or water.” His email reply: “Thanks for the update. Anything
specific I need to do or tweak?” When that reply became public, Brown
seemed exceedingly heartless. In the same way, a thoughtless email could
cost you a client or result in a poor evaluation, a loss of promotion, or loss
of a job.

§22.06. EMAIL ADVICE

Here are six tips to help you communicate effectively by email.
1. Begin Your Email with a Summary of the Query
If you are responding to an email, begin with a brief summary of the
question that your correspondent has posed. This introduction will remind
him or her exactly what the question was. Your reader undoubtedly is
receiving and replying to any number of emails and will appreciate a
prompt on the subject matter of your message.
2. Be Aware of Differences in Email Systems
Although email systems are becoming more uniform, you still need to
watch out for changes occurring when your recipient has a different email
system than you do. In particular, watch out for changes in symbols,
graphics, and the formats of attachments.
3. Watch Out for the “Reply All” Button
Sooner or later, everyone seems to hit “Reply All” when they mean to
hit “Reply.” As a result, a private and sometimes embarrassing message
travels to a wide, unintended audience. Be careful.
4. Proofread
In the professional setting, we are expected to adhere to a high
standard of spelling and grammar. Because we use email for formal and
informal social purposes, we sometimes blur the line. When we are stressed
or in a hurry, we may unintentionally make errors. Before sending an email,
be sure to proofread it once or twice.
5. Be Cautious with Humor and Avoid Sarcasm
When we speak with someone in person, we give context for what we
say with our voice, our facial expressions, and our body language. They
help the reader understand our message and emotions. By contrast, emails
lack this context. You type out what you intend to be a humorous line, and
your reader misunderstands your message. He or she may think you are
emailing a criticism or insult. Efforts at sarcasm are almost certain to
backfire. Including an emoticon, like a smiling face ☺, may save the day,
but not necessarily. It’s best to save those wisecracks for live conversations.
Even then, you need to exercise caution.
6. Avoid Emotions
When we are upset, we sometimes can’t help letting everyone know it.
But lashing out in an email is never a wise move. Our words live on even
after we gain perspective and our emotions subside. An outburst can
alienate a client, a judge, a colleague, or a supervisor. The old advice about
counting to ten still holds. In fact, you may want to count a lot higher.

§22.07. SAMPLE EMAILS

Here are three sample emails. Each deals with the same issue;
however, each includes a different level of detail. The sample you would
use depends on which one your supervisor would prefer in a given situation.
To understand the issue, please turn to Appendix I and read the third
sample memo: RE: Jeffrey Bing—Claim of Self-defense. The following
emails are based on this case. Your supervisor emails you this question:
Our client, Jeffrey Bing and his sometime friend John Geller got into a fistfight over an
old girlfriend. At one point, they were 20 feet apart, and Geller, brandishing a knife,
threatened to kill Bing, and Bing pulled a gun from his knapsack. Bing apologized to
Geller and pleaded with him to calm down, but to no avail. Geller charged Bing. When
Geller got within 5 or 10 feet of Bing, Bing shot once, killing Geller.

My question: Assuming these facts are true, under Illinois statutes, can Bing argue self
defense?

The following emails offer a range of detail. The first offers the relevant
statute, a conclusory application of the statute, and a reference to the case
law. The second adds a more detailed analysis of how the statute applies to
the facts of the case at hand. The third offers a fairly detailed analysis of the
most relevant cases. Each email offers the reader the invitation to request a
more detailed analysis.
Email I
You ask whether, under the facts given, Bing can successfully argue self defense. I think
yes.
 Illinois Statute 720 I. Comp. Stat. 5/7-1: “However, he is justified in the use of force
which is intended or likely to cause death or great bodily harm only if he reasonably
believes that such force is necessary to prevent imminent death or great bodily harm
to himself or another, or the commission of a forcible felony.”

The facts seem to fit. There are two cases with similar facts. One case is favorable to us,
and one possibly contrary case is distinguishable. Please let me know if you would like
me to write up an analysis at this time.

Email II
You ask whether, under the facts given, Bing can successfully argue self defense. I think
yes.

Illinois Statute 720 I. Comp. Stat. 5/7-1: “However, he is justified in the use of force
which is intended or likely to cause death or great bodily harm only if he reasonably
believes that such force is necessary to prevent imminent death or great bodily harm
to himself or another, or the commission of a forcible felony.”

Here, Bing reasonably believed deadly force was necessary to prevent imminent death or
great bodily harm. He first apologized to Geller and pleaded with him to calm down, kept
a distance from him, and warned him by brandishing a gun. Still, Geller came within close
proximity wielding a knife. At this point, Bing could reasonably believe that force was
necessary.

As for cases with similar facts, there is one case favoring us and one possibly contrary
case that is distinguishable. Please let me know if you would like an analysis at this time.

Email III
You ask whether, under the facts given, Bing can successfully argue self defense. I think
yes.

Illinois Statute 720 I. Comp. Stat. 5/7-1: “However, he is justified in the use of force
which is intended or likely to cause death or great bodily harm only if he reasonably
believes that such force is necessary to prevent imminent death or great bodily harm
to himself or another, or the commission of a forcible felony.”

Here, Bing reasonably believed deadly force was necessary to prevent imminent death or
great bodily harm. He first apologized to Geller and pleaded with him to calm down, kept
a distance from him, and warned him by brandishing a gun. Still, Geller came within close
proximity wielding a knife. At this point, Bing could reasonably believe that force was
necessary.

There are two cases with similar facts, one favoring us and a possibly contrary case that is
distinguishable. In People v. S.M., 416 N.E.2d 1212 (Ill. App. 1st Dist. 1981), a group of
four boys threw tin cans and asphalt at S.M. while they chased him. Eventually they
cornered him. S.M. took out a gun and he fired a warning shot; however, the boys
continued to advance. S.M. proceeded to shoot all four boys.
 The court found that S.M. had a reasonable belief that deadly force was necessary to
prevent imminent death or great bodily harm. Accordingly, the court held “where the
initial use of force was justified the claim of self-defense will not necessarily be negated
by the fact that several shots were fired after the attack was over.”

In People v. Moore, 357 N.E.2d 566 (1976), the individuals were 50 feet apart when the
defendant stated his intent to shoot the unarmed decedent and ignored pleas from others to
leave. When the decedent ran toward him, the defendant shot and killed him. Under these
facts, the court upheld the jury’s finding that deadly force was not justified, because the
defendant’s fear of death or serious bodily harm was unjustified. The defendant
demonstrated a readiness to encounter the decedent, who was unarmed and who knew that
the defendant had a gun. By contrast, in Bing’s case, the defendant was wielding a knife in
close proximity. Thus Bing’s fear of death or serious bodily harm was reasonable.

Please let me know if you would like more research and a more complete analysis.

Exercises
(1) When it comes to poorly composed emails, what is your pet peeve?
What violation of etiquette or good format irks you the most? Please
compose a short email that exemplifies your pet peeve.
(2) In Appendix I of this book, please read the first sample memo.
Assume that your firm represents John E. Walker. Your partner emails you a
request to email him an answer to the issue in the sample memo—a memo
similar in style to the “Example II” memo above. At most, it should be no
longer than one and one-half double-spaced pages.

1. For example, this book is printed in a serif font, and Wikipedia articles are in a sans serif font.
To learn about using fonts in briefs, see Ruth Anne Robbins, Painting with Print, 2 J. ALWD 108
(2004).
§23.01. INTRODUCTION
The parties in litigation use written pleadings to present their cases to
the court. This chapter shows you how to write these pleadings. The
pleadings determine the issues the court must decide. Pleadings also notify
the parties of the allegations that each side intends to make at trial. The two
most basic pleadings are the plaintiff’s complaint and the defendant’s
answer. The litigants also may file other pretrial pleadings. For example, the
defendant may file a counterclaim against the plaintiff, which may be
included in the answer. Defendants may also file cross-claims against each
other or third-party complaints to join additional defendants.

§23.02. THE PURPOSE AND LANGUAGE OF PLEADINGS

In drafting a pleading, remember that you are speaking to different
audiences. When you are drafting a complaint, one audience is the
defendant. Although the defendant probably knows the facts, he or she also
needs to know what causes of action you are pursuing. The other audience
is the court. The court needs to know both the facts and the causes of action.
To satisfy both audiences you need to tell the factual story and identify
the causes of action. You will tell the story by arranging the facts in
chronological order and presenting the sequence of events from your
client’s perspective. You do not editorialize or use unnecessary modifiers,
but the reader of a well-drafted complaint should feel that a wrong has been
committed and that something should be done about it. This feeling should
be created even before the specific causes of action are presented.
 There are different schools of thought about the level of detail that is
appropriate for a pleading. There are also differences in expectations
between state and federal courts. In your civil procedure class, you may
learn about something called “notice pleading,” which essentially means
pleading only so much information as is absolutely necessary to put the
defendant on notice of the nature of the claim. Additionally, some lawyers
will tell you that, as a matter of strategy, they never want to tip their hands
to opposing counsel by putting too much information into a pleading. You
should follow the rules of your jurisdiction and the instructions of your
supervisors. Nevertheless, it is our view that a good pleading tells a
complete, coherent story in a persuasive way and gives the court solid
perspective on your case.
The causes of action should be identified clearly and precisely. Be sure
to allege all required elements. Use separate counts for each cause of action.
To ensure clarity, you should follow the principles of writing set forth in
this book: use plain English to the extent possible, write short plain
sentences, and use concrete words.
In practice, pleadings often include substantial legalese. Court rules
and decisions may require such archaic jargon as “complaint in Assumpsit”
instead of “complaint in Contract” or “complaint in Trespass” instead of
“complaint in Tort.” Custom and practice have embedded in pleadings
awkward sentences and confusing words. When local rules and precedents
require you to use obscure language, you have no choice but to comply.
Even when you are required to use some jargon, however, you still have
considerable latitude to write short simple sentences in comprehensible
English.

§23.03. FOLLOWING RULES

Pleadings must conform to the rules of procedure of the jurisdiction in
which the action begins. Therefore, you must look at the rules in your
jurisdiction before drafting a pleading. Our goal here is to give you a
general understanding of how to draft a pleading.
In most jurisdictions, the party must make allegations in a pleading in
consecutively numbered paragraphs so that the opposing party can answer
each allegation using the same numbers. Each paragraph of the pleading
must contain only a single allegation so that the opposing party can
specifically deny or admit it.
 You can find examples of how to draft pleadings in form books. Most
jurisdictions have form books containing examples of pleadings. Law
offices also develop forms over a period of time for use in many different
situations.

§23.04. CAPTIONS
All pleadings begin with a caption that identifies the court, the number
the court has assigned to the case, the parties, and the type of pleading. The
caption may also include the month and year in which the action is filed.
Here is an example of a caption for a complaint:
IN THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA

Exercise
Using the following information, draft a caption for a pleading.
Bob Dob has sued Joe Doe for assault and battery. You are drafting pleadings for this case
in the District Court for Lincoln County. The court has assigned the case number as 14-
502, and Bob filed the case in the April Term of 2014. Joe lives at 92 High Street,
Hometown. Bob lives at 110 High Street, Hometown. Write a caption to use over a
complaint, an answer, or any other pleading.

§23.05. THE COMPLAINT

Following the caption is the body of the pleading, which contains the
material allegations and request for relief.
Suppose, for example, that your client, Marilyn Smith, wants you to
file suit on her behalf so that she can recover damages for injuries she
received from a dog bite. Before you draft the complaint, you might write
out a summary of the facts provided by the client in paragraph, narrative
form. The facts alleged in a complaint must show that the plaintiff has a
cause of action. The complaint also must give the defendant notice of the
plaintiff’s claims and an opportunity to defend against them. To show that
the plaintiff has a cause of action, the complaint must allege sufficient facts
to demonstrate that the plaintiff has a right to relief under the applicable
law. Therefore, you must research the law before you write the complaint to
determine what facts to allege in it. Suppose that the law in your
jurisdiction states that the victim of a dog bite can recover under either
negligence or strict liability under the following circumstances:
An individual is liable in negligence to another party if

(1) that individual owns or harbors a dog;

(2) that individual knew that the dog had previously attacked at least
one other person;
(3) that individual knew that the dog was likely to harm other persons
unless properly confined or otherwise controlled;
(4) that individual fails to exercise reasonable care to confine or
otherwise control the dog; and
(5) the dog attacks and injures the other party.

An individual is strictly liable in tort to another party if

(1) the individual knowingly owns or harbors a dog that is of a

vicious nature that is accustomed to attacking and biting other
persons;
(2) the individual had personal knowledge of the vicious nature of the
dog and knew that the dog was accustomed to attacking and
biting other persons; and
(3) the dog attacks and injures the other party.

The complaint that you would file on behalf of your client might look
like this:

Complaint
1. Plaintiff, Marilyn Smith, is an individual and citizen of the Commonwealth of
Pennsylvania, residing at 12 Main Street, Anywhere, Pennsylvania 19009.1
2. Defendant, Samantha Jones, is an individual and citizen of the Commonwealth of
Pennsylvania, residing at 14 Main Street, Anywhere, Pennsylvania 19009.
 3. On June 4, 2014, at about 8:00 a.m., the defendant was the owner of or harbored a
dog.
4. On June 4, 2014, at about 8:00 a.m., Plaintiff was walking in a common driveway
at her residence when the defendant’s dog attacked and bit her without provocation.
5. The dog had attacked at least one other person before attacking the plaintiff.

COUNT I
STRICT LIABILITY IN TORT
6. Plaintiff incorporates by reference paragraphs 1 through 5 of this Complaint.
7. On June 4, 2014, at about 8:00 a.m., Defendant knowingly owned or harbored a
dog that was of a vicious nature and that was accustomed to attacking and biting other
persons.
8. Defendant had personal knowledge of the vicious nature of the dog and knew that
the dog was used and accustomed to attacking and biting other persons.
9. The dog attacked and bit Plaintiff, causing her to suffer various physical and
mental injuries, including but not limited to lacerations of her left hand and wrist,
contusions of her left thumb, and a puncture wound in her left foot. The injuries led to
scarring, infection, lameness, and present and future pain, suffering, and mental anguish.
WHEREFORE, Plaintiff demands that this court enter judgment in her favor and
against Defendant in an amount in excess of $10,000, exclusive of interest and costs.

COUNT II
NEGLIGENCE
10. Plaintiff incorporates by reference paragraphs 1 through 5 of this Complaint.
11. Defendant knew that the dog had previously attacked at least one other person.
12. Defendant knew that the dog was likely to harm individuals unless properly
confined or otherwise controlled.
13. Defendant failed to exercise reasonable care to confine or otherwise control the
dog.
14. The dog attacked and bit Plaintiff, causing her to suffer various physical and
mental injuries, including but not limited to lacerations of her left hand and wrist,
contusions of her left thumb, and a puncture wound in her left foot. The injuries led to
scarring, infection, lameness, and present and future pain, suffering, and mental anguish.
WHEREFORE, Plaintiff demands that this Court enter judgment in her favor and
against Defendant in an amount in excess of $10,000, exclusive of interest and costs.

__________
Attorney for Plaintiff

As you can see from this example, the introductory paragraphs of a

complaint identify the names and addresses of the parties. Here the plaintiff
is suing on two separate counts, or causes of action: strict liability in tort
and negligence. The next paragraphs (3-5) set out any facts that are
common to more than one count of the complaint. You incorporate those
facts by reference in each count of the complaint. See, for example,
paragraphs 6 and 10 of the sample complaint. This may appear
unnecessarily repetitious, but it relates the information in the introductory
paragraphs directly to each count and lets the court know that the basic
information is the same with regard to each count.
The complaint shown above is written in plain English, following the
principles of clear writing. You see no “hereins” or other stilted language.
The writer used everyday language throughout the complaint and no
legalese. The final paragraph does use “wherefore,” which is the common
way to end a complaint. Otherwise, however, there is no eccentric language.
Most sentences are in simple subject-verb-object structure, such as
“The dog had attacked at least one other person,” “Defendant had personal
knowledge,” and “The dog attacked and bit plaintiff.” Just as you can
present more than one cause of action in a complaint, you also can present
alternative causes of action. Here, the two alternative causes of action are
strict liability and negligence. Some jurisdictions require a demand for
relief at the end of each count. Other jurisdictions require a demand for
relief at the end of the complaint instead of at the end of each count. A
demand for relief appears at the end of each count of the sample complaint.
The remaining paragraphs of the complaint present a concise summary
of the facts that serve as a basis for the specific causes of action.
Complaints do not set out case law or evidentiary matters. In the sample
complaint, the writer did not discuss the elements of the strict liability or
negligence causes of action. Instead, the writer set out the facts that
establish the required elements of those causes of action. You must allege
the required elements, but you do so with factual statements rather than
legal arguments or conclusions.

§23.06. THE ANSWER

In an answer, the defendant admits or denies each factual allegation
that the plaintiff makes in the complaint and raises any defenses to the
causes of action presented in the complaint. The defendant answers each
allegation by numbered paragraphs that correspond to numbered paragraphs
in the complaint. The defendant’s answer to the Smith v. Jones complaint set
out in Section 23.05 might look like this:
ANSWER
1. Admitted.
 2. Admitted.
3. Denied. Defendant denies that on June 4, 2014, at about 8:00 a.m., the defendant
was the owner of or harbored a dog. The dog in question was owned by Frank Thomas,
who had brought the dog with him while visiting Defendant.
4. After reasonable investigation Defendant is without knowledge or information
sufficient to form a belief as to the truth of Plaintiff’s allegation that Plaintiff was walking
in a common driveway at her residence on June 4, 2014, at about 8:00 a.m., and therefore
denies that allegation and demands strict proof. Defendant denies that the dog in question
attacked and bit Plaintiff without provocation.
5. Denied. Defendant denies that the dog in question ever attacked anyone, including
the plaintiff.

COUNT I
STRICT LIABILITY IN TORT
6. Defendant incorporates by reference her answers to paragraphs 1 through 5 of
Plaintiff’s Complaint.
7. Denied. Defendant denies that she owned or harbored a dog on June 4, 2014, at
around 8:00 a.m. Defendant further denies that the dog in question was of a vicious nature
or was accustomed to attacking and biting other persons.
8. Denied. Defendant denies that she knew that the dog in question was vicious.
Defendant further denies that she knew that the dog in question was accustomed to
attacking and biting other persons.
9. Denied. Defendant denies that the dog in question attacked and bit Plaintiff.
Defendant further denies that Plaintiff suffered any illness or injury as a result of any
action or inaction on Defendant’s part.
WHEREFORE, Defendant demands judgment in her favor and against Plaintiff.

COUNT II
NEGLIGENCE
10. Defendant incorporates by reference her answers to paragraphs 1 through 5 of
Plaintiff’s Complaint.
11. Denied. Defendant denies that she knew that the dog had previously attacked at
least one other person.
12. Denied. Defendant denies that she knew that the dog in question was likely to
harm individuals unless properly confined or otherwise controlled.
13. Denied. Defendant denies that she failed to exercise reasonable care to confine or
otherwise control the dog in question. Defendant did not have a duty to confine or
otherwise control the dog in question. Defendant acted with all due care required of her
under the circumstances.
14. Denied. Defendant denies that the dog in question attacked and bit Plaintiff.
Defendant further denies that Plaintiff suffered any illness or injury as a result of any
action or inaction on Defendant’s part.
WHEREFORE, Defendant demands judgment in her favor and against Plaintiff.

AFFIRMATIVE DEFENSES
15. The Plaintiff’s Complaint fails to state a cause of action, and this action should be
dismissed.
 16. The Plaintiff failed to join as defendants parties that are indispensable and
necessary to a full adjudication of this action and, therefore, this action should be
dismissed.
17. Upon information and belief, any injuries, losses or damages sustained by
Plaintiff were caused by her own contributory negligence.
__________
Attorney for Defendant
Compare the paragraphs of the above answer with the paragraphs of
the complaint in Section 23.05.
Unless you deny a factual allegation the plaintiff made in the
complaint, the court will conclude that you have admitted it. Sometimes
you do not have sufficient information to know if an allegation made in a
complaint is true or not. In this case, the rules of procedure of many
jurisdictions permit you to state that “after reasonable investigation [your
client] is without knowledge or information sufficient to form a belief as to
the truth of an allegation.” In those jurisdictions, this statement has the
same effect as a denial. See, for example, paragraph 4 of the sample answer.
After answering the plaintiff’s allegations, set out any affirmative
defenses that the defendant intends to raise at trial. Typical affirmative
defenses in a tort case include assumption of risk, consent, contributory
negligence, fraud, and the statute of limitations. Affirmative defenses
operate to negate a claim even when all of plaintiff’s allegations are true.
The court may conclude that affirmative defenses are waived unless the
defendant raises them. In some jurisdictions, the defendant can plead
inconsistent defenses. Put the affirmative defenses in a separate section of
the answer. See, for example, the “Affirmative Defenses” section of the
sample answer. Some jurisdictions use a different title for affirmative
defenses, such as “New Matter.”
In some jurisdictions you also can raise counterclaims or motions to
dismiss (sometimes called demurrers) in an answer. In a counterclaim, you
allege that the defendant also has a claim against the plaintiff.
Counterclaims are governed by the same rules that govern a plaintiff’s
complaint. In a motion to dismiss, you allege that the plaintiff has failed to
make out a cause of action that can properly be decided by the court. In
some jurisdictions, you will file a separate motion to dismiss the complaint,
rather than demurring in the answer. We discuss motions to dismiss in
Section 26.03.

§23.07. VERIFICATIONS
 Attorneys must sign all pleadings. In addition, in many jurisdictions,
the party signs a verification that is attached to the pleading. In it the party
states that the allegations are true. Here is an example of a verification:
I, (name of party), hereby state that I am the (plaintiff/defendant) in this action and verify
that the statements made in the foregoing (type of pleading) are true and correct to the best
of my knowledge, information, and belief.

_______
Date
_______
Party

1. Some jurisdictions, including the federal courts, require a jurisdictional allegation at the
beginning of the complaint. Thus, you might begin the complaint with a sentence that says something
like “This Court has jurisdiction over this matter under 28 U.S.C. §1331.”
§24.01. INTRODUCTION
This chapter will give you an opportunity to practice the principles we
explained in the previous chapter. You will be able to go through the
process of preparing a complaint and answer based on a fictitious case. The
complaint and answer will be filed in your state’s trial court. You should
determine the appropriate format for the caption and any local pleading
rules before beginning this exercise.

§24.02. PLAINTIFF’S FACTS

Here are the facts for the plaintiff:

Sandy Harmon works as an executive assistant to Jack Burton, the

CEO of a software company, Playtime, that makes games. The company’s
specialty is role-playing games. She thinks one of the guys in the company
has gone completely around the bend. The guy, Kris Martin, the COO of the
company, has asked her out several times, but she has refused since she is
married (and, frankly, wouldn’t be interested anyway). Kris does not like to
take no for an answer. He has been calling Sandy at home, and hanging up
when her husband answers the phone. He has told Sandy that he will
convince her husband there is something going on between her and Kris so
her husband will divorce her. He has also told her that he will complain
about her to her boss if she doesn’t “wise up.” Sandy has told her husband
what is going on, and he, too, would like to know how to make Kris stop.
This has been going on for about three months.
 About three or four weeks ago, Sandy started getting calls from other
guys, who were making seriously lewd propositions. Sandy couldn’t figure
out why these guys all of a sudden started calling, until one of her
coworkers, Mark, told her that Kris had put her phone number on his
webpage, and said guys could call for a good time. Sandy told Kris to
knock it off, and he just laughed.
Then, in the last week or so, guys started showing up at Sandy’s door,
saying they were there to give her what she wants. When she told them to
go away, they said they knew she didn’t really mean it. Sandy’s husband
had to chase most of the guys away, and once they had to call the cops.
When a couple of guys found out her husband was there, they said they
were happy to share. One wanted to know if he could bring another woman
over, too. There have been about eight or nine guys each night.
On a hunch, Sandy went to Kris’s webpage and discovered that indeed
he had put her address on the webpage, and said that she would welcome
any men who cared to “visit.” He also said that Sandy would say no, but
that was just part of the game, and that she really meant yes.
Sandy went to work a couple of days ago and told Kris she was going
to get a lawyer to make him stop. He laughed at her again, telling her to
“lighten up,” and she got pretty upset. Sandy was crying, and started
yelling, trying to make him listen. Finally she gave up and told her boss she
was taking the rest of the day off. Kris is a good friend of Sandy’s boss,
Jack Burton; they started the company together. Because of this, Sandy has
not told Jack about Kris’s behavior.
Sandy is absolutely furious, not to mention short of sleep. She is also
getting a little frightened since she doesn’t know how crazy some of these
guys might be.

§24.03. DRAFTING THE FACT ALLEGATIONS

Remember to check whether your state requires a jurisdictional
allegation at the beginning of a complaint. You should allege that both the
plaintiff and any defendants are citizens of your county and state. You can
decide whether to sue anyone other than Mr. Martin, such as his employer,
Playtime. Your factual allegations should be clear and to the point—include
only relevant facts and keep each numbered paragraph to one idea. Don’t
forget to request appropriate relief!
§24.04. DRAFTING THE LEGAL CLAIM
Here is the applicable statute to support Sandy’s claim. You might also
want to include other claims, such as invasion of privacy, defamation,
sexual harassment, and infliction of emotional distress. If so, you should
look up the applicable law to be sure that you know the required elements.
Each legal claim should be presented in a separate count.
§1708.7. Stalking; tort action; damages and equitable remedies

(a) A person is liable for the tort of stalking when the plaintiff proves all of the
following elements of the tort:
(1) The defendant engaged in a pattern of conduct the intent of which was to
follow, alarm, or harass the plaintiff. In order to establish this element, the plaintiff shall
be required to support his or her allegations with independent corroborating evidence.
(2) As a result of that pattern of conduct, the plaintiff reasonably feared for his or
her safety, or the safety of an immediate family member. For purposes of this
paragraph, “immediate family” means a spouse, parent, child, any person related by
consanguinity or affinity within the second degree, or any person who regularly resides,
or, within the six months preceding any portion of the pattern of conduct, regularly
resided, in the plaintiff’s household.
(3) One of the following:
(A) The defendant, as a part of the pattern of conduct specified in paragraph (1),
made a credible threat with the intent to place the plaintiff in reasonable fear for his
or her safety, or the safety of an immediate family member and, on at least one
occasion, the plaintiff clearly and definitively demanded that the defendant cease and
abate his or her pattern of conduct and the defendant persisted in his or her pattern of
conduct.
(B) The defendant violated a restraining order, including, but not limited to, any
order issued pursuant to Section 527.6 of the Code of Civil Procedure, prohibiting
any act described in subdivision (a).
(b) For the purposes of this section:
(1) “Pattern of conduct” means conduct composed of a series of acts over a
period of time, however short, evidencing a continuity of purpose. Constitutionally
protected activity is not included within the meaning of “pattern of conduct.”
(2) “Credible threat” means a verbal or written threat, including that
communicated by means of an electronic communication device, or a threat implied by
a pattern of conduct or a combination of verbal, written, or electronically
communicated statements and conduct, made with the intent and apparent ability to
carry out the threat so as to cause the person who is the target of the threat to reasonably
fear for his or her safety or the safety of his or her immediate family.
(3) “Electronic communication device” includes, but is not limited to, telephones,
cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic
communication” has the same meaning as the term defined in Subsection 12 of Section
2510 of Title 18 of the United States Code.
(4) “Harass” means a knowing and willful course of conduct directed at a specific
person which seriously alarms, annoys, torments, or terrorizes the person, and which
serves no legitimate purpose. The course of conduct must be such as would cause a
 reasonable person to suffer substantial emotional distress, and must actually cause
substantial emotional distress to the person.
(c) A person who commits the tort of stalking upon another is liable to that person for
damages, including, but not limited to, general damages, special damages, and punitive
damages pursuant to Section 3294.
(d) In an action pursuant to this section, the court may grant equitable relief,
including, but not limited to, an injunction.
(e) The rights and remedies provided in this section are cumulative and in addition to
any other rights and remedies provided by law.
(f) This section shall not be construed to impair any constitutionally protected
activity, including, but not limited to, speech, protest, and assembly.

§24.05. CRITIQUING A COMPLAINT

Here is a draft federal complaint on the same facts. Redraft any
paragraphs that you think are problematic. Explain briefly the problems you
see.
IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA

COMPLAINT

1. This Court has jurisdiction under 28 U.S.C. §1331.

2. Plaintiff Sandy Harmon is an individual residing in Orange County,
CA.
3. Defendant Kris Martin (“Martin”) is an individual residing in
Orange County, CA.
4. Defendant Jack Burton is an individual residing in Orange County,
CA.
5. Defendant Playtime, Inc. is a corporation organized under the laws
of California.
6. Plaintiff is employed as an executive assistant at Playtime, Inc. She
has always done good work and received numerous favorable
 performance evaluations.
7. Plaintiff’s immediate supervisor is Jack Burton.
8. In July of 2013 Martin began making sexual advances toward
Plaintiff.
9. Plaintiff refused all such advances, telling Martin that she was
married and had no interest in extracurricular affairs.
10. Martin called Plaintiff’s home and hung up when Plaintiff’s
husband answered the phone.
11. Martin threatened to convince Plaintiff’s husband that “something
was going on” between Martin and Plaintiff.
12. Martin threatened to complain about Plaintiff to Defendant Burton
if she didn’t “wise up.”
13. In late September or early October 2013, Martin published
Plaintiff’s home telephone number on his webpage.
14. Martin made the outrageous and untrue suggestion on the webpage
that men could call Plaintiff for “a good time.”
15. Plaintiff received telephone calls from men making lewd
propositions.
16. Plaintiff asked Martin to remove her telephone number from his
webpage.
17. Martin demonstrated his heartlessness by laughing at Plaintiff’s
request.
18. In late October 2013, Martin published Plaintiff’s home address on
his webpage.
19. Martin’s webpage, in a further demonstration of the outrageous
lengths to which he would go, said that if Plaintiff said “no” to any
visitors she really meant “yes.”
20. Plaintiff has never had any desire to engage in sexual relations with
men other than her husband.
21. Unwelcome male visitors, up to eight or nine per night, began
appearing at Plaintiff’s home.
22. Some visitors refused to leave voluntarily.
23. Plaintiff’s husband had to chase many of the visitors away.
24. In at least one instance, the police had to be called to remove an
unwelcome visitor.
25. On October 27, 2013, Plaintiff again requested that Martin remove
her personal information from his webpage.
26. Martin responded by laughing and telling her to “lighten up,”
demonstrating a complete lack of concern for Plaintiff’s physical
and mental well-being.
27. Plaintiff was unable to continue working that day.
28. Defendants Martin and Burton are good friends and founded
Defendant Playtime, Inc. together.
29. Plaintiff has suffered from sleeplessness.
30. Plaintiff was frightened and unsure what the unwelcome visitors
might do.
31. Plaintiff no longer feels secure in her own home.
32. Plaintiff fears loss of employment.
33. Plaintiff suffers from extreme emotional distress.

COUNT I—INVASION OF PRIVACY (FALSE LIGHT)

34. Plaintiff incorporates Paragraphs 1-33 by reference.
35. Martin published outrageous, hurtful facts that falsely cast Plaintiff
in a negative light.
36. Martin’s portrayal of Plaintiff would be highly offensive to a
reasonable person.

COUNT II—INVASION OF PRIVACY (PUBLICATION OF

PRIVATE FACTS)
37. Plaintiff incorporates Paragraphs 1-33 by reference.
38. Martin published private information about Plaintiff in a manner
that would be highly offensive to a reasonable person. There was no
reason to put her address and phone number together with an
invitation for men to come visit her for sex, other than to intimidate
and harass Plaintiff.
39. There was no legitimate public interest in Plaintiff’s private
information.

COUNT III—CIVIL STALKING

40. Plaintiff incorporates Paragraphs 1-33 by reference.
 41. Martin engaged in a pattern of conduct intended to harass or alarm
Plaintiff, and maybe to cause her actual physical harm.
42. As a result of Martin’s pattern of conduct, Plaintiff reasonably
feared for the safety of herself and her husband. Anyone would have
been scared of all these men coming to their house!
43. Martin made a credible threat with the intent to place Plaintiff in
reasonable fear for her safety. What other reason could there be?!
44. Plaintiff clearly and definitively demanded that Martin cease his
pattern of conduct.
45. Martin persisted in his conduct after Plaintiff’s demands that he
cease.

COUNT IV—SEXUAL HARASSMENT IN VIOLATION OF TITLE

VII
46. Plaintiff incorporates Paragraphs 1-33 by reference.
47. Martin’s conduct created a hostile working environment.
48. Plaintiff’s job was threatened.

WHEREFORE, Plaintiff requests:

1. Injunctive relief, including a “stay away” order and the removal of

her personal information from Martin’s webpage.
2. Compensatory and punitive damages.
3. Such other relief as the Court deems appropriate.

ATTORNEY SIGNATURE
__________
VERIFICATION
I have read the foregoing Complaint, and the allegations are true and correct to the best of
my knowledge, information, and belief.

PLAINTIFF’S SIGNATURE
__________

§24.06. DRAFTING THE ANSWER

 Here are the facts Kris Martin has provided in response to the
complaint:

Kris says he has just been having a little extracurricular fun. He did
ask Sandy out several times, but she refused, saying she is married. Kris
does not like to take no for an answer, and besides he’s not sure what being
married has to do with anything. He just wanted to have a little fun (i.e.,
sex). He did call Sandy at home, and hung up when her husband answered
the phone. He told Sandy that if she didn’t “go out” with him, he would
convince her husband there was something going on between the two of
them, so her husband would divorce her.
Kris did put Sandy’s phone number on his webpage, and said guys
could call her for a good time. He wasn’t getting anywhere with her, and
just wanted to get her attention. He thought he would look pretty good by
comparison to some of the creeps who were likely to call. He also thought
he could show off his understanding side if Sandy were to confide in him
about the calls. However, when Sandy found out about the webpage, she got
upset and told him to knock it off. Kris just laughed; this was getting more
entertaining by the minute.
Kris later put Sandy’s address on the webpage, and said that she would
welcome all “visitors.” Kris also said that Sandy would say no, but that was
just part of the game, and that she really meant yes.
One day, Sandy came into work really upset (she was crying and
yelling, making quite a scene), and told Kris that she was getting a lawyer
to make him stop. Kris told her to “lighten up.”
Kris can’t figure out what he did wrong since he didn’t actually do
anything to her, and never meant for anything bad to happen to her. He just
thinks she could stand to loosen up a little bit. He admitted that he might
have threatened to complain about her to Jack, but didn’t figure she would
take that seriously since she knows how much Jack values her work.
Kris got a couple of emails from guys complaining that Sandy wasn’t
very cooperative when they went to visit.
Kris took Sandy’s name and address off the webpage for now, but will
probably come up with something else fun to do if this lawsuit goes away.
He is convinced that Sandy would really appreciate his “talents” if she
would only give him a chance.
 Again, keep your fact allegations simple and to the point. Admit facts
that you must admit, and indicate that you don’t have adequate information
only where that is true. Add any affirmative defenses that seem appropriate
at the end of the answer.

§24.07. CRITIQUING AN ANSWER

Here is a draft answer to the foregoing federal complaint. Which, if
any, paragraphs need to be changed, and why?
IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA

ANSWER OF DEFENDANT KRIS MARTIN

1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Denied.
9. Denied.
10. Admitted.
11. Admitted.
12. Admitted, but it wasn’t serious.
13. Admitted.
14. Admitted.
15. Defendant is without knowledge or information sufficient to form a
belief as to the truth of this allegation.
16. Admitted.
17. Denied.
18. Denied.
19. Denied.
20. Defendant is without knowledge or information sufficient to form a
belief as to the truth of this allegation.
21. Defendant is without knowledge or information sufficient to form a
belief as to the truth of this allegation.
22. Defendant is without knowledge or information sufficient to form a
belief as to the truth of this allegation.
23. Defendant is without knowledge or information sufficient to form a
belief as to the truth of this allegation.
24. Defendant is without knowledge or information sufficient to form a
belief as to the truth of this allegation.
25. Admitted.
26. Admitted.
27. Defendant is without knowledge or information sufficient to form a
belief as to the truth of this allegation.
28. Admitted.
29. Defendant is without knowledge or information sufficient to form a
belief as to the truth of this allegation.
30. Defendant is without knowledge or information sufficient to form a
belief as to the truth of this allegation.
31. Defendant is without knowledge or information sufficient to form a
belief as to the truth of this allegation.
32. Denied.
33. Denied.

COUNT I—INVASION OF PRIVACY (FALSE LIGHT)

34. Defendant incorporates Paragraphs 1-33 by reference.
35. Denied.
36. Denied.

COUNT II—INVASION OF PRIVACY (PUBLICATION OF

PRIVATE FACTS)
 37. Defendant incorporates Paragraphs 1-33 by reference.
38. Denied.
39. Denied.

COUNT III—CIVIL STALKING

40. Defendant incorporates Paragraphs 1-33 by reference.
41. Denied.
42. Denied.
43. Denied.
44. Denied.
45. Denied.

COUNT IV—SEXUAL HARASSMENT IN VIOLATION OF TITLE

VII
46. Defendant incorporates Paragraphs 1-33 by reference.
47. Denied.
48. Denied. She can’t be serious!

WHEREFORE, Defendant requests that the Court enter judgment in his favor and
against Plaintiff.
ATTORNEY SIGNATURE
__________
VERIFICATION
I have read the foregoing Answer, and the allegations are true and correct to the best of
my knowledge, information, and belief.

DEFENDANT’S SIGNATURE
_________
§25.01. INTRODUCTION
In discussing appellate briefs, we move from expository writing to
persuasive writing. When you represent a client and argue to a court, you
must do more than state the facts, explain the law, and predict how a case
will be resolved. You cannot merely present information to a court and rely
on it to make a decision. You also must persuade the court to find in your
client’s favor.
Persuasion requires constructing a clear, concrete, and tightly written
argument that presents your client’s case in the best light. Learning to write
persuasively is not a matter of mastering a grab bag of gimmicks or tricks.
It also is not a matter of using exaggerated rhetoric. Lawyers and judges
have seen all the tricks and flourishes too many times. If you rely on these
devices, you will impress no one.
The chapters that you have read so far teach you how to write clearly
and concretely, and how to construct a legal analysis. The following
chapters teach you not only the mechanics of brief writing, but also how to
write persuasively. You will learn that you must construct every part of the
brief in a way that advances your client’s position.
This chapter summarizes the methods of persuasion that the other
chapters discuss. By presenting these methods in a single chapter, we offer
you an overview and reinforce the thesis that persuasive methods are not
simply a number of isolated techniques, but share a common theme. To
reiterate, persuasive writing consists of constructing a well-written, well-
reasoned analysis that puts your client’s best foot forward.
 Here is a list of this chapter’s lessons:

1. Make your argument clear and credible.

2. Write a well-organized argument.
3. Adopt a persuasive writing style.
4. State your facts persuasively.
5. Use equity and policy arguments.
6. Use precedent persuasively.

§25.02. MAKE YOUR ARGUMENT CLEAR AND CREDIBLE

1. Make Your Argument as Simple as Possible
When you write a law school exam, you expect to get credit for
identifying and discussing the critical issues. You also expect extra points
for discussing issues that are barely arguable or exceptionally complicated,
but that would be extremely artificial if raised in a real-world legal
argument. When you include complicated, artificial arguments in a brief,
you cannot expect the rewards that you gained in law school. These
arguments will distract the reader from the arguments with real persuasive
power. They also may detract from your credibility. Stick to the arguments
that have the best chance of winning.
You also can expect to hurt your case if you make your critical
arguments sound unnecessarily complicated. You are more likely to
persuade the reader with arguments that seem logical and simple and sound
like common sense. Stick to your main arguments and write them so that
they are easy to understand.
A busy judge has many cases to consider and many briefs to read. He
or she does not have the time or patience to digest peripheral arguments or
even major arguments that are not stated clearly. Thus, unnecessary
complexity hurts your client.
Here is a simple method for rooting out complexity. State your
argument to a legal associate in a very few sentences. If he or she cannot
follow your train of thought, revise your words and presentation and try
again.
A major part of advocacy is to place your client’s arguments in clear
focus: What does your client want and why? Bringing the argument into
focus requires striving for simplicity.
2. Write in a Persuasive but Credible Style
Some lawyers try to be persuasive by overstating their cases and by
using emotionally charged verbs, adjectives, and adverbs. This tactic
inevitably marks the practitioner as an amateur. Other lawyers state their
cases without adding a persuasive edge of any kind. Their style also does
the client a disservice. Strive for a style that is assertive, but reasoned and
even a little understated.
Consider this excerpt from a brief:
Next we have Wilmer’s ludicrous explanation of the circumstances surrounding his secret
taping of various people at the dental school. Instead of coming clean and admitting that
he was gathering information for his malpractice case, Wilmer asks the court to swallow
his tall tale about how he was merely furthering his education.

The writer has overwritten. Words like “ludicrous” and “swallow his
tall tale” do not have the effect for which the writer is striving. Judges have
seen too much of this hyperbole to find it persuasive.
Compare this version:
Wilmer admits that he secretly taped various people at the dental school, but states that he
was furthering his education.

Here, the writer has underwritten and does not advance the client’s
position. To be persuasive, strive for a style somewhere between these
extremes. For example:
Wilmer admits that he secretly taped various people at the dental school. However, he
offers a curious explanation. He denies that he was gathering information for his
malpractice case and instead claims that he was furthering his education.

Here is another acceptable revision:

Wilmer admits that he secretly taped various people at the dental school. However, he
denies that he was gathering information for his malpractice case and instead claims that
he was taping for an educational purpose. He has not been terribly specific about how he
would use the tapes to further his education.

These two revisions illustrate the proper tone. In the first revision, the
writer draws attention to Wilmer’s unbelievable explanation by terming it
“curious.” “Curious” adds flair, but not too much. In the second revision,
the writer adds a final sentence to subtly highlight the improbability of the
proffered explanation. In both, the writer juxtaposes Wilmer’s explanation
with what is apparently the real reason. As a result, the writer furthers the
client’s cause by painting the opposing litigant as untruthful and even
pathetically comical.

§25.03. WRITE A WELL-ORGANIZED ARGUMENT

1. Structure Your Argument
An important key to persuasive writing is producing a document with a
structure that is readily apparent. You want the reader to follow your
argument as effortlessly as possible. Forgo stream-of-consciousness writing
in favor of organization.
The key to organization is to write according to an outline and to put
your conclusions first. Even if you are not the type of writer who is
comfortable outlining first and then writing, you still can write first and
then organize your results so that they fit an outline. That is, write the
outline after you have finished and then, where necessary, reorganize
according to the outline.
After you have written your first draft, make sure that you begin the
discussion of each argument with a conclusion that applies the legal
argument to the facts of your case. Briefly outline your argument in the first
paragraph so that the court has a “roadmap” of where you are going.
Review your paragraphs for topic sentences. In most paragraphs, you will
want the topic sentence at the beginning.
2. Put Your Best Arguments First and Develop Them More Fully
When we read a document, we usually pay more attention at the
beginning. After a while, our interest wanes. In addition, as readers, we
expect the important arguments to come first and to be developed in
proportion to their importance. The lesson is clear. Place your most
persuasive arguments first and allocate more space to them.
For example, suppose you are opposing the argument that a statute
requires your client to give a neighbor an easement over her property. You
have three arguments. First, the statute is unconstitutional. Second, in this
case, the terms of the statute do not require granting an easement. Third, the
neighbor did not follow the procedure the statute prescribes. Because courts
are extremely reluctant to declare statutes unconstitutional, either your
second or third argument probably gives you the best chance of winning.
Decide which is your best argument and develop it fully. Then set out your
second argument and give it less space. Finally, set out your argument on
constitutionality and allocate it the least space.
As with all rules, there are exceptions. Sometimes you will decide to
put your second-best argument first because it sets a good stage for your
best argument. Then you will include your best argument. Nonetheless, in
the overwhelming number of cases, you will do well to put your best
argument first.

§25.04. ADOPT A PERSUASIVE WRITING STYLE

1. Be Concrete
When you argue for a client, you are not arguing for an abstract legal
principle. You are seeking a holding that has practical consequences. In the
same manner, judges are not interested in debating legal abstractions; they
are interested in resolving specific disputes. The lesson: write about your
case in concrete terms. In doing so you drive home the fact that your case is
not an academic debate, but a conflict involving real people, particularly
your client.
Consider this sentence:
The unforeseeability of the event absolved the defendants of liability.

This sentence is abstract. It could be about anyone. If you include facts

about the relevant events, you make the issue concrete and compelling:
Because the defendant could not foresee that a twenty-year-old trespasser would dive head
first from a lifeguard chair into a shallow pool, the defendant is not liable.

Here is another example:

A reasonable adult in plaintiff’s position would recognize that the attempt to execute a
head-first, straight dive into the lake without prior awareness of the depth of the waters
might result in severe injury from the collision of one’s head on the lake bottom.

Compare this revision:

A reasonable adult like the plaintiff would know that if he dived straight down and head-
first into a shallow lake without knowing its depth, he could hit his head on the lake
bottom and become paralyzed.
 In the revision, the changes are subtle, but telling. They make the
sentence far more concrete and persuasive.
2. When You Want to Emphasize a Word or Idea, Place It at the End of
the Sentence
In a sentence, the beginning and the end are the best places to put
information that you want to emphasize. Use the beginning of the sentence
for information already familiar to the reader, usually the subject. Also use
the beginning for information that the reader expects or can understand
easily. Use the end for new information that you want to emphasize.
Suppose you are arguing about which law applies to your case,
Missouri law or federal law. If you are arguing in favor of applying
Missouri law, you might write this sentence:
Missouri law, not federal law, governs this case.

Although this sentence states your position, it does not make the best use of
the end of the sentence. You will make your point more emphatically if you
end with “Missouri law.” Therefore, you should rewrite the sentence this
way:
This case is governed not by federal law, but by Missouri law.

Although this revision forces you to use the passive voice, the loss of the
active verb is far outweighed by the power of placing “Missouri law” at the
end of the sentence.
The same principle applies to sentences with more than one clause.
Consider this sentence:
The court barred the plaintiff’s complaint as a matter of law because the plaintiff failed to
notify the bank of the forgery within the time prescribed by the statute.

Suppose you want to emphasize that the court barred the complaint as a
matter of law. You would rewrite the sentence this way:
Because the plaintiff failed to notify the bank of the forgery within the time prescribed by
the statute, the court barred the plaintiff’s complaint as a matter of law.

By placing the main clause at the end of the sentence, you stress the
idea that you want to emphasize.
3. When Appropriate, Use the Same Subject for a Series of Sentences
 By using the same subject for a series of sentences, you make it clear
that you are telling the story of the subject. As a result, you give your
sentences unity and direction.
Consider this paragraph from the brief of a convicted criminal
defendant arguing ineffectiveness of counsel:
The client and the defense counsel did not meet until one hour before the trial. As a result,
there was never the personal exchange between the two parties so necessary to a strong
defense. The defense counsel never had the opportunity to observe her client. Thus there
was no opportunity to judge his mannerisms and overall appearance, the fact being that
the defendant, being somewhat quiet and shy, would not make a strong witness at trial.
When he testified at trial, he did not come across well to the jury. The tactical error of
placing him on the stand could have been avoided if more time had been spent with the
defendant and a personal interview had been conducted.

The argument becomes much more compelling when the defense

counsel becomes the subject of every sentence and of virtually every clause:
Until one hour before the trial, the defense counsel never met with the defendant and thus
never had the personal exchange so necessary to a strong defense. Because she had never
had the opportunity to observe her client, she could not judge his mannerisms and overall
appearance. She therefore did not know that her client was somewhat quiet and shy and, at
trial, would not come across well to the jury. By placing her client on the stand, the
defense counsel made a tactical error that she could have avoided by taking the time to
conduct a personal interview.

The rewrite makes it clear that the writer is discussing the failings of
the defense counsel and detailing what she did and failed to do. As a result,
the writer is presenting a persuasive argument for ineffectiveness of
counsel.

§25.05. STATE YOUR FACTS PERSUASIVELY

At the beginning of your brief, you will have the opportunity to present
the facts from your client’s perspective. Judges expect your statement of the
facts to be straightforward and accurate. They dislike rhetoric here and will
form a negative opinion of your credibility if you attempt to mislead them
by distorting or omitting critical facts. Therefore, you must present an
objective narrative.
Nonetheless, you still must write the facts as an advocate. Here is how.
Stress the facts that favor your case and deemphasize those that hurt it.
Instead of stating your own opinions about the facts, report that someone
else offered those opinions. In this way, you are stating a fact—what
someone else stated—not your opinion.
This excerpt from a brief furnishes a good example. The plaintiff dived
into a pool with only three feet of water and suffered severe injuries. The
writer represents the defendant, the manufacturer of the pool.
The plaintiff claimed that he perceived the water depth to be six feet and not its actual
depth of three feet. At trial, several experts testified that this misperception was significant
to their conclusion that the plaintiff caused the accident. As Dr. Luna, one of the experts,
testified, if the plaintiff believed that the water was six feet deep, “his mental and
physiological processes involving visual perception and judgment of his surroundings
were impaired by his ingestion of alcohol and hallucinogens.”

In this example, the writer makes the essential point without rhetoric
or value-laden adjectives or adverbs. She does not call the plaintiff
irresponsible or label him dissolute. She does not berate the opposing
lawyer for pursuing a frivolous lawsuit. The writer simply reports the
plaintiff’s assertion and then reports the testimony of experts hired by the
defendant.
The quotation from Dr. Luna is part of a sentence objectively reporting
what happened at trial. Instead of quoting an expert, the writer might have
stated the opinion as her own: “If the plaintiff believed that the water was
six feet deep, his mental and physiological processes involving perception
and judgment of his surroundings clearly were impaired by his ingestion of
alcohol and hallucinogens.” However, by placing the opinion in the mouth
of another person, an expert, the writer makes it far more persuasive. (In the
alternative, she might have attributed the opinion to Dr. Luna and then
paraphrased his words in order to make the sentence better stylistically.) As
you can see, it is possible to state facts in an objective manner and still
write as an advocate.

§25.06. MAKE EQUITY AND POLICY ARGUMENTS

In most cases that go to trial, and certainly in most cases on appeal,
both parties have sound legal arguments. Therefore, the advocate must
argue more than the law. You also need to argue the equities and social
policy. To argue the equities means to argue that your client is the most
sympathetic litigant and should win as a matter of justice. To argue policy
means to argue that the legal holding you seek has positive ramifications for
society and your opponent’s does not.
 Here is an example. Suppose you represent a child whose mother was
seriously injured in an accident. You are suing the party that caused the
accident for loss of parental consortium. In other words, you are arguing
that the child should recover for losing the companionship and affection of
the parent.
To argue the equities, you would enumerate the ways in which the
child has suffered. You would mention activities that the child and mother
used to share. You might quote the child reflecting on her loss. You thus
would paint a picture of a child deserving to recover.
To argue policy, you would assert that as a general principle, the court
should recognize the right of a child to sue for loss of parental consortium
and should be liberal in finding that the loss has occurred in specific cases.
Your policy argument might read like this:
The importance of a child’s feelings and emotions merit more than lip service. The loss of
a parent is a devastating injury at least as important as a spouse’s loss of consortium,
which this jurisdiction recognizes. For these sorts of injuries, tort law is the appropriate
avenue of redress.

Thus, while an equitable argument focuses on the particulars of a case,

a policy argument generalizes. In the illustration, the policy argument states
that recognizing this cause of action is desirable, is logical because it is
similar to another tort that the jurisdiction already permits, and is consistent
with the development of tort law.

§25.07. USE PRECEDENT PERSUASIVELY

Judges prefer that their decisions be consistent with past decisions of
their court. They also must be persuaded that their decisions are consistent
with those of any higher court. Therefore, invoking favorable precedent is a
powerful tool of persuasion.
The difficulty arises when the earlier case does not support your
position or it is unclear whether the case supports it. You might argue that
the earlier case was wrongly decided. However, such an argument is at
cross purposes with the desire to claim consistency with existing case law.
Therefore, an argument rejecting precedent should be an alternative
argument of last resort. Your first argument should be that existing law
supports your position or at least is consistent with it.
1. Argue that Adverse Precedent Is Consistent with Your Argument
 To harmonize adverse precedent, argue that the contrary case is
distinguishable from your case on its facts or that it does not address the
issue in your case. If possible, go one step further and argue that the policy
underlying that opinion is the one you are advancing.
Return to your argument that the court should recognize a cause of
action for a child’s loss of parental consortium. Suppose that in another
case, the same court rejected the argument. There, the court stated that
because the parent will receive compensation from the defendant, that
compensation probably will give ample recovery to both parent and child.
Therefore, according to the court, permitting a separate recovery for the
child would be unfairly duplicative.
If, in that case, the only plaintiff was the child, and in your case, the
child’s claim is joined with the parent’s claim, you can distinguish the
cases. Argue that the previous case’s holding dealt only with cases in which
the actions of parent and child were not joined at trial. Argue that if the
same jury is deciding the claims together, the risk of a duplicative recovery
is very small. Then argue that, in both cases, the underlying goal is just
compensation. Here, you are advancing this goal in a situation that will not
result in overcompensation. With this argument, you distinguish the adverse
precedent and also argue that you are furthering the same goal that
motivated that decision.
2. Interpret Precedent Narrowly or Broadly, as Appropriate
As you have learned in law school, a holding is open to more than one
interpretation. When you are dealing with precedent, select the
interpretation that furthers your case. Depending on the facts of your case,
this endeavor may require you to interpret the holding narrowly or broadly.
Suppose you are arguing that an adult should be able to recover for the
loss of consortium of a parent. Suppose your jurisdiction has an earlier case
permitting a minor child to recover for loss of parental consortium.
Opposing counsel would interpret the holding narrowly to permit the cause
of action only when the plaintiff is a minor child. However, you would
interpret the holding broadly to permit any child to recover.
The way you deal with precedent is illustrative of the way you make a
persuasive legal argument. Interpret the law and facts in a way that is both
credible and in your client’s best interest.
§26.01. PURPOSES OF MOTIONS
Pretrial motions are filed in an effort to persuade the court to make a
decision in the early stages of a case. The decision requested may be to
dismiss the case entirely, to decide it without trial, or to resolve a discovery
dispute between the parties. Although there are other types of motions that
may be filed, we will focus on these three as representative of common
motions. Motions involve advocacy; you are trying to persuade the court to
do something, and so should follow all the advice about advocacy writing
that is offered elsewhere in this book.

§26.02. FORM OF MOTIONS

There is no set format for writing motions. You should get sample
motions from other lawyers in your office, or look at motions that have
previously been filed in the court for which you are writing. In most courts,
the motion itself is a simple statement of the basis upon which relief is
requested. The motion may be supported by a memorandum that sets forth
the legal arguments in support of the motion, and by other documents
appropriate to the motion, such as affidavits. All memoranda, or briefs, in
support of motions should include a statement of the relevant facts and an
analysis of the relevant law.

§26.03. MOTIONS TO DISMISS

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
defendant may move to dismiss a complaint on the grounds that it fails to
state a claim upon which relief can be granted. Most, if not all, states permit
a similar motion—sometimes called a demurrer—that allows a defendant to
attempt to get a defective complaint dismissed. Under this standard, the
defendant must demonstrate that even if the plaintiff can prove all the facts
alleged in the complaint, there is no basis for legal relief. In ruling on such a
motion, the court will interpret the facts in the light most favorable to the
plaintiff. Motions to dismiss may also be granted when the plaintiff fails to
allege some crucial element of the cause of action. In such a case, the court
may dismiss the complaint with leave to amend, so the plaintiff can correct
the defect.
In our case against the dating service on behalf of Susan Starkey (see
Chapter 18), let us assume that you filed a complaint for negligence.
Assume also that the dating service filed a motion to dismiss for failure to
state a claim, alleging that it had no duty to protect persons in Susan’s
position, and therefore there is no basis for recovery. You should have
researched the applicable law before filing the complaint, and you should
have legal support for your argument in favor of such a duty. Your response
to the motion should focus on establishing the duty to protect; you should
not try to win your whole case on the motion because you will likely need
discovery to establish the facts in support of your argument that the duty to
protect was breached and that the breach was the proximate cause of
Susan’s damages—that is, the failure of the dating service to adequately
screen its clients led to Susan’s stalking and emotional distress. Proving this
will require witness testimony and other evidence. The point here is that
only purely legal arguments can be resolved in the context of the motion to
dismiss. If the court needs to find facts in order to resolve the question
presented, the case must go on. If the motion to dismiss raises factual
issues, that may be reason enough to deny the motion.

Exercise
Write a paragraph or two explaining why a motion to dismiss should
not be granted in the Starkey case. Focus on the facts you would like to
prove and how they fit into your negligence claim, especially the issue of
the dating service’s duty to its customers.
Assume that you have found case law supporting the idea that the
dating service may have a duty to protect customers, particularly if it makes
any affirmative representations relating to safety, background checks, or
similar ideas. Assume that Susan brought you an ad from the dating service
that includes the language, “Looking for a safe, sane alternative to the bar
scene?” Also, assume that Susan told you that she specifically asked about
screening of prospective dates and was assured that the dating service took
“all necessary precautions” to ensure that its clients were reputable.
Write your explanation as if it would go into your response to the
motion to dismiss. In other words, your audience is the judge who will
decide the motion. Remember that the judge will interpret the facts in the
light most favorable to your client in deciding the motion. You do not need
to cite cases; write as if you are summarizing your argument in the response
to the motion.

§26.04. MOTIONS TO COMPEL DISCOVERY

Under Federal Rule of Civil Procedure 37(a)(3)(B), a party may move
to compel discovery when the opposing party does not respond to a
discovery request and the parties cannot work out the dispute themselves.
For example, if

• a deponent1 fails to answer a question asked under Rule 30 or 31,

• a corporation or other entity fails to make a designation under Rule 30(b)
(6) or 31(a)(4),
• a party fails to answer an interrogatory submitted under Rule 33, or
• a party fails to respond that inspection will be permitted—or fails to
permit inspection—as requested under Rule 34,

then the discovering party may move for an order compelling an answer,
designation, production, or inspection in accordance with the request.
The motion must include a certification that the movant has in good
faith conferred or attempted to confer with the person or party failing to
make the discovery in an effort to secure the information or material
without court action. When taking a deposition on oral examination, the
proponent of the question may complete or adjourn the examination before
applying for an order.
Under Rule 37(a)(4) an evasive or incomplete answer may be treated
as a failure to respond. Available sanctions under Rule 37(a)(5) include the
expense of filing or opposing the motion, including attorneys’ fees.
 Assume that you served a request for production of documents on the
dating service, and that the dating service refused to produce Partlow’s file
in response to your specific request, claiming confidentiality. Note that
under Rule 37 you are required to confer with the dating service to attempt
to obtain the material without court action. If you try to work the matter out
but are unsuccessful, you may move to compel the production of the file.
You would need to research the issue of confidentiality raised by the dating
service and establish that under the law the service is not entitled to keep
the file from you. You would make this argument in your memorandum in
support of the motion.
Because the rule requires that you confer with the defendant, you
should state in your motion that you have made the attempt to confer, and
you should probably detail the attempts you made in your memorandum in
support of the motion. It is always a good idea to put in writing all efforts
you have made to comply with prerequisites to obtaining a hearing on the
merits.

§26.05. MOTIONS FOR SUMMARY JUDGMENT

Rule 56 of the Federal Rules of Civil Procedure provides that either
party may move for summary judgment. Rule 56(a) states that the motion
will be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
This means that, as in the case of the motion to dismiss, if the question
before the court is one of law, the case may be decided upon motion. The
difference between a motion to dismiss and a motion for summary
judgment is that the motion for summary judgment generally includes some
supporting factual material, such as responses to discovery or affidavits,
while the motion to dismiss focuses solely on the complaint.
Let us go back to Susan Starkey’s case. If counsel for the dating
service files a motion for summary judgment alleging that there was no
breach of the duty to protect persons in Susan’s position because the
screening procedures were adequate, and attaches an affidavit from an
employee of the service outlining those procedures, you would simply
respond that the motion raises a genuine issue of material fact. Regardless
of the existence of screening procedures employed by the dating service,
you would want the opportunity to prove that those procedures either were
inadequate or that they were not followed. The only way to prove these
things is to cross-examine the employees of the dating service, and perhaps
to hire an expert to testify that the service’s procedures did not meet the
standards of the industry.
The key to responding to any motion is to limit your argument to what
you need to establish to overcome the motion. Many lawyers succumb to
the temptation to argue the entire case at the motion stage, which only
confuses the issue and may make it less likely that the motion will be
decided in your favor. Thus, if in responding to the dating service’s motion
for summary judgment, you choose to argue the inadequacy of the
screening procedures and the damages Susan suffered, you might actually
suggest to the court that you think the case is ready for decision, when all
you really want at this stage is the chance to prove your case in court.
Understanding the standard in the applicable rule is critical. Read carefully
and argue only what you need to in order to defeat the motion.
Note that the parties in some cases may actually agree upon the facts,
in which case both parties may be content to submit the case for decision by
summary judgment, and avoid the time and expense of a trial. This will
probably be the exceptional case, but if there are no genuine issues of fact
to be proved at trial, you may very well win the gratitude of the court by
stipulating to the facts and submitting the case for a decision on the law.

Exercise
Write a few paragraphs explaining why Susan Starkey’s case cannot be
decided on summary judgment. Explain the genuine issues of material fact
that must be addressed at trial. Again, assume that you are writing for the
judge who will decide the motion, and do not cite cases. Focus on the basis
for the motion and what you need to establish to persuade the judge to deny
the motion.

§26.06. ETHICAL CONSIDERATIONS IN MOTION PRACTICE

As an officer of the court, you should never file a frivolous claim or
make a frivolous argument. Your factual and legal support for your
argument must be sufficient to justify taking up the time of the court and
other parties to the matter. Rule 11 of the Federal Rules of Civil Procedure
provides that pleadings and motions must be signed by the attorney of
record. When you sign a pleading or motion, you represent that to the best
of your
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further investigation
or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b). Violators of this rule are subject to monetary and other
sanctions. If you believe that another attorney has submitted papers to the
court in violation of this rule, you may move for sanctions.

§26.07. CHECKLIST FOR MOTIONS

— Before filing or responding to any motion, make sure that you

understand the standard upon which the motion will be decided.
Read the rule!
— Research the applicable law.
— Find sample motions of the type you will be filing for the court in
which you will be filing the motion. You may want to make copies
for your files.
— Prepare your memorandum in support of the motion to carefully
articulate the factual and legal basis upon which the court may grant
the relief you seek. Argue no more than necessary to obtain that
relief, but make sure that you have met the standard set forth in the
applicable rule. Do not try your case at the motion stage!
— When responding to a motion, carefully focus your argument on
what you need to establish to overcome the motion. Do not argue
your entire case and confuse the issue.

§26.08. TRIAL BRIEFS

 Much like motion briefs, trial briefs need to be focused. Trial briefs
may be required by rule, or they may be requested by the judge. Sometimes
counsel simply decides to file one. Trial briefs may cover all issues
anticipated for trial, or they may focus on a single issue, or anything in
between. There may not be any specified format for a trial brief, or there
may be local rules that must be followed. You will need to adapt to the
practice in your jurisdiction, and even courtroom by courtroom.
The important thing, as with any legal writing, is to not try to do too
much. Your trial brief may be the first formal introduction the judge has to
your case. You need to summarize the facts and to explain and apply any
relevant legal authority. As with all legal documents, your brief should look
professional and demonstrate attention to detail in every aspect.
Here are two local rules for jurisdictions that require trial briefs:

(1) Tennessee 26th District Local Rules of Practice §18.04

§18.04. Briefs in Civil Non-Jury Cases

In all non-jury cases, except divorces and General Sessions Court appeals, trial briefs are
required. Unless otherwise allowed by the Court, ten (10) days before the trial of a case,
trial briefs shall be submitted to the court and furnished to opposing counsel. The trial
brief format is attached to this rule as Appendix B. If an issue to be litigated at trial has
been briefed in pre-trial motions and counsel believes that the motion brief adequately
covered the issue, counsel may refer the court to the motion brief in lieu of briefing the
issue for trial.

Appendix B
TRIAL BRIEF FORMAT NON-JURY
A. A concise statement of the facts
B. The factual issues to be decided
C. Points of Law
1. Address all areas felt appropriate including those of an evidentiary
nature, if felt controversial.
D. An argument is neither required nor desired, but may be included, if felt
necessary by counsel.
E. General
1. Briefs will not be filed with the Clerk, but sent directly to the trial
Judge at his or her address.
2. Include photostatic copies of any out-of-state or unreported cases cited
and all statutes relied upon.
 3. Counsel will attach copies of their respective pleadings leading to a
joining of issue, i.e. complaint and answer--amended, supplemental,
etc.

(2) Local Rules for the Imperial County Superior Court, Rule 5.1.20
(California)

Rule 5.1.20. Trial Brief (Form FL-08)

(a) Each counsel and /or self-represented party shall prepare, serve, and file
a Trial Brief at least ten (10) days before trial. The brief must include the
following information and attachments, if applicable to the disputed issue in
the case:
(1) A confirmation that the preliminary disclosure statements have been served
and filed with the court;
(2) A summary of all issues resolved; if the resolution is by written agreement, a
copy of the agreement; if the agreement is oral, a statement of the details;
(3) A summary of all issues in dispute, and the propounding party’s proposed
resolution of them;
(4) A complete and current Income and Expense Declaration (FL-150);
(5) A complete and current Schedule of Assets and Debts (FL-142);
(6) A complete and current Property Declaration (FL-160);
(7) A detailed itemization of all disputed marital assets and debt, and a proposal
for an equal division of property. The proposed division shall specify any assumption or
payment of debts and liabilities and any tax consequences;
(8) Proposed orders for child support, including guideline calculations;
(9) Proposed orders for spousal support, including detailed justification;
(10) Proposed orders for custody and visitation, including proposed access
schedules;
(11) Proposed orders for attorney’s fees, court costs, and payment of other costs
of litigation;
(12) Points and authorities on any disputed issues of law applicable to the case;
(13) Values of property shall be supported by appraisals or statements, copies of
which shall be attached, unless good cause is shown why no appraisal or statement has
been obtained. Except for items of unusual value, personal property may be aggregated
as e.g., “jewelry $1000.” There shall be a rebuttable presumption that the average Kelly
Blue Book value shown for a given vehicle is its fair market value;
(14) If it is claimed that an item of property is wholly or partially separate, the
statement must clearly show the item or amount claimed to be separate, and the
justification thereof. If any community funds have been used to purchase or maintain
separate property, the amounts and the times the payments were made must be shown;
(15) A list of all witnesses to be examined, a brief synopsis of their testimony, and
copies of the resumes of any expert witnesses;
 (16) Any additional information which the party believes would be helpful to the
Court.
(b) Failure to timely file a proper trial brief may result in the trial being vacated, the
imposition of monetary sanctions including payment of costs and fees, or in trial sanctions
precluding the litigation of issues or the exclusion of evidence. The Court has authority to
impose these sanctions on its own motion. The sanctions may also be requested by an
adverse party on noticed motion.

In these rules you can see an emphasis on efficiency. The court wants
to know exactly what the status of the case is—what has been agreed upon,
what is still in dispute, and what evidence you are likely to present at trial.
The court wants to ensure that the case is actually ready for trial: Have all
necessary documents been gathered? Do the parties have their witnesses
set? Are the lawyers prepared with law to support both the elements of their
claims and defenses and any evidentiary issues likely to be raised? If the
court has this information beforehand, the trial can proceed much more
expeditiously. You will note that the Tennessee rule even suggests that
counsel refer to previous briefs submitted in connection with pretrial
motions if the issue for trial has already been argued at that stage.
You may submit a trial brief for a case to be decided by either a judge
or a jury. Either way, the judge is your audience. A jury will never see a
trial brief, and it should be written for a legally savvy audience. Even if the
judge will not be making the ultimate decision in the case, he or she will be
ruling on motions and objections, and the more prepared the judge feels he
or she is to make those rulings, the more likely the judge is to be happy with
the performance of the lawyers.

§26.09. EXAMPLES
Sample motion briefs and trial briefs appear in Appendix V.

1. The term “deponent” refers to the person being questioned in a deposition.

§27.01. INTRODUCTION
Writing appellate briefs requires an understanding of the appellate
process. The structure and ground rules of that process affect your ability to
present an effective legal argument. In this chapter, we discuss in broad
terms how cases come up on appeal, the record on appeal, and standards of
review, that is, the tests an appellate court uses to evaluate the decision
below. The discussion focuses primarily on the civil appellate process. If
you are handling a criminal appeal, you should follow the applicable rules.

§27.02. HOW CASES COME UP ON APPEAL

Although each state court system and the federal system have their
own rules on the proper procedure for taking an appeal, all systems share
important similarities. Once a court or jury decides a case, the losing party
may take an appeal to the appellate court. In a state with an intermediate
appellate court, most appeals to that court are a matter of right. In most civil
cases, the court of last resort, often called the state supreme court, has
discretion in deciding whether to hear an appeal.
In general, the losing party can take an appeal from a final judgment,
that is, a decision that disposes of the entire case. A final judgment might
arise when a trial ends or when the court decides the case on a motion, for
example, a motion for summary judgment. However, in certain instances,
an appellant may take an appeal from an interlocutory order. An
interlocutory order does not determine the final result of an action, but
decides only some intervening matter, such as the grant or denial of an
injunction. An appeal from an interlocutory order must follow procedural
rules specifically applicable to interlocutory appeals.

§27.03. THE RECORD ON APPEAL

In reviewing the proceedings of the court below, the appellate court
relies on the record. Rule 10(a) of the Federal Rules of Appellate Procedure
sets out a typical definition of the record: “(1) the original papers and
exhibits filed in the district court; (2) the transcript of the proceedings, if
any; and (3) a certified copy of the docket entries prepared by the district
clerk.” Reliance on the record ensures that the appellate court will base its
decision on only those matters presented to the district court, including both
factual and legal questions.1
As a general rule, the court will not independently review the record
for errors, but will rely on the parties to identify and brief any errors that
should be reviewed. When you make your arguments on appeal, you must
point to a specific reference in the record to justify each argument. In your
brief, you must make constant references to the record so that the court can
easily locate the parts of the record on which you are relying. If you fail to
make sufficient precise references, you force the court to sift through the
often voluminous stack of paper that comprises the record or you run the
risk that the court will reject your argument as unsupported by the record.
Such a failure will hardly endear you to the court or your client. For a
further discussion of the record, see Section 29.01.

§27.04. THE STANDARD OF REVIEW

In deciding an appeal, a court cannot simply ignore the decision of the
court below. The appellate court may decide only issues that the parties
properly identified and objected to as erroneously decided at the trial level.
This requirement allows the trial court to correct errors immediately, or at
least gives the appellate court the benefit of the trial court’s thinking on the
issue. In addition, only issues or findings that are necessary to the trial
court’s decision may be appealed.
The test the appellate court must apply in passing on the lower court’s
decision is called the standard, or scope, of review. The standard of review
varies depending on the jurisdiction and the type of case. You will explore
the various types of review in detail in your civil procedure class. Our goal
is to briefly introduce you to the most typical standards: clearly erroneous,
abuse of discretion, and de novo review. These standards are part of a
continuum, from extreme deference to the trial court on fact findings
because of the trial court’s firsthand exposure to evidence at trial, to little or
no deference on purely legal questions.
1. Clearly Erroneous
The most deferential standard for review of a trial court’s decision is
the “clearly erroneous” standard.2 The standard is set forth in Rule 52(a)(6)
of the Federal Rules of Civil Procedure: “Findings of fact, whether based on
oral or other evidence, shall not be set aside unless clearly erroneous, and
the reviewing court must give due regard to the trial court’s opportunity to
judge the witnesses’ credibility.” The rationale for this standard is clear.
Because findings of fact are based on in-court proceedings where the trial
court can make judgments on the credibility and competence of witnesses
after seeing them firsthand, these judgments are due substantial deference.
Because the trial court has a greater familiarity with the case, the appellate
court may not independently determine the weight or credibility of the
evidence or assess the inferences drawn from the facts by the trial court.3
The Supreme Court described the standard this way: “A finding is
‘clearly erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”4 This standard obviously
places quite a difficult burden on the appellant’s attorney.
2. Abuse of Discretion
Slightly further along the deference continuum, and more difficult to
define, is the abuse of discretion standard. This standard applies to matters
that are within the discretion of the trial court because they are “largely ad
hoc and situation-specific.”5 This standard is tolerant of mistakes that may
be made by a trial court in the exercise of its acknowledged discretion. Trial
courts have a great deal of discretion on issues relating to trial management,
such as joinder, discovery, sanctions, and the grant or denial of a motion for
a new trial.
The scope of the trial court’s discretion in a particular instance will
depend on and must be evaluated in the context of the source of its
discretion. For example, Rule 35(a) of the Federal Rules of Civil Procedure
gives the trial court discretion to order a mental or physical examination of
a party “for good cause,” when the mental or physical condition of the party
is “in controversy.” Such an order would normally be accorded great
deference on appeal, but in Schlagenhauf v. Holder, 379 U.S. 104 (1964),
the Supreme Court found abuse of discretion in a case where the trial court
ordered that a defendant be examined in each of four medical specialties—
internal medicine, ophthalmology, neurology, and psychiatry. There was
nothing in the record to support any examination other than a visual
examination, so the Court vacated the judgment of the district court and
remanded for reconsideration and further proceedings.
The abuse of discretion standard “varies in intensity with the breadth
of discretion. Accordingly, abuse of discretion really occupies a band in the
middle of the spectrum of intensity of review, its precise locus in any
particular case depending upon the nature of the discretionary order under
review.”6 If abuse of discretion is the standard for the case you are
appealing, you will need to research similar cases in order to understand
and argue precisely how the standard should be applied in your case.
3. De Novo Review
The least deferential standard of review is applied to pure questions of
law, or to mixed fact-law questions.7 The appellate court is at no
disadvantage in deciding these types of questions because it has the same
access to relevant information that the trial court had. By making de novo
decisions, the appellate court fulfills one of its primary functions: to provide
guidance to the lower courts by ruling on questions of law.8
The de novo standard comes into play, for example, in reviewing
pretrial motions. To illustrate, Rule 56(a) of the Federal Rules of Civil
Procedure sets out the standard to apply when the federal district court
grants a motion for summary judgment. According to the rule, summary
judgment is proper when it appears that “there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.”
The appellate court reads the record in the light most favorable to the party
against whom the summary judgment was granted. Because the lower court
heard no witnesses and weighed no evidence, the appellate court has no
findings of fact to review. It therefore may decide the issue de novo. As you
would expect, this standard is the one most favorable to the appellant.
4. The Importance to the Practitioner
 As you can see, the appellate lawyer must know what standard of
review the court should employ and should think strategically in presenting
the appropriate standard to the court. If you represent the appellant, it is to
your advantage to be able to characterize the issue on appeal as a question
of law, or of mixed fact and law. If you succeed, the standard of review will
be de novo. Conversely, if you represent the appellee, you want to
characterize the issue as one of fact, or at least as one subject to the trial
court’s discretion. That way, the appellate court will be forced to give
greater deference to the opinion of the trial court. Not surprisingly,
complicated analysis and legal research may be required to distinguish the
mixed fact-law question from the purely factual question.
Your understanding of the standard of review will also affect the way
you argue and emphasize different aspects of the record. If you are
representing the appellee and the court must find the decision below to be
clearly erroneous in order to overturn it, you should stress the evidence that
supports the trial court’s decision and argue that the appellate court must
defer to the judgment of the lower court. On the other hand, if you are
representing the appellant and the court may hear the case de novo, you
should point out that the decision below carries no weight and then make as
few references to it as possible. Present the argument as if you are making it
for the first time.

§27.05. AVAILABLE FORMS OF RELIEF

When the appellate court completes its review, it has the discretion to
take certain specific actions. It may reverse or vacate the decision below,
remand the matter to the lower court for further proceedings, or affirm. As
an appellate attorney, you must tell the court precisely what action you want
it to take. You may want the court to take different actions on different
issues. If you fail to be precise about the relief you seek, the court can only
guess at what your client wishes.

1. The appellate court may sometimes consider new legal theories or arguments on appeal, but
only if those arguments can be resolved based on the facts found at trial.
2. Jury findings are accorded even more deference. The standard is the same as that employed in
deciding motions for directed verdict or for judgment notwithstanding the verdict: whether a
reasonable jury could have reached the verdict. Gene R. Shreve & Peter Raven-Hansen,
Understanding Civil Procedure, 444-445 (2d ed. 1994).
3. Jack H. Friedenthal, Mary Kay Kane & Arthur R. Miller, Civil Procedure 640 (4th ed., West
2005).
4. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
5. Shreve & Raven-Hansen, supra n. 2, at 445.
6. Id. at 446.
7. Friedenthal et al., supra n. 3, at 639, 641.
8. Id. at 639.
§28.01. WHAT IS A BRIEF?
A brief is a written argument that a lawyer submits to a court. Briefs
may be written in support of motions (discussed in Chapter 26), to define
issues for trial (also discussed in Chapter 26), or on appeal. As noted in
Chapter 26, trial briefs do not generally follow any specific format and may
not be submitted in every trial. Appellate briefs must follow very specific
rules and are submitted in every appeal. In an appellate brief, the lawyer
argues that the appellate court should reverse or affirm the lower court’s
decision, or asks for whatever other relief is appropriate. A court uses briefs
to define the issues it will decide, to learn about the facts and the law, and to
determine who should win.
Unlike a memorandum, which is an objective document, a brief is a
persuasive document. Therefore you should write it in a way that will
encourage the court to reach a decision favoring your client.
Although you should seek to convince the court that your client should
win, do not overstate your case. Be sure to include a discussion of any
adverse facts or cases. To win, you must not only argue that the law, policy,
and equity support your client’s argument, but also face up to damaging
facts and contrary cases. You must downplay the significance of the facts
and distinguish the cases. If you ignore adverse information, you will be
embarrassed when your opponent brings it to the court’s attention.
Write the brief persuasively, even the statement of facts. Argue that
equity and policy, as well as the law, support your client’s case. Chapter 25
describes how to make equity and policy arguments and gives an example
of each. Because appellate briefs are the most complicated and involve the
most precise rules, we focus on appellate briefs in the next few chapters.
You should follow the rules articulated in this book for writing persuasively
and for presenting the facts and analysis when writing any brief. You should
try to get information from the court or from experienced lawyers who have
written similar briefs if you seek guidance regarding the format or desired
content of other types of briefs.
Before writing an appellate brief, read the record. The record usually
consists of documents and exhibits filed in the lower court, transcripts of
depositions, trial testimony and arguments before the lower court, docket
entries, and the lower court’s orders and opinions. The record defines the
issues you may raise on appeal because you can argue only issues raised in
the proceedings before the lower court. The record also limits the facts on
which you can rely in your brief because you can rely only on facts that are
in the record. Chapter 29 describes the record in more detail.

§28.02. PROCEDURAL RULES FOR APPELLATE BRIEFS

Appellate courts promulgate their own rules of appellate procedure.
You must follow these rules when you write an appellate brief. These rules
regulate the appearance, length, and content of appellate briefs.
Many appellate courts have rules governing paper size, paper color,
size of margins, size of type, line spacing, type of binding, numbering of
pages, and the format of the title page. As a general rule, each part of an
appellate brief must begin on a new page. For example, even if the table of
contents takes up only half of a page, you cannot put the table of authorities
on the same page. You must begin the table of authorities on the next page.
Many appellate courts also limit the length of appellate briefs. Judges
do not have the time to read long briefs. The shorter your brief is, the more
likely it is that the judge will read all of it. Even if the appellate court’s rules
allow you to write a fifty-page brief, write the shortest one possible that still
permits you to make a compelling argument.
All appellate courts require appellants to file their briefs first because
the appellant is appealing the lower court’s order. The appellee then files a
brief that responds to the appellant’s brief. Most appellate courts allow the
appellant to file a reply brief to the appellee’s brief.1
Most appellate courts require that appellants include the following
parts in their briefs:
 1. Title page
2. Table of contents
3. Table of authorities
4. Statement of jurisdiction
5. Questions presented
6. Constitutional and statutory provisions
7. Statement of facts
8. Summary of argument
9. Argument
10. Conclusion
11. Appendix (all or part of the record)

Although the appellee’s brief has most of the same parts, most
appellate courts do not require the appellee to include a statement of
jurisdiction, questions presented, or a statement of facts. The appellee,
however, is allowed to and should include its own version of the questions
presented and a statement of facts.

§28.03. THE PARTS OF A BRIEF

This section briefly describes the parts of a brief that most appellate
courts require. Chapters 29, 30, 31, and 32 describe the parts of the brief in
greater detail.
1. The Title Page
The title page contains sufficient information to identify the case and
who filed the brief. The title page usually sets out the names of the appellate
and lower courts, the names of the parties, the numerical designation for the
case, and the name of the attorney who is filing the brief.
2. Table of Contents
The table of contents tells the court the pages on which it will find
each part of your brief. The table of contents provides a summary of your
argument because it consists of the headings and subheadings of your
argument in sentence form.
3. Table of Authorities
 The table of authorities tells the court the pages on which it will find
the cases, constitutional provisions, statutes, and secondary authorities you
cite in your brief. The citation format in the table of authorities must be as
accurate and complete as the citation format you use in the argument
section of your brief.
4. Jurisdictional Statement
The jurisdictional statement tells the court what authority confers
jurisdiction on the court to hear the appeal.
5. Questions Presented
This section frames the issues for the court. Frame the issues
persuasively so that they suggest the answers you want the court to reach,
but do not be argumentative.
6. Constitutional and Statutory Provisions
This section sets out the text of the constitutional and statutory
provisions you cite in your brief. Do not set out the text of the jurisdictional
authority you cite in the jurisdictional statement.
7. Statement of Facts
This section sets out a clear and concise statement of the facts relevant
to the argument section of the brief. Write the facts in a light most favorable
to your client, but do not omit adverse facts. Include references to the
record but do not include arguments, conclusions of law, or citations in this
section.
8. Summary of Argument
This section sets out a clear, concise, and persuasive summary of your
argument. In this section, summarize your primary and most compelling
arguments.
9. Argument
The argument section is the heart of the brief. In this section, analyze
the pertinent legal authorities and apply them to the facts of the case. Divide
the argument into as many subsections as there are issues and sub-issues.
Unlike the discussion section of a memo, which is objective, the argument
section of a brief is persuasive. Argue equity and policy as well as the law.
You must discuss adverse facts and cases.

§28.04. THE HALLMARKS OF A WELL-WRITTEN BRIEF

The hallmarks of a well-written brief are the same as the hallmarks of
a well-written memo, which are set out in Section 11.04:

• Clear writing style

• Good organization
• Thorough research
• Good judgment
• Writing for the reader
• Precision and clarity
• Creativity
• Correct citation format

There are certain strategic differences between memos and briefs. Your
primary audience is the court, not the assigning attorney. Therefore, a brief
is persuasive, not objective. The judges will not have read the case file or
the applicable law before they read your brief. They usually will know less
about the facts and the law than you do. For this reason, be very careful to
discuss the facts and the law clearly and thoroughly.

1. If the parties have the right to appeal a lower court’s decision, the party who initiates the
appeal is called the “appellant” and the opposing party is called the “appellee.” When review of a
lower court’s decision is discretionary, the party seeking such review is called the “petitioner” and the
opposing party is called the “respondent.”
§29.01. USING THE RECORD
You must have authority for every fact you state in your brief. Your
authority for facts and for the history of your case is the “record.” Although
some courts call the record the “appendix,” in this book, we use the term
“record.” The record consists of docket entries, trial transcripts, deposition
excerpts, and pleadings filed in the court below. You will make many
references to the record in your statement of facts. You will also refer to the
record every time you repeat a fact in the argument section of your brief and
every time you refer to any event or filing of documents in the proceedings
in lower courts.
An attorney prepares the record before writing the brief. In practice,
attorneys for the opposing parties on appeal usually agree to the contents of
the record. In the law school situation, the instructor gives students the
record from which to write the brief. The record is the “reference book” for
your brief. You must not rely on any fact that is not in the record.
Rules of court usually tell you what you must include in the record.
For example, the rules may require all docket entries from the lower courts
and all orders and opinions from the lower courts. You also should include
in the record all relevant pleadings in your case and relevant excerpts from
depositions and trial transcripts.
When you prepare the record, put all items in the order the court rules
specify. If the court rules specify that you arrange items in groups, arrange
the items within that group in order. Put other items, such as testimony, in
the order that you think is logical. The record is bound into a volume or, in
many cases, several volumes. The pages of the record are then numbered
sequentially as “R-1,” “R-2,” “R-3,” and so forth. (If the record is called
“appendix,” the pages are numbered “A-1,” “A-2,” and so forth.)
When you write your brief, make references to the pages containing
the facts that you include. For example:
The defendant hit the plaintiff. (R. 35-37.) The plaintiff then skidded off the road. (R. 107-
111.) The plaintiff’s car was totally destroyed. (R. 103.)

If you have stated a fact that appears on several pages in the record,
make references to all pages on which that information appears:
The defendant hit the plaintiff. (R. 35-37, 86-89.) The plaintiff then skidded off the road.
(R. 107-111, 332, 345-346.) The plaintiff’s car was totally destroyed. (R. 103, 111, 462-
465, 503.)

Do not include any fact in your brief that the record does not
substantiate. Do not assume any facts that are not in the record. The court
that reads your brief will rely only on facts in the record. It is also very
important that all your record references be accurate because the court will
refer to the pages of the record you cite.

§29.02. THE TITLE PAGE

The title page of your brief gives the court necessary information. The
title page in your brief must conform to the rules of the court with which
you file your brief.
There are many ways to type title pages of briefs. The one you choose
should be pleasing to the eye and easy to scan for the necessary information
it contains. Some courts require typeset briefs.
A typical title page contains the following eight elements:

1. the exact name of the appellate court with which you are filing your
brief;
2. the term in which the court is to consider your appeal, including the
month and the year;
3. the docket number for the case;
4. the names of the parties with the appropriate appellate designation
(“appellant,” “appellee,” “petitioner,” or “respondent”);
5. the exact name of the court from whose order you appeal;
 6. identification of the party: “Brief for Appellant,” “Brief for
Appellee,” “Brief for Petitioner,” or “Brief for Respondent”;
7. the name and address of the attorney writing the brief; and
8. the name and address of the attorney representing the opposing
party (optional).

If court rules tell you how to prepare a title page, follow those rules
exactly.

§29.03. TABLE OF CONTENTS

The table of contents is a “roadmap” for the court and the opposing
counsel. This section is the first summary of your argument. It also serves
as a reference tool. You must be sure that the page references are accurate
and that the headings of the arguments in the table of contents are exact
duplicates of the headings in your brief. For a discussion of brief headings,
see Chapter 32.

§29.04. TABLE OF AUTHORITIES

The table of authorities is a listing of all legal authorities you have
used in your brief. The first and most important part of this table is the
listing of cases.
In compiling the table of authorities, follow the rules of the court for
which you are writing the brief. Some rules require that you list cases
alphabetically and by court—all United States Supreme Court cases in
alphabetical order, all United States Court of Appeals cases in alphabetical
order, and so forth. Others require a single alphabetical listing of all cases
from all courts.
Follow proper citation form, including the procedural history of cases.
Again, accuracy is most important. The court and opposing counsel will
rely on the accuracy of the page numbers in your table to find the location
of the authorities in your brief. When you prepare your brief, checking
these page references is the last thing you should do because they can
change at any time.
When a writer uses an authority many times throughout a brief, the
Latin word “passim” can replace page numbers in the table of authorities; it
indicates that the authority is “everywhere.” Be very careful about using
this term, and do not use it in the table of authorities unless you actually use
the authority “everywhere.” For example, you may have cited a case on
virtually every page. In this situation use “passim.” However, if you use a
reference only a few times, “passim” is inappropriate, and you should list
all the pages on which that reference appears.
In the table of authorities a listing of statutes and constitutional
authorities usually follows the listing of cases. Be thorough, list every
statute and constitutional provision you have used in your brief, and follow
proper citation form.
After the listing of statutes and constitutional authorities, list all
“secondary” sources you have cited in your brief. These include legal
periodicals, treatises, restatements of the law, and other sources that are
neither cases, statutes, nor constitutional provisions.
Again, list every authority you use, write accurate citations, and
number the pages accurately. The court will use the page references to
authorities while reading your briefs. A common question the court asks
during oral argument of a case is “Where can I find that case in your brief?”
Save yourself the embarrassment of referring the court to the wrong page.
And remember: The court will get its first impression of the accuracy of
your brief from the table of authorities section. If this section is inaccurate,
the court may question the rest of your work. Attention to detail is very
important.

§29.05. JURISDICTIONAL STATEMENT

This section of your brief tells the court what authority permits the
court to consider your case. Cite the authority, but do not quote it. It is not a
statement of a statute governing the substance of your case, but a statement
of a statute, a rule of court, or a constitutional provision authorizing the
appellate court to hear the kind of case you are appealing. This statement
tells the court that your case is in the right court.
A colleague may tell you to appeal a certain kind of case to a certain
court. However, you cannot rely on word of mouth. Find the provision of
law specifically stating that the court in which you are bringing your appeal
is the right one to consider your case.

§29.06. QUESTIONS PRESENTED

 The questions presented section is one of the most important sections
of the brief. It frames the questions you want the court to answer and frames
those questions in a way that encourages the court to decide them in your
favor. The number of questions presented must correspond to the number of
major headings in your brief.
Courts often give you specific rules about this section of the brief;
however, most rules are the same:

• State the questions clearly and concisely.

• Avoid specific names, dates, and locations unless they help clarify the
issues and are persuasive.
• Let the court know precisely what your case involves.

Writing the questions presented by your case is an art in itself. You can
master this art only through practice. Writing the questions presented
section is not a mechanical effort, but one to which you should devote a
significant amount of time.
Here are examples of issues stated in different ways to illustrate what
to say and what not to say in questions presented.

Bad: Whether Mr. Barnes proved his case of adverse possession.

Better: Does an adverse user satisfy the “continuous” and “exclusive” use elements
needed to establish adverse possession to severed mineral rights by mining at times that
are economically feasible and allowing neighbors to mine coal for personal use at other
times throughout the statutory period?

Comment: In the first example the question is too broad and could
refer to any adverse possession case. The second statement of the question
includes the specifics of the case in question. Note that when you begin the
question with “whether,” you should end with a period, and, when you
begin with a word like “does” or “can,” you should end with a question
mark. When you phrase the question presented as a question, phrase it so
that the answer is “yes” and favors your client.
___________
Bad: Did the trial court err in admitting the evidence the officers obtained through
the search?
Better: Did the trial court err in admitting evidence voluntarily given to the police by
the minor child, when the child obtained it as a result of his independent search of the
property and without police direction?
 Comment: The first example is too general and says nothing about the
particular case. The second statement of the question states the important
facts concisely and clearly.
___________
In addition to writing the questions presented with particularity and
sufficient information, write your issues persuasively in your client’s behalf.
Here is how counsel on each side of the case might write the first example
above.
Plaintiff’s phrasing of the question: Can a land user satisfy the “continuous” and
“exclusive” use needed to establish adverse possession to severed mineral rights by
mining at times that are economically feasible and consistent with local custom, and
allowing neighbors to mine coal for personal use only at other times throughout the
statutory period, particularly when he acted at all times and in all other ways as a true
owner would have acted?

Defendant’s phrasing of the same question: Whether sporadic mining of a property only at
convenient times while allowing others to use the property at their will was insufficient
evidence of the continuity and exclusivity required to deprive the record owner of his
superior rights to the minerals on the land.

Comment: The first statement of the adverse possession question

suggests that the plaintiff has acquired rights by meeting legal requirements,
and the second statement of the same question suggests that plaintiff failed
to fulfill the legal requirements and should not deprive the record owner of
mineral rights. Some readers may find the phrasing of the questions too
argumentative. For a less argumentative version of the plaintiff’s question,
omit the words “only” and “particularly.” For a less argumentative version
of the defendant’s question, omit the word “only” and substitute “sufficient”
for “insufficient.”
___________
Here is how counsel on each side of the case might write the second
example above.
Prosecution’s phrasing of the question: Whether the trial court was correct in admitting
evidence when the child who provided the evidence voluntarily conducted a search of his
home, with no direction from the police, and voluntarily offered that evidence to the
police.
 Defendant’s phrasing of the question: Whether the trial court erred in admitting evidence
provided by a child, who, at the direction of the police, searched his own home and
provided the evidence after further prompting by the police.

Comment: The prosecution’s phrasing of the question first suggests

that the trial court was correct; it then places the child’s activity on the
child’s shoulders and not on the police. It suggests that no police search
occurred and that the search was an appropriate private search resulting in
admissible evidence. The defendant’s phrasing suggests that the trial court
erred in admitting the evidence. It suggests that the child obtained the
evidence only at the direction of the police in violation of the defendant’s
constitutional rights.
___________
Some lawyers phrase the question presented by using more than one
sentence. This technique permits them to avoid long, complex sentences
that are difficult for the reader to comprehend. For instance, in the last set of
examples, the defendant’s lawyer might phrase the question this way:
At the direction of the police, a child searched his own home and, after further prompting
by the police, produced evidence. Did the trial court err in admitting this evidence?

§29.07. TEXT OF CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS
This section of the brief contains the text of the constitutional,
statutory, and regulatory provisions you use in your brief. Do not include
the text of any of these provisions if you do not rely on them in your
argument. For example, do not include the statute or rule you use in your
jurisdictional statement unless that authority is at issue in your case. If you
make reference to a provision that is not at issue in your case, do not
include its text.
Do not include full texts of provisions when only parts of those
provisions are at issue. A statute, for example, may be very lengthy and
may contain much language that has nothing to do with your case. Use only
relevant portions as long as those portions make sense standing alone.
Follow correct citation format.

Exercises
 1. Using the information provided, prepare a title page for a brief. Type
it the way it would appear in final form.

(1) The appellate court is the Supreme Court for the State of Ohio.
(2) The term of court is January 2014.
(3) The docket number for your case is No. 12-43360.
(4) The appellee is the State of Ohio.
(5) The appellant is Elyse Keaton.
(6) The case is on appeal from the Court of Appeals for the State of
Ohio.
(7) The brief is for the appellee.
(8) You are the attorney for the appellee. Your address is 106 Main
Street, Centerville, Ohio 90207. Your phone number is (302) 777-
7777.
(9) Mary Smith is the attorney for the appellant, and her address is
100 Main Street, Centerville, Ohio 90207. Her phone number is
(302) 555-5555.

2. Prepare a table of contents from the following information. Omit

page numbers.

(1) Conclusion
(2) Argument headings:
I. The state did not violate the defendant’s Fourth and Fourteenth
Amendment rights, and the cocaine is admissible because the
police found it as a result of a legal private search by
defendant’s child, without government involvement; and the
child gave the evidence voluntarily to the police
A. Officer Rambo did not direct Alex’s search
1. The interaction between Alex and Officer Rambo did not
give rise to an agency relationship
2. Alex conducted his search without Officer Rambo’s
knowledge, and he completed it before he notified
Officer Rambo
B. Alex was not acting as Officer Rambo’s agent when he
gave Officer Rambo the evidence
 C. Even if the search and seizure was subject to the Fourth
Amendment, Alex’s consent constitutes an exception to the
warrant requirement
1. Alex had authority to consent
2. Alex voluntarily and knowingly consented to the search
and seizure of the evidence
II. Neither a husband-wife privilege nor a parent-child privilege
provides a basis for defendant to exclude her child’s testimony
since neither would be available to defendant under Ohio law,
the law of other courts and legislatures, or social policy
A. Ohio law clearly prohibits defendant from invoking the
husband-wife privilege
B. The Ohio statute does not authorize a parent-child
testimonial privilege, and the court should not recognize
such a privilege where a child voluntarily testifies about a
communication his mother made in his presence regarding
her criminal activities
(3) Summary of the argument
(4) Table of authorities
(5) Statement of the case
(6) Constitutional and statutory provisions
(7) Statement of jurisdiction
(8) Questions presented

3. Prepare a table of authorities from the following information. Omit

page numbers. Use correct citation form.
Ohio Rev. Code Ann. §2317.02 (LexisNexis 2005)
Weis v. Weis, 147 Ohio State 416, 72 N.E.2d 245 (1947)
State v. Morris, 42 Ohio State 2d 307, 329 N.E.2d 85 (1978)
Three Juveniles v. Commonwealth, 455 N.E.2d 1203 (Mass. 1983)
Idaho Code 9-203(7) (1998)
United States v. Matlock, 415 U.S. 164 (1974)
Arnovitz v. Wozar, 9 Ohio App. 2d, 222 N.E.2d 660 (1964)
Belichick v. Belichick, 37 Ohio App. 2d 95, 307 N.E.2d 270 (1973)
Martin J. McMahon, Annotations, Presence of Child at Communication Between Husband
and Wife as Destroying Confidentiality of Otherwise Privileged Communication Between
Them, 39 American Law Reports Annotated 4th 481 (1985)
Fourth Amendment, United States Constitution
In re Terry, W., 130 California Reporter 913 (Ct. App. 1976)
Mapp v. Ohio, 367 U.S. 643 (1961)
 Jeffrey Begens, Comment, Parent-Child Testimonial Privilege: An Absolute Right or an
Absolute Privilege?, 11 University of Dayton Law Review 709, 1986
Oregon v. Scott, 729 P.2d 585 (Or. Ct. App. 1986)
Herbert v. Maryland, 269 A.2d 430 (Md. Ct. Spec. App. 1970)
Ohio Const, amend. IV. §1

4. Rewrite the following facts into a question presented two ways: for
the plaintiff/appellant and for the defendant/appellee.

Mr. Hale is a tenant, and Ms. Petrie is his landlady. Mr. Hale’s apartment is in New
Jersey. A few months ago a robber attacked Mr. Hale in the parking garage of his
apartment complex and robbed him at gunpoint. The robber also beat Mr. Hale, causing
him injuries and a broken arm.
Mr. Hale sued Ms. Petrie for negligence for her failure to provide adequate security
in the parking garage. Although a guard was usually stationed in the garage, that guard
was off-duty at the time of the criminal attack. Ms. Petrie contended in the trial court that,
in New Jersey, she had no duty to protect her tenants from criminal attacks and was
therefore not negligent. She also argued that, even if she had a duty, she provided
sufficient security and that she had fulfilled any duty she had by taking reasonable steps to
provide security. Her argument won in the court below. Mr. Hale now appeals that
decision and argues that, once Ms. Petrie undertook to provide security, she also
undertook to provide reasonable security but failed to do so.

5. Suppose you are working on a case concerning a confidential

communication to a priest. Prepare the text of the relevant statutory
provision from the following statute as if you were preparing this text for a
section on constitutional and statutory provisions for a brief.
Section 2317.02 of the Ohio Revised Code Annotated (LexisNexis 2005), Privileged
Communications and Acts, provides in relevant part:
The following persons shall not testify in certain respects:
(A) An attorney, concerning a communication made to him by his client;
(B) A physician concerning a communication made to him by his patient;
(C) A clergyman, rabbi, priest, or minister, concerning a confession made, or any
information confidentially communicated, to him for a religious counseling purpose;
(D) Husband or wife, concerning any communication made by one to the other, or an
act done by either in the presence of the other, during coverture, unless the communication
was made, or act done, in the known presence of hearing of a third person competent to be
a witness;…
(G) A school guidance counselor…professional counselor, counselor assistant, social
worker, social work assistant or independent social worker concerning a confidential
communication made to him by his client.
§30.01. STATEMENT OF FACTS
The statement of facts, also called the statement of the case, should
include all the facts that the court needs to know to decide the case. Turn to
the statements of fact in the briefs in Appendix V to get an idea of what the
statements look like.
For the attorney, the statement has a purpose in addition to furnishing
information. Use the statement to set the stage for your argument. Tell the
truth, be complete, but put your best foot forward. This part of the brief
offers still another opportunity for advocacy.
Organize the facts and state them clearly so that the court can readily
understand them. You are writing a statement of facts; therefore, state the
facts truthfully and write without editorializing. Nonetheless, write so that
the court sees your client in the most favorable light possible. The following
pages show you how to perform this feat.
Here are three rules for writing the statement of facts:

1. Tell what happened.

2. Tell the truth, but put your best foot forward.
3. Hold the court’s attention.

To illustrate our discussion of these rules, we will examine excerpts

from the statements of the petitioners and respondents in New Jersey v.
T.L.O., 469 U.S. 325 (1985). In this case, a high school vice-principal
searched the purse of T.L.O., a student, and found marijuana. New Jersey
began a delinquency proceeding against the student.
The issue was whether the Fourth Amendment’s exclusionary rule
should apply when a public school teacher or official illegally seizes
evidence from a student. As you may know, the Constitution’s Fourth
Amendment forbids unreasonable searches and seizures by government
officers. Under the exclusionary rule, evidence obtained during an
unconstitutional search is inadmissible in court.
In T.L.O., the trial court and the intermediate appellate court ruled that
the evidence was admissible. The New Jersey Supreme Court, however,
ruled that the exclusionary rule applied to the search and that the evidence
therefore was inadmissible. Before the United States Supreme Court, New
Jersey was the petitioner and T.L.O. was the respondent.
1. Tell What Happened
In the statement of facts, you are telling a story. Tell the story so that
the reader can follow along with the least amount of effort.
An important part of the story is the case’s procedural history: how the
case started and what decisions the courts below have issued. A court will
want this information readily available. Some attorneys set it out as a short,
separate section of the brief. Others include it as an introductory subsection
of the statement of facts, and still others weave pieces of it into the
statement of facts as the pieces naturally arise in the course of the story. You
should use the method that works best for you in a particular case. If the
procedural history is brief and uncomplicated, you might state it in the
opening sentences of the statement of facts. If it is complicated, you might
set it out as a subsection of the statement or as a completely separate section
labeled “Procedural History.” If you choose the latter method, you also
might discuss the lower court decisions near the end of the statement.
You will help the court to follow the story if you call the parties by
their names and do not refer to them as “petitioner” and “respondent.”
Think of the times when you have read a court opinion and the court called
the litigants “appellant” and “appellee.” Remember how difficult it was to
recall which label went with which litigant. In the T.L.O. case, call the
juvenile “T.L.O.” as opposed to “respondent.” Call the petitioner either
“New Jersey” or “the State.”
 Most of the time, you will want to tell the story chronologically. The
historical approach is easy to follow. To illustrate, here are the opening
paragraphs of the statements of facts in the T.L.O. briefs. The first excerpt
comes from the brief of the petitioner, New Jersey:
On the morning of March 7, 1980, a teacher of mathematics at Piscataway High School
entered the girls’ restroom and found the juvenile-respondent T.L.O. and a girl named
Johnson holding what the teacher perceived to be lit cigarettes. (MT20-1 to 25).1 Smoking
was not permitted and the girls were thus committing an infraction of the school rules.
The girls were taken to the principal’s office where they met with Theodore Choplick, the
assistant vice-principal. (MT21-1 to 3; MT21-24 to 22-11; MT31-18 to 20; MT33-20 to
34-10).

The second excerpt comes from T.L.O.’s brief:

On March 7, 1980, a search was made by Mr. Choplick, vice principal of Piscataway High
School, of a purse belonging to T.L.O., a student at the school. Ms. Chen, a teacher, had
made a routine check of the girls’ restroom. She observed T.L.O. and another girl smoking
tobacco cigarettes. (MT 20-7 to 25) Although smoking by students was permitted in
designated areas, it was not allowed in the restrooms. (MT 33-20 to MT 34-6) Ms. Chen
accompanied both girls to Mr. Choplick’s office, where she advised him of the infraction.
(MT 21-1 to MT 22-23)

In each paragraph, the attorneys told the story in chronological order in

a way that is easy to follow. T.L.O.’s statement began with a sentence not in
chronological order because the sentence offered a desirable way to begin
the story. Which paragraph do you prefer? Note that both attorneys
documented their facts by making reference to the record. You are expected
to furnish this documentation as a convenience to the court.
In telling the story, keep the narrative moving. Stay on point and omit
irrelevant information. You should include facts that help make your client’s
case sympathetic, even if they are not essential to your legal argument. Here
is the second paragraph from New Jersey’s statement of facts:
Mr. Choplick asked the two girls whether they were smoking. Miss Johnson
acknowledged that she had been smoking, and Mr. Choplick imposed three-day
attendance at a smoking clinic as punishment. (T49-24 to 50-7). T.L.O. denied smoking in
the lavatory and further asserted that she did not smoke at all. (MT27-10 to 17). Mr.
Choplick asked T.L.O. to come into a private office. (MT27-14 to 21; MT30-22 to 31-17).

T.L.O.’s brief does not contain a comparable paragraph. It offers a single

sentence: “Upon being questioned, T.L.O. denied that she smoked.” Do you
understand why New Jersey’s attorneys decided to include the additional
information?
 Here is another example. T.L.O.’s brief describes the juvenile court’s
disposition in the following words: “On January 8, 1982, a probationary
term of one year was imposed.” Here is how the New Jersey brief describes
the disposition: “On January 8, 1982, T.L.O. was sentenced to probation for
one year with the special condition that she observe a reasonable curfew,
attend school regularly and successfully complete a counselling and drug
therapy program.” Arguably, the New Jersey brief includes more
information than a court would need to make a decision about the
applicability of the exclusionary rule. The additional information, however,
helps place the state in a more favorable light. New Jersey’s attorneys were
correct in including it.
2. Tell the Truth, but Put Your Best Foot Forward
In writing your statement of facts, you must tell the truth and not
otherwise mislead the court. If the court discovers that you have been less
than truthful, you lose your credibility, severely damage your client’s case,
and hurt your reputation as a trustworthy attorney. Still, you should state
your case in the most favorable way possible. Write in an objective,
noneditorial style, but emphasize the facts that help your client’s case. Here
is an excerpt from the New Jersey brief:
Once inside this office, Mr. Choplick requested the juvenile’s purse, and she gave it to
him. (MT27-24 to 28-7). A package of Marlboro cigarettes was visible inside the purse.
(MT28-9 to 11). Mr. Choplick held up the Marlboros and said to the juvenile, “You lied to
me.”

This excerpt paints the picture by using facts, rather than adverbs,
adjectives, or editorial statements. Instead of explicitly calling T.L.O. a liar
—an editorial statement—New Jersey’s attorneys furnish facts that permit
the Court to reach this conclusion. The statement adds emphasis by quoting
the vice-principal. Quoting another person’s judgmental words is more
effective than employing your own editorial words. In a statement of facts,
employing your own editorial words is inappropriate.
As another illustration, consider how T.L.O.’s brief describes the items
that Mr. Choplick found in the purse:
Looking further into the handbag, he found a metal pipe, and one plastic bag containing
tobacco or some similar substance.2 (MT29-10 to 16) He also found a wallet containing
“a lot of singles and change,” and inside a separate compartment of the purse, two letters
and an index card.
Compare the description in New Jersey’s brief: “There he found marijuana,
drug paraphernalia, $40 in one-dollar bills and documentation of T.L.O.’s
sale of marijuana to other students.” Each statement tells the same story,
uses objective words, offers accurate information, and yet favors the
respective client.
Writing the statement of facts may require you to deal with
information adverse to your client. You already have seen some examples
of ways to confront the problem. For another example, compare the
following accounts of T.L.O.’s encounter with the police. Here is the
account in New Jersey’s brief:
T.L.O.’s mother acceded to a police request to bring her daughter to police headquarters
for questioning. (T18-12 to 18). Once at headquarters, T.L.O. was advised of her rights in
her mother’s presence and signed a Miranda3 rights card so indicating. (T20-3 to 21). The
officer then began to question T.L.O. in her mother’s presence. (T23-4 to 6). T.L.O.
admitted that the objects found in her purse belonged to her. She further admitted that she
was selling marijuana in school, receiving $1 per “joint,” or rolled marijuana cigarette.
T.L.O. stated that she had sold between 18 and 20 joints at school that very morning,
before the drug was confiscated by the assistant principal.

Compare the account in T.L.O.’s brief:

The local police transported T.L.O. and her mother to headquarters. Upon arrival, Officer
O’Gurkins advised the juvenile of her Miranda rights. (T20-7 to T21-3). When Mrs. O.
indicated that she wanted to have an attorney present during the questioning, she was
permitted to telephone the office of her lawyer. (T34-10 to 24). He was not available, so
the officer proceeded with the interrogation. According to Mrs. O., at no time did her
daughter state that she had sold marijuana. (T35-15 to 22).
Officer O’Gurkins admitted that although it was standard practice in juvenile matters
to reduce incriminating statements to writing, he did not follow this procedure with T.L.O.
(T24-12 to 18). He nevertheless maintained that T.L.O. had confessed that she had been
selling marijuana in school for a week. (T22-2 to 17). He conceded that T.L.O. explained
to him that the $40.98, which was found in her purse, constituted the proceeds from her
paper route, which she had collected the night before.

The New Jersey brief seems to deal with some adverse facts by
omitting them. Controversy exists over whether T.L.O. admitted to selling
marijuana. From a technical perspective, the controversy is not pertinent to
the issue before the Supreme Court. Nonetheless, the possible innocence of
T.L.O. on the selling charge may affect the Court’s perception of the case.
T.L.O.’s brief discusses the controversy. The Court might think less of New
Jersey’s brief for ignoring it. The New Jersey brief could have alluded to
the matter without turning it into a major issue. It might have begun the
critical sentence this way: “According to the officer, T.L.O. admitted that
she was selling.…” It also might have included an additional sentence: “Her
mother later denied that T.L.O. made this admission.” The lesson is that you
can own up to adverse facts without waving them about.
Another way to use facts to your advantage is to summarize or quote
favorable opinions of the court below. These opinions are powerful support
for your arguments. Use them. If a majority opinion goes against you,
mention the opinion and then focus on the dissent. In either case, you have
the opportunity to make your arguments while still writing objectively. You
summarize the favorable words of a third party, a court. This summary is
still one more presentation of your argument. In T.L.O., for example, New
Jersey’s statement of facts summarizes the adverse holding of the state
supreme court in a single sentence. T.L.O.’s statement, however, spends
four paragraphs summarizing the majority opinion.
3. Hold the Court’s Attention
Both New Jersey’s and T.L.O.’s statements of fact hold the reader’s
interest. They tell the story in chronological sequence. They omit needless
information. They use a concrete writing style. They refer to T.L.O.’s
cigarettes as “Marlboros,” as opposed to “tobacco cigarettes.” New Jersey’s
statement quotes the vice-principal: “You lied to me.” It also states that Mr.
Choplick found “$40 in one-dollar bills” as opposed to “$40” or “some
money.” The attorneys writing these statements followed the rules of good
writing style that you have learned. In these statements, the most important
rules of style are using the active voice, keeping sentences and words
simple and concrete, and avoiding the inflammatory rhetoric that marks the
advocate as an amateur.

Exercise
Here is a paragraph from T.L.O.’s statement of facts. Rewrite it to
improve it stylistically so that it more effectively holds the reader’s
attention.
An appeal was taken and decided on June 30, 1982. In re T.L.O., 448 A.2d 493 (N.J.
Super. Ct. App. Div. 1982). Two judges affirmed the denial of the motion to suppress the
evidence secured by the search of the juvenile’s purse, adopting the reasons set forth in the
opinion of the trial court. However, they found that the record was inadequate to
determine the sufficiency of the Miranda waiver which was allegedly made by the
juvenile after her mother’s unsuccessful attempt to summon counsel. Id. at 493. They
 therefore vacated the adjudication of delinquency and ordered a remand for further
proceedings in light of the principles enunciated in Edwards v. Arizona, 451 U.S. 477
(1981) and State v. Fussell, 174 N.J. Super. 14 (App. Div. 1980). Id. One judge dissented,
indicating that he would suppress the evidence found in T.L.O.’s purse because the search
had been unreasonable. Id. at 495.

§30.02. SUMMARY OF ARGUMENT

In the summary of argument, you summarize your argument.
According to United States Supreme Court Rule 34(h), the summary is a
“succinct, but accurate and clear condensation of the argument made in the
body of the brief. It should not be a mere repetition of the headings under
which the argument is arranged.” The summary rarely is more than one or
two pages.
This part of the brief is your chance to give the court a summary of
your argument. It may be all some judges read before they hear your oral
argument. Because of its importance, spend the time necessary to make it
readable and persuasive. When a judge turns to your summary, he or she
probably knows very little about your case. Therefore write the summary
for an intelligent but uninformed audience.
The task is harder than you may think. After spending weeks or
months grappling with a case, you may have difficulty in accurately
reducing your analysis to a page or two. Stick to your main arguments and
save the subtle points for the body of the brief.
Use the table of contents as an outline for the summary. Write a topical
sentence stating a point of your argument at or near the beginning of each
paragraph. Then flesh out the outline a bit. If you cite any cases at all, cite
only those that are essential to making your summary understandable. For
example, you might cite the major case that you are distinguishing or
relying on.

1. “MT” refers to the transcript of the motion to suppress heard before the Juvenile and
Domestic Relations Court on September 26, 1980. “T” refers to the transcript of trial on March 23,
1981, the transcript of the juvenile’s plea of guilty to other complaints on June 2, 1981, and the
transcript of sentencing on January 8, 1982, all contained in one volume.
2. At trial it was stipulated that the bag contained 5.40 grams of marijuana. (T12-17 to 25).
[Would you have advised the writer to place this information in a footnote?—Ed.]
3. Miranda v. Arizona, 384 U.S. 436 (1966).
§31.01. EXERCISE I
Please read the following excerpt from the summary of argument in
T.L.O.’s brief (from New Jersey v. T.L.O., 469 U.S. 325 (1985), introduced
in Chapter 30). Then write an outline of the summary. Note also how the
writer fleshed out the argument. What suggestions do you have for
improvement?
Assuming arguendo that the decision of the New Jersey Supreme Court does present a
federal question for adjudication, petitioner’s contention that the exclusionary rule need
not be applied to the fruits of the illegal search at issue in this matter is clearly erroneous.
The Fourth Amendment protects against unreasonable searches conducted by any
governmental agency. Because public school personnel are employed by the state, act with
state authority, and are responsible for carrying out state laws and regulations, their
conduct constitutes governmental, rather than private, action. Thus the search of T.L.O. by
the vice-principal comes within the ambit of the Fourth Amendment.
While petitioner is correct in asserting that this Court has not found the exclusionary
rule to be constitutionally required in the case of every Fourth Amendment violation,
those instances where it has not been applied have involved limited, peripheral uses of the
evidence so obtained. This Court has not permitted the fruits of an illegal search to be
introduced into evidence on the prosecution’s case-in-chief in a criminal proceeding, as
the State seeks to do in the present matter. In such circumstances, application of the rule is
mandatory.
Even if petitioner is correct in maintaining that a balancing test—weighing the
benefits of deterrence against the societal costs resulting from implementation of the rule
—is constitutionally permissible to determine if the exclusionary rule should be applied in
the present circumstances, it is clear that the expected benefits would outweigh the
anticipated detriments. First, educators do have an interest in the successful prosecution of
juvenile delinquency proceedings and would be deterred from conducting unreasonable
searches by the knowledge that the resulting evidence would be excluded. Second, if
evidence illegally secured by educators was not admissible at trial, the police would be
deterred from instigating teachers to conduct illegal searches in order to provide otherwise
 obtainable evidence on “a silver platter.” With regard to societal costs, statistical studies
have shown that relatively few prosecutions are dismissed because of Fourth Amendment
problems. School surveys do not support the conclusion that the crime rate in schools is
rising or that an increase in searches by school personnel would be a significant factor in
reducing the present rate.
Petitioner has demonstrated no alternatives to the exclusionary rule which would
effectively deter violations of the Fourth Amendment rights of students. In addition, the
exclusionary rule serves constitutionally recognized purposes other than deterrence: it
protects the imperative of judicial integrity, and teaches respect for constitutional rights.

§31.02. EXERCISE II
At the end of this chapter, please find the statements of the case
(statements of facts) submitted by the petitioner and respondent in McIntyre
v. Ohio Elections Commission. Please compare them. How do they differ?
Why did the attorneys write them the way they did? What suggestions
would you make for improvement?

§31.03. EXERCISE III

At the end of this chapter, please find the summaries of argument
submitted by the petitioner and respondent in McIntyre v. Ohio Elections
Commission. Please compare them. How do they differ? Why did the
attorneys write them the way they did? What suggestions would you make
for improvement?

§31.04. EXERCISE IV
In Rosenberger v. University of Virginia, college students sought
funding for “Wide Awake,” a new student publication with an expressly
religious viewpoint. They were denied funding because of a university
funding guideline that categorically denies funding of religious
organizations and religious activities. At issue is whether this prohibition
violates the First Amendment.
At the Supreme Court, the petitioner students argue that the denial
violates the guarantees of freedom of speech and freedom of the press. They
also argue that funding their publication would not violate the
Establishment Clause, which requires separation of church and state, as
long as the university extends funding to a broad range of activities and
publications without regard to their differing religious and nonreligious
viewpoints.
 The respondent university argues that the First Amendment permits it
discretion in making funding decisions. It further argues that the funding
guidelines are reasonable and neutral with respect to religious viewpoints
and other viewpoints and are not designed to suppress expression.
At the end of this chapter please find the summaries of argument of the
petitioner and respondent and compare them. How do they differ? What
suggestions for improvement would you make?
McIntyre v. Ohio Elections Commission
514 U.S. 334 (1995)

Excerpts From The Brief Of The Petitioner, Margaret Mcintyre

Statement Of The Case
On March 19, 1990, Mrs. Margaret McIntyre was fined $100 by the
Ohio Elections Commission for distributing leaflets opposing the passage of
a local school tax levy. The Ohio Elections Commission imposed the fine
because the leaflets did not contain her name and address as required by
Ohio Revised Code §3599.09, which prohibits the distribution of all
anonymous campaign literature. The Ohio Supreme Court upheld the fine
on September 22, 1993.
The events in this case began on the evening of April 27, 1988, outside
the Blendon Middle School in Westerville, Ohio. At that time, Mrs.
McIntyre; her son, a student in the Westerville schools; and his girlfriend
were distributing leaflets opposing the passage of a school tax levy that was
to be voted on at a nonpartisan referendum scheduled for the following
week. (J.A.30). Mrs. McIntyre was distributing the leaflets at the Blendon
Middle School that evening because it was the site of a previously
scheduled public meeting at which the Westerville superintendent of
schools planned to address the merits of the tax levy. (J.A.28). During the
meeting the superintendent specifically made reference to statements
contained in the leaflets. (J.A.15).
Mrs. McIntyre stood outside the school near the doorway to the
meeting room and handed leaflets to persons as they entered the building.
(J.A.15). Her son and his girlfriend distributed additional leaflets in the
school parking lot by placing them under automobile windshield wipers.
(J.A.30). The leaflets stated:
Vote No
Issue 19 School Tax Levy
Last election Westerville Schools, asked us to vote yes for new
buildings and expansions programs. We gave them what they asked. We
knew there was crowded conditions and new growth in the district.
Now we find out there is a 4 million dollar deficit—WHY?
We are told the 3 middle schools must be split because of over-crowding, and yet we
are told 3 schools are being closed—WHY?
A magnet school is not a full operating school, but a specials school.
Residents were asked to work on a 20 member commission to help formulate the new
boundaries. For 4 weeks they worked long and hard and came up with a very workable
plan. Their plan was totally disregarded—WHY?
WASTE of tax payers dollars must be stopped. Our children’s education and welfare
must come first. WASTE CAN NO LONGER BE TOLERATED.
PLEASE VOTE NO
ISSUE 19
THANK YOU, CONCERNED PARENTS AND TAX PAYERS

J. Michael Hayfield, Assistant Superintendent of Elementary

Education for the Westerville schools, observed Mrs. McIntyre distributing
the leaflets. He examined the leaflets and told her that she was not in
compliance with Ohio election laws. (J.A.28).
On the next evening, April 28, 1988, a similar school meeting was held
at the Walnut Springs Middle School.…Again, petitioner stood outside of
the school and distributed leaflets opposing the school tax levy to persons
entering the building to attend the meeting. Again, Mr. Hayfield observed
her distributing leaflets and noted that they did not conform to Ohio
election laws. (J.A.15).
Following Mrs. McIntyre’s leafletting on April 27, 1988 and April 28,
1988, the school tax levy failed. It was again defeated in a second election.
In November of 1988, on the third try, it finally passed. (Pet. App. A10). On
April 6, 1989, five months after the passage of the twice-defeated levy, and
approximately one year after her leafletting, Mrs. McIntyre received a letter
from the Ohio Elections Commission informing her that a complaint had
been filed against her. (J.A.10). The complaint, filed by Assistant
Superintendent Hayfield, charged her with violating Ohio Revised Code
§3599.09 and two other statutes because the leaflets she had distributed at
the Blendon and Walnut Springs Middle Schools, during the two evenings
in April of the previous year, did not contain her name and address.1
 Initially, the charges were dismissed for want of prosecution. (J.A.18).
A short time later, they were reinstated at the request of Assistant
Superintendent Hayfield. On March 19, 1990, a hearing was held before the
Ohio Elections Commission on the charges against Mrs. McIntyre. At the
conclusion of its March 19th hearing, the Ohio Elections Commission
found that Mrs. McIntyre had distributed unsigned leaflets and fined her
$100 for violating Ohio Revised Code §3599.09; the other charges were
dismissed.2 (J.A.41).
On September 10, 1990, the Franklin County Court of Common Pleas
reversed, holding that §3599.09 was unconstitutional as applied. (Pet. App.
A33). On April 7, 1992, the Ohio Court of Appeals reversed the Court of
Common Pleas and reinstated the fine. (Pet. App. A16). That decision was
affirmed by the Ohio Supreme Court on September 22, 1993, which
concluded that: The requirement of R.C. 3599.09 that persons responsible
for the production of campaign literature pertaining to the adoption or
defeat of a ballot issue identify themselves as the source thereof is not
violative of the right to free speech guaranteed by the First Amendment to
the United States Constitution and Section 11, Article I of the Ohio
Constitution.
(Pet. App. A1).3

Summary of Argument
Petitioner Margaret McIntyre has been fined under §3599.09 of the
Ohio Election Code for preparing and distributing leaflets urging a vote
against a school tax levy because the leaflets did not contain her name and
address. The Ohio Supreme Court held that §3599.09 does not violate the
First Amendment even though it indiscriminately bans the distribution of all
anonymous political campaign literature. The Ohio Supreme Court erred in
upholding the statute because its decision is inconsistent with Talley v.
California, 362 U.S. 60 (1960), which holds that a flat ban on anonymous
leafletting is unconstitutional because it deters the speech of those who fear
retaliation and thereby restricts freedom of expression.
This Court’s protection of anonymous speech in Talley rests on a firm
historical foundation. The drafters of the Constitution were well aware of
efforts by the government of England to punish political and religious
dissenters for their anonymous publications. The drafters were also aware
of the frequent use of anonymous political publications to criticize the
English governance of the American colonies. The use of anonymous
political publications as part of public discourse continues today. Consistent
with this history and practice, the Court has repeatedly held that the First
Amendment protects anonymous speech. E.g., Thomas v. Collins, 323 U.S.
516 (1945); Bates v. Little Rock, 361 U.S. 516 (1960); Shelton v. Tucker,
364 U.S. 479 (1960); Lamont v. Postmaster General, 381 U.S. 301 (1965).
The constitutionality of §3599.09 is to be measured by the compelling
state interest test because it is a regulation of the fundamental right to
speech and press. Most recently, this Court applied the compelling state
interest test in reviewing the regulation of election related speech in Burson
v. Freeman, 504 U.S. 191, 112 S. Ct. 1846 (1992). The Ohio Supreme Court
erred in concluding that the more relaxed standard of review applicable to
ballot access and voting regulations was applicable to this case. This is
because §3599.09 is a regulation of political speech in public places
intended to persuade voters and is not a ballot access or voting regulation.
Applying a strict scrutiny standard, §3599.09 is unconstitutional because
Ohio has not demonstrated a compelling state interest and has not narrowly
tailored its law. The failure of §3599.09 to serve a compelling state interest
is demonstrated by the fact that it covers all anonymous election related
leaflets and pamphlets. It is not confined to intentionally false and
fraudulent statements. In addition, it extends to communications about
referendum issues that cannot be smeared or libeled. Illinois v. White, 506
N.E.2d 1284 (Ill. 1987). Section 3599.09 is not narrowly tailored because it
extends to election related publications at any time in any place. As a
consequence, it is a prophylactic rule requiring disclosure, even when no
legitimate interest is actually served.
Finally, §3599.09 is unconstitutional as applied to the facts of this
case. Petitioner is a street corner leafletter who has engaged in core political
speech about a public issue. As a result, no law, including §3599.09, can be
applied to her speech without violating the First Amendment. Lovell v.
Griffin, 303 U.S. 444 (1938).

Excerpts from the Brief of the Respondent, Ohio Elections Commission

Statement of the Case
In 1988, Petitioner Margaret McIntyre opposed passage of a property
tax levy for the Westerville, Ohio school district. She prepared, or had
prepared, flyers expressing this opposition.
 Instead of placing her name and address on these flyers as required by
Ohio Rev. Code 3599.09(A) (the “Disclosure Statute”), Petitioner identified
those responsible for the flyers as “Concerned Parents and Tax Payers,”
Joint Appendix (“J.A.”) 6-7, a fictitious organization. (J.A. 38-39). She
distributed these flyers at two separate meetings that were scheduled as
open forums for the public to discuss the tax levy. (J.A. 14-15).
On each occasion, an assistant school superintendent observed
Petitioner distributing the flyers. Id. On the first occasion, he cautioned that
her failure to include her name and address on them violated Ohio elections
law. (J.A. 28). Petitioner, however, ignored his caution. At no time did
anyone attempt to prevent her from circulating any literature, nor did
anyone seek to prevent her from attending either meeting. Petitioner also
was never threatened with any reprisals because of her opposition to the tax
levy.
The assistant superintendent eventually filed a complaint with
Respondent, the Ohio Elections Commission (“Commission”), alleging that
Petitioner had violated the Disclosure Statute, among other provisions of
Ohio elections law. (J.A. 3, 14-16). At a full hearing conducted by the
Commission in a civil enforcement action, evidence was presented that
some of Petitioner’s flyers did contain the disclosure statement required by
Ohio Rev. Code 3599.09(A), and Petitioner testified that she had intended
to disclose this same information on all the flyers, though she had failed to
do so. (J.A. 36-39). It was also revealed that no such organization as
“Concerned Parents and Tax Payers” had ever existed. (J.A. 38-39). After
considering all the evidence, the Commission found that Petitioner had
violated the Disclosure Statute and fined her $100. (J.A. 42).
At the hearing and in the Commission’s order, the viewpoint contained
in the flyers, which expressed Petitioner’s anti-levy message, was never
considered with respect to any of the issues that were raised and
determined. Instead, the sole focus was on whether the flyers included an
attribution statement and whether any such statement was false or
fraudulent as provided in Ohio Rev. Code 3599.09. (See J.A. 26-42.)
On appeal from this administrative order, an Ohio trial court ruled that
Ohio Rev. Code 3599.09(A) was unconstitutional. (J.A. 45.) A state appeals
court upheld the law and reversed. (J.A. 49).
Petitioner then took an appeal to the Supreme Court of Ohio, which
analyzed her challenge to the Disclosure Statute under the established test
for evaluating the constitutionality of election laws crafted in Anderson v.
Celebrezze, 460 U.S. 780 (1983). See McIntyre v. Ohio Elections Comm’n,
67 Ohio St. 3d 391 (1993), Appendix to Petition for Writ of Certiorari, A1-
A15. That test requires a reviewing court to weigh any burden that the
challenged legislation places on First Amendment rights against the
legitimate interests of the State in regulating the subject matter involved.
The Ohio Supreme Court conducted this balancing test and concluded that
the Disclosure Statute places only a modest burden on First Amendment
rights, which is outweighed by Ohio’s proper interests in the deterrence of
fraud, misleading advertising, and libel, and in requiring disclosure to the
public of specific information that is pertinent to the electoral process.
Consequently, the Ohio Supreme Court affirmed the appeals court’s holding
that the Disclosure Statute is constitutional. Petitioner then sought a writ of
certiorari from this Court, which granted review on February 22, 1994.

Summary of Argument
1. The court below properly applied the test established in Anderson v.
Celebrezze, 460 U.S. 780 (1983), to analyze the constitutionality of an
elections measure such as the Disclosure Statute. Under that test, a
reviewing court must weigh any burden the challenged legislation places on
First Amendment rights against the legitimate interests of the State in
regulating the subject matter involved. Here the Disclosure Statute imposes
only a modest burden, if any, on First Amendment rights. This modest
burden is substantially outweighed by the State’s legitimate interests in the
deterrence of fraud, misleading advertising, and libel, and in requiring the
disclosure to the public of specific information that is pertinent to the
electoral process.
2. Talley v. California, 362 U.S. 60 (1960), is inapplicable to this case.
Talley specifically left for another day whether a measure such as the
Disclosure Statute, which is designed to deter fraud, misleading advertising,
and libel, is constitutional. In addition, Talley did not involve an election
law requiring the Court to weigh two competing interests of equal
constitutional magnitude—protecting the right to vote by preserving the
integrity of the electoral process and assuring freedom of speech. The States
are authorized to act to protect the integrity of the electoral process, even
when First Amendment rights are implicated, as long as any such action
does not discriminate against the viewpoint expressed in any political
message.
3. Even if strict scrutiny were to be applied here, however, the
Disclosure Statute would withstand such scrutiny because it advances the
State’s compelling interest in combatting fraud in the electoral process. The
Disclosure Statute, moreover, is narrowly drawn to serve that compelling
state interest. Burson v. Freeman, 504 U.S. 191, 112 S. Ct. 1846 (1992).
4. Disclosure statutes have long been upheld by this Court in many
different fields, even where they impose some burden on First Amendment
activities. In the field of elections law in particular, the Court’s precedents
confirm the constitutionality of disclosure statutes in elections both for
candidates and for ballot issues. See Buckley v. Valeo, 424 U.S. 1 (1976);
First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978). The same result
also holds for disclosure statutes that affect such First Amendment activities
as lobbying, United States v. Harriss, 347 U.S. 612 (1954), and charitable
solicitations, Riley v. National Federation of the Blind of North Carolina,
Inc., 487 U.S 781 (1988). Any countervailing interest in maintaining
secrecy or anonymity is less powerful than Petitioner alleges, and must
yield to the State’s compelling interests in requiring the disclosure of a
limited amount of pertinent information to the public. In this case, for
example, any burden allegedly imposed on Petitioner’s First Amendment
rights by the Disclosure Statute was either minimal or nonexistent, and the
State has a compelling interest in requiring the limited disclosures specified
in Ohio Rev. Code 3599.09(A).
Rosenberger v. University of Virginia
515 U.S. 819 (1995)

Excerpt from the Brief of the Petitioner, Ronald Rosenberger

Summary of Argument
This case involves the discriminatory exclusion of an otherwise
qualified student publication from eligibility for student activity funding at
the University of Virginia, solely on the basis of the content, indeed the
viewpoint, of the publication.
The University of Virginia uses its Student Activity Fund to support a
wide variety of student speech from different perspectives, including some
15 newspapers and magazines. Petitioners have started a sixteenth: Wide
Awake, a student magazine that addresses national and campus issues of a
political, personal, cultural, and educational nature from the point of view
of its editors and members. They have satisfied all the necessary
requirements for funding eligibility. The problem is their editorial point of
view, which is rooted in their Christian religious faith. That (and that alone),
according to the University, makes the magazine ineligible for funding.
This raises the question: is the religious perspective of a student publication
a lawful ground for excluding it from benefits otherwise available to
organizations of its type?
We contend that the University’s action violates the First and
Fourteenth Amendments of the United States Constitution. Our argument is
based on two important principles of constitutional law. First,
discrimination on the basis of the content of speech, and especially its
viewpoint, is presumptively unconstitutional and can be justified only on
the basis of a compelling governmental purpose for the discrimination.
R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2542-43, 2547-48, 2549-50
(1992). This principle applies to decisions involving benefits as well as
regulation (FCC v. League of Women Voters, 468 U.S. 364 (1984); Arkansas
Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987)), and to
religious as well as secular points of view (Lamb’s Chapel v. Center
Moriches School Dist., 113 S. Ct. 2141 (1993); Widmar v. Vincent, 454 U.S.
263, 269-70 (1981)). Second, the nondiscriminatory funding of a broad
range of publications and activities, without regard to their religious, anti-
religious, or nonreligious point of view, does not violate the Establishment
Clause. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 14-15 (1989); Witters v.
Washington Dep’t of Services, 474 U.S. 481 (1986).

Excerpt from the Brief of the Respondent, the Rectors and Visitors of the
University of Virginia

Summary of Argument
Respondents’ argument consists of three points:
First, in the expenditure of public funds, decisions based on the content
of speech are familiar, necessary, and entirely legitimate. Routine academic
decisions, such as the hiring and promotion of professors and the choice of
courses for the curriculum, involve content-based evaluations of speech. To
require that such decisions be made without regard to content would be to
disable public universities from adopting or implementing educational
policies. This the First Amendment does not require.
Second, the University of Virginia Student Activity Fee Funding
Guidelines are reasonable. They exclude from funding religious, political,
philanthropic, and social activities. They do not reflect, as petitioners
allege, an ideologically driven attempt to suppress a particular point of
view.
Third, the public forum doctrine confirms the constitutionality of the
funding Guidelines. Under that doctrine, student activity fee funds
constitute a non-public forum. In the non-public forum, content-based rules
are allowed, “as long as the regulation on speech is reasonable and not an
effort to suppress expression merely because public officials oppose the
speaker’s view.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460
U.S. 37, 46 (1983). The University Guidelines fully meet that standard.

1. In addition to being charged with violating §3599.09, prohibiting distribution of anonymous

campaign materials, Mrs. McIntyre was charged with violations of Ohio Revised Code §3571.10(D)
(failure to file a designation of treasurer) and §3517.13(E) (failure to file a PAC report).
2. Mrs. McIntyre was unrepresented throughout the administrative proceedings and the
administrative record is, therefore, a sparse one. Prior to the March 19th hearing, Mrs. McIntyre
wrote a letter to counsel for the Ohio Elections Commission acknowledging that some of the leaflets
she had distributed were unsigned. (J.A.12). At the hearing, she both denied any intent to violate the
law and objected to the law as “an infringement of her First Amendment rights.” (J.A.36, 38-39). She
also testified that she had talked to many other people who were concerned about the levy and felt
she was representing their views as well as her own. (J.A.38). Assistant Superintendent Hayfield
repeated the statement made in his prior affidavit, that he had seen Mrs. McIntyre distribute leaflets
without her name and address.
The Commission’s decision upholding the complaint was issued the
same day. It was not accompanied by any written opinion and contained no
factual findings other than the implicit finding that Mrs. McIntyre had
distributed anonymous leaflets and thereby violated the law. Thus, the only
issue raised or considered on appeal by the Ohio state courts was whether
the ban on anonymous campaign literature set forth in §3599.09 is
constitutional.
3. According to Rule 1(b) of the Ohio Supreme Court Rules for the Reporting of Opinions, this
statement, which is the syllabus of the case, “states the controlling point or points of law decided.…”
§32.01. THE ARGUMENT
The argument is the heart of the brief. Its purpose is to persuade the
court that your arguments rest on the applicable law and mandate a decision
favorable to your client. While the other portions of the brief are important,
you generally will win or lose your case on the substance of the argument.
The argument section must be written persuasively and forcefully. It must
be interesting enough to hold the attention of the court, and convincing
enough to warrant a decision in your client’s favor. This chapter instructs
you how to structure and prepare the substance of an effective argument.
1. Structuring the Argument
a. Use Headings
A heading is a concise, persuasive statement of a conclusion that you
want the court to accept with respect to a segment of your argument.
Headings appear both in the table of contents and in the body of the
argument at the beginning of different sections and subsections; they should
be identical in both places. Here is an example:

I. NALLY’S TAPE-RECORDED STATEMENTS ARE ADMISSIBLE

IN EVIDENCE.
A. Because Nally Contradicted His Taped Statements, the Taped
Statements Are Admissible Under the Hearsay Exception for
Prior Inconsistent Statements.
B. Because Nally Testified About These Statements at the First
Trial, They Are Admissible Under the Hearsay Exception for
 Judicial Admissions.

As you can see, the headings divide the argument into major sections,
and subheadings further divide those sections. Together, the headings and
subheadings create an outline of your argument. You can feel confident
about your headings when you list them in the table of contents and they
present a logical, compelling summary of your argument.
Headings, then, are an essential tool in writing an organized, logical,
and therefore persuasive argument. They give the court guidance in
understanding your arguments and their logic. If you write persuasive
headings, they should help persuade the court to rule in your client’s favor.
b. How to Write the Headings
The questions presented provide the foundation for the headings. To
draft the headings, prepare a list of the specific conclusions the court must
adopt to decide the case in your client’s favor and identify the reasons that
support those conclusions. These conclusions will become the arguments
made in the headings and should serve as an excellent outline for drafting
the brief. Make a separate list for each question presented. Then outline the
necessary conclusions.
The order in which you present your conclusions or arguments is
important. First, present your arguments in the same order as your questions
presented so that the court will find it easy to follow you. Second, arrange
your arguments for each question presented in a logical order, keeping
related parts of the argument together. Third, begin with your strongest
argument, unless doing so would strain the logic of the discussion. Your
strongest argument is the one with which the court is the most likely to
agree, based on your knowledge of its prior decisions and its members’
predilections. It is not necessarily the one about which you feel the most
strongly.
Once you have decided on the necessary conclusions and their order,
you are ready to write the headings. Headings should be an integral part of
the argument. They are more than section titles. A heading is a statement of
the argument to follow. It should be a complete sentence and be affirmative,
persuasive, and specific. It should not, however, be so partisan that it
sounds unreasonable. Do not make arguments you cannot support.
Each question presented usually warrants only one major heading. If a
question has several subparts, write one general major heading. Then use
the subparts to write minor headings. Place a Roman numeral before each
major heading and a capital letter before each minor heading. Capitalize the
first word and the first letter of all words except articles, conjunctions, and
prepositions, and underline each such minor heading. State the elements of
the argument supporting a minor heading in subheadings preceded by
numerals indicating their positions under the minor heading. Capitalize only
the first word of subheadings and do not underline them. Always use a
period after a heading, whether it is a major heading, a minor heading, or a
subheading. However, when you list a heading in your table of contents,
you need not place a period at the end. Single-space your headings. Do not
use minor headings or subheadings unless you use two or more of them.
The headings should look like this:

I. FIRST MAJOR HEADING.

A. First Minor Heading.
B. Second Minor Heading.
1. First subheading.
2. Second subheading.
3. Third subheading.
II. SECOND MAJOR HEADING.

Each heading is the thesis sentence for the part of the argument it
introduces. As such, a well-written heading identifies the legal issue or rule
of law involved, indicates your position on the issue, and sets out the
reasoning supporting that position by relating the rule to your specific
factual situation. It thus includes both the law and the facts of your case.
Parties are often identified by name in headings. When minor headings and
subheadings are used, the major headings need include only your
conclusion regarding the application of a rule of law to your particular facts,
since the minor headings and subheadings will set out the reasons for that
conclusion. The more specifically you state the question, the rule, your
reasoning, and the facts, the more persuasive the headings will be. Framing
a heading, however, remains a balancing process requiring good judgment
and common sense. While the heading must contain sufficient information
to effectively summarize the argument, it must also be easily
comprehensible.
 Here are a few examples of the types of headings that result when the
writer does not adhere to the principles of effective heading drafting:
The elements of the foreseeability test.

Comment: Avoid general topical phrases that could be applicable to

any number of cases.
___________
Only blood relatives are permitted to recover for negligent infliction of emotional distress.

Comment: Avoid stating an abstract legal proposition by failing to

show its relevance to your case. A better heading would be:
Because the appellant is not a blood relative of the injured person, she may not recover for
negligent infliction of emotional distress.

___________
Appellant fails to state a cause of action for negligent infliction of emotional distress since
her claim does not fall within the parameters of the Sinn v. Burd foreseeability test.

Comment: Avoid using case and statutory citations as shorthand

references to the applicable legal principle unless the reader would be
familiar with them (e.g., Miranda). A better heading would be:
The appellant fails to state a cause of action for negligent infliction of emotional distress
because she was not near the scene of the accident and was not closely related to the
injured person.

c. Using Headings as an Advocate

Seek to advocate your position, to make your basic arguments, through
the headings. When you write a heading, use persuasive sentence structure
and language. How you phrase a heading will depend on which side you
represent.
Consider the following headings as they appeared in the tables of
contents of two student briefs.
As drafted by counsel for the appellant:

I. PAULA DIGIACOMO’S CLAIM FOR NEGLIGENT INFLICTION

OF EMOTIONAL DISTRESS SATISFIES THE
FORESEEABILITY TEST ADOPTED BY THIS COURT.
 A. Ms. DiGiacomo’s Presence at the Scene Within Seconds After
Farmer’s Bat Struck Henry’s Head Satisfies the Requirement of
Physical Proximity.
B. Ms. DiGiacomo, Hearing the Crowd’s Screams After Seeing
Farmer Lose His Bat, Sensed a Contemporaneous Threat of
Danger to Henry.
C. Ms. DiGiacomo’s Long-Term Commitment to Henry Qualifies
Her as Having a Close Relationship with Him Deserving of Legal
Protection.
D. Ms. DiGiacomo’s Loss of Sleep, Need for Medication, and
Frequent Visits to Her Psychiatrist Present Physical
Manifestations of Emotional Distress.

As drafted by counsel for the appellee:

II. THE COURT BELOW CORRECTLY AFFIRMED THE

SUMMARY JUDGMENT ORDER FOR THE APPELLEE
BECAUSE APPELLANT DIGIACOMO CANNOT SATISFY THE
REQUISITE FACTORS OF THE FORESEEABILITY TEST AND
THEREFORE FAILS TO STATE A VALID CAUSE OF ACTION
FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
A. The Appellant’s Relationship as an Unmarried Cohabitant with
the Victim Does Not Satisfy the Requirement that the Appellant
Be Closely Related to the Injured Party.
B. The Emotional Distress Alleged by the Appellant Could Only
Have Resulted from Her Observation of Her Cohabitant’s
Condition upon Arriving at the Scene of the Accident as the
Appellant Neither Witnessed Nor Sensorially and
Contemporaneously Observed the Accident as It Occurred.
C. The Appellant Has Not Alleged or Suffered Any Bodily Harm or
Severe Physical Manifestation of Emotional Distress as a Result
of the Accident.

Note how each version uses identical facts but offers a different
perspective on the same arguments, yet both are persuasive.
d. How Many Headings?
 Headings should reflect your organization and simplify it by providing
logical breaks in your argument. A well-written brief containing carefully
drafted and logically placed headings will lead the reader easily from one
point to the next. Too few headings will result in an argument that is
difficult to follow and often poorly organized. Too many headings will
interrupt the flow of the argument and may draw attention to insignificant
or weak arguments. With these considerations in mind, use your judgment.
e. Final Considerations
When you have formulated your point headings, write them out in
outline form as they will appear in the table of contents. Then ask yourself
whether they conform to the principles discussed in this section. Are they
complete? Does each point follow logically from the ones preceding it? Is
the phrasing persuasive but reasonable? Is each heading readable? Only if
you can answer each question affirmatively should you be satisfied with
this crucial part of the argument section.
2. Preparing the Substance of the Argument
To be an effective advocate, you must be coherent and credible. The
presentation of your argument may be as important as the substance of your
argument. Your research must be complete, your organization clear, your
argument logical, and your writing precise.
a. General Considerations

i. Understanding the Appellate Process

Remember that the judges are the ones who must be persuaded. In
every appellate case, the judges seek to render a decision that is both fair
and consistent with precedent. Write your brief with these dual concerns in
mind. To achieve a favorable result, write a brief that is clear, interesting,
complete, and reliable. Be honest about the law. Persuade with the strength
of your arguments. Avoid excessive partisanship and statements without
support. Never omit or distort the applicable law. If you do so, you will
sacrifice your credibility, an essential element of a successful appeal.

ii. Familiarity with the Record

The record is your sole source of information about the case. To
prepare an effective argument, you must have a clear and thorough
understanding of the record. Read it carefully several times. Be certain that
you understand the arguments and facts presented to the lower court, as
well as the legal issues raised on appeal.

iii. Research: Do It Right but Know When to Stop

A carefully crafted and persuasive argument begins with thorough
research. For an approach to doing research, review Chapter 4. The
following are some tips:

• Think through the legal question, approaching it from a number of

perspectives.
• Be creative in using the indexes to the digests. Look under a variety of
topical headings. You and the index’s publisher may list a topic under
very different headings.
• Keep track of what you have researched and how you arrived at each
source.
• Do not rely on headnotes. Read a case critically before relying on it.
• Shepardize each case you intend to cite.
• Make certain your research is current—check the pocket parts.

How do you know when to stop? Stop researching when you begin to
find the same cases again and again. You should know when you have
reached the point of diminishing returns.
Students sometimes engage in excessive research for two reasons.
First, they keep searching for the one case that will give them a definitive
answer to the legal issue. However, if you fail to find such a case early on in
your research, there probably is no such case. In law school assignments,
most problems have no definitive answer and no dispositive case.
Second, students keep researching because they are avoiding the next
step, organizing the material and starting to write. Avoiding this pitfall
requires being honest with yourself and recognizing that doing excessive
research will deprive you of the time you need to finish your brief before
the deadline. Drafting an effective argument is not an easy task. Be certain
that you leave yourself enough time to do it well and expect that it will take
longer than you anticipate.

iv. Compliance with the Rules of Court

 To be an effective advocate, you must be credible. One of the simplest
ways to establish your credibility is to comply with the rules of court
concerning briefs.1 Failure to comply will not reflect well on you and may
have a major adverse effect, such as dismissal of your client’s case.

v. Simplicity in Substance and Style

Perhaps the single most important attribute of an effective argument is
simplicity in substance and style. Limit the arguments presented to the court
and make them as uncomplicated as possible. If your outline is too long and
complicated, rethink it. Adhere to the plain English writing style discussed
in Chapters 8 and 9. Most courts have a heavy volume of cases and
therefore have limited time to spend on any particular case. You are more
likely to capture and hold the court’s attention with a brief that is
straightforward in both substance and style.
b. Formulating the Arguments
Formulating the arguments you will make is a dynamic process
involving analysis and evaluation of legal authority. You should consider
not only the arguments suggested by your research, but also those that you
develop based on your own insight into and understanding of a particular
issue. Think carefully about the kinds of arguments that would be most
effective for your client.
There are six distinct types of arguments you can make:

1. Arguments based on legal precedent

2. Arguments by analogy to similar situations
3. Arguments based on public policy
4. Arguments based on a “parade of horribles,” i.e., the potential
consequences of a precedent-setting decision against you
5. Arguments based on commonsense notions of justice and fair play
6. Arguments that stress certain sympathetic facts and rely on the
emotional appeal of your case

Consider all six types of arguments when formulating your position.

Use the ones that seem most persuasive in your particular case.
c. The Organization and Substance of the Arguments
 When your appeal raises several independent issues, begin the
argument section of your brief with the strongest issue. Similarly, where
you have formulated several arguments in support of your position on an
issue, start with the most compelling argument, unless logic dictates
otherwise. Your brief will be more persuasive if the strongest issues and
arguments are presented first. The court’s attention and time are limited.
Beginning a brief with a strong argument will ensure that at least that
argument will be read. Starting with a compelling argument will impress the
court with the soundness of your legal position and enhance your
credibility. In addition, the less persuasive issues and arguments are more
compelling when they seem to support the stronger issues and arguments.
Some advocates put the weakest arguments last, while others bury them in
the middle.
An effective argument generally has five components. These
components suggest an organization for discussion of each argument.
First, open the discussion of the argument with a fact-specific
conclusion, even though you may, to a certain extent, be repeating what is
contained in the heading. Do not begin with a broad statement of black
letter law. If you do so, you risk losing the court’s attention. Opening with
an affirmative, specific statement is more persuasive and more likely to
hold the court’s interest.
Second, state the specific legal question raised by the argument under
discussion and provide an answer, indicating how the applicable rule of law
will apply to your facts. By doing so you are, in effect, giving the court a
roadmap of your argument. With the aid of a roadmap, the court will know
where the discussion is leading. Knowing where the discussion is leading is
invaluable to understanding it and a prerequisite to being persuaded by it. If
the court does not grasp your argument on the first reading, that argument is
most likely lost as the court will not take the time to grapple with it. If the
discussion requires more than one reading, the fault lies with the writer.
Third, give a full discussion of the authorities on which you rely.
Unless you are citing a case only for a general legal proposition, be certain
that you provide the reader with the relevant facts, the court’s holding, and
its rationale. Failure to sufficiently develop a case you cite will rob it of its
persuasive value and frustrate the court. Remember that your role here is
that of an advocate. Sometimes your discussion of a case will require a
paragraph; other times it will require only a sentence or a parenthetical.
Present relevant authority in the light most favorable to your position, but
never mislead the court. Stress those portions of the opinion that are helpful
to your argument, but do not take statements out of context.
Fourth, apply, explain, or relate that analysis to the facts of your
client’s case. Effective argument requires that you take your facts and work
them into the authorities you have cited. Develop them in the context of the
facts, the rationale, the policies, or the rules those authorities set out. In this
section of the brief, you must argue—you must comment, compare,
distinguish, find controlling, highlight, explain away. Demonstrate to the
court why it should decide the case in favor of your client and how it can do
so in a manner consistent with existing precedent. Remember to cite the
record each time you refer to the facts of your case.
Fifth, when appropriate, restate your specific conclusion in regard to
the argument under discussion.
This sample argument illustrates the suggested organization:
The appellant, Ms. DiGiacomo, cannot state a claim for negligent infliction of emotional
distress because she fails to meet the first and second prongs of the foreseeability test in
Sinn v. Burd, 486 Pa. 146, 173, 404 A.2d 672, 686 (1979). The first and second prongs
require, respectively, that the plaintiff be near the scene of the accident and that the shock
result from a direct emotional impact upon the plaintiff from the sensory and
contemporaneous observance of the accident. Here, the appellant was neither near the
scene of the accident nor was her shock the result of a sensory and contemporaneous
observation of the accident.
When invoking the Sinn foreseeability test, this state’s highest court considers both
prongs simultaneously and then strictly construes both. See Brooks v. Decker, 512 Pa. 365,
516 A.2d 1380 (1986); Mazzagati v. Everingham, 512 Pa. 265, 516 A.2d 672 (1986).
Consequently, the court has refused to recognize a cause of action when, as here, the
plaintiff comes upon the accident scene immediately after the accident has occurred. As
recently as October 1986, the Pennsylvania Supreme Court held against the plaintiff in
two such cases. Brooks, 512 Pa. at 368, 516 A.2d at 1382; Mazzagati, 512 Pa. at 268, 516
A.2d at 679.
Two Pennsylvania cases particularly illustrate why Mrs. DiGiacomo was not a
contemporary observer. In the first case, Brooks, a father, returned to his home in the
afternoon and was passed by an ambulance. After the ambulance turned up the street to
his house, it stopped at a crowd of people. As the father approached, he noticed his son’s
bicycle lying on the ground and discovered that his son had been in an accident with an
automobile. The father accompanied his son to the hospital where the boy lay comatose
for ten days and then died. 512 Pa. at 366, 516 A.2d at 1381. This Court dismissed the
claim for negligent infliction of emotional distress because the parent did not witness the
injury causing the accident. Id. at 367, 516 A.2d at 1382.
As in Brooks, Ms. DiGiacomo did not actually witness the defendant’s negligent act.
The act was completed when the bat struck its victim. Witnessing the bat leave the
defendant’s hands and hearing the crowd’s uproar was analogous to Mr. Brooks seeing the
ambulance turn down his street and then seeing his son’s bicycle on the ground.
 In the second case, Bliss v. Allentown Public Library, 497 F. Supp. 487 (E.D. Pa.
1980), a federal court applying Pennsylvania law permitted a mother to recover, even
though she was not looking at her child at the exact moment a statue fell on him. The
court held that the mother was a percipient witness because she observed her child
immediately before the accident and heard the statue fall. She absorbed the full impact of
the accident as if she had personally witnessed it. Id. at 489. There were no intermediary
forces lessening her shock in witnessing her child’s condition. Id.
The facts in that case differ from the facts here. In Bliss, the mother knew where her
child was located and heard the accident happen. In contrast, Ms. DiGiacomo was
unaware of her friend’s location before the accident. She was unaware that he had been
struck by a bat. She heard the crowd roar, but she did not know that it was because of an
injury to her friend. As was true of the father in Brooks, Ms. DiGiacomo had no sensory
and contemporaneous perception of the accident.
This Court’s test is not unique to Pennsylvania. The facts of the instant case most
closely resemble those of Scherr v. Las Vegas Hilton, 214 Cal. Rptr. 343 (Ct. App. 1985).
In Scherr, the plaintiff watched live news coverage of a hotel fire and knew that her
husband was in the hotel at the time of the fire. Because she did not witness her husband’s
injuries and did not know with certainty that he was being injured at that time, she could
not recover for negligent infliction of emotional distress. Id. at 910-11, 214 Cal. Rptr. at
394-395. The court held that the “decisive question…is whether plaintiff, through
whatever medium, received a sudden and severe shock by actually and
contemporaneously witnessing not just the fire but the infliction of injuries upon her
husband.” Id. (emphasis in original).
By simply witnessing the throwing of the bat, Appellant DiGiacomo did not know
with any certainty that her friend was in danger, let alone injured. The cry of the crowd
provided no greater certainty. Therefore, like the wife in Scherr, the appellant was neither
physically proximate to the scene of the accident nor was her shock the result of sensory
and contemporaneous observation of the accident.
As these cases demonstrate, the appellant cannot state a claim for negligent infliction
of emotional distress. She fails to meet well-established elements of the foreseeability test
set forth by the Pennsylvania Supreme Court.

d. What to Avoid
Year after year, legal writing instructors see students make the same
errors in organizing and presenting their arguments. In the world after law
school, judges see the same errors. These errors are both well known and
easy to avoid. You can find a discussion of them in Section 14.03. Take the
time to review that discussion. To refresh your memory, you are on the way
to writing a well-crafted brief if you

• avoid the “digest” approach,

• avoid the “historical development of the law” approach,
• avoid the use of too many quotations from legal authorities,
• avoid the “abstract writing” approach, and
• avoid the “law discussion only” approach.
e. Using Precedent
In writing the argument portion of the brief, you must select the
authorities on which you will base your argument.

i. Hierarchy of Precedent
When choosing authorities, select those that have the greatest
precedential value. Binding precedent is case law from the jurisdiction
whose law is controlling, particularly from the highest court in that
jurisdiction or sometimes from the court that is hearing your case.
Therefore, these cases have the greatest relevance. Although decisions from
lower courts are not binding, they still will be persuasive. Recent cases are
generally more desirable than old cases. If you are in state court, federal
court decisions interpreting the law of the controlling jurisdiction are not
binding, but generally provide very persuasive authority.
You often will find that there is no binding authority directly on point,
that the courts in your jurisdiction have not decided the issue, or that the
case is one of first impression. In such a situation, you must rely on the
decisions of other courts, decisions that are not controlling. Seek to
persuade the court that those decisions are based on sound policy
considerations and are compatible with your jurisdiction’s existing body of
law.
The law of some states will be more persuasive than that of other
states. Generally those states that are geographically closer to your state
will have case law that is similar to that of your jurisdiction. This case law
will provide you with strong arguments urging the adoption of your client’s
position. Certain states tend to be in the forefront of developing areas of the
law and may provide you with authority for your argument. You may also
make an argument based on a trend in the developing law. Suggest to the
court that the conclusion reached by a number of other jurisdictions is
proper and warrants adoption.

ii. Handling Adverse Precedent

In researching your argument, you will encounter decisions adverse to
your position. Both ethical and practical reasons dictate that you discuss
adverse decisions in your argument. The ethical reason stems from your
obligation as a lawyer. The A.B.A. Model Code of Professional
Responsibility requires that “legal authority in the controlling jurisdiction
directly adverse to the position of [your] client” be disclosed,2 while the
A.B.A. Model Rules of Professional Conduct state that “[a] lawyer shall not
knowingly…fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of the
client and not disclosed by opposing counsel.…”3 The practical reason
should be apparent. If you have found adverse authority, it is likely that
your opponent has found it as well. It is far more desirable to address and
minimize the adverse authority in the context of your argument than to
allow your opponent to argue it from the opposite side. Your position will
be far more credible if your argument is complete and includes adverse
decisions. Seize any opportunity to explain why the authority should not be
followed.
There are several ways to effectively harmonize adverse precedent.
You might distinguish it on the facts of the case. You might argue that the
policy goals stressed in the adverse case mandate a different result in your
case. Suggest that a decision in favor of your opponent would set an
unfortunate precedent with negative consequences. If the case is the most
recent pronouncement of a well-established legal rule, you might want to
argue that your case requires an exception to that rule. You might be forced
to argue that the case is an aberration and was wrongly decided. Use this
tactic only as a last resort. It is an admission that you cannot harmonize the
precedent. This argument may be ineffective when there are other decisions
espousing the same position.
When you are the appellant, consider as adverse authority the decision
from which you are appealing. Seek to harmonize it by pointing out its
errors or omissions. Counsel for appellee will stress the decision as
favorable and argue that it is sound.

iii. Rebuttal of Opposing Arguments

Seek to defuse the impact of the opposing arguments by criticizing
them in one or several of the ways outlined in this chapter. Do not make
conclusory statements that characterize your opponent’s position as wrong.
A broad dismissal suggests to the court that you cannot counter the position
adequately and will adversely affect your credibility.
Resist the temptation to devote too much attention to your opponent’s
cases and arguments. The tone of your argument must remain affirmative
and not convey a defensive posture. Use paragraph structure to your
advantage. Never start an argument with a rebuttal of your opponent’s
position or the adverse cases. Do not devote a lot of time to your opponent’s
position or elaborate on the adverse cases. Doing either will focus undue
attention on the opposing arguments and detract from the importance of
your own arguments. Your argument should recognize that there is another
position, address and dispose of it briefly, and move on.

iv. Parentheticals, String Cites, Signals, Quotations, and Footnotes

Use the authorities on which you rely to persuade the court that your
client’s position is correct. After you have fully discussed the cases that are
critical to your argument, you may want to cite additional cases that have
arrived at similar conclusions based on analogous facts. Those cases may
not warrant full discussion, but you may want to include them to bolster
your position. In this situation include a parenthetical after your citation of
the case. Your parenthetical abstractions of the case should not be more than
one sentence but should contain a brief summary of the relevant aspects of
the case.
See Pearsall v. Emhart Indus., 499 F. Supp. 207 (E.D. Pa. 1984) (woman who arrived
home to find firefighters attempting to control the blaze engulfing her house and who saw
the unconscious bodies of her husband and children was a contemporaneous observer);
Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979) (mother who heard and immediately
witnessed a car accident involving her daughter contemporaneously observed the
accident).

Signals such as see, accord, and contra can be used effectively in the
argument. You might use a signal and a parenthetical to cite an adverse
case, depending on how much discussion the case requires. Such a brief
reference will demonstrate to the court that you have considered the case
but will reduce its impact.
Avoid string citations, except perhaps where you are seeking to
demonstrate the long-standing acceptance of a rule or an emerging trend in
the law. String citations add nothing to your analysis. The court does not
read them. Moreover, they are a distraction and break the flow of your
argument. String cites suggest to the court that you think it is responsible
for locating and reading the cited cases.
Exercise restraint when using quotations. Occasionally a judge will
have phrased a certain point very effectively, and you will want to use a
quotation. Most often your argument will be better if you paraphrase the
opinion. Avoid long block quotes. Readers will often skip them entirely. If
you must use them, use them very sparingly and delete all of the language
that is not relevant by using ellipses indicated by three periods.
Use footnotes sparingly. Generally, if the thought is worthy of a
footnote, you can fit it into your argument. Footnotes are undesirable
because they interrupt the flow of the argument.
Use underlining or other methods of emphasis only very rarely. They
are distracting. Rely on language and structure to emphasize a particular
word or phrase.
f. Writing Persuasively
When drafting your argument, keep in mind the general principles of
clear and effective legal writing. Take the time to review Chapter 25. In
addition, take note of the following points.

i. Control Tone
Carefully control the tone of your brief because it affects the court’s
reaction to the substance of your arguments. Seek to establish an assertive
tone. Make strong arguments, but do not overstate your position. Be
scrupulously accurate. Do not use colloquialisms. Avoid informality and the
use of abbreviations. Do not sound stuffy or pompous. Beware of humor, as
an attempt at humor may annoy the judges. Sarcasm is always
inappropriate, as is insulting or attacking the integrity of opposing counsel
or the parties to the lawsuit. Do not adopt an arrogant tone—it will annoy
and alienate a judge who may be favorably inclined to your opponent’s
arguments. Refer to the judges as “the court,” opposing counsel as “counsel
for appellant (or appellee).” Personalize your clients by referring to them by
name, while referring to opposing counsel’s client as “the appellant” or “the
appellee.” Never refer to the court as “you” or yourself as “I.”

ii. The Final Touches

Rewrite, edit, and polish your argument. Make sure your language is
clear, strong, and concise. Eliminate unnecessary words. Ask yourself
whether your arguments are tightly reasoned. As you examine your brief,
try to read it through the eyes of the judges who will decide the case. Will
they find it easy to understand and persuasive?
 Proofread your argument. Typographical errors may cause the court to
question how careful you were in constructing the substance of the
argument.

§32.02. THE CONCLUSION

The conclusion is a separate section of the brief and states precisely
what action the party wants the appellate court to take. Here are two typical
conclusions:
For the above reasons, appellees respectfully submit that the judgment of the court below
should be affirmed.

For the reasons discussed above, we respectfully request that the judgment
of the court below be reversed and the case remanded with instructions to
dismiss the complaint against the appellant.
Because a wide variety of relief is available, you must specify the relief you
seek. Do not assume the court will know what relief is sought. You will
annoy the court by forcing it to guess, and you risk not having the desired
relief ordered. The conclusion is not a summary of the arguments presented
in the brief. Such a summary should be included at the end of the argument
section. The conclusion should never consist of more than a short paragraph
and may be only one sentence. Close the brief with “Respectfully
submitted,” and your signature as counsel.

§32.03. A CHECKLIST
In writing and revising a brief, some lawyers and law students find it
helpful to use a checklist. A good checklist lists the important mechanical
and stylistic rules that the writer should follow. You may find this checklist
useful.

I. Title Page: Does the title page conform to the rules of the court?
II. Table of Contents
A. When you read the headings, do they present a good summary of
the argument?
B. Are the headings exactly the same as they appear in the
argument?
C. Are the page numbers accurate? Is the brief within the page
limitation that the court rules prescribe?
III. Table of Authorities
A. Does the table include all the authorities you cite in the
argument? Have you excluded the citations in the jurisdictional
statement, unless jurisdiction is an issue in the argument?
B. Have you listed the authorities in the order that the court rules
require? If court rules do not prescribe an order, have you listed
them in a conventional way: for example, cases alphabetically,
then constitutional provisions and statutes, then other authorities?
C. Are the page numbers accurate?
D. Is your citation form accurate? When required, have you
included a case’s prior or subsequent history?
IV. Jurisdictional Statement: Have you cited the authority that gives
jurisdiction to the court?
V. Questions Presented
A. Does the number of questions presented correspond to the
number of major headings in your brief?
B. When you read each question, do you find it comprehensible?
C. Is each question framed in a way that, while not argumentative,
encourages the court to answer it affirmatively and in your favor?
D. Does each question include sufficient specifics of your case
without including too much detail?
VI. Constitutional, Statutory, and Regulatory Provisions
A. Have you included the relevant text of all provisions at issue in
the argument? Have you excluded the statute or rule in the
jurisdictional statement unless it is at issue in your argument?
B. Have you included only the pertinent parts of provisions, as
opposed to the full texts?
C. Are the citations in proper form?
VII. Statement of Facts
A. Have you documented the facts with references to the record?
B. Have you stated the facts truthfully?
C. Have you avoided editorializing and using value-laden
modifiers?
D. Have you put your best foot forward and told the story from your
client’s perspective?
E. If a court below or a dissenter supported your position, have you
emphasized that fact?
 F. Have you organized the facts and stated them so that the court can
readily understand the story you are telling?
G. When appropriate, have you used a chronological sequence?
H. Have you employed a concrete writing style?
VIII. Summary of Argument
A. Is the summary succinct, but accurate?
B. Does the table of contents serve as an outline of the summary?
C. Have you avoided citing cases unless they are essential to making
the summary accurate?
D. Have you stuck to your main arguments and saved the subtle
points for the argument?
E. Will the summary be comprehensible and persuasive to an
intelligent, but uninformed audience?
IX. Argument
A. Are your headings effective?
1. Have you structured the argument with sufficient headings and
subheadings, but not too many?
2. Do the headings correspond exactly to the headings in the table
of contents?
3. Is each heading a complete sentence?
4. When appropriate, does each heading make specific reference
to the facts in your case?
5. Have you written the headings to be persuasive and advance
your argument as opposed to just stating the law?
B. Have you adhered to a plain English writing style?
C. Have you chosen your arguments with care?
1. Have you used your strongest arguments?
2. Have you placed your strongest arguments first when it is
logical to do so?
3. Have you given your stronger arguments proportionately
greater space?
4. Have you made your arguments as uncomplicated as possible?
D. Have you presented each argument clearly and persuasively?
1. Have you begun the discussion of each argument with a fact-
specific conclusion and an answer to the specific legal question
that you are addressing so that the court knows where your
 argument is going? Have you briefly outlined your argument in
the first paragraph so that the court has a roadmap?
2. Have you given a sufficiently full discussion of the authorities
on which you rely, including the facts of decided cases when
appropriate?
3. Have you applied, explained, or related your analysis to the
facts of your case?
4. At the end of your discussion, have you restated that your
argument leads to the specific conclusion you advocate?
5. Have you made your argument as persuasive as possible?
E. Have you dealt with adverse arguments?
F. Have you made the best use of authority?
1. Have you used proper citation form?
2. Have you relied primarily on authorities with the greatest
precedential value?
3. Have you dealt with adverse precedent?
4. When cases have not needed extended discussion, have you
briefly summarized them in parentheticals?
5. Have you used proper citation signals?
6. Have you avoided string citations?
7. Have you exercised restraint in using quotations and footnotes?
G. Have you written in an assertive tone that does not overstate your
position?
X. Conclusion
A. Have you specified the precise relief you seek?
B. Have you closed the brief with “Respectfully submitted” and
your signature as counsel?

1. All appellate courts have rules about brief format, content, and length. Your legal writing
program most likely has rules that govern the briefs you write for it. Frequently these rules are
online. For example, you can find the rules for briefs and other documents before the United States
Supreme Court at www.supremecourtus.gov/ctrules.html.
2. Model Code of Prof. Resp. EC 7-23 and DR 7-106 (ABA, 1980).
3. Model R. of Prof. Conduct 3.3 (ABA, 2009).
§33.01. INTRODUCTION
Oral presentations have several aspects that you should carefully think
out or practice in advance of the presentation itself. This chapter asks you to
think about the appellate argument the same way you would think about any
other spoken presentation. We teach you some basic principles that will
guide your preparation every time you are asked to speak, whether to a
court, clients, other attorneys, or community groups. In Chapter 34, we will
discuss in detail the steps that are unique to preparing for and presenting an
appellate oral argument.
Knowing how to talk is not the same thing as knowing how to speak
effectively; our goal is to help you do the latter. Inadequate preparation and
poor presentation can so distract from a message, even a very important
one, that the impact of the message can be virtually destroyed. Undoubtedly
you have sat through your share of less-than-gripping speeches and
presentations that have proved this rule. Make your goal to have your
audiences hanging on your every word or, if not, at least processing most of
the information you are trying to convey.

§33.02. CONSIDER THE AUDIENCE

If the purpose of speaking is the communication of ideas, audience
evaluation is critical. How can you best communicate your thoughts to a
particular audience if you have not considered who your audience is and
what preconceptions they might bring to the topic and your position on that
topic?
1. Do Your Homework
In the appellate context, you will seldom be faced with individuals on
the bench who are unknown quantities. Your judges will likely have written
opinions that you can read before you go into court. If they have written
opinions on related issues, it would almost be negligence not to read them.
Even if they have not written opinions in similar cases, you might gain
some insight into the judges’ styles of reasoning by reading unrelated
opinions. You do not need to spend several days in this process, but it will
be well worth your time to spend a few hours at it.
You should also try to find someone who has previously argued in
front of these judges. Ask about the judges’ styles of questioning, the types
of arguments they seem to find persuasive, and the types of issues they like
to focus on in reaching their decisions. Find out whether the judges
concentrate on the facts of the cases in front of them or on policy
implications for the future. When you have this kind of information, you
can structure your argument accordingly.
If time and circumstances permit, consider going to court and listening
to someone else argue in front of the same judges. Get a feel for the judges’
reactions to various arguments and approaches, and think about what you
might do to obtain the reaction you are seeking to your argument.
2. Adapt to Your Audience
Once you have developed a sense of what might persuade your
audience, you need to think about how to accomplish that goal. The first
thing you should consider is the image you want to present. If you have
previously appeared before this court, you may already have established a
certain ethos or credibility that will help you convey your message. If not,
you need to determine how to suggest to the court a level of competence
that will make the judges receptive to your arguments. Adequate
preparation and a professional demeanor, which we will discuss in greater
detail later, are good ways to accomplish this.
In order to persuade an audience, you must give them a reason and the
means to identify with your position. You can do this most effectively if
you establish common ground between you and the audience. Convince the
audience that you are all on the same side, or at least that you have in some
way attempted to adapt to your audience’s perspective on the issues being
discussed. If you have made some effort to ascertain your audience’s
attitude toward the topic before making your presentation, you will find this
a lot easier to do.
If you sense, or have learned, that your audience’s attitude toward the
topic is different from yours, try to figure out the source of their attitude. If
you understand where it comes from, your chances of changing it may
improve if you can address the root cause. You should recognize, however,
that extreme attitudes cannot usually be changed greatly or quickly, and that
an attitude that has been expressed publicly (for example, in an opinion,
article, or speech) will be more resistant to change than an attitude that has
not been committed to in that manner.
There are strategies that can be employed to change audience attitudes.
You can persuade the audience that circumstances have changed sufficiently
that the original attitude is no longer appropriate. If there has been no
change in circumstances, you may be able to persuade the audience that
they were previously misinformed or that they had not been made aware of
all the available facts. Or, you can point out that the situation you are
discussing is sufficiently distinct from previous situations that it calls for a
different result. If you are trying to “scare” your audience into changing
their attitude, you should know that attitudes are generally changed more
easily by moderate than by strong anxiety appeals.

§33.03. CONSIDER THE SETTING

The term “setting” in this context refers to both the physical
surroundings in which the presentation will be made and the occasion, or
reason, for convening the speaker and the audience. Spending a little time
understanding the expectations created by these contextual factors will help
you prepare a more effective presentation.
1. Study the Physical Surroundings in Advance
You should, if at all possible, take the time to visit the courtroom or
other location in which you will be “performing.” If you have a sense of the
size of the space, its acoustical properties, and the location of any furniture
or other objects that will be present when you speak, you can prepare in
advance to deal with any problems that might be caused by any of these
factors. For example, if the podium is too high or too low, find out whether
it can be adjusted, as many of them can, by the simple push of a button. If
you can manipulate the physical environment to make yourself more
comfortable, do so. Greater comfort will mean greater confidence and, in all
likelihood, a stronger presentation.
Another factor to consider is the time of day at which you will be
speaking—are people likely to be tired because your turn comes at the end
of a long day, or might they forget your message because it appeared in the
middle of a long parade of other speakers? If you sense that these types of
factors might create a problem for you, you can try to come up with ways of
making your presentation stand out, such as an especially strong opening or
closing statement. If you arrive early, you may even be able to make last-
minute adjustments in your prepared material to account for the mood of
the audience at that particular day and time.
If you need some sort of visual aid to make your presentation, you
must plan for it in advance. Check to find out whether the courtroom has an
easel, a projector, computers, or whatever else you might need. If not, find
out whether the equipment you need can be brought in or whether you
should supply it yourself.
2. Understand the Occasion
The reasons an audience convenes will largely determine the
audience’s expectations of what the speakers will say and of how they will
conduct themselves. Make sure that your understanding of the occasion and
the audience’s understanding are the same. Ask questions about any
traditions and conventions that must be followed to avoid surprising the
audience in a way that will detract from your message.
In an appellate courtroom, for example, the expectation is that you will
behave with proper formality and deference. If you go in expecting to
dazzle the judges with the type of drama and emotional appeals that might
be more appropriate for a jury, you are not likely to make a favorable
impression or to be taken as seriously as you need to be.

§33.04. STRUCTURE FOR MAXIMUM EFFECT

Plan the structure of your presentation to reinforce your intended
message. Remember that, from your audience’s perspective, your meaning
will come across sequentially and cumulatively. Thus, you want to be sure
that the sequence of your ideas is logical and that the cumulative effect of
your presentation is persuasive. Your ideas should progress in a manner that
the audience can follow and be tied together appropriately, even explicitly
where that will enhance understanding.
1. Structural Strategy
It is useful to have some basic understanding of human psychology
and memory when deciding how to structure an argument for maximum
persuasive effect. The concepts of “primacy” and “recency” refer to the
likelihood that audiences will remember best the ideas they hear first and
last, when their attention is most focused on the presenter. Bear this in mind
when structuring your oral argument.
You should also consider whether to present your arguments in
ascending order of impact, saving the best for last, or descending order,
starting with your strongest point. Because both primacy and recency will
work in most contexts, you should try to start and end on a strong note, and
bury your weaker points in the middle, where they will be the least
detrimental.
Virtually all appellate advocates will tell you to start with your
strongest argument, for the simple reason that you may never get beyond
your first argument if the judges have many questions. Because an appellate
argument is not a “set piece,” where you have total control over the
presentation, but rather a dialogue between you and the court, you must
plan your strategy accordingly.
2. Methods of Proof
There are two primary approaches to proving a proposition: the direct
approach, from proposition to proof, and the indirect approach, which
gradually builds up the building blocks of proof until the proposition being
proved becomes the inevitable conclusion. The latter method is somewhat
more difficult, but often more effective, particularly when dealing with a
skeptical or hostile audience. The reason this method works better for such
audiences is that they may decide not to listen to the proof after they hear a
proposition stated with which they disagree. If they do not know what the
proposition is until they have heard the proof, you may be able to keep their
minds open longer.
Even so, most legal arguments will work from proposition to proof
because that is the expected approach. Judges may get frustrated if they do
not understand immediately where an argument is going and what an
attorney is trying to prove. Because the judges have the right to interrupt at
any point, the attorney trying to prove a point by indirection would
probably have to be doing so in an especially fascinating manner to avoid
an irritated, “Counsel, where is this going?”
Part of your proof should consist of anticipating and defusing adverse
arguments. You do not need to deal with every possible argument that might
be made against your position, but if you know that an opposing argument
will be made, or that those who disagree with you do so for a particular
reason, it is foolish not to address that point. Pretending something does not
exist is not the best way to make it disappear, and it does nothing for your
credibility or persuasiveness. Why should your audience believe your
arguments if you ignore theirs?
Raising and then explaining away the negative arguments is known as
the “straw man” approach to proof. It is called that because you are setting
up the straw man arguments just to knock them down, demonstrating all the
while how insubstantial they were in the first place. Just make sure that in
the course of dealing with the “straw men,” you do not inadvertently make
them seem more substantial than your opposition would have been able to
or that you do not create new arguments against your position that might
not have come up at all.
3. Organizational Patterns
You must figure out which of the many ways to structure an argument
makes the most sense for each project you undertake. The most important
aspect of the choice, however, is that you make one. Structure does not take
care of itself; you must make conscious decisions about what structure is
most likely to enhance the message you are trying to convey. Here are
several possibilities to consider.
a. Chronological
This approach to structure makes the most sense when you are relating
a story and the exact sequence of events is important to the audience’s
understanding of the story. In the context of the appellate argument, a
chronological organization will probably be useful in your presentation of
the facts of the case you are arguing.
b. Cause to Effect
 If you are trying to establish a causal relationship between two events,
as you might be in a negligence case where proximate cause is an issue, you
should be sure to structure the argument so that the causal link will be
apparent to the audience. This will usually require you to begin with the
statement of the cause and then to move on to the result, demonstrating the
unbroken nature of the chain of events you are describing.
c. Problem to Solution
If you are arguing for a change in an existing rule, this structure will
probably be useful. It is one of the most common approaches to persuasion.
Begin by developing the need for change; discuss the harmful consequences
of the current rule, being sure to connect those harms directly to the rule
you seek to change. Once you have thoroughly proved that a change is
necessary, move on to the solution you propose.
In order to make this structure really effective, you must establish a
strong link between the benefits of your proposal and the harms you
previously identified. In other words, now that you have made the case for
change, you must convince your audience that your change is the right one
and that it will solve all the problems previously identified. Many speakers
simply present their proposal and assume the audience will immediately see
that it is the perfect answer. This is very rarely persuasive—you run the risk
that the audience will not find your solution as obvious as you do and will
begin to think about other alternatives.
If you do a good job of convincing the audience that change is
necessary, you will have created the perfect atmosphere for receptivity to
your proposal. Do not waste that opportunity by failing to make explicit
connections between your solution and the need for change; you may not
get another chance!
d. Pro Versus Con
You may occasionally be in the position of offering an evaluation of
which of two proposals is more likely to effect a desired result or of
defending a proposal that you know has encountered strong opposition. If
so, this might be the structure to choose. Where the positions on both sides
are clearly defined, it will make sense to the audience that you choose to
address those positions sequentially.
Your only remaining decision is whether to address the “pro” or the
“con” first. This will depend on the context of the argument, and probably
on which side you think is stronger—for example, if you think the audience
is hostile to the proposition you support, you may want to deal with the
“con” arguments first. If you can effectively negate those, the audience may
be more receptive to hearing why you support the other side.
e. Topical
When you have several issues to address, you will generally take a
topical approach to structure, presenting the various topics in any order that
seems appropriate. It is here that issues of primacy and recency, and
ascending versus descending order, arise. If there is a sequence that is
naturally logical—for example, if one argument must be developed first to
provide context for another, you should present the arguments in that order.
Similarly, if you are making arguments in the alternative, or if one argument
is conditional upon the acceptance of another, you should take that into
consideration when structuring the overall presentation.
4. Introductions, Conclusions, and Transitions
These are important parts of the structure of any spoken presentation.
We have included them last in this discussion because that is probably when
you should think seriously about them. The conclusion obviously belongs at
the end of the speech, but you should also construct your introduction after
you have completed your substantive analysis. It is at that point that you
will have the best idea of the tone you are attempting to create and of the
central theme of your argument. Both of these should be reflected in the
introduction.
The introduction and the conclusion should be short, pithy, and as
powerful as you can make them, consistent with the subject of your
argument. These are the first and last impressions you will leave with the
audience, and you want them to be strong ones. Identify the one idea you
would like the audience to take away from your presentation (assuming that
that is all you can realistically expect them to take away) and then
emphasize that idea in the introduction and conclusion. Ideally, the
conclusion will echo the introduction in some interesting way so that the
central idea is reinforced.
Consciously consider transitions after you have constructed the
argument. The reason you move from one argument to another, or the
relationships between arguments, will often seem obvious to you, and thus
you may not state them directly as you develop the argument. After you
have created the body of the argument, look at it as objectively as you can,
and ask yourself whether the audience will see the flow of the argument as
well as you do. Even if you think they will, consider adding brief transitions
between major points. Remember that the audience has to process your
message aurally; any help you can offer to make that message clearer will
almost certainly be appreciated.

§33.05. WRITE FOR SOUND APPEAL

Remember, as you draft the language you intend to speak, that writing
words to be spoken requires a different style from writing words that will be
read in silence. You have additional tools at your disposal to enhance the
impact your words will have on the audience. Try to hear the words as you
write them and to picture how the delivery will go. What facial expressions
will accompany your words? How will you use your hands to support your
message? What will your volume and vocal inflection reveal about the
importance of what you are saying? What tone will most enhance your
message? Language shapes perceptions; use your knowledge of this fact to
encourage or discourage particular responses.
1. Useful Tools
There are several ways you can maintain audience interest in your
spoken message. Some of them are relatively simple but quite effective if
used in appropriate contexts. Others may require more conscious effort on
your part to use them effectively. Here are some of the ways you can keep
an audience listening and wanting to hear more.
a. Humor
Humor can be a very good way to involve your audience in your
message from the start. This is probably why so many speakers begin their
presentations with a joke. Be sure that what you say really is funny and that
it is appropriate to the audience. Also remember that subtle humor is often
more effective than obvious humor; surprise is an important element of
good humor.
b. Novelty
Novelty may also be a way to catch your audience’s attention early on.
If you have a different approach to an old topic or are discussing something
with which the audience is not familiar, you can use the interest that most of
us have in new things to your advantage. Choose an interesting way to
present new information to your audience, and you may very well keep
their attention longer.
As with anything else, though, do not get carried away; novelty for its
own sake will wear thin very quickly. Be sure that your approach is actually
novel, present it in a way that is appropriate to the audience and the topic,
and avoid “cuteness” that may succeed only in turning the audience off.
c. Conflict
You may be able to use the element of surprise in another way. If your
topic lends itself to the creation of conflict, for example, between light and
serious tones, a sudden shift can catch the audience off guard and make
them sit up and take notice. Thus if you can begin with a humorous
approach and then move unexpectedly into an aspect of the topic that is
decidedly not funny, you may shock the audience into listening more
carefully than they might otherwise. This is a manipulative approach to
getting your message across, but if handled adroitly, it can be quite
effective.
d. Suspense
This is a difficult technique to use effectively, particularly in a legal
setting, but if done well it can really add to the impact of a message. You
can use suspense in the introduction to your presentation by finding an
interesting but somewhat ambiguous way of leading into your topic. In
order not to lose or frustrate the audience, make certain that your
mysterious introduction is genuinely fascinating and does not go on for too
long.
You may find it more effective to at least signal your topic early on,
but leave the audience wondering exactly what your approach or
perspective is. It can be a very effective means of persuading a hostile or
skeptical audience to begin by articulating the arguments for your
opponents and suggesting that you understand them, and then suddenly
revealing your true position on the issue. Once again, the element of
surprise keeps the audience involved in the presentation.
Be very sure that you understand the expectations of your audience
before you try this technique in a legal setting. In the appellate context,
where presentations tend to assume nearly identical guise and where the
judges can interrupt you if they get frustrated, too much suspense could be
detrimental to the persuasiveness of your argument. With a jury, however,
appropriate use of this technique could be quite powerful.
e. Emphasis
A spoken presentation gives you many opportunities to suggest
appropriate emphasis. You can use your voice, hands, and face to guide the
audience to the conclusion that what you are saying at any given moment is
particularly important. Recognize too that the audience will generally
expect that important information appears at the end of sentences rather
than at the beginning. They expect the beginning of a sentence to contain
contextual information that will help them orient themselves in the message
and prepare for what follows. Here is a powerful example of the effect an
understanding of this simple expectation can have on the impact of a
message. Read this excerpt and think about how you would react to it as a
listener.
I have refrained directly from criticizing the President for three years. Because I believe
that Americans must stand united in the face of the Soviet Union, our foremost adversary
and before the world, I have been reticent. A fair time to pursue his goals and test his
policies is also the President’s right, I believe. The water’s edge is the limit to politics, in
this sense. But this cannot mean that, if the President is wrong and the world situation has
become critical, all criticism should be muted indefinitely.
A fair chance has been extended the President, and policies that make our
relationship with the Soviet Union more dangerous than at any time in the past generation
no longer deserve American support and support cannot be expected.
Reagan administrative diplomacy has had this grim result: We could face not the risk
of nuclear war but its reality if we allow present developments in nuclear arms and United
States–Soviet relations to continue.

This is an excerpt from a campaign speech by Walter Mondale. It

seems very flat and leaves the reader wondering what exactly the speaker is
trying to accomplish. If we simply restructure the sentences, leaving the
meaning and vocabulary virtually intact, here is the result:1
For three years, I have refrained from directly criticizing the President of the United
States. I have been reticent because I believe that Americans must stand united before the
world, particularly in the face of our foremost adversary, the Soviet Union. I also believe a
President should be given fair time to pursue his goals and test his policies. In this sense,
politics should stop at the water’s edge. But this cannot mean that all criticism should be
muted indefinitely, no matter how wrong a President may be or how critical the world
situation may become.
President Reagan has had his fair chance, and he can no longer expect Americans to
support policies that make our relationship with the Soviet Union more dangerous than at
any time in the past generation.
 This is the grim result of Reagan administrative diplomacy: If present developments
in nuclear arms and United States–Soviet relations are permitted to continue, we could
face not the risk of nuclear war but its reality.

By simply restructuring the sentences to place emphasis on the

appropriate information, we end up with something that actually sounds as
though it might belong in a campaign speech.
f. Theme
One of the most important tools for effective speaking is the creation
and emphasis of a central theme for any presentation. Find a way to tie your
ideas together, to relate them to a single overarching principle, and be sure
to clearly identify that theme for your audience and to refer to it wherever
appropriate to emphasize its importance. Choose a tone for your
presentation that reinforces this central theme (i.e., solemn, ironic,
indignant, etc.) You should never assume that any audience will remember
every subpoint of an argument, but if they walk away understanding the
main goal you were trying to accomplish and why that goal is important,
you will have achieved something to be proud of.
g. Language
Remembering always that your audience cannot go back for another
look at something that was not immediately clear, keep your language
concrete, precise, active, colorful, and simple. Most people will process
information more efficiently if they can conjure up a visual representation
of it. You can help your audience do this by using concrete analogies and
examples to clarify points that might otherwise seem abstract. Here are
some specific examples of stylistic devices that speakers have used to good
effect in many contexts.

i. Rhetorical Questions
Asking questions to which you do not expect an answer can, if used
sparingly, be a very effective means of keeping your audience involved in
your presentation. Your goal is to frame the question in a way that suggests
the desired answer but leaves enough room for thought that the audience
will feel that they have arrived at the answer on their own, and thus feel a
sense of commitment to it. You should be a little extra careful about using
this technique with an appellate bench of course—you do not want the
judges to feel that you are usurping their role!
ii. Repetition
Strategic use of repetition, whether of sentence structure (e.g.,
antithesis), words, or sounds (e.g., alliteration), can be an effective signal of
emphasis or simply a means of increasing the memorability of what you
say. Part of the reason so many people remember and quote speeches by
John F. Kennedy and Martin Luther King is because they used repetition so
powerfully. You should be careful to avoid monotony, however, which will
almost certainly result if you overuse this technique.

iii. Imagery
As mentioned above, giving your listeners the ability to “see” what
you are saying will help them process and retain the message. There are
several ways to do this, all involving comparisons, sometimes literal,
sometimes of very dissimilar things.
The literal analogy is the most direct comparison; it identifies
similarities between things or ideas that will help clarify a point. The more
figurative similes and metaphors make comparisons between very different
things in order to create a picture in the listener’s mind that will suggest
meaning quickly and powerfully. A simile is a comparison that actually
uses the words “like” or “as,” while a metaphor implies the comparison.
Martin Luther King’s “I Have a Dream” speech is one of the strongest
and most effective uses of metaphors you are likely to see; it creates an
entire landscape in your mind through the simple use of words. Most of us
cannot use metaphors nearly so well. They should be used sparingly and
carefully; if you create a metaphor that is too startling or confusing, you run
the risk of distracting your listeners as they struggle to deal with the visual
image you have created.
Personification is another type of comparison that can be used
effectively to create a lasting image in the mind of the listener. This is the
giving of human traits to inanimate or intangible objects, as by suggesting
that an institution is “ill” or that an idea “limps.” Again, you should be
careful not to create images that are so strange the audience will spend
substantial time puzzling over them, or laughing where you did not intend
humor.
2. Not So Useful Tools
 As you can see, there are many ways you can enhance your message
by making it more fun for the audience to listen to you. Similarly, there are
some ways you can detract from the message and alienate the audience so
that they stop listening or become less receptive to your message. For
example, using slang, foreign phrases, vulgarity, euphemisms, or triteness
might have this kind of effect, ranging from distraction to active annoyance.
Another tactic speakers sometimes resort to, particularly in the
political arena, is name-calling. By this, we do not mean only the obvious
mud-slinging type of name-calling, but also the more insidious,
intellectually dishonest use of labels in place of analysis. When a speaker
knows that a particular word will generate an emotional reaction, such as
the word “quota” in a discussion of affirmative action, it may be tempting to
simply use the word and thereby short-circuit a genuine examination of the
topic under discussion. This technique may get results—it is always easier,
both for the speaker and the listeners, to oversimplify an issue and thus
discourage reason and evaluation—but it does so inappropriately.
Particularly in a courtroom setting, where your listeners are intelligent
and at least somewhat informed, you should respect them enough to offer a
straightforward and thoughtful analysis of the topic you are discussing. Say
what you mean and do not shy away from the difficult questions. If your
audience is paying any attention at all, attempts to avoid the real issues are
likely to be challenged and will cost you valuable credibility. There is
simply no reason to take this kind of risk.

§33.06. APPLY THE FUNDAMENTALS OF GOOD PUBLIC

SPEAKING
Delivery is the final element of any spoken presentation. When you
have worked so hard to prepare your argument, it would be very
unfortunate to diminish the impact of your efforts by not delivering the
message effectively. Here are some suggestions about how to achieve
maximum influence as a messenger.
1. Maintain Eye Contact
Maintaining eye contact with an audience is difficult for inexperienced
or nervous speakers, but it is essential. In a courtroom, look the judges in
the eye rather than at your notes or the ceiling. Eye contact lets the judges
know you are interested in what they have to say. It also helps keep them
interested in what you are saying.
2. Be Heard
Speak loudly and clearly enough that everyone in the room can hear
you. Project but do not yell. Speaking at an appropriate volume suggests
confidence in your position. If you speak so that everyone can hear you
easily, you help ensure that your audience will understand your argument.
You also increase the likelihood that your audience will find your argument
persuasive.
3. Do Not Read
Reading will cause you to speak too fast and make you more difficult
to understand. It suggests a lack of preparation and even a lack of interest in
your argument. In addition, you will lose eye contact with the bench, and
the judges’ interest in your argument may decrease.
4. Use Emphasis
Sounding like you are interested in your arguments and believe them
makes it more likely that your audience will find you persuasive. It is
difficult to listen to someone who speaks in a monotone. We are not
suggesting that you try to be flamboyant, but merely that you modulate your
voice appropriately for the point you are making.
5. Use the Pause
Silence is often anathema to someone who is unused to speaking in
public. As you develop experience and expertise in speaking to an audience,
you will learn to use a well-timed pause to provide emphasis. A pause while
you ponder a question or collect your thoughts can ensure that what follows
the pause is more fluent and persuasive.
6. Use Appropriate Gestures
Not all people use their hands while speaking. If you are not
comfortable using hand gestures, do not try them for the first time in the
pressure-filled environment of a courtroom. If, however, it is natural for you
to use your hands to add appropriate emphasis to your presentation, do so in
your oral argument. Be careful not to use your hands excessively.
7. Watch Your Posture
The courtroom is a formal setting. Do not lean excessively on the
podium. You may rest your hands on the podium, but not your elbows. Do
not argue with your hands in your pockets or on your hips. Casual poses
may suggest a lack of respect for the court and, at the very least, are likely
to be distracting. Do not pace or rock back and forth. Stand in one place and
maintain an upright, respectful posture.

1. This example is taken from George Gopen, Expectations: Teaching Writing from the Reader’s
Perspective (A.B. Longman Publishers, Pearson Education Division, 2004, pages 145-148); he, in
turn, got the example from Joseph M. Williams, and asked us to acknowledge that fact.
§34.01. INTRODUCTION
This chapter teaches you specifically how to make an oral argument in
appellate court. Although most attorneys do not find themselves in appellate
court very often, the skills you learn in presenting an oral argument will be
useful in other areas of practice. Attorneys also argue motions to the trial
court and appear before various administrative agencies that may require
argument.
Oral argument is the culmination of an attorney’s efforts in an appeal.
It complements the brief. You cannot expect, however, to present an
argument every time you file a brief because the court has discretion about
whether to grant oral argument. If you get a chance to argue, view it as a
golden opportunity. You will have no other in-person, one-on-one contact
with the judges who will decide whether you win or lose.
The oral argument provides you with an opportunity to interest the
court in particular arguments presented in the brief and to convince the
court that your client’s position is correct. Generally, the argument is more
provocative, more personal, and more lively than the brief. The oral
argument affords an opportunity to answer the court’s questions and address
its concerns. Time is limited and therefore precious, which means that
precision in presenting the argument is crucial.
Most lawyers will tell you there is very little chance you will win a
case at oral argument that you otherwise would have lost. They will also tell
you that you can lose a case based on your argument. On the other hand,
some experts, including Justice Kennedy of the Supreme Court, will tell
you that many cases are decided at oral argument.1
 Many first-year law students view oral argument as an ordeal to be
endured. Because the experience is new and the process unknown, the
prospect of oral argument makes students nervous. Fortunately, despite their
initial misgivings, most students find that the actual experience is
worthwhile and even fun.

§34.02. THE SETTING OF THE ORAL ARGUMENT

The appellate oral argument usually is conducted before a panel of
three judges.2 The court allots each side a specified amount of time in
which to present its argument. The attorney addresses the bench from
behind a podium. The appellant presents the first argument and may reserve
time for rebuttal. The appellee argues after the appellant and does not
present a rebuttal. If two teams are arguing in a first-year legal writing or
moot court program, both appellants argue, followed by both appellees. The
appellant delivers the rebuttal after the appellee has argued. The judges may
interrupt at any time with questions.
As a matter of protocol, rise when the judges enter the room and
remain standing until the judges have seated themselves. The court then
calls the case and may ask whether counsel is prepared. After you indicate
your readiness to proceed, step to the podium and begin your argument.
Refer to any judge to whom you are speaking as “Your Honor.” Refer to
your opponent as “opposing counsel” or “counsel for appellant” (or
appellee).

§34.03. PREPARING THE ORAL ARGUMENT

The key to a successful oral argument is preparation. If you are
prepared, you will be confident and should be able to satisfactorily address
any concerns raised by the judges. In preparing your argument, remember
that time is limited, so you must state your arguments in general terms.
Focus on controlling legal principles, policy, and equity rather than the
details of case law, which should be presented in your written brief.
The judges’ questions will probably force you to deviate from your
prepared outline. You should be sufficiently prepared that you can shift
back and forth from one part of your argument to another as necessary. The
judges may not wish to follow your structure, and you should be prepared
to accommodate them. Also, you must think through the consequences of
your arguments and the relief you want the court to grant. Judges will want
to know precisely what you want them to do and what effect your preferred
result will have on future cases. Here are seven rules to help you achieve
the required degree of preparation.
1. Know the Record
You must have all information about what happened in your case at
your fingertips. This information includes not only the facts that gave rise to
the cause of action, but also the entire procedural history of the case,
including discovery. You may present a brief history of the case as part of
your argument, but you must be able to answer the court’s questions about
any additional facts. The judges may doubt the accuracy of other aspects of
your argument if you cannot tell them what happened previously in your
own case.
2. Study the Authorities
Although you usually do not focus primarily on details of decided
cases in presenting your argument, you must be able to answer questions
about the major cases cited in your brief or in your opponent’s brief and to
use such cases in response to questions where appropriate. You must know
the facts, holdings, and rationales of all such cases. The court will expect
you to be able to apply them to the facts of your case.
3. Know the Arguments
You must be familiar with all arguments raised in your brief. For
purposes of oral argument, however, select a maximum of three major
arguments to present to the court. Use the organization of your brief as a
guide. As explained in Chapter 33, try to begin with your strongest
argument. This will help capture the judges’ attention and set the tone for
the rest of the argument. Also, the judges might ask so many questions that
you never reach your second argument. You must, however, be prepared to
answer questions about your weaker arguments because the judges may
focus on those arguments. Also, remember that if your strongest argument
does not logically come first, you may not be able to begin with it.
Be flexible about the order in which you present your arguments and
be prepared to adapt your argument to what happens in the courtroom. For
example, if you are the appellee, listen carefully to the questions the court
asks the appellant. If the court focuses on a particular issue, you may want
to begin by presenting your argument on that issue.
4. Outline Your Arguments
An outline is an essential part of preparing for an oral argument. Even
if you do not use your outline during the argument, preparing one ahead of
time will give your presentation clarity and structure. The outline should
present the high points of your argument. When deciding how much detail
to include in your outline, use the rule of thumb that you should have
enough prepared material to occupy approximately half your allotted time.
For a fifteen-minute argument, prepare an outline that should take you
approximately eight minutes to present. Some people feel more prepared if
they put virtually every word they intend to say on paper beforehand.
Others prefer a sketchy outline that allows greater flexibility of word choice
at the time of the argument. As a general rule, go to the podium with the
fewest words on paper that will help you remember your key points.
Regardless of which approach you choose, keep your arguments simple and
straightforward, and use only minimal references to details such as case
names in preparing your outline.
5. Prepare Argument Aids
After preparing your outline, think about the kind of notes and other
aids you are likely to need while presenting your argument. You may
choose to use the outline or you may find that some other form of
prompting is more helpful to you. Many appellate advocates suggest putting
your outline on the inside of a manila folder so that the entire argument is
laid out in front of you. This approach makes referring to various parts of
the argument in response to questions easier. If you are shuffling through
loose papers to find needed information, you may distract the bench.
Locating a particular part of your argument under pressure can be difficult.
When you go to the podium, take your brief, your outline, and notes or
cards that summarize the relevant cases. The case notes should provide a
short summary of the facts, holding, and rationale of each case about which
you can reasonably expect questions during the argument.
Take your argument aids to the podium with you, but do not read from
them. Use the argument aids only to remind you of the points you wish to
raise with the court. Forcing yourself to speak without heavy reliance on
notes will facilitate the all-important eye contact with the bench. One way
to accomplish this is to follow the general rule stated above, and have only
as many words in front of you as you really need to remember your key
points. For example, use important words and phrases rather than full
sentences.
6. Rehearse the Argument
Although some people may feel a bit foolish practicing an oral
argument, it is an essential exercise. If you are not accustomed to public
speaking, practice in front of a mirror. You will be able to see how effective
your facial expressions and hand gestures are. You also may want to
practice in front of other people—your friends, your family, or your partner
if you are arguing as part of a team. The best way to gauge your
effectiveness as a public speaker is to videotape your performance.
Although videotaping is obviously not always a practical alternative, it
definitely is an educational experience.
An important part of rehearsing the argument is anticipating questions
the judges are likely to ask. Prepare for

• questions about the facts of your case;

• questions about the facts of cases cited in the briefs filed with the court;
• questions about arguments raised by your opponent;
• questions about arguments you intend to make but have not raised yet—
that is, questions that require you to deviate from your prepared outline;
and
• questions about the ramifications of your arguments and the rule or rules
you are asking the court to adopt; understand and be able to articulate the
policies behind the options available to the court and know your “bottom
line”—what are the precise parameters of your arguments and the rule(s)
you are advocating?

Although you cannot possibly predict every question the judges will ask
during the argument, you will give a much more polished and persuasive
presentation if you have anticipated and rehearsed answers to the majority
of questions you receive.
7. Advise the Court and Your Opponent of New Information
 Information or case law relevant to your case sometimes becomes
available after you file your brief. You have an affirmative obligation to
advise the court of any new case law that may be dispositive. If you decide
that it is necessary to provide newly discovered case law to the court, do so
before the argument and send a copy to your opponent at the same time.
Not only is this practice a matter of courtesy, it also prevents the court from
becoming distracted by reading a document you hand up during your
argument.

§34.04. THE STRUCTURE OF THE ORAL ARGUMENT

1. Basic Argument Structure
The oral argument, whether presented by appellant or appellee, usually
conforms to a basic framework that contains a number of elements:
a. The Introduction
The introduction usually begins with the phrase “[M]ay it please the
court,” briefly introduces counsel and the party represented by counsel, and
reserves time for rebuttal if desired. For example, in the case of Ace
Trucking Co. v. Skinflint Insurance, Inc., counsel for appellant Ace
Trucking Co. might begin:
May it please the court, my name is Nancy Schultz, my co-counsel is Annemiek Young,
and we represent Ace Trucking Co. We would like to reserve four minutes for rebuttal,
with two minutes deducted from each of our arguments.

Then give a brief summary of what the case is about and indicate the
relief requested. Your summary offers a good opportunity to explain briefly
to the court why your client deserves to win and to set the tone for the rest
of your argument. This is a good opportunity to create a “theme” for your
argument. A theme is a one-sentence encapsulation of the core of your case
that grabs the attention of the court. Themes are frequently used in trial
court arguments, and some people will tell you they are more appropriate
there, but they also have their place in appellate court. Any time you can
help the judges understand the heart of your argument in an interesting and
memorable way, you are advocating effectively. For example, in a Fourth
Amendment case, you might introduce your case this way: “This case is
about protecting our homes from unreasonable intrusion by law
enforcement authorities.”
b. The Roadmap and Key Facts of the Case
You should always provide the court with a roadmap of your
argument. As noted elsewhere, you should be arguing two or three major
points to the court, and you should tell the court up front what those points
will be. This will allow the court to understand where your argument is
going, and it may persuade the judges to wait to question you on particular
parts of your argument until you get to them. It may not work that way, but
at least you have announced to the court what you will be arguing.
The roadmap should be succinct and straightforward. For example,
again assuming that you are arguing a Fourth Amendment case on behalf of
the petitioner, whose mobile home was searched using a vision-enhancing
device, you might offer this roadmap: “We ask this Court to reverse the
decision of the court below for two reasons: (1) Petitioner had a reasonable
expectation of privacy in his mobile home, and (2) the police required a
warrant before using any kind of vision-enhancing technology.”
Immediately following the roadmap, you should offer a very brief
statement of key facts that will help the court understand what happened to
your client. Ideally this statement will plant the idea that the court would
like to find a way to rule for your client to right an injustice. Particularly in
moot court competitions, some advocates will “waive a recitation of the
facts,” meaning they will not set the stage by talking about any facts, and
sending the message that the facts do not matter. This is bad practice, as
appellate advocates will tell you. Any time you appear in court, you are
there on behalf of a client who has a story to tell. The fact that you are in
appellate court, where legal issues predominate over factual ones, does not
make the facts unimportant. The statement of the facts should be short,
accurate, and persuasive. Frame it to present your point of view and the
merits of your client’s case. It must not be misleading, however, or you will
lose credibility with the court. You should emphasize helpful facts, but you
must appear fair.
c. The Argument
Providing the bench with a brief outline, or roadmap, of the arguments
you intend to make indicates to the judges which arguments you believe are
worthy of oral argument and advises them of the order in which you will be
making those arguments. An outline enables you to at least mention all of
the arguments you have selected, albeit broadly, and may encourage the
court to defer its questions until the appropriate time. If you are arguing as
appellee and will be presenting arguments in an order different from that
used by your opponent, it may be wise to advise the court of that fact.
Present your arguments as you have outlined them. State conclusions
first, then support them with facts and law. During your argument, refer to
your client by name. This practice both humanizes your client and helps the
court keep the parties straight. When referring to the opposing party, most
advocates use an appropriate party designation such as “appellant” or
“appellee.” Expect that a substantial portion of your argument time will be
devoted to answering questions from the bench.
d. The Conclusion
When your time has run out, finish your sentence and sit down. Before
concluding, make sure you have answered any pending question to the
questioner’s satisfaction. If you finish your argument before your time has
run out, do not keep talking just to fill the time. Present your conclusion and
sit down. Conclude your oral argument by providing the court with a short,
“punchy” statement of why your client deserves to win and is entitled to the
requested relief. Depending upon how your argument has progressed and
the time remaining, the conclusion may be a single sentence or it may be
more detailed. You should prepare both. If, when time runs out, you have
not had an opportunity to conclude, you must ask the court for permission
to do so. If a question is pending, you should ask for permission to answer
the question as well. The court may or may not grant such permission; for
example, the United States Supreme Court will not give extra time.
2. Rebuttal
If, as appellant, you choose to reserve time for rebuttal, be prepared to
use that time efficiently and effectively. If you are arguing as part of a team,
usually one member of the team will present the entire rebuttal for the side
and should be prepared to discuss any issues raised during the argument. In
two to five minutes, you cannot rebut every argument made by your
opponent. You also may not use this time to raise new issues. Select one or
two major points made during the argument that you believe most require
clarification or rehabilitation. Remember that your rebuttal is the last thing
the judges will hear before they decide your case. Choose your arguments
accordingly.
There are other effective ways to use rebuttal time. Listen carefully to
your opponent’s argument. Your opponent may make statements or
mistakes that you can use to your advantage. If you do not have one or two
major points that need reinforcing, you may want to use the time to give the
court a brief and powerful summary of the reasons your client deserves to
win. Some advocates choose to use the time to answer an important
question they were unable to answer when the court asked it during the
argument.
It may be worthwhile to prepare several possible rebuttals ahead of
time. Canned rebuttals, however, are no substitute for listening to your
opponent’s argument. Tailor your rebuttal to the argument the court actually
hears. It also is acceptable to waive your rebuttal if you are satisfied with
the way the argument has progressed. The judges are likely to appreciate
the time savings, and you send a distinct message of confidence when you
waive rebuttal. If, however, you have reserved substantial time for rebuttal,
perhaps five minutes or more, you may want to use the time to at least
summarize your major arguments for the court. Also, some advocates will
tell you that it is a mistake to give up the chance to have the last word.
Always close your rebuttal with a request for the specific relief you seek
from the court.

§34.05. QUESTIONS FROM THE JUDGES

Throughout your argument the judges are likely to interrupt with
questions. Questions from the court are desirable because they signal the
judges’ interest and involvement in the matter. Questions from the bench
reveal what the judges’ concerns are and permit you to tailor your argument
to respond. Oral argument is your only opportunity to directly address the
concerns of individual judges. Do not be disturbed if the questions from the
bench take you out of your prepared sequence. You use your allotted time
most effectively by focusing on those matters about which the court is
undecided. Do not consider every question as an attack on your position.
Some questions are designed to support your view. If you are asked a
helpful question, recognize it and use it to your advantage.
As noted previously, the types of questions the judges ask will vary. A
judge might seek information about the facts or raise policy considerations.
He or she could ask about the authorities upon which you or your opponent
rely for support. You might be asked about the ramifications of a particular
legal argument. If you have formulated answers to a variety of questions in
advance, you should be able to use most questions to advance your
argument.
To handle questions from the bench effectively, remember six basic
rules:

1. Listen to the question very carefully. To respond to it, you must fully
understand the judge’s concerns. Never cut a judge off in the middle
of a question.
2. Be sure you understand the question. If you did not understand the
question, ask the court to repeat it. If you think you understand the
question but are not certain, begin your answer by restating the
question.
3. Think before you speak. If you need to think about the question
before you can effectively answer it, do so. A brief pause will
indicate to the court that you are considering the question and
formulating a precise and thorough response.
4. Be responsive. Answer the question directly. If the question calls for
a yes or no answer, the first words out of your mouth should be
“Yes, Your Honor,” or “No, Your Honor.” Some first-time advocates
have a tendency, particularly early in the argument, to give long,
rambling answers that cover much more ground than the question
requires. Such an answer may obscure the point you need to make
and may bore or confuse your listeners. It also may suggest new
questions to the judge.
Do not hedge when answering a question, or the judge may
think that you are being evasive. If the question seeks information
you do not have, say so. If you cannot answer a question for other
reasons, it sometimes helps to fall back on a general statement of
your fundamental argument on the issue. Do not overuse this device.
Seek to explain and clarify your position to the judge’s satisfaction.
When you believe that you have answered the question and
additional inquiries are not immediately forthcoming, move on. Do
not wait for a signal from the bench giving you permission to
proceed.
5. Be an advocate. Use your responses to the court’s questions as a
vehicle to present and advance your argument, even if you must
depart from the order set out in your outline. If you are interrupted
 by a judge, be polite and answer the question immediately. Never
ask the judge to wait until later in your argument for an answer.
Once the court is satisfied with your answers and you have fully
presented your arguments on a particular issue or point, make a
smooth transition to the next issue or point. Try to get your
argument back on track if it has been disrupted by questioning, but
if you have fully discussed a point in response to questions, do not
go back and present the argument again from your outline. You will
waste valuable time and confuse the bench, and you may invite new
questions that will force you back into issues you would rather not
spend any more time on.
6. Prepare in advance for questions. At the risk of repeating ourselves,
good preparation is the key to answering questions. A thorough
understanding of your case will permit you to spot both your weak
points and your opponents’ strong ones. These areas will be the
source of many questions from the bench.

Be prepared for a wide variety of personalities on the bench. Some

benches take on personalities themselves, which may range from “cold”
benches that ask very few questions to “hot” benches that rapidly fire
questions at you. Sometimes the judges are not prepared and may not even
have read your brief. Others may have read only parts of it. You may get
very few questions or an unending stream of questions. You may get
thoughtful, probing questions or questions that seem completely irrelevant.
Your role in the argument is to address the particular concerns of the court,
whatever they may be, and to answer all questions to the best of your
ability.

§34.06. ORAL ARGUMENT CHECKLIST

— Identify and articulate the fundamental reason or reasons your

client deserves to win; prepare a short explanatory statement for use
during the argument.
— Select the two or three major points you intend to make during the
argument and decide upon the order in which they will be
presented.
 — Think through the implications of your major arguments and
identify the policy goals served by those arguments.
— Identify key facts and prepare a short statement of your client’s
perspective on those facts, if they are helpful to your case.
— Prepare your introduction, conclusion, roadmap, and outline.
— Anticipate questions and formulate answers to any questions you
can be reasonably sure the judges will ask.
— Know the facts, holdings, and rationales of any important cases
relied upon by you or your opponent(s).
— Prepare your argument aids, remembering to keep them as short as
you can.

1. Justice Kennedy, in his address as part of the Enrichment Program at the George Washington
University National Law Center, February 6, 1990.
2. This is true for intermediate appellate courts. The United States Supreme Court and other
higher courts will have more judges hearing arguments—usually seven or nine. The party
designations at the Supreme Court level are petitioner and respondent, or appellant and appellee.
MEMORANDUM
TO: Jaded Old Partner
FROM: Eager New Associate
RE: John E. Walker, False Imprisonment Claim
ISSUE
Can a casino patron who is drunk and disruptive recover for false
imprisonment under the law of New Jersey when security personnel detain
him to “cool off” despite his repeated requests to leave?
CONCLUSION
A casino patron who is drunk and disruptive can recover for false
imprisonment under the law of New Jersey when security personnel detain
him to “cool off” despite his repeated requests to leave. The two
requirements of false imprisonment are met because the patron was under a
reasonable apprehension that the security personnel had the authority to
detain him and because they did not, in fact, have such authority. There was
no legal justification for the detention in this case because the patron was
not cheating and had not committed a crime that the casino intended to
report to the authorities.
FACTS
Our client, Mr. John E. Walker, recently visited the Empty Pockets
Casino in Atlantic City, New Jersey. While there, he lost a great deal of
money. Apparently believing that they had a “high roller” on their hands,
casino officials instructed the waitresses on the casino floor to provide Mr.
Walker with free drinks.
After accepting several free drinks and continuing to lose money, Mr.
Walker became somewhat upset and began accusing the dealer and the
casino of cheating and of stealing his money. He acknowledges that he was
probably a bit loud and may have been annoying other patrons of the
casino.
Mr. Walker was approached by two rather large men wearing suits who
identified themselves as casino security guards and asked him to
accompany them. Mr. Walker noticed that they were wearing identification
badges that had the word “security” prominently displayed on them. Mr.
Walker accompanied the men to a small room located near the casino floor,
where they asked him to sit down and “cool off.”
The guards remained with Mr. Walker for approximately two hours,
denying his several requests to leave. At the end of this period, the guards
told him he was free to go. Mr. Walker would like to know whether he can
sue the Empty Pockets Casino for false imprisonment.
DISCUSSION
Mr. Walker has a cause of action for false imprisonment against the
Empty Pockets Casino. Under New Jersey law, a cause of action for false
imprisonment or false arrest is made out upon a showing that there was an
arrest and that the arrest was without legal justification. Barletta v. Golden
Nugget Hotel Casino, 580 F. Supp. 614, 617 (D.N.J. 1984). In New Jersey,
false arrest and false imprisonment are merely different names for the same
tort. Roth v. Golden Nugget Casino/Hotel, Inc., 576 F. Supp. 262, 265
(D.N.J. 1983).
Mr. Walker can establish that there was an arrest in his case. He must
show that his liberty was constrained as a result of force, or the threat of
force, by the defendant. Id. New Jersey courts have held that “the assertion
of legal authority to take a person into custody, even where such authority
does not in fact exist, may be sufficient to create a reasonable apprehension
that a person is under restraint.” Bartolo v. Boardwalk Regency Hotel
Casino, 449 A.2d 1339, 1341 (N.J. Super. L. Div. 1982, 185 N.J. Super.
534, 537).
The court in Barletta found that an arrest had taken place where the
plaintiff was escorted to the casino security office by two security officers
after an altercation between the plaintiff and another casino patron. The fact
that the plaintiff accompanied the security officers under her own power did
not affect her claim where she testified that she did not feel free to refuse.
The court in Roth found an arrest under virtually identical circumstances.
Mr. Walker’s situation closely parallels the cited cases. He, too, was
asked to accompany security officers from the casino floor, and, by his own
account, did not feel that he was in a position to refuse. Here, as in Barletta
and Roth, a court should find that there was a reasonable apprehension of
force.
Mr. Walker should also be able to establish that the restraint was
without legal justification. There are two possible justifications for the
restraint that the casino might raise, but neither of them is likely to be
accepted by a court.
First, the casino might argue that the security officers were entitled to
detain Mr. Walker under a broad interpretation of the New Jersey statute
that allows casinos to detain patrons upon suspicion of various offenses, all
of which involve cheating. N.J. Stat. Ann. §5:12-121(b) (West 1977). Such
a broad interpretation of the statute was rejected by the court in Bartolo. In
that case the plaintiff was detained on suspicion of card counting, which the
court held could not be equated with cheating. If card counting does not
constitute cheating and therefore does not come within the ambit of §5:12-
121(b), being drunk and disorderly is certainly not a ground for detention
under that section.
Alternatively, the casino might argue that it was entitled to detain Mr.
Walker under the statutory provision that allows any person to detain
another who commits a disorderly persons offense in the detainer’s
presence. N.J. Stat. Ann. §2A:169-3 (West 1979). However, that statute has
also been narrowly construed by the courts. In Roth, the court held that a
disorderly persons offense must actually have occurred before an arrest
without a warrant will be justified. There, the court denied defendant’s
motion for summary judgment because there was a genuine factual dispute
as to whether plaintiff had committed the offense of criminal trespass.
It is not entirely clear whether Mr. Walker committed a disorderly
persons offense, but the casino security personnel did not accuse him of
committing one and took no steps to bring him before the proper authorities
as is required by §2A:169-3. Although the cases do not address the
significance of the phrase “and take him before any magistrate,” the
previous narrow constructions of the statute would suggest that this phrase
should also be read literally. Thus, the casino’s failure to follow the
procedure outlined by the statute should negate its claim of legal
justification for the detention.
In Mr. Walker’s case, the security guards simply told him that they
wanted him to “cool off,” and, when they were satisfied that he had done
so, let him go. Such a detention is not authorized by the statutes or the
decided cases. We should pursue a claim for false imprisonment on Mr.
Walker’s behalf.
 MEMORANDUM

PRIVILEGED AND CONFIDENTIAL

TO: Paul Partner

FROM: Adam Associate
DATE: December 14, 2009
FILE NO.: 025499-0001
RE: Liability of individuals for discrimination under the DCHRA
I. QUESTION PRESENTED
Can individuals be liable for harassment and discrimination in
violation of the District of Columbia Human Rights Act (“DCHRA”)?
II. SHORT ANSWER
Yes. Both the plain language of the statute and case law allow
individuals to be liable for violation of the statute. However, in each case to
consider the issue, the court has found liability only with regard to
individuals occupying a managerial or supervisory capacity. It is unclear
whether the supervisor must have authority over the plaintiff in order to be
subject to liability.
III. RELEVANT FACTUAL BACKGROUND
In February 2008, plaintiff Steven Smith (“Smith”) amended his
complaint to assert causes of action for discrimination under the DCHRA
against individual employees of his former employer, Cafe Asia.
Specifically, Smith alleged claims against May Stiltz, Karen Saweed, Joey
Yimmer, Abu Baker, Elias Treer, and Shawn Yo in their individual
capacities. Their specific job titles are as follows:

May Stiltz: day manager

Karen Saweed: operations manager
Joey Yimmer: night manager
Abu Baker: kitchen/chef supervisor
Elias Treer: Abu’s supervisor
Shawn Yo: owner

IV. DISCUSSION
A. According to the Plain Language of the DCHRA, Any Individual
Who Acts in Their Employer’s Interest, or Who Aids and Abets
Discrimination, Is Amenable to Suit.
Our analysis begins with the plain language of the DCHRA. Section 2-
1402.11 provides that
(a) It shall be an unlawful discriminatory practice to do any of the following acts, wholly
or partially for a discriminatory reason based upon the actual or perceived: race, color,
religion, national origin, sex, age, marital status, personal appearance, sexual orientation,
gender identity or expression, family responsibilities, genetic information, disability,
matriculation, or political affiliation of any individual:
(1) By an employer.—To fail or refuse to hire, or to discharge, any individual; or
otherwise to discriminate against any individual, with respect to his compensation, terms,
conditions, or privileges of employment, including promotion; or to limit, segregate, or
classify his employees in any way which would deprive or tend to deprive any individual
of employment opportunities, or otherwise adversely affect his status as an employee[.]

D.C. Code §2-1402.11(a)(1). The DCHRA further makes it unlawful “for

any person to aid, abet, invite, compel, or coerce the doing of any of the
acts forbidden” by the Act. Id.§2-1402.62. The DCHRA defines
“employer” as “any person who, for compensation, employs an
individual,…[or] any person acting in the interest of such employer, directly
or indirectly.” Id.§2-1401.02. As the foregoing citations make clear, the
DCHRA is apparently not limited to constraining only the employing entity,
but extends as well to “any person acting in the interest of such an
employer,” as well as “any person” who aids, abets, or otherwise assists in
violating the DCHRA.
This broad definition appears to allow suit against individuals,
especially when compared to Title VII’s definition of employer. Title VII
defines “employer” as “a person engaged in an industry affecting commerce
who has fifteen or more employees…and any agent of such a person.” 42
U.S.C. §2000e(b). Generally, courts to construe the italicized language have
held that “the obvious purpose of this agent provision was to incorporate
respondeat superior liability into the statute,” Gary v. Long, 313 U.S. App.
D.C. 403, 411 (1995) (citation omitted), and that “individual employees
cannot be held liable under Title VII.” Sheridan v. E.I. DuPont de Nemours
& Co., 100 F.3d 1061, 1077-1078 (3d Cir. 1996). The DCHRA is not
confined to cover only the acts of “agents,” but by its terms applies to “any
person” acting in the interest of an employer or who otherwise aids and
abets prohibited conduct. Thus, based on its plain language, the DCHRA
appears to apply to any employee—even nonmanagerial employees—who
are deemed to have discriminated, or aided in discrimination, if the
employee is also “acting in the interest” of an employer.
B. Cases to Construe the DCHRA Have Allowed Suit to Proceed
Against Partners, Supervisors, Managers, and Executive Officers in
Their Individual Capacity.
The majority of cases to consider the question of an individual’s
amenability to suit under the DCHRA have concluded that a case under that
statute may properly be brought against individuals. See, e.g., Purcell v.
Thomas, 928 A.2d 699, 715 (D.C. 2007) (“[W]e hold that because Mr.
Purcell was a high level official of [the corporate defendant] who exercised
extensive supervisory, management and administrative authority over the
corporation, he was individually liable to Ms. Thomas under the DCHRA”);
Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 888
(D.C. 1998) (holding that partners of law firm could be liable in individual
capacity under DCHRA); but see Hunter v. Ark Restaurants Corp., 3 F.
Supp. 2d 9, 15-18 (D.D.C. 1998) (holding that individual employees cannot
be liable under DCHRA);1 Hodges v. Wash. Tennis Serv. Intl. 870 F. Supp.
386, 387 (D.D.C. 1994) (dismissing an individual defendant, who was “not
a proper party because neither Title VII, 42 U.S.C. §1981, nor the District
of Columbia Human Rights law creates grounds for a cognizable claim
against a co-worker”).
1. The Purcell Decision Constitutes the Most Recent Interpretation of
the DCHRA.
The Purcell case provides the most recent analysis of whether a
DCHRA claim can be asserted against an individual. In that case, the court
squarely considered whether Purcell, an individual and supervisor of the
plaintiff, could be liable under the provisions of the DCHRA. Purcell, 928
A.2d at 702. In that case, the plaintiff alleged that Purcell made numerous
sexual advances toward her, continually made inappropriate comments, and
eventually terminated her for refusing to give in to his demands. Id. at 703-
706. Purcell was the president, COO, controlling shareholder, and director
of Fedora, the company for which the plaintiff worked. Id. at 715. Purcell
was also the plaintiff’s supervisor. Id. The court held that Purcell “was
individually liable to Ms. Thomas under the DCHRA” because he was
“acting, directly or indirectly, in the interest of Fedora and hence fell within
DCHRA’s definition of employer.” Id.
In so holding, the court referred to its decision in Wallace, in which
law partners were found to be “employers” under the DCHRA. Id. at 714
(citing Wallace, 715 A.2d at 888-889). Next, the court observed that the
District Court for the District of Columbia “has found that supervisors are
subject to individual liability.” Id. at 715 (citing Mitchell v. Natl. R.R.
Passenger Corp., 407 F. Supp. 2d 213 (D.D.C. 2005); MacIntosh v. Bldg.
Owners & Managers Assn., 335 F. Supp. 2d 223 (D.D.C. 2005); and Lance
v. United Mine Workers of Am. 1974 Pension Trust, 400 F. Supp. 2d 29
(D.D.C. 2005)). The court also noted that “[o]ther jurisdictions have
imposed individual liability upon management and supervisory employees
under state law in employment discrimination cases.” Id. at 716 (citing
cases).
2. The Wallace Decision Was the First Decision to Allow Individual
Liability Under the DCHRA, and Is the Starting Point for Nearly All
Subsequent Cases.
As with the Purcell decision, many cases to find individual liability
under the DCHRA have cited to Wallace as important, if not dispositive, of
their analysis. See, e.g., Mitchell, 407 F. Supp. 2d at 241 (discussing
Wallace); MacIntosh, 335 F. Supp. 2d at 227-228 (discussing Wallace);
Lance, 400 F. Supp. 2d at 31 (discussing Wallace). As such, a discussion of
the Wallace decision is appropriate.
In Wallace, a former Skadden Arps attorney filed suit against the law
firm and some of its individual partners for various causes of action,
including defamation and violation of the DCHRA. Wallace, 715 A.2d at
875-876. After a series of procedural machinations that are not germane to
the present discussion, the trial judge dismissed Wallace’s DCHRA claim
against the three Skadden Arps partners, holding that the individuals were
“not amenable to suit in their individual capacities.” Id. at 887. The plaintiff
appealed, and the appellate court reversed.
In deciding that the individual partners could be liable under the
DCHRA, the court focused on the language of the statute prohibiting “any
person acting in the interest of such employer, directly or indirectly,” from
violating the provisions of the DCHRA. Id. at 888. The court attributed the
“normal everyday meaning” to this language and concluded “that the
partners fall within the ambit of the statute.” Id. The court further noted that
if the quoted language “does not extend to a partner in a law firm, it is
difficult to conceive of any person to whom it would apply.” Id.
The court then bolstered its conclusion by referencing the “aiding and
abetting” language of the DCHRA. Id. (“Moreover, if Skadden, Arps
unlawfully discriminated…then the partners who carried out the allegedly
discriminatory acts aided and abetted the employer’s discrimination.…”).
The court further stated that the individual partners could be liable for
violating the DCHRA under the “aiding and abetting” section “[e]ven if
[the court] were to assume that the individual partners are not employers.”
Id.
The Wallace court then rejected the defendants’ argument that the
DCHRA is patterned on, and should be construed like, Title VII. Id. at 888-
889. The Wallace court conceded that, in interpreting the DCHRA, courts
have generally looked to, and in appropriate cases adopted, Title VII
decisions. Id. at 889 n. 31. The court observed that the majority of relevant
Title VII decisions “have held that individual employees cannot be held
liable under Title VII.” Id. at 888-889. However, the Wallace court declined
to follow Title VII precedent because that legislation “does not contain the
phrase ‘any person acting in the interest of such employer,’” and because
“there is no provision in Title VII proscribing ‘aiding and abetting.’” Id. at
889. The court observed that although Title VII does define “employer” to
include “any agent” of an employer, “‘the obvious purpose of this agent
provision was to incorporate respondeat superior liability into the statute.’”
Id. at 889 n. 32 (citing cases). In contrast, the court reasoned, the plain
language of the DCHRA includes “within the term ‘employer’ any person
who acts on the employer’s behalf.” Id. As such, the DCHRA has a broader
applicability than its federal counterpart.
3. All Cases to Allow Individual Liability Under the DCHRA Have
Involved Managerial or Supervisory Employees.
 Notably, in both the Purcell and Wallace decisions, the courts did not
rely on the individual defendants’ supervisory or managerial authority in
deciding that the individuals were amenable to suit under the DCHRA.
Indeed, as was discussed earlier, the plain language of the statute appears to
allow any individual—regardless of status as a supervisor—to be liable
under the DCHRA. Notwithstanding the plain language of the statute,
however, there does not appear to be a case in which an individual,
nonsupervisory employee was found to be liable under the DCHRA.
In the cases considering whether individuals can be sued under the
DCHRA, the individual is almost always a high-level manager or company
executive. For example:

• Wallace, 715 A.2d at 889: “[W]e therefore hold that the Skadden Arps
partners were properly joined as defendants.” (emphasis added)
• Martini v. Fed. Natl. Mortgage Assn., 977 F. Supp. 464, 479 (D.D.C.
1997): “[T]he Court concludes that individual supervisors can be held
liable for their acts of discrimination.” (emphasis added)
• Russ v. Van Scoyoc Assocs., Inc., 59 F. Supp. 2d 20, 24-26 (D.D.C. 1999):
following Martini, and allowing suit under the DCHRA to be brought
against Stuart Van Scoyoc, the president of the corporation that
employed the plaintiff and plaintiff’s supervisor.
• MacIntosh, 355 F. Supp. 2d at 227-28: relying on Wallace and finding
that the Executive Director and Vice President of Advocacy and Research
for plaintiff’s employer could be sued in their individual capacities under
the DCHRA.
• Lance, 400 F. Supp. 2d at 32: citing MacIntosh as stating that “a plaintiff
[may] maintain suit against individual supervisors in a DCHRA action”;
and finding MacIntosh consistent with Russ, “in which this court held
that under the DCHRA a supervisor could be sued in his individual
capacity.” (emphasis added)
• Mitchell, 407 F. Supp. 2d at 241: reasoning that “[t]he text and purpose of
the DCHRA, and Wallace, do not suggest that it would be appropriate to
follow Title VII here and preclude a claim against individual
management and supervisory employees involved in committing the
allegedly discriminatory conduct”; holding that “Green [the former
director of the Workforce Development unit in the HR Department] and
 Porter [the Vice President of the HR Department]…are proper defendants
in plaintiff’s DCHRA claim.” (emphasis added)

Indeed, even the magistrate judge’s decision in our case suggested that only
management or supervisory employees could be defendants in Smith’s
DCHRA claim. See Smith v. Cafe Asia, 598 F. Supp. 2d 45, 48-49 (D.D.C.
2009). (“[T]he amended complaint alleges that the additional individual
defendants were managers…the facts alleged regarding these supervisory
management employees reflect that they acted in the interest of their
employer… [whether] the individual employees fit that definition is not to
be resolved at this stage.”) (emphasis added).
Just as no case has ever held that a nonsupervisory employee is liable
under the DCHRA, no case has stated that such employees are exempt from
liability. Furthermore, no case has commented on whether an individual
defendant must be the plaintiff’s supervisor or whether any supervisor is a
proper defendant under the DCHRA.
V. CONCLUSION
Although the plain language of the DCHRA allows for any individual
to be liable for discrimination, all cases to construe the DCHRA in the
context of individual’s amenability to suit have involved a managerial
employee. There is no authority addressing whether the individual sued
under the DCHRA must be one of the plaintiff’s supervisors.
For questions regarding the foregoing, please contact Adam Associate.
 MEMORANDUM

TO: Jayne Taylor Kacer

FROM: Regan Dean
RE: Jeffrey Bing—Claim of Self-defense
Question Presented
Will Mr. Bing’s act of shooting Mr. Geller be protected by the Illinois
Self-defense Statute, which specifies that an individual is justified in the use
of force that is intended or likely to cause death or great bodily harm if the
individual (1) reasonably believes that he or she is in imminent danger of
death or great bodily harm and (2) reasonably believes that such force is
necessary to prevent imminent death or great bodily harm to himself (or
herself) or another, or the commission of a forcible felony? 720 Ill. Comp.
Stat. 5/7-1, 1961.

1. Did Bing reasonably believe that he was in imminent danger of

great bodily harm or death if his assailant was armed with a deadly
weapon, had already cut another, was undeterred by attempts to
avoid a confrontation, and had a known history of violent and
explosive behavior?
2. Did Bing have a reasonable belief that deadly force was necessary if
he made numerous attempts to avoid the use of such force either by
apologizing, retreating, or warning that he would retaliate if
necessary prior to shooting?

Short Answer
Yes, our client has a strong claim that he acted in self-defense in
accordance with the elements of the Self-defense Statute.

1. First, Bing had a reasonable belief that he was in imminent danger

of death or great bodily harm because his assailant was armed with a
deadly weapon. The assailant continued to advance on our client
despite knowledge that Bing was armed, threats against Bing’s life
 were made by his assailant, and his assailant was well known as a
violent individual.
2. Second, our client had a reasonable belief that deadly force was
necessary to prevent imminent danger of death or great bodily harm
because all of the efforts he employed to avoid the use of such force
proved futile, including defendant’s attempts to apologize, retreat,
and warn the assailant.

Statement of Facts
Our client, Jeffrey Bing, has been charged with the murder of his close
friend of six years, John Geller. Bing claims he acted in self-defense. Bing
and Geller had a friendship that was occasionally marred by violence. They
attended college together (four years ago), where Geller ran cross-country.
During college Bing sustained injuries (swollen knuckles, bloody noses,
black eye) resulting from fights with Geller (6′, 190 pounds), who was
slightly larger than Bing (5′11″, 175 pounds). However, more serious
injuries were always averted when Bing, who is not particularly athletic,
pleaded with Geller to stop. They have not had any fights since college, but
one year ago Bing and another friend, Newton, had to pull Geller off his
roommate after a violent fight wherein the roommate suffered a broken rib,
black eye, and multiple bruises.
On the day of the incident, Bing and Geller were on a camping trip
with their friend, Mr. Newton. They stopped five minutes from their lodge
because Bing was winded. Newton then began joking with Bing about Jill
Jacoby. Jacoby was Geller’s former girlfriend with whom Bing had recently
spent a weekend in New York. Bing previously concealed this information
from Geller, and in fact had lied to Geller about the identity of his New
York companion. Upon learning the truth, Geller became enraged. Newton
later told the police that Geller “went beserk.”
Mr. Geller pounced on Bing, threw him on the ground, and began
beating Bing’s face with his fists. Bing apologized for his actions, but
Geller continued to beat Bing. Newton attempted to stop Geller by shouting
at him to “calm down,” but Geller replied: “Stay out of this. My fight is
with Jeff.” Newton attempted to physically separate the men and, in doing
so, was cut on the arm by Geller, who brandished a hunting knife he
retrieved from his knapsack. Newton then decided to run for assistance to
the lodge nearby and stated that he had “never seen [Geller] like this
before.” While Newton left the scene for help, Geller, who continued to
brandish his knife, and Bing, at this point unarmed, began circling each
other. Geller attempted to charge at Bing, and when the men were separated
by about twenty feet, Bing produced a gun from his knapsack that he had
carried with him for safety while hiking. Bing attempted to keep Geller at
bay by waving his gun around as the men continued to circle each other for
about five minutes. During this time, Bing pleaded with Geller to “calm
down,” but Geller told Bing that he would “kill [Bing] for this.” Bing
warned that he would use his gun if necessary to which Geller replied,
“Only one of us is getting out of here alive.” At that moment, Geller
charged at Bing, and when Geller was between five and ten feet away from
Bing, Mr. Bing shot Geller, pulling the trigger once.
Discussion
Mr. Bing acted in self-defense under the Illinois statute for “use of
force in defense of person” (hereinafter Self-defense Statute). Pursuant to
the Self-defense Statute, Bing is “justified in the use of force which is
intended or likely to cause death or great bodily harm only if he reasonably
believes that such force is necessary to prevent imminent death or great
bodily harm to himself or another, or the commission of a forcible felony.”
720 Ill. Comp. Stat. 5/7-1. In order to successfully claim self-defense, two
elements must be met, namely that Bing maintained a reasonable belief that
he was in imminent danger of death or great bodily harm and also that Bing
reasonably believed the degree of force used was necessary to prevent such
harm to himself. If belief is merely subjective, Bing cannot claim self-
defense. That Mr. Bing subjectively believed that he was in imminent
danger of death or great bodily harm is presumed to be true given the facts
and is not addressed in this memorandum. This memorandum will discuss
whether Mr. Bing had a reasonable belief that he was in danger of death or
great bodily harm and that Bing reasonably believed the degree of force
used was necessary to prevent such harm.
Mr. Bing Had a Reasonable Belief that He Was in Imminent Danger of
Death or Great Bodily Harm.
Mr. Bing had a reasonable belief that he was in imminent danger of
either death or great bodily harm. In determining whether a reasonable
belief exists, the courts evaluate various factors including whether the
assailant had a weapon, whether the assailant was deterred by attempts
made to de-escalate the situation, the known history of violence of one or
both parties, the comparative physical size of the attacker and the
defendant, the mental state of the assailant, and whether the defendant was
cornered. Geller not only brandished a weapon, but used it to harm a third
party. Geller was undeterred by the efforts made by Bing to curtail the
situation. There is a known history of violence by Geller directed toward
Bing and others. Geller was said to be acting in an irrational manner, and
Geller was a bigger and more athletic man than Bing.
A person reasonably believes that s/he is in imminent danger of death
or great bodily harm when s/he is outnumbered by drunken, armed
assailants who are undeterred by attempts to avoid a confrontation. In
People v. S.M., 416 N.E.2d 1212 (Ill. App. 1st Dist. 1981), the defendant’s
belief that he was in imminent danger of death or great bodily harm was
found to be reasonable because he was outnumbered four to one and
cornered by his assailants; his attackers had been drinking and were all
bigger than he; the assailants had weapons, which they threw at the
defendant; and his attackers were not discouraged by the defendant’s gun
nor by his warning that he would use it. In S.M., the defendant made an
offensive comment to a group of four older, more athletic boys after he was
nearly hit by their car. The defendant immediately apologized for his
comment upon realizing that the boys were upset. However, the boys
advanced on the defendant, who then fled. The assailants continued to chase
the defendant, throwing asphalt and tin cans at him. The defendant yelled
out for help, but was eventually cornered and unable to escape. The
defendant had a gun because he was initially intending to hunt for raccoons,
and he brandished it to scare off his attackers. However, the assailants were
unfazed by the gun and continued to advance, which prompted the
defendant to fire a warning shot and verbally warn the attackers that he
would shoot if necessary. Upon realizing that the attackers remained
undeterred in their pursuit, the defendant shot and killed two of the
assailants and wounded two others. The jury found the defendant guilty of
the commission of two counts of aggravated battery. The court of appeal
reversed, holding that the defendant’s fear of imminent great bodily harm or
death was reasonable under the circumstances. 93 Ill. App. 3d 105.
 A person has a reasonable belief that s/he is in imminent danger of
death or great bodily harm when there is a known history of the assailant’s
propensity for violent behavior. In People v. Shipp, 367 N.E.2d 966 (Ill.
App. 2d Dist. 1977), the defendant knew the assailant was capable of
causing her great bodily harm or death with or without a weapon. The
assailant was undeterred in his pursuit of the defendant and made
threatening comments to the life of both the defendant and her male friend.
The facts of Shipp describe a long history of violence between the assailant
and the defendant. The defendant sustained numerous severe injuries
resulting from beatings and gunshots fired at her by the assailant, whom she
knew had killed his first wife. Eventually, the defendant obtained a
restraining order against the assailant, which was meant to prevent the
assailant from harassing, annoying, or talking to the defendant. However,
this did not prevent the assailant from continuing to harm the defendant
both verbally and physically. The assailant made numerous threats against
the defendant’s life, including holding a knife to her throat and telling her
that he would cut her throat and go to the penitentiary. The assailant further
warned her that he would kill her if he ever caught her with another man.
On the night in question, after leaving a bar, the assailant went to the home
of a man with whom the defendant was spending the evening. When the
assailant entered the bedroom, the defendant became frightened and picked
up a gun; she backed away from the assailant who continued to walk toward
her with his hands in his pockets, not revealing whether he was armed. The
assailant continued to approach her despite verbal warnings not to come any
closer or the defendant would shoot, and then cornered the defendant saying
that he was going to “take care” of both the defendant and her male
companion who was hiding under the bed. When the assailant was six feet
away from the defendant she shot and killed him. The jury acquitted the
defendant of murder and unlawful use of weapons, but convicted her of
voluntary manslaughter. The Appellate Court reversed, and the court
believed the defendant’s fear of imminent danger of great bodily harm to be
reasonable. The court stated, “It is the defendant’s perception of danger, and
not the actual peril, which was dispositive.”
Application of the factors recognized in the aforementioned cases to
the Bing situation leaves little doubt that the court will find that Bing’s fear
that he was in imminent danger of death or great bodily harm was
reasonable. Geller had a deadly weapon, which he was clearly not afraid to
use, as evidenced when he cut Newton’s arm. In People v. S.M., the
weapons used by the assailants, asphalt and tin cans, do not merit the same
potential to cause death or great bodily harm as a knife. And in People v.
Shipp, it was unclear if there even was a weapon, yet the court found the
defendant’s fear to be reasonable. Thus, the fear of a defendant whose
attacker is armed with a deadly weapon that he has used on a third party
will most likely be considered reasonable by the court.
Like the attackers in S.M. and Shipp, Geller was undeterred despite
both Newton’s and Bing’s attempts to calm him down, the fact that Bing
had a gun, and that Bing gave several warnings that he would shoot Geller
if necessary. Based on prior altercations involving Geller and Bing, Bing’s
efforts to plead with Geller to calm down would have been sufficient, yet
his employment of those efforts immediately prior to the shooting proved
futile. In fact, Geller continued to make threats against Bing’s life and
charge at Bing while brandishing his weapon following Bing’s warnings.
Like the defendant in Shipp, Bing had knowledge of Geller’s
propensity for violent behavior and knew firsthand that he was capable of
inflicting harm upon another person when angry. The court in People v.
Shipp believed such knowledge justifies the reasonableness of one’s fear of
great bodily harm.
Although Geller had not been drinking, as had the assailants in S.M.
and Shipp, Geller was enraged and consumed by an unpredictable state of
mind. The notion that Geller was acting out of character was reinforced by
Newton’s comment, “I’ve never seen him like this before.” Additionally,
while each court makes reference to the stature of the parties, it does not
appear to be a primary factor in their determination of whether there was a
reasonable belief of imminent danger of death or great bodily harm. There
was only a slight disparity in the physical size of Bing and Geller; therefore
this will not be a compelling argument for our case.
In determining whether the defendant had a reasonable belief that he
was in imminent danger of death or great bodily harm, the court in People v.
Moore, 357 N.E.2d 566 (Ill. App. 1st Dist. 1976), considered many of the
same factors as the courts in S.M. and Shipp, namely whether the assailant
had a weapon, whether the assailant was undeterred, the comparative
physical size, and a history of violent behavior. Between the parties the
defendant had previously engaged in a physical altercation with the
decedent in which the defendant was the aggressor. On the night in
question, the defendant said something that caused the decedent to get upset
with him. The defendant then informed all present that he had a gun. He left
the scene and went home to retrieve his gun. Upon returning, the decedent
threatened to beat up the defendant. The onlookers held the decedent away
from the defendant to avoid a fight. The defendant had an opportunity at
this moment to leave and put the gun away, which he was encouraged to do
by the onlookers. However, the defendant remained outside and stated that
he would shoot the decedent if he came near him. The defendant eventually
shot the decedent while he was fifty feet away. The court held that there
was no reasonable belief that the defendant was in imminent danger of great
bodily harm or death and upheld the jury’s finding of voluntary
manslaughter. The decedent was unarmed, there was substantial distance
between the men at the time of the shooting, the defendant did not attempt
to flee, and the defendant stated his intention to harm the decedent. The
court acknowledged the disparity in stature of the parties, but said that
despite the fact that the decedent was advantaged in physical size, this
factor was irrelevant because only the defendant was armed.
The Moore case is distinguishable from the Bing situation as the
defendant in Moore was the aggressor, while Bing acted in self-defense.
Additionally, unlike Moore, Geller was between five and ten feet away and
charging at Bing with a deadly weapon at the moment Bing pulled the
trigger. In Moore, the threat to the defendant was less imminent because
there was fifty feet between parties, the decedent was unarmed, and there
was an opportunity for the defendant to avoid the situation altogether.
Mr. Bing Reasonably Believed Force Was Necessary to Prevent
Imminent Death or Great Bodily Harm to Himself.
Bing reasonably believed that his use of force was necessary to prevent
imminent death or great bodily harm to himself under the circumstances of
his situation. The court determines whether the necessity to prevent
imminent death or great bodily harm has been fulfilled by examining the
efforts made by the defendant, such as apologizing, retreating, giving verbal
warnings, brandishing, or firing a warning shot to avoid a physical
confrontation. Bing made several such attempts. Bing apologized to Geller,
he pleaded with Geller to calm down, and he attempted to keep distance
between them. Additionally Bing brandished a weapon to scare Geller off
and warned that he would shoot if necessary. Each attempt Bing made was
ignored by Geller, who persisted in his advancement.
A person reasonably believes that deadly force is necessary to prevent
imminent death or great bodily harm to himself or another when the
defendant makes repeated efforts to avoid an altercation, such as
apologizing, retreating, yelling for help, pleading with attackers to stop,
brandishing a weapon, giving verbal warnings as well as firing a warning
shot. In S.M., the defendant was clearly desperate and did not want to resort
to such action, but under the circumstances, felt that it was necessary. The
defendant in S.M. employed each of the described efforts to avoid an
altercation; additionally, he did not advance toward the attackers and he
unsuccessfully sought help from the onlookers before he resorted to
shooting his assailants. The court acknowledged each effort made by the
defendant to resolve the situation and held that the defendant maintained a
reasonable belief that the force employed was necessary.
To determine whether a person reasonably believes that deadly force is
necessary to prevent imminent death or great bodily harm, the court in
People v. Shipp examined the avoidance attempts made by the defendant.
Upon the assailant’s entrance, the defendant in Shipp brandished a weapon,
presupposing a threat. The defendant then verbally warned her attacker,
telling him that he was violating a restraining order. She pleaded for him to
stay away and to the extent that it was possible, the defendant attempted to
keep distance between her and the assailant by moving backwards, and it
was not until she was cornered that she shot him. There were fewer efforts
to avoid the use of a firearm by the defendant in this case than in S.M., but
the ruling was the same. The court ruled that the defendant was justified in
her actions, stating that her fear was “highly reasonable under the
circumstances” and that her actions were necessary.
Bing engaged in many of the same efforts employed by the defendants
in the cited cases with no success. For example, like the defendants in S.M.
and Shipp, Bing apologized to his assailant and pleaded with him to calm
down. Similarly, Bing retreated to the best of his ability, brandished a gun,
and gave verbal warning that he would shoot prior to doing so.
In determining whether a person reasonably believes that deadly force
is necessary to prevent imminent death or great bodily harm to himself (or
herself) or another, the court in People v. Moore examined avoidance
techniques. The defendant in Moore had ample opportunity to avoid the
situation and did not. There was no pleading, apologizing, warning, or
retreat, and Moore was recognized as the aggressor in this situation. The
court emphasized these facts: Moore could have avoided the altercation, he
expressed intent to shoot the decedent, and he shot him from fifty feet away.
Moore’s use of force was not found to be reasonable under the
circumstances because he demonstrated intent to cause harm instead of
making efforts to avoid using force.
The court should recognize the significant variances in the two
situations and find that, while no reasonable belief of the necessity to use
deadly force existed for Moore, it did exist for Bing. Unlike the defendant
in Moore, Bing made repeated attempts to avoid the use of force, while in
Moore, the defendant demonstrated intent to rely on an unjustifiable amount
of force. The disparity in the distance between the parties at the moment the
force was used and Bing’s attempts to reconcile the conflict without force
will differentiate the cases and demonstrate that Bing should be acquitted of
voluntary manslaughter because a reasonable belief to justify his use of
force existed.
Conclusion
Bing can successfully claim self-defense. He reasonably believed that
he was in imminent danger of death or great bodily harm because his
assailant was armed with a deadly weapon, his assailant was undeterred
despite knowledge that Bing was armed, he had a history of violent
behavior, and he demonstrated an unpredictable state of mind. He also
reasonably believed that deadly force was necessary to prevent imminent
death or great bodily harm to himself because all of the efforts he employed
to avoid the use of such force proved futile.
 MEMORANDUM

TO: Jayne Taylor Kacer

FROM: Regan Dean
DATE: November 25, 2002
RE: Andrea Johnston—Defense to Claim of Negligence
Question(s) Presented
Is Andrea Johnston liable for negligence?

1. Was it foreseeable that her car would be stolen when she parked her
highly visible Porsche sportscar on a public street with the keys in
the sun visor and the doors unlocked in an area she was unfamiliar
with as to its reputation and crime rate, while she entered a store
with the intention of being away from her car for a few minutes?
2. Was it foreseeable that an unauthorized person would cause injury
while driving Ms. Johnston’s Porsche, which is not an inherently
dangerous vehicle and requires no special knowledge to operate
other than that required to drive an automobile?

Short Answer
No, Ms. Johnston will most likely not be found liable for negligence.

1. It was not foreseeable that her car would be stolen because Ms.
Johnston was unaware of the crime rate in the neighborhood, she
intended to leave her car unattended on a public street for only a few
minutes, and the car is one that a reasonable person would not
expect to be stolen because it is so readily identifiable.
2. It was not foreseeable that an unauthorized person would cause
injury while driving Ms. Johnston’s car because the car requires no
special skill to operate, nor is it an inherently dangerous vehicle.

Statement of Facts
 Our client, Andrea Johnston, is alleged to be negligent resulting in
injuries sustained by the plaintiff, Bonnie Smythe, from a car accident in
which an unauthorized person operating Ms. Johnston’s car collided with
plaintiff’s parked car. Ms. Johnston is a well-known professional racecar
driver who resides in Florida. The vehicle involved in the accident is Ms.
Johnston’s lipstick red Porsche, which she purchased two years ago. The
Porsche has been modified to include wing-like appendages attached to the
doors and a manual transmission engine traditionally found in racecars. The
body of the car has been reinforced with roll bars added to better withstand
an impact from a collision. Additionally, the car is able to accelerate to
speeds over 185 mph. The car has had celebrity exposure and is widely
recognized because Ms. Johnston has raced it in various celebrity pro-am
races, and the car has also been featured on the David Letterman show in a
skit involving Ms. Johnston.
On the day in question, Ms. Johnston was in Missouri to attend a race
and stopped at a store, Party City, on her way to the race to pick up some
refreshments. Party City is located on Delmont Street, in the Central East
End, which has undergone a recent transformation from a seedy, dilapidated
area to a trendy neighborhood with many popular restaurants and shops.
Despite its renovated appeal, the area is three blocks from the highest-crime
community in St. Louis, an area called Crimtown. This area has received
much publicity because of the propensity for nearby high-schoolers to steal
cars. Ms. Johnston, being from Florida, was unaware of the former
reputation of Delmont Street and that of its adjoining community,
Crimtown. She intended to be inside Party City for only a couple of minutes
to pick out a specific item. Ms. Johnston parked her car on a public street in
front of the store, rolled up her windows, but placed her keys in the sun
visor above the driver’s seat and left the doors unlocked. While inside, Ms.
Johnston checked on her car one time and it was empty. Ms. Johnston was
slightly delayed while in the store, but left the car alone outside for no more
than eight to ten minutes total.
When Ms. Johnston drove up to Party City, a woman standing at the
bus stop across the street watched Ms. Johnston put her keys on the visor
and enter the store. The thirty-five-year-old woman, Barbara Mandible, was
late for a paid singing engagement and decided to take Ms. Johnston’s car
in order to arrive on time. Ms. Mandible drove the car over the 55 mph
speed limit and was spotted by a police officer who followed her. Mandible
then began to increase her speed to over 100 mph and spun out of control,
colliding with the plaintiff’s parked car occupied by the plaintiff. The
plaintiff sustained numerous injuries when she was thrown from her
Volkswagen, which was flattened by the Porsche. Upon recovery, the
plaintiff will forever walk with a limp.
Discussion
Ms. Johnston will most likely not be found liable for negligence. A
Missouri statute formerly addressed the issue of liability for car owners who
left their vehicles unlocked, unattended with the keys readily available in
Mo. Rev. Stat. §304.150 (repealed by L.1996). The statute made it a
misdemeanor for motor vehicle operators to leave the car keys in the
ignition while unattended on a highway of any city with a population over
75,000, but stated that evidence of the statute and/or its violation was barred
in a civil action. The statute was repealed in 1997 and will therefore not
factor into the analysis contained in this memorandum. The fact that this
statute was repealed, however, does seem favorable for our client, as it
suggests that there is no longer any criminal liability for leaving a car
unattended with the keys in the ignition. Prior case law in this area reveals
that individuals who leave their vehicle unattended with the keys in the
ignition are not found to be negligent when unauthorized third persons steal
the car and operate it negligently. The determinative issues that will be
discussed in this memorandum are the defendant’s (1) foreseeability of theft
and (2) foreseeability of injury resulting from unauthorized negligent
operation.
Issue I. It Was Not Foreseeable that Ms. Johnston’s Car Would be
Stolen.
It was not foreseeable to Ms. Johnston that theft would result from
leaving her keys in the sun visor while she left her car unattended for what
she anticipated would be a few minutes in an area that appeared safe. In
determining whether it was foreseeable that theft would result the courts
evaluate various factors including the type of neighborhood, the defendant’s
knowledge of the neighborhood’s reputation, the location in which the car
was parked (i.e., a public road or a private street), the length of time the
vehicle was left unattended, and the type of vehicle. Here, Johnston was
new to the area and unfamiliar with the neighborhood’s reputation. All
Johnston could know about the area was from what she saw, and the
neighborhood appeared safe. Further, she parked her car on a public street,
which would seem to deter potential thieves knowing that there were many
potential witnesses. Ms. Johnston left the car for only a few minutes while
she entered a store nearby and did not intend for it to be unattended long.
And lastly, Johnston’s car is one that stands out; it is highly recognizable
and would therefore seem to be a poor choice of prey for thieves as they
would likely be readily caught.
It was not foreseeable that theft will result from parking a truck in an
unlocked garage stall next to a business on private property with the key in
the ignition despite knowledge by the defendant that the establishment had
been burglarized multiple times and the truck stolen twice in the past. In
Kaelin v. Nuelle, 537 S.W.2d 226 (Mo. App. St. Louis Dist. 1976), the
defendant, who owned and operated a service station for forty-three years,
customarily parked his truck in this manner in an unlocked garage. He had
begun to experience thefts five years prior to the incident, but continued to
park his vehicle in the same manner. On the night in question, the defendant
parked his car, and it was stolen several hours later by a thief who
proceeded to collide with another automobile driven by the plaintiff’s
husband, who was killed. The thief escaped the scene of the accident, and
the plaintiff filed suit against the defendant for negligence in failing to
foresee that his car was likely to be stolen because of the history of
burglaries that had occurred on his property. The trial court entered a
directed verdict for the defendant and the Missouri Court of Appeals
affirmed, holding that the plaintiff “as a matter of law, failed to adduce
sufficient evidence of negligence or proximate causation to make a
submissible case even though there was some evidence that defendant’s
place of business had been burglarized and the truck stolen in the past.”
Kaelin, 537 S.W.2d at 231.
It was not foreseeable that theft would result from parking an
unattended, unusually dangerous vehicle in a public place unlocked and
ready to operate when the owner had knowledge that for a period of over
one month individuals had climbed onto and operated the vehicles without
permission. In Zuber v. Clarkson Construction Co., 315 S.W.2d 727 (Mo.
1958), the defendant parked tractor-trailers in a public area over nights and
weekends while constructing a levee. The trailers were large “earth
moving” machines that required special skill to operate, yet were left
unlocked and ready to operate. The defendant company had knowledge that
curious passersby would climb on the trailers and operate them, yet they
continued to park their trailers in this fashion. On the day in question, the
plaintiff’s son and his cousin engaged in this behavior, and the plaintiff’s
son died as a result of his lack of knowledge in operating such a dangerous
vehicle and subsequent inability to curtail its movement. The plaintiff
brought suit against the defendant company for negligence in his son’s
death because the defendant left the vehicles unlocked in an accessible
place, ready to operate with knowledge of prior attempts by unauthorized
individuals to operate such vehicles. The trial court overruled the
defendant’s motion for a directed verdict, and the Supreme Court reversed,
holding that at the time of the decedent’s death, he “was engaged in
committing a criminal act, to wit: Driving, operating, using or tampering
with a motor vehicle and trailer without the permission of the owner and, as
a matter of law, no duty was owed by defendant to plaintiff’s decedent to
avoid negligently injuring him or causing his death.” Id. at 732. Therefore,
because the defendant owed no duty to the plaintiff’s decedent, it cannot be
found liable for negligence.
Theft was not foreseeable when an owner parks his Cadillac in an
exposed and readily accessible parking garage with the keys in the ignition
and the doors unlocked for an unstated period of time knowing there had
been other vehicles stolen from the garage in the recent past. In Dix v.
Motor Market, Inc., 540 S.W.2d 927 (Mo. App. St. Louis Dist. 1976), the
defendant parked his car in a parking garage with the keys in the ignition
and the doors unlocked, behavior that was mandated by the garage owners
whom the driver paid to park in that garage. The car was stolen by a thief
who, while attempting to flee from the police, got into an automobile
accident and killed the plaintiff’s husband. Both the car owner and the
garage owner were sued for negligence in failure to safeguard against theft
of cars by leaving keys in the ignition and the car doors unlocked in an
accessible garage where the garage owner knew and the car owner “should
have known” about a history of stolen cars from the vicinity. The trial court
granted the defendant’s demurrer, and the Court of Appeals affirmed,
stating “the defendant was under no duty to discover the presence of a thief
in the vicinity where he parked his car.” Dix, 540 S.W.2d at 930. The Court
of Appeals further reasoned, “as a matter of law the duty of one who leaves
keys in an unattended auto does not extend to a plaintiff injured in an
accident with the thief driving the stolen auto.” Id. at 931.
Prior case law reveals a potentially favorable outcome for our client.
One fact that distinguishes our case from the other cases in a favorable
manner is that Ms. Johnston did not leave her keys in the ignition of her
vehicle; she attempted to conceal them by placing them in the sun visor
above her seat. Although the car was unlocked and unattended with the
keys inside, there was a seemingly greater effort to avoid car theft by
removing them from the blatant view of potential thieves. In both Kaelin
and Dix, there was no foreseeability of theft when the defendants left their
keys in the ignition with the doors unlocked. While in Zuber there is no
mention of keys, it is believed that vehicles of this type use starters not
keys, which were connected and ready to operate at the time the vehicle
was used. Considering there was no foreseeability of theft when keys are
left in the ignition, our client’s act of placing the keys in the sun visor
should result in less foreseeability of theft.
In both Kaelin and Dix, cars were stolen from an area with a history of
previous car thefts or burglaries, and the defendant in each case either knew
this or had reason to know of it. In the Zuber case, the court found that the
defendant was not guilty of negligence despite the fact that the defendant
had knowledge that curious individuals had been tampering with the
vehicles and operating them without permission and that the defendant had
failed to attempt to abort this behavior. The area in our client’s case had a
history of car thefts by teenagers and has a notorious crime rate; however,
our client was not privy to this information, as she is not from the area and
had no reason to know the reputation of the neighborhood.
In both Kaelin and Dix, the vehicle was stolen from private property,
while in Zuber, the vehicle rested on public property at the time of the theft.
Yet in each case, the court found for the defendant. While location of the
vehicle is a factor considered by the courts in determining whether there
was foreseeability of theft, it does not appear to be outcome-determinative.
Ms. Johnston parked her car on public property, which is an open and
obvious location with both more accessibility and more witnesses. This
factor does not appear to be especially critical particularly in light of the
lack of foreseeability of theft decision rendered in Zuber where the vehicles
were parked in a public location. This fact, coupled with the defendant’s
express knowledge that people were tampering with the vehicles, is
decidedly a more serious situation than ours.
Ms. Johnston had no intention of being in the store for more than a few
minutes. While she was delayed and therefore away from the car for
slightly longer, she tried to keep an eye on the car while inside the store,
and the car was actually unattended for only eight to ten minutes including
the delay. In both Kaelin and Zuber, it is clear that the owner intended to
leave the vehicles unattended for at least an entire night if not longer; in
Zuber, the vehicles were unattended during entire weekends. While it is not
made entirely clear what length of time the defendant in Dix intended for
his car to be left unattended, it can be inferred from the fact that he paid for
parking in a garage that it was meant to be unattended for a period of time
exceeding a few minutes.
One last factor examined in determining the foreseeability of theft is
the type of car driven by the defendant. Ms. Johnston drives a unique
automobile that is highly recognizable not only because of its altered
appearance, but also because of the media attention that Ms. Johnston has
received, which has included her car. Although inviting curiosity, Ms.
Johnston’s car would seem to be an impractical choice for a thief because of
the identity factor. The cars driven in both Kaelin and Dix, a pickup truck
and Cadillac respectively, are more realistic prey because they are generic
models and are found on the roads in abundance. The vehicle in Zuber may
be more analogous to our client’s car because of its unusual make and
features, which would again seem to deter potential thieves based on the
high level of attention one would receive simply by being seen in the
vehicle. It is less foreseeable that thieves would target such easily
recognizable vehicles.
Issue II: It Was Not Foreseeable that Injury Would Result When an
Unauthorized Person Drove the Vehicle.
It was not foreseeable that an unauthorized driver would cause injury
while driving the vehicle because Ms. Johnston’s car is not an unusually
dangerous car and requires no special skill to operate. Factors examined by
the court to determine whether it was foreseeable to the defendant that
injury could result include whether or not the vehicle was an inherently
dangerous machine and whether it required special skill to operate. While
Ms. Johnston’s car has been equipped with an engine found in racing cars,
which allows her vehicle to operate at over 185 mph, it is not inherently
dangerous because of this feature. The car is able to function as a normal
car, traveling at the speed limit. Additionally, the car does not require
special skill to operate.
Pursuant to the decision rendered in Zuber, there is no foreseeability of
injury when an unauthorized person operates an inherently dangerous “earth
moving” vehicle, which rests on public property and requires familiarity
with the technique of its operation. The vehicles in Zuber were large tractor-
trailers known as “Euclids” (hereinafter “Eucs”), which intrigued the
decedent and his cousin on the day in question to more closely examine and
attempt to operate them. While the cousin of the decedent claimed to have
driven one before, there is no evidence that either of the individuals who
operated them on the day of the accident had ever operated a Euc before
and therefore lacked the requisite skill; nor was there evidence that the
users had permission from the defendant owner to operate any of the Eucs.
Although the Eucs sat on public ground, the individuals’ acts of climbing
onto and operating them was found to be a trespass. In finding that the
defendant was not liable for negligence because of lack of foreseeability of
injury, the Missouri Supreme Court further stated that “no duty was owed
by defendants to either (decedent or cousin) to protect them against their
own criminal acts.” Zuber, 315 S.W.2d at 735. The court reasons that the
unauthorized acts of the plaintiff’s son and his cousin do not demonstrate
that the defendant was negligent with respect to the acts that caused the
decedent’s death.
There is foreseeability that injury will occur when an intoxicated,
unauthorized driver operates an inherently dangerous commercial shuttle
bus, which he has special skill to operate, belonging to the defendant
company. In Kuhn v. Budget Rent-a-Car, 876 S.W.2d 668 (Mo. App.
Western Dist. 1994), an employee for defendant allowed an intoxicated off-
duty employee onto the company premises. The company manager learned
that the individual was on the property in an inebriated state and did not
request that he leave. The off-duty employee knew how to operate the
shuttle bus and further, knew that the company left the keys in the vehicle’s
ignition; he drove the bus without permission off the company property and
killed the plaintiff’s decedent in a car accident. The trial court granted the
defendant’s motion for summary judgment, and the appellate court reversed
and remanded, acknowledging that a genuine issue of triable fact does exist.
The appellate court found that the trial court must determine whether the
defendant company acted negligently in failing to prevent the intoxicated
off-duty employee from entering the premises and operating a potentially
dangerous vehicle that caused the death of the decedent. The court stated
that by either failing to secure the vehicles or by allowing the off-duty
employee on the premises, it was foreseeable that injury might occur.
Ms. Johnston’s car does not qualify as an inherently dangerous vehicle
when contrasted with the vehicles in these cases. While Johnston’s car
admittedly operates at high speeds, it is not a large vehicle capable of
causing injury and damage to many people such as the vehicles described
above. In both Zuber and Kuhn, the vehicles were both unusually large and
used for purposes other than that of an automobile, namely carrying many
passengers or digging up earth. While an argument may be made that if not
for the racing engine in Ms. Johnston’s car, the unauthorized driver would
not have been able to slam into plaintiff’s car at such a high speed, this
argument should fail because at the time of the accident, the car was
operating at just over 100 miles per hour, a speed that many cars are capable
of reaching.
Similarly, Ms. Johnston’s car does not require additional skill to
operate other than that required to drive a car. The skill required to operate
the vehicles in both Zuber and Kuhn was unique to each vehicle and
therefore different than that required to drive a car. Therefore the court
should not find that there is foreseeability of injury based on requisite skill
to operate.
The varying outcomes in Zuber and Kuhn can perhaps be reconciled
by acknowledging that while the vehicles were both inherently dangerous,
the defendants in each case maintained a different responsibility because of
where the accident occurred. The defendants in Zuber were entitled to park
their vehicles on public property and therefore were not responsible for the
intervening trespass. In Kuhn, the vehicles were parked on private property,
and as such there was a higher duty to be responsible for the acts of
individuals whom the defendants allowed onto their property. Thus, there
was no duty attached to Ms. Johnston’s behavior similar to the finding in
Zuber. Ms. Johnston was entitled to park her car on a public road, and
subsequent acts of injury to a third person based on a person’s unauthorized
use of the car would be the sole responsibility of the unauthorized person
because of his or her criminal act in taking the car.
Conclusion
Based on precedential case law and, to a lesser extent, the state’s
reluctance to make it a criminal offense to leave one’s keys in the ignition
of an unlocked and unattended vehicle, Ms. Johnston will most likely not be
found liable for negligence for the injuries sustained by the plaintiff. The
negligence claim will fail because our client did not owe a duty to the
plaintiff. Specifically, it was not foreseeable that Ms. Johnston’s Porsche
sports car would be stolen when she left her car unlocked with the keys in
the sun visor while she entered a store for up to ten minutes in a seemingly
safe neighborhood. Additionally the claim will fail because it was not
foreseeable that once the car was stolen it would cause injury to a third
person because it is not an inherently dangerous vehicle and does not
require any kind of special skill to operate other than that required to drive a
car.

1. Hunter was decided before the final Wallace opinion was published.
The first two letters in this appendix are written for business clients. The first
letter is written directly to a prospective client, offering advice on how to
proceed in resolving a dispute. The second letter is written on behalf of a
client to opposing counsel. Because that letter is written to another lawyer,
you will notice that it includes case citations and in many ways reads like a
memo or brief. The third and fourth letters were written by law students.

Thomas A. Vogele

[email protected]
April 27, 2009

CONFIDENTIAL AND STRICTLY PRIVILEGED;

ATTORNEY-CLIENT COMMUNICATION

Mr. Lance McCann Mr. Kevin Norton

Chairman & CEO President
Bright Art Skylights Bright Art Skylights
18312 S. Ritchey Street 18312 S. Ritchey Street
Santa Ana, California 92705 Santa Ana, California 92705

Re: Bright Art Skylights adv. Jackson Chemical, et al.

Gentlemen:

It was a pleasure to meet both of you last Thursday and discuss your interest
in retaining ECG to assist you in resolving a potential product/material
warranty claim your firm has against Jackson Chemical Company
(“Jackson”) and Startek Corporation (“Startek”).
As we discussed, and after speaking with Mr. Flannigan, here is an
overview of how we view the dispute and how we recommend Bright Art
proceed to resolve the dispute in the most effective and expeditious manner.
First, neither I nor Mr. Flannigan believes this problem necessarily must
result in protracted and costly litigation. While large corporations such as
Jackson and Startek often take a “hard-line” stance at the outset, based on
your description of Jackson’s active involvement in specifying and
supplying the defective material for your specialized requirements, Jackson’s
and/or Startek’s liability seems clear. In the face of clear liability, even a
large company can be persuaded that a fair and reasonable settlement is
better than protracted litigation resulting in a potentially “unreasonable”
damage award from a jury against an “unreasonable” defendant.
The key to persuading Jackson and Startek to accept your settlement
demand is to have a complete and utter mastery of the facts and legal
arguments on both sides of the dispute, to articulate a fair and defined
statement of damages suffered as a result of their breach of warranty, and to
present a highly professional, defined and commercially reasonable solution
to the problem.
Faced with clear and potentially significant liability, and presented with
a commercially reasonable solution, many companies will assess what is
best for their own business interests and work out a settlement. This is
particularly true when that company faces potentially greater risks in
litigation, both to its sales and market value.
Jackson’s and Startek’s liability appears clear. By way of explanation,
in a commercial transaction such as your purchase of specialty
polymer/acrylic sheets, there are a number of warranties that can serve as the
basis for recovering damages. Article II of the Uniform Commercial Code
(“UCC”) governs contracts involving goods with a value greater than $500.
UCC §2-313 creates an express warranty any time a seller affirms a fact
relating to the product’s qualities or performance characteristics or where the
seller provides a sample, performance specifications, or a description of the
material such that a buyer, in this case Bright Art, relied on that specification
or description. Nothing is required to create such an express warranty—it is
created as a matter of law.
Similarly, UCC §2-315 creates an implied warranty if the seller knows
how a buyer will be using the product and knows that the buyer is relying on
the seller’s expertise to help select or specify the material. Since you
indicated that Jackson worked closely with you to specify and select this
material for your particular and specialized use, this implied warranty would
apply and provide Bright Art with the basis for recovering damages caused
by Jackson’s breach of warranty. These warranties are in addition to any
warranties extended by Jackson or Startek.
With that as a preface, here is how we would recommend Bright Art
proceed and how we propose to assist your firm in solving this problem.

Phase I—Investigation and Testing

The first step in formulating a plan to resolve the dispute is to define the
scope and exact cause of the problem. While you mentioned that Bright Art
(and Tri-Star before it) has used this same material for twelve years, you did
not mention any failures involving domes manufactured more than five years
ago. I believe the Arizona failures were in skylights sold eighteen months
ago while the Los Angeles failures were in three- to four-year-old products.
This prompts the question of whether Jackson and/or Startek have
changed the composition of the material itself or the extruding process in a
manner that compromised the material’s formerly excellent physical
properties. We need to determine, through testing, whether the problem
exists in skylights shipped five to ten years ago. If not, it would seem to
indicate a more recent iteration in the resin or extruding process might be the
source of the induced stress and failures.
To accomplish this task, we would recommend that Bright Art retain a
testing laboratory, preferably the acknowledged leader in this industry (to
avoid having the results dismissed or refuted by Jackson’s own testing). You
mentioned a few names as possible choices in our meeting, and we would
work with Bright Art to identify the premier facility for chemical,
mechanical, and accelerated UV testing and to retain that firm immediately.
Concurrent with testing of Bright Art products in service for various
lengths of time, we would recommend that you create a database of all
installations by year of sale to enable Bright Art and ECG to quantify the
scope of the problem, once testing determines if the defect afflicts all
Jackson/Startek material or only that used in a circumscribed time frame. We
would need to know the number and location of all skylights sold by year to
then determine how best to remediate the problem with the least amount of
adverse “marketing blowback.”

Phase II—Remediation
To avoid allowing Jackson’s and/or Startek’s breach of warranty to damage
Bright Art’s standing in the industry and future sales, we believe a
remediation plan needs to be developed and implemented as soon as the
testing phase determines the scope and extent of the problem. This plan
should include a short-term plan along the lines we discussed today, to
minimize further UV degradation to the acrylic material. Since this is what
Jackson has already recommended, it would be appropriate and
commercially reasonable to follow the manufacturer’s suggestions.
Next, Bright Art needs to determine whether it wishes to continue using
the material in the future. If the current material is inappropriate for this
application, you need to identify an alternate and make sure the alternate
material will perform as intended. If testing determines the problem with the
current material is limited to a quantifiable time frame, continued use will
require Jackson and/or Startek to rectify their formulation or manufacturing
problem and back their product with an extended warranty.
At the same time, Bright Art needs to develop a “fix” for existing
installations along with an implementation cost analysis so that the “cost of
cure” can be incorporated into your settlement demand. Until testing is done,
it will be difficult to fully quantify the cost of remediation.

Phase III—Dispute Resolution

After we have a firm grasp on the scope and exact cause of the defect and
failures, and have worked with Bright Art to develop and define a remedial
action plan, ECG and Bright Art would meet with Jackson and Startek to
present Bright Art’s proposed solution. This “initial settlement meeting”
should take place in a neutral location and involve decision makers from all
parties to increase the likelihood of success.
ECG would draft and prepare Bright Art’s presentation and assist and
participate in presenting it to Jackson and Startek. The goal of this meeting
would be to demonstrate to Jackson and Startek that they are liable for
Bright Art’s damages, that Bright Art’s overriding goal is to solve the
problem Jackson and Startek caused with the least amount of disruption to
all parties, but that Bright Art is ready and willing to hold both companies
responsible for their breach.
There is always the possibility that Jackson and Startek will respond to
this proposal by turning it over to their attorneys; however, Bright Art will
be far better prepared and equipped to deal with that potential by preparing
for this meeting like it were a presentation to a jury. Compared to ECG,
Jackson’s and/or Startek’s attorneys would be playing catch-up, and with
ECG’s help Bright Art could “control the high ground” throughout any
litigation that ensued.

Other Considerations
Bright Art must bring a claim for breach of warranty/breach of contract
within four years of any breach. Generally speaking, a breach occurs when a
party has any reason to know or suspect that it has occurred. In your case,
this could be the date you first learned of the failures in Arizona. However,
there is also case law that holds a breach occurs, and your right to sue
accrues, when the defective material is delivered, whether you knew of the
defect or not. In either event, Bright Art may be limited to claims for
material delivered in the four years prior to commencement of litigation.
ECG would need to review all of the correspondence between Bright
Art and Jackson and/or Startek, all of the documentation you have regarding
the initial decision to use Jackson’s material, as well as the purchase and sale
documentation for this material.
No company is fully prepared for a problem such as this, but with
ECG’s help Bright Art will be able to take a proactive stance and deal with
the problem from a position of strength. We look forward to our next
discussion and stand ready to assist you and your firm in whatever manner
you feel is appropriate.
Enclosed is a proposed retainer agreement for your review and
execution should you desire to retain ECG to represent Bright Art. Again, it
was a pleasure to meet you, and I look forward to the opportunity to work
with you to turn this problem into an opportunity.

Kindest regards,

ENTERPRISE COUNSEL GROUP

A Law Corporation

Thomas A. Vogele

Thomas A. Vogele

[email protected]
September 17, 2009

VIA U.S. MAIL

Ms. Heidi Hanson

Sanderson & Kimball, LLP
23226 Madero, Suite 175
Mission Viejo, CA 92691

Re: Employment Claims of Trisha Strand v. ABCA Corporation

Dear Ms. Hanson:

Please be advised that we represent ABCA Corporation in this matter. I

received your August 30, 2007, letter to Gregory Weiss and have reviewed it
with our client. ABCA does not acknowledge any liability in this matter, and
we disagree with your conclusion that Ms. Strand’s release is voidable.
The reasons for Ms. Strand’s termination were communicated to her
during a meeting she had with ABCA management on July 24, 2007. To
claim she was terminated for any reason other than poor performance is to
misstate the truth. While your analysis of the statutory requirements for a
“knowing and voluntary” waiver under the Age Discrimination in
Employment Act (ADEA) may be correct, that does not address the fact that
any claim would be completely without merit.
 Your sweeping conclusion that because the release may be voidable as
to ADEA, it is voidable as to all claims is incorrect. Such a leap of logic is
not supported by case law. In fact, the very case you cite for this proposition
(Oubre v. Entergy Operations, Inc., 522 U.S. 422, 428 (1998)) undercuts
your assertion. Justice Kennedy wrote that, “[a]s a statutory matter, the
release cannot bar her ADEA suit, irrespective of the validity of the contract
(release) as to other claims.” Id. at 428 (emphasis added). Oubre narrowly
holds that a terminated employee covered by the ADEA is not required to
return any consideration received pursuant to a release, and a release that
does not comply with the statutory requirements is voidable as to an ADEA
claim. It does not hold that a release voidable for want of ADEA-mandated
language is voidable as to non-ADEA claims.
California sought to outlaw age-related discrimination through the Fair
Employment and Housing Act, Government Code sections 12940(a) and
12941, and Guz v. Bechtel National, Inc., 24 Cal. 4th 317 (2000), sets out the
elements of a prima facie case. That said, your conclusory statement that Ms.
Strand was discriminated against because of age is wholly unsupported by
the facts. Ms. Strand was arguably a member of a protected class by virtue of
her age at termination and she did suffer an adverse employment action;
however, she was not performing competently in her position as you allege.
Your claim that “there are numerous circumstances suggesting a
discriminatory motive, such as the fact that she was the only person over the
age of forty at the management level of the company” is belied by the fact
that the manager who replaced her in the position is older than your client.
The McDonnell Douglas three-stage burden-shifting test discussed in Guz
requires far more than a naked allegation of discrimination to satisfy element
(4) of the test.
ABCA terminated Ms. Strand for cause, as required by her executive
employment agreement. She was given the reasons for her termination, and
it is entirely within the purview of ABCA to make that determination. To
avoid privacy concerns, ABCA will not provide the specific reasons
communicated to Ms. Strand without her express authorization; however, let
me assure you that every reason for her termination was related to a lack of
performance, not her age.
Your claim that “the impression Ms. Strand was given was that it was a
cost-cutting measure” is perhaps a form of rationalization by Ms. Strand. In
the July 24th meeting, ABCA management did not discuss anything that
would reasonably lead to this false impression.
The sweeping conclusion that Ms. Strand would be entitled to the
balance of her contract payments cannot be based on the holding of Martin v.
U-Haul Co. of Fresno, 204 Cal. App. 3d 396 (5th Dist. 1988). I read Martin
to mean that contract damages cannot exceed the notice period required in
the contract. The court cited Pecarovich v. Becker, 113 Cal. App. 2d 309 (1st
Dist. 1952), for the proposition that “contract damages are limited to the
notice period.” Id. at 318. The court went on to quote Cline v. Smith, 96 Cal.
App. 697 (3rd Dist. 1929), and the seminal case of Jewell v. Colonial
Theater Co., 12 Cal. App. 681 (1st Dist. 1910), as being in concert with this
rule.
Ms. Strand’s employment agreement did not require advance notice of
termination, and thus no damages could be awarded for ABCA exercising its
contract right to terminate her employment for cause. In any event, the
release, although possibly voidable as to any ADEA claim, is a valid and
enforceable release of all other claims. A release is a contract, Solis v.
Kirkwood Resort Co., 94 Cal. App. 4th 354 (3d Dist. 2001); Matthews v.
Atchison, T. & S.F. Ry. Co., 54 Cal. App. 2d 549 (2d Dist. 1942); and release
agreements are governed by the generally applicable principles of contracts.
Vahle v. Barwick, 93 Cal. App. 4th 1323 (1st Dist. 2001).
There is no evidence to suggest that Ms. Strand lacked capacity at the
time to execute the contract. Consideration was recited and paid. There is no
allegation of fraud in the inducement or false representations by ABCA
regarding the release. In fact, the release specifically mentions Ms. Strand’s
right to consult with an attorney before entering into the contract and
afforded her a five-day right of rescission. Finally, the release was not
executed under duress or coercion. As such, it is binding on Ms. Strand as to
all contract and tort claims.
There is no basis to suggest that ABCA and its employees acted in a
manner that would constitute any form of tortuous conduct. The inclusion of
Agarwal v. Johnson, 25 Cal. 3d 932 (1979), and Ewing v. Gill Industries,
Inc., 3 Cal. App. 4th 601 (6th Dist. 1992), in your letter is quite inapposite.
In Agarwal, the conduct of the plaintiff’s supervisor was so beyond the
bounds of human decency and civility that a contrary decision would shock
the conscience. Likewise, the facts of Ewing are without any relation to the
facts of this matter and should not serve as a guidepost for your client.
 As with your discussion of contract and tort damages, the inclusion of
compensatory and punitive damages presupposes actionable conduct by
ABCA and is putting the proverbial cart before the horse. Ms. Strand’s
termination was based on her failure to competently fulfill her contractual
duties. ABCA terminated her employment in strict conformance with the
terms of her employment agreement and negotiated a settlement of all her
claims, as evidenced by her execution of the settlement agreement.
We hope Ms. Strand will recognize that her termination, while
understandably distressing for her, was a business decision made to resolve
the problems her lack of performance caused. While the release she executed
may be voidable as to any ADEA claim, please keep in mind that is merely a
threshold matter. There is no merit to such a claim, and the right to sue is far
different from having a meritorious claim.
The settlement agreement ABCA executed with Ms. Strand is fair and
final. The company regrets that Ms. Strand feels otherwise, but is confident
that the company handled the matter properly and with the respect Ms.
Strand deserved as a member of the ABCA organization.

Sincerely yours,

ENTERPRISE COUNSEL GROUP

A Law Corporation

Thomas A. Vogele

ADAMS & ASSOCIATES, STUDENTS OF LAW

12510 Inglenook Lane * Cerritos, CA 90703 * (888) 41 ADAMS * Fax
(562) 809-2653

Ms. Mary Louise Solomon

1240 South State College Blvd.
Anaheim, CA 92806

Re: Surrogate Contract between Mary Louise Solomon and James Kelk

Dear Ms. Solomon:

 Thank you for choosing Adams & Associates to represent you. We are
mindful of the importance of this matter, and we will do our best to justify
the confidence you have placed in us. The purpose of this letter is to
acquaint you with how we see your case, what you may expect to happen
and, what you need to do to assist us as we move forward. We work for you,
so if you have questions, or you think there are things we should know,
please do not hesitate to contact our office. If we are not available when you
call, please leave a message, and we will get back to you as soon as we can.
We will be providing you with a monthly itemized statement of your account
with us and any amounts we are subtracting from your retainer.
Before proceeding further, there are a couple of items that require your
immediate attention. First, please sign the enclosed Substitution of Attorney
letter, return it to us in the envelope provided, and keep the second copy for
your files. We cannot act on your behalf if you have not released your prior
attorney from any obligations to you. Second, it is imperative that you keep
an accurate record of all of your expenses associated with the pregnancy.
Please use the enclosed expense form to keep track of your mileage to and
from the doctor, and any other expenses you incur as a result of your
pregnancy, such as maternity clothes.
According to information you provided during our initial consultation,
you entered into a contract with James Kelk, in which you agreed to be
artificially inseminated, and to conceive and deliver a child. Mr. Kelk
promised, among other things, to pay all medical and collateral expenses,
and to give you $15,000 upon surrender of custody of the child to him. You
have abided by all the terms and conditions of the contract up to this point
and are in your twentieth week of pregnancy.
Recently, your husband contacted the Kelks and informed them that
your father was an alcoholic and that your mother was addicted to pain
killers, facts that you confirmed were true. Now the Kelks have decided that
they do not want the baby and wish to terminate the contract, despite the fact
that you have no history of drug or alcohol abuse, and that tests conducted
on your fetus offer no evidence of any problems with the baby. In seeking
legal counsel, your goal is to have the Kelks perform the contract, i.e., do
what they promised to do, including taking custody of the baby after it is
born. Based on what you have told us and on our preliminary research, and
with the understanding that we cannot guarantee the outcome of your case,
we believe we have a reasonably good chance to either force the Kelks to
pay the monies promised under the contract, or to pay any expenses and
losses you might incur involving the pregnancy. We do not believe that we
would be successful in forcing the Kelks to take custody of the baby.
In contract law, breach of a contract is the same as breaking one’s
promise. The law offers various remedies to the injured party (the party who
is willing to perform on her promise). The basic goal of the courts in
contract disputes is to put the parties in the same positions they were in
before they entered into the contract. Usually, this involves the court either
ordering the breaching party to perform as agreed in the contract, or the
awarding of monetary compensation to the injured party for any expenses
incurred or losses sustained as a result of the contract not being fulfilled.
Ordinarily, the law requires that a breach of the contract must occur
before a legal remedy may be sought. At this point, the Kelks have not
legally breached the contract because they have performed the promises that
are already due under the terms of the contract, i.e., paid expenses to the
fertility clinic and the costs of the medical evaluations, etc. Normally, we
would have to wait until the Kelks actually broke one of their contract
promises before we could take any action. However, by verbally telling you
that they did not want the baby, the Kelks may have committed an
“anticipatory repudiation of the contract.” This is like reneging on a promise
before the time when you are required to carry out that promise. We would
need to prove, either through the Kelks’ own admission or through other acts
on their part, that they do not plan to make good on their contract promises
to you.
Assuming that we can prove that the Kelks committed an “anticipatory
repudiation of the contract,” there are three possible responses we would
advise. First, we can urge the Kelks to perform on the contract—to cancel or
undo their repudiation. Second, if they still insist they do not want custody
of the baby, we can try to negotiate a settlement that would be agreeable to
both you and the Kelks. Third, we can immediately file an action to try and
force performance of the contract or recover any damages that may be
appropriate.
We recommend first sending a letter to Mr. and Mrs. Kelk urging them
to honor the contract. They may have been overreacting to the information
provided by your husband and may have reconsidered their position. This is
the preferred approach because it accomplishes your goal and avoids the
more costly alternatives. We have enclosed a copy of the letter we will send
as soon as you give us your approval. Please call us and let us know what
you decide.
If the Kelks refuse to reconsider and remain steadfast in their position
that they do not want the baby, then we can still attempt to negotiate with
them for a mutually agreeable alternative to the enforcement of the entire
contract. Of course you would have to approve any final agreement we
negotiated. The advantage to you of solving this disagreement through
negotiation is that the outcome may be the same as through litigating the
matter, but it would be resolved more quickly and at considerably less cost
to you.
Should the initial negotiations fail to generate an acceptable outcome,
we recommend filing an action in Superior Court for anticipatory
repudiation of the contract. Based on the information you provided us and
our preliminary research, we believe that filing an action would be a prudent
approach and that there is a reasonable chance of prevailing. With that said,
we must caution that there are no guarantees that we would win the action.
Although we would file the action in Superior Court, if you so directed
us, we recommend that we enter into nonbinding arbitration, rather than
court litigation. There are three reasons for this strategy. First, we can
arrange an arbitration hearing more quickly than we can obtain a hearing
date in our crowded court system. This means that if we are successful at
arbitration, we can receive a judgment that would cover your expenses
including attorneys’ fees, thereby minimizing any financial burden to you.
Second, it is far less costly to you than a protracted court battle. Third, we
may have a better opportunity for a ruling in our favor. There has never been
a case in California quite like yours, and, in general, the law surrounding
surrogate contracts is very unsettled. For a number of legal reasons too
complex to discuss here, how the courts would treat our case is
unpredictable. In addition, an outcome in our favor in court would almost
certainly result in an appeal, which would increase the costs and the length
of time to a final outcome. Because the arbitration proposed is nonbinding,
neither side has to abide by the decision of the arbitrator. However, having
heard the other side’s arguments, we will have a better idea of our chances of
winning at trial if we are forced to litigate.
Thus far we have focused only on the monetary issues of your
agreement with the Kelks. We realize that you want the Kelks to also honor
their commitment to take custody of the baby upon its birth. However, as we
mentioned before, it is our opinion that the courts would be unwilling to
force Mr. and Mrs. Kelk to take custody of the child. Should you wish to put
the baby up for adoption, that will be a separate issue with which our family
law specialist can help. Should you decide to keep the baby, it is very likely
that Mr. Kelk, as the child’s natural father, would be responsible for part of
the child’s financial support, until he or she attains the age of eighteen.
Again, that is a separate action and would be handled by our family law
specialist.
To recap, upon your approval, we will send a letter to Mr. and Mrs.
Kelk asking them to reconsider their position and honor the contract. If that
proves unsuccessful, we will negotiate to arrive at a mutually agreed upon
settlement, and, failing that, we will file an action and seek to enter into
arbitration. Should arbitration fail to produce the desired results, then we
will go forward with a litigated action in Superior Court.
Please contact our office no later than Friday, February 14, 2010, to
inform us of your decision regarding the letter to the Kelks. Also, please
mail the Substitution of Attorney letter immediately. We will keep you
informed of further developments in your case.
Sincerely,

Richard G. Adams
Sr. Student
encl: Substitution of Attorney Letter (2)
Letter to Mr. & Mrs. Kelk
Expense Sheet

ADAMS & ASSOCIATES, Students of Law

12510 Inglenook Lane * Cerritos, CA 90703 * (888) 41 ADAMS * Fax
(562) 809-2653

Mr. Yves Bordeaux, Esq.

Law Offices of Yves Bordeaux
2323 Main St., Suite 200
Orange, CA 92666

Reference: Surrogacy Contract between James Kelk and Mary Louise

Solomon
Dear Attorney Bordeaux:

Please be advised that effective immediately I have retained the legal

services of Adams & Associates to pursue my claims related to the above
referenced contract.

Accordingly, please forward my file to my law student, Richard G. Adams,

as soon as possible. Your cooperation is appreciated.

Sincerely,

Mary Louise Solomon

ADAMS & ASSOCIATES, STUDENTS OF LAW

12510 Inglenook Lane * Cerritos, CA 90703 * (888) 41 ADAMS * Fax
(562) 809-2653

Mr. & Mrs. James Kelk

12345 Orange Avenue
Orange, CA 95555

Re: Surrogacy Contract between James Kelk and Mary Louise Solomon

Dear Mr. & Mrs. Kelk:

Please be advised that our firm has been retained by Ms. Mary Louise
Solomon relative to the surrogacy contract entered into by Mr. James Kelk.
Ms. Solomon has informed this firm that you no longer wish to take post-
natal custody of the child that is the subject of the aforementioned contract,
and of which Mr. Kelk is the legal father.

We believe Ms. Solomon would prevail in legal enforcement of the financial

terms of her contract with Mr. Kelk. However Ms. Solomon does not wish to
engage in protracted litigation to resolve this matter unless absolutely
necessary. To avoid litigation, which could ultimately prove very costly to
you, we respectfully request that you reconsider your position. Please
indicate in writing via a letter to this office, your intention to honor all of the
promises you made in the aforementioned contract.

If you have any questions, please contact me. If you have employed an
attorney, then please have that person contact my office. Communicating
directly with you is inappropriate if you are represented by counsel.

Sincerely,

Richard G. Adams
Student at Law
EXPENSES RELATED TO BABY
 RACHEL GOLDSTEIN
ATTORNEY AT LAW
426-1/2 BEGONIA AVENUE
CORONA DEL MAR, CALIFORNIA 92625
TELEPHONE: (714) 675-3242; FACSIMILE: (714) 675-3243

Mr. Dana Clark

Dana’s Restaurant
101 S. Imperial Highway
Anaheim, CA 92807

Re: Ms. Julia Kidd’s Right of Publicity Claims Against You

Dear Mr. Clark:

Thank you for meeting with me in my office yesterday. This letter is a

follow-up to our meeting. It restates my understanding of the facts, addresses
your concerns regarding whether famous chef and TV personality Julia Kidd
can take legal action against you for airing a TV commercial that features an
actress resembling her, and proposes a course of action for your review and
consideration.
First of all, I want to be sure I have the facts of your case straight.
Based on our discussion, I understand the facts to be as follows: you are the
owner and chef of Dana’s, a two-year-old restaurant in Anaheim, California.
In January of this year you paid an ad agency to create a TV commercial
(ad) that would promote your restaurant. The ad, which began airing in Los
Angeles in March, appears on Channels 5, 13, and 50.
The ad you approved features an actress resembling famous cooking
show chef and TV personality Julia Kidd. The actress stands in a kitchen and
says, “You know me.” The actress never says she is Julia Kidd in the ad, and
there is no disclaimer on the ad. The ad agency titled the ad copy “Julia
Kidding” for its own internal reference. You estimate the ad has increased
business by 50 percent.
On October 1, you received a letter from Ms. Kidd’s attorney warning
you that Ms. Kidd will pursue legal action against you if you do not pull the
ad by November 30th. The letter also demanded that you destroy all related
ad material and give all your restaurant profits from the ad to Ms. Kidd.
 Your primary concern is whether Ms. Kidd can bring any causes of
action against you for continuing to run your ad. You want to continue
running your ad because you have already paid for the ad and the ad time
and the ad has increased your business. You are willing to put a disclaimer
on the ad if it will protect you from liability. You have also expressed
concern about whether you are required to give Ms. Kidd your profits
resulting from the ad. Finally, you want to know what your options are at
this time.
My research indicates that if you continue to run the ad, Ms. Kidd can
pursue legal action against you under both state and federal laws. The
California courts are especially protective of famous personalities’ rights
because there are so many celebrities living in the state. Therefore, the courts
tend to look with disfavor upon individuals who even unintentionally use a
celebrity look-alike without permission to promote their goods and/or
services. In addition, a jury and not a judge will decide whether the facts
support Ms. Kidd’s claims against you. A jury is likely to be sympathetic to
Ms. Kidd because she is trying to protect her name and reputation.
Ms. Kidd can bring two state claims against you. In order for you to
prevail against the first claim, you must show the actress in the commercial
does not bear an exact resemblance to Ms. Kidd, you did not knowingly
intend to use Ms. Kidd’s likeness, or there was no direct connection between
the use of the actress resembling Ms. Kidd and the promotion of your
restaurant. To prevail against the second state claim, you must show the
actress does not bear a close resemblance to Ms. Kidd, you did not use the
actress’s physical resemblance to Ms. Kidd for commercial advantage, Ms.
Kidd’s consent was not required, and Ms. Kidd suffered no losses resulting
from the airing of the TV ad.
With respect to the first state claim and the issue of resemblance, the
court applies a strict “likeness” standard. California courts, in particular, tend
to look for an exact likeness of the person being copied rather than a close
resemblance. In other words, Ms. Kidd will have to prove the actress is an
exact likeness of her to prevail on this issue. You may prevail by establishing
that the actress merely resembles Ms. Kidd. On the other hand, Ms. Kidd
may argue the resemblance is strong enough to meet the “likeness” standard.
A jury will ultimately decide if the actress’s resemblance to Ms. Kidd meets
the “likeness” standard by viewing the ad.
 Regarding whether you “knowingly” used Ms. Kidd’s likeness, you
could assert that the ad agency came up with the idea and you only
knowingly intended to promote your restaurant. However, Ms. Kidd can
argue you were aware of the actress’s resemblance to Ms. Kidd when you
approved the ad and that you knew the agency labeled the ad “Julia
Kidding.” Ms. Kidd can also say the warning letter has formally put you on
notice regarding the unauthorized use of Ms. Kidd’s likeness. Again, the jury
will decide if the facts support the “knowing” requirement.
Regarding the existence of a “direct connection,” you could argue that
no direct connection exists between the use of an actress who happens to
resemble Ms. Kidd and the promotion of a restaurant because the actress
does not identify herself as being a chef. However, if Ms. Kidd establishes
you used her “likeness,” she can establish the “direct connection” between
the use of an actress who is portraying a famous chef and the promotion of
your restaurant. Once again, the jury will determine if the “direct
connection” requirement has been met.
Ms. Kidd is even more likely to prevail against you on the second state
claim because the resemblance standard is not as strict. Under this claim, the
court only requires that Ms. Kidd show you used her “identity.” This broader
standard considers not just physical resemblance, but the ad’s total
impression on the viewer. Therefore, even though you could still argue the
resemblance is not close, the combination of physical resemblance, a kitchen
setting, and the line “You know me” is likely to be enough under this claim
to show you used Ms. Kidd’s identity. Ms. Kidd can show you used the
actress’s resemblance to Ms. Kidd for commercial advantage because the
purpose of the ad was to promote your restaurant. Ms. Kidd can use the
warning letter to show you did not have her consent. She can also show that
she suffered lost profits because she was not paid for the ad. Finally, Ms.
Kidd can show the ad damages her reputation and image because her identity
has been used without her permission to endorse an unknown and, arguably,
unproven restaurant that she has never visited and that is owned by a man
she has never met.
Ms. Kidd can also bring a federal claim against you. To prevail against
a federal claim, you must show that viewers of the ad are not likely to
confuse the actress with Ms. Kidd. You may argue that viewers who know
Ms. Kidd will know the actress is not Ms. Kidd. However, you have already
said that people have asked you if the actress is Ms. Kidd and this evidence
can be used against you. Ms. Kidd is a famous chef who has a cooking show
on TV. She will try to argue that your ad features a Ms. Kidd “look-alike”
who is standing in a kitchen and telling the audience “You know me” to
indicate she is Ms. Kidd. She may also try to show that the absence of a
disclaimer intentionally promotes confusion among viewers. Based on the
facts of your case and the research I have done, it is my opinion that Ms.
Kidd has a strong chance of prevailing against you on both state and federal
claims if this case goes to trial.
You may consider joining the ad agency as an additional defendant if
Ms. Kidd pursues legal action against you. You may then be able to recover
some or all of your costs from the ad agency, assuming no agreement exists
limiting your rights against the agency. I would need to see all
documentation between you and the ad agency to determine if you have a
potential claim against it.
You wanted to know if you could place a disclaimer on the ad to protect
you from liability. As I already indicated to you over the phone on October
9th, Ms. Kidd’s attorney rejected that idea. At that time, I also consulted
another attorney who is an expert in the area of intellectual property. I
relayed to you that he also advised immediately pulling the ad as requested
to avoid having to pay punitive damages in addition to the regular damages
you may have to pay if Ms. Kidd prevails against you in court. General
damages can include compensating Ms. Kidd for using her identity. In
addition, the court could make you disgorge all your profits from the ad to
Ms. Kidd. The court could also make you pay punitive damages for acting in
bad faith by disregarding the warning letter and continuing to run the ad,
even with a disclaimer.
You also wanted to know if you are required to give Ms. Kidd all your
profits resulting from the ad, as demanded in Ms. Steele’s warning letter to
you. You are not required to give your profits to Ms. Kidd. However, failure
to make an alternative offer to Ms. Kidd may cause her to take legal action
against you. I therefore suggest that you consider allowing me to negotiate a
settlement on your behalf so that Ms. Kidd has no reason to pursue legal
action against you.
The following settlement options may enable you to continue running
the ad without risking liability. You may offer to pay Ms. Kidd a licensing
fee in exchange for your being permitted to continue running the ad. Another
option is to allow Ms. Kidd to modify the ad to her liking and agree to
destroy the unmodified ad and all related material.
In the event Ms. Kidd is not receptive to either of these options, I
suggest that you consider proposing a third settlement option. This option is
not as appealing, but it will allow you to cut your losses. Such an option
could include your agreeing to pull the ad, destroy all ad material, and pay
Ms. Kidd a licensing fee that covers the entire six-month period the ad has
run. This option could be proposed in the event Ms. Kidd insists on the
demands made in the warning letter.
These settlement options are merely suggestions for your review and
consideration. I am also happy to explore other options with you. Settlement
negotiations will take approximately twenty hours and will be billed at the
same hourly fee of $150.00 I quoted during our meeting. Upon your
instruction, I will immediately arrange a settlement negotiation conference
with Ms. Kidd’s attorney.
Of course, another option you have is to continue running the ad. If you
decide not to cooperate with Ms. Kidd and continue to run the ad even with a
disclaimer, it is very likely that Ms. Kidd will pursue legal action against
you. If you lose, you may be faced with not only paying Ms. Kidd all your
profits, but also compensating her for using her identity and paying her
punitive damages. You may even be forced to pay her attorneys’ fees in
addition to my fees. I advise you to carefully consider the possible costs and
consequences of not cooperating with Ms. Kidd at this time.
If you decide to pull the ad by November 30th as requested, you could
replace it with a new ad. Understandably, you may not wish to consider
replacing the ad because of the expense involved. Therefore, more
economical alternatives are also worth exploring at this time. You could
obtain free TV, radio, newspaper, and magazine publicity by inviting
restaurant reviewers, dee jays, and food critics to dine in your restaurant.
You could also participate in food drive charities and local events, like “The
Taste of Newport,” to further publicize your restaurant. You could also
submit articles to food magazines and even teach a cooking course.
If you have doubts about the strength of Ms. Kidd’s claims, you may
wish to consider having a random survey conducted on the TV ad to
determined whether viewers are likely to identify the actress in the ad as Ms.
Kidd. A random survey could give us some insight into how likely it is that a
jury will identify the actress as Ms. Kidd. If you decide to enter into
settlement negotiations, survey results that favor you could be used as
leverage in negotiating a better settlement for you. Unfavorable results could
also help you decide what to do if we cannot reach a settlement that is
agreeable to you. The cost of a survey is approximately $150.00 and takes
two days. Subject to your consent, I will arrange to have a random survey
conducted immediately.
Mr. Clark, I recommend that you consider doing all that you can at this
point to avoid what is likely to be an expensive and lengthy trial in a case
that Ms. Kidd has a good chance of winning. A trial is also likely to result in
negative publicity for Dana’s. I understand that you want to do what you can
to increase your restaurant business. I can also appreciate your not wanting
to lose the cost of the ad and the ad time. However, it makes more sense to
take appropriate action now while you still can to minimize your losses than
to end up fighting what I believe will be an uphill battle that may ultimately
cost you far more than the cost of the ad, the ad time, and lost business.
Ultimately, the decision rests with you. We can discuss the options
further when I see you next week. In the meantime, please feel free to call
me if you have any questions. I am here to help you in any way I can.

Sincerely,

Rachel Goldstein, Esq.

Here are two of the settlement agreements we used as examples in Chapter
20. These are the two best examples in terms of clarity and simplicity of
language.
ATTORNEY OF RECORD
IDENTIFICATION NO.
Mr. Noel Lerner
11240 Stillwell Dr.
Riverside, CA 92505
1-909-689-9728
Attorney for Plaintiff
STATEMENT OF FACTS FOR ALL CAUSES OF ACTION
Plaintiff argues:
1. Plaintiff is Reverend Tommy Smith, an adult individual who resides
at 1240 S. State College Blvd., Anaheim, CA.
2. Defendant is the Board of Trustees of the Salvation Baptist Church,
with offices located at 1240 S. State College Blvd., Anaheim, CA.
3. On or about 6/19/XX, Plaintiff entered into an employment contract
with the Salvation Baptist Church, 1240 S. State College Blvd., Anaheim,
CA.
4. Under the employment contract, Plaintiff’s duties were to function as
minister and run the day-to-day operations of the church.
5. On or about 4/17/XX, Defendant held a meeting of part of the
congregation of the church. At this meeting, a vote of 101-7 was taken to
terminate the employment of Plaintiff.
6. The Board told the congregation that Plaintiff was having
extramarital affairs and was guilty of adultery.
7. Before this disclosure the information regarding Plaintiff’s
extramarital affairs was private, that is, not known to the public.
8. Fifty members of the congregation have sworn affidavits about the
public statements made by the Board about Plaintiff. The members include
statements that they did not know about Plaintiff’s extramarital affairs before
the Board’s statements. The members also state that the outcome of the vote
was influenced by the public statements made by the Board about Plaintiff to
the congregation. These original sworn affidavits are attached to this
Complaint and marked as Exhibits 1-50.
9. On or about July 10, XXXX, a second meeting was held. As a result
of this meeting the congregation reinstated Plaintiff by a vote of 259-196.
10. Plaintiff has suffered damage to his reputation both personally and
professionally.
11. Plaintiff has also suffered damage to his ability to be employed as a
minister because of the highly personal and intimate nature of the disclosure
of the extramarital affairs.
Cause of Action
Right of Privacy—Public Disclosure of Private Facts
12. Plaintiff incorporates by reference paragraphs 1 through 11 of this
Complaint.
13. On or about 4/17/XX, Defendant made a public disclosure of a
private fact about Plaintiff to members of the congregation. The private fact
was the extramarital affairs of Plaintiff.
14. Prior to this date, the congregation had not known of this fact.
15. The Defendant disclosed the fact either with knowledge that it was
highly offensive or with reckless disregard of whether it was highly
offensive or not. The fact made known was an intrusion into Plaintiff’s most
intimate and private sexual affairs.
16. The public disclosure of this fact caused Plaintiff to sustain injury to
his reputation, damage to his emotions, and harm to his employability as a
minister.
Wherefore, Plaintiff demands that this Court enter judgment in his
favor and against Defendant in an amount in excess of $10,000, exclusive of
interest and costs.

VERIFICATION
I, Reverend Tommy Smith, state that I am the Plaintiff in this action and
verify that the statements made in the foregoing Complaint are true and
correct to the best of my knowledge, information, and belief.

CERTIFICATION OF MAILING
I, Noel Lerner, certify that I personally placed a copy of this Complaint in
the student mailbox of Kimchi Huynh, on November 22, XXXX.
I certify this under penalty of perjury.

Complaint in Assumpsit
1. Plaintiffs are Alan and Linda Sherman, adult individuals who reside
at 123 Birch Street, Philadelphia, PA.
 2. Defendant is Kathryn Jones, an adult individual who resides at Unit
14, 130 Elm Street, Philadelphia, PA.
3. On or about December 3, XXXX, Plaintiffs entered into an
agreement with Defendant Jones to purchase real estate (“the property”)
owned by her at Unit 14, 130 Elm Street, Philadelphia, PA. A true and
correct copy of this agreement is attached to this Complaint and marked as
Exhibit “A.”
4. Under the agreement, Plaintiffs paid the sum of ten thousand dollars
($10,000) to Creampuff Real Estate, Inc. (“Creampuff”), as a down payment
on the property for Creampuff to deposit in an interest-bearing escrow
account.
5. At all pertinent times, Creampuff acted as Defendant Jones’s agent,
the Defendant having agreed that Creampuff was to receive a 6 percent
commission for procuring Plaintiffs to buy the property.
6. Under paragraph 19 of the agreement, Plaintiffs’ duty to proceed to
settlement was expressly subject to their ability to obtain a mortgage
commitment within sixty days at a cost of no more than 3 percent of the
principal (“three points”). Failing to obtain such a commitment, at Plaintiffs’
option, Plaintiffs were to receive all deposit monies and the agreement was
to become null and void.
7. At Creampuff’s insistence, Plaintiffs proceeded with due diligence to
apply to Security Mortgage Service Co. for a mortgage that would meet the
terms of the agreement.
8. As of February 1, XXXX, however, sixty days elapsed with no
commitment. On February 17, XXXX, Plaintiffs received a written
commitment, dated February 12, XXXX. A copy of the commitment is
attached and marked as Exhibit “B.”
9. The commitment offered Plaintiffs a mortgage which would cost
them four points rather than the maximum of three points set forth in that
paragraph 19 of the agreement.
10. The commitment further required Plaintiffs to meet special
conditions that paragraph 19 of the agreement did not contemplate, namely
(a) evidence of sale or lease of their present residence, and (b) proof of
XXXX income of $110,997.
11. Upon receipt of the commitment, Plaintiffs asked the mortgage
company to remove the special conditions, but Security refused to.
 12. In view of the circumstances in paragraphs 9-11 above, Plaintiffs on
February 25, XXXX, sent a letter to Defendant Jones notifying her that they
could not meet the terms of the commitment and that they desired the return
of their deposit with interest. A copy of the letter is attached and marked
Exhibit “C.”
13. Despite the request, by letter dated February 25, XXXX, Defendant
Jones refused to return Plaintiffs’ deposit, and despite many subsequent
requests, persists in her refusal. She additionally has directed Creampuff not
to release the funds.
14. Further, by letter dated March 3, XXXX, Creampuff notified
Plaintiffs they would not return the deposit unless the parties agreed or the
court so directed.
COUNT I
15. Paragraphs 1-14 above are incorporated as though set forth at
length.
16. Defendant Jones is liable to Plaintiffs in the amount of ten thousand
dollars ($10,000), together with interest from December 3, XXXX.
WHEREFORE, Plaintiffs demand judgment in their favor and against
Defendant Jones in the amount of ten thousand dollars ($10,000), together
with interest from December 3, XXXX, and costs of suit.
COUNT II
17. Paragraphs 1-14 above are incorporated as though set forth at
length.
18. Defendant Jones’s refusal to return Plaintiffs’ money has at all times
been willful, malicious, and utterly without foundation in law.
19. Defendant Jones is liable to Plaintiffs for punitive damages.
WHEREFORE, Plaintiffs demand punitive damages against Defendant
Jones in an amount not in excess of twenty thousand dollars ($20,000).
COUNT III
20. Paragraphs 1-14 above are incorporated as though set forth at
length.
21. On April 13, XXXX, Plaintiffs notified Defendant by hand-
delivered letter that unless Defendant returned the deposit by April 15, they
could not pay their income taxes on time and expected to be liable for
penalties and interest.
22. Defendant is now liable to Plaintiffs for consequential damages
since Plaintiffs could not pay taxes on time.
WHEREFORE, Plaintiffs demand judgment in their favor and against
Defendant for consequential damages calculated from April 15, XXXX,
until time of judgment.

ANSWER
Defendant Kathryn Jones, by her counsel, answers Plaintiffs’ Complaint as
follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted in part and denied in part. Defendant admits that
Creampuff was to receive a 6 percent commission for procuring a
satisfactory purchaser (not necessarily Plaintiffs) for the property. Counsel
advises Defendant that she need not respond to the remaining allegations in
this paragraph because those allegations constitute conclusions of law which
operation of law deems denied.
6. Counsel advised Defendant that she need not respond to the
allegations in this paragraph because those allegations constitute conclusions
of law which operation of law deems denied. Furthermore, the document
speaks for itself. In any event, Defendant specifically denies that Plaintiffs’
duty to proceed to settlement was subject to their ability to obtain a
mortgage commitment “at a cost of no more than 3 percent of the principal
(‘three points’).” On the contrary, paragraph 19 of the agreement provides
that the commitment “shall not require the Buyer to pay more than 3 percent
of the principal amount as ‘points’ or a ‘commitment fee.’”
7. Defendant is without knowledge or information sufficient to form a
belief as to the truth of the averments of paragraph 7 of the Complaint
because the means of proof are within the exclusive control of adverse
parties or hostile persons, and Defendant demands proof of them.
8. Admitted in part and denied in part. Defendant admits that Plaintiffs
received a commitment dated February 12, XXXX, and that a copy of that
commitment is attached to the Complaint and marked as Exhibit “B.” As to
the remaining allegations of paragraph 8 of the Complaint, Defendant is
without knowledge or information sufficient to form a belief as to the truth
of these averments because the means of proof are within the exclusive
control of adverse parties or hostile persons, and demands proof of them.
9. Defendant specifically denies that the commitment offered Plaintiffs
a mortgage which would cost them four points rather than the maximum of
three points set forth in paragraph 19 of the agreement. On the contrary, the
commitment expressly provided that the Buyer pay 3 percent of the principal
amount as “points” or as a “commitment fee.”
10. Counsel advises Defendant that she need not respond to the
allegations in this paragraph because those allegations constitute conclusions
of law which operation of law deems denied. Furthermore, the document
speaks for itself. In any event, the commitment does not require proof of
XXXX income of $110,997. On the contrary, the commitment merely
requires that Plaintiffs substantiate the income that Plaintiffs claim on their
application for the commitment by providing a “XXXX IRS return
substantially supportive of income claimed on application of $110,997 OR
complete AUDITED profit and loss for XXXX on both businesses
supporting same income figure.” Also, Defendant specifically denies that
any requirement as to “evidence of sale or lease of [Plaintiffs’] present
residence” is a “special condition not at all contemplated” by the agreement.
On the contrary, such an occurrence is a normal, expected, and understood
condition in such circumstances.
11. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments of
paragraph 11 of the Complaint, and demands proof of them.
12. Admitted in part and denied in part. Defendant admits that Plaintiffs
sent the letter described, and that the letter indicated that Plaintiffs could not
or would not accept the commitment and desired the return of the deposit,
with interest. Defendant also admits that a copy of the letter is attached to
the Complaint as Exhibit “C.” Defendant is without knowledge or
information sufficient to form a belief as to the truth of the remaining
averments of this paragraph because the means of proof are within the
exclusive control of adverse parties or hostile persons, and Defendant
demands proof of them.
13. Denied as stated. Defendant admits that her counsel, by letter dated
February 26, XXXX, indicated that Plaintiffs would be held liable under the
agreement between the parties, based on previous indications Defendant
received that Plaintiffs had obtained an acceptable commitment and
Defendant’s detrimental reliance on those indications. Defendant further
admits that her husband informed Creampuff that any release of the deposit
would be in violation of the agreement between the parties.
14. Admitted.
COUNT I
15. Paragraphs 1 through 14 of this Answer are incorporated by
reference.
16. Counsel advises Defendant that she need not respond to the
allegations in this paragraph because those allegations constitute conclusions
of law which operation of law deems denied. In any event, Defendant
specifically denies that Defendant is liable to Plaintiffs in the amount of
$10,000, together with interest, from December 3, XXXX. On the contrary,
Defendant is not liable to Plaintiffs.
COUNT II
 17. Paragraphs 1 through 14 of this Answer are incorporated by
reference.
18. Defendant specifically denies that her refusal to return Plaintiffs’
money has at all times been willful, malicious, and utterly without
foundation in law. On the contrary, Defendant has at all times acted properly
and within her legal rights and has acted in conformance with a good faith
belief as to her legal rights.
19. Counsel advises Defendant that she need not respond to the
allegations in this paragraph because those allegations constitute conclusions
of law which operation of law deems denied. In any event, Defendant
specifically denies that she is liable to Plaintiffs for punitive damages. On
the contrary, Defendant is not liable to Plaintiffs.
COUNT III
20. Paragraphs 1 through 14 of this answer are incorporated by
reference.
21. Admitted in part and denied in part. Defendant admits that her
counsel received the letter described indicating that Plaintiffs sought the
return of the deposit by April 15, XXXX, in order to have the money to pay
their income taxes. Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averment that Plaintiffs were
unable to pay their income taxes on time and expected to be liable for
penalties and interest because the means of proof are within the exclusive
control of adverse parties or hostile persons, and Defendant demands proof
of them.
22. Counsel advises Defendant that she need not respond to the
allegations in this paragraph because those allegations constitute conclusions
of law which operation of law deems denied. In any event, Defendant
specifically denies that she is now liable to Plaintiffs for consequential
damages since Plaintiffs were unable to pay their taxes on time. On the
contrary, Defendant is not responsible for any alleged inability of Plaintiffs
to pay their income taxes on time and is not liable to Plaintiffs.
NEW MATTER
23. Creampuff, through its employee Sharon Sellit, acted for Plaintiffs
as their agent.
 24. Throughout the month of February, Plaintiffs or their
representatives visited the property for the purpose of taking measurements
and also performed other actions consistent with an intent to make
settlement under the agreement.
25. On or about February 22, XXXX, Sharon Sellit indicated to
Defendant that Plaintiff Linda Sherman had instructed that carpet tacking
remaining on the floor after carpeting was removed pursuant to the
agreement between the parties should be left there.
26. In reliance on the above, and in reliance on other indications from
Plaintiffs and their agents that Plaintiffs had accepted or intended to accept
the commitment, that the agreement was still in force, and that Plaintiffs
intended to make settlement under the agreement, Defendant continued to
act, at her own expense, pursuant to her agreement with Plaintiffs.
27. Based on the above, Plaintiffs are estopped from asserting: (1) that
the commitment was not in conformity with the agreement; and (2) that the
agreement became null and void.
28. Based on the above, Plaintiffs have waived the requirements and
conditions of paragraph 19 of the agreement as a basis for failing to fulfill
their obligations under that agreement.
WHEREFORE, Defendant Kathryn Jones requests an order dismissing
Plaintiffs’ Complaint.
COUNTERCLAIM
COUNT I
29. Paragraphs 1 through 28 above are incorporated by reference.
30. Plaintiffs have breached the agreement by failing to make
settlement as the agreement requires.
31. As a result of Plaintiffs’ breach, Defendant is entitled to the $10,000
deposit as liquidated damages under paragraph 10 of the agreement.
WHEREFORE, Defendant Kathryn Jones requests an order awarding
her the sum of $10,000, plus interest and costs.
COUNT II
32. Paragraphs 1 through 31 above are incorporated by reference.
33. Based on the above, Plaintiffs have made misrepresentations of
material facts for the purpose of inducing Defendant to act or to refrain from
acting in reliance on those misrepresentations.
34. Alternatively, Plaintiffs’ misrepresentations were negligent or
fraudulent.
35. Defendant acted and refrained from acting in reliance on Plaintiffs’
misrepresentations.
36. As a result, Defendant has sustained damages totaling $19,099.72.
WHEREFORE, Defendant Kathryn Jones requests an order awarding
her $19,099.72, plus interest and costs.

KATHRYN JONES, being duly sworn according to law, deposes and

says that she is Defendant in this action and that the facts set forth in the
foregoing Answer, New Matter, and Counterclaim are true and correct to the
best of her knowledge, information, and belief.
 1. Plaintiffs have sued Defendant contending that Defendant wrongfully
has refused to return $10,000 Plaintiffs deposited as a down payment toward
the purchase of real estate located at Unit 14, 130 Elm Street, Philadelphia,
PA. A copy of Plaintiffs’ Complaint is attached as Exhibit “A.”
2. Defendant has filed an Answer to Plaintiffs’ Complaint in which
Defendant (a) denies any liability to Plaintiffs and (b) asserts counterclaims
against Plaintiffs. Copies of Defendant’s Answer, New Matter, and
Counterclaim are attached.
 3. Additional Defendant, Creampuff Real Estate, Inc. (“Creampuff”), is
a corporation organized and existing under the laws of Pennsylvania with an
office at 456 Maple Street, Philadelphia, PA.
4. Creampuff is holding as escrow agent the $10,000 deposit that is the
subject of Plaintiffs’ Complaint under the Agreement of Sale between
Plaintiffs and Defendant.
5. Creampuff, through its employee Joan Buyit, acted as Defendant’s
agent for purposes of the sales transaction.
6. Creampuff, through its employee Sharon Sellit, also acted as
Plaintiffs’ agent in this transaction.
7. Plaintiffs’ obligation to make settlement under the Agreement of Sale
was contingent on the receipt by Plaintiffs of a mortgage commitment that
was to meet certain conditions specified in the Agreement of Sale.
8. Creampuff represented to Defendant that Plaintiffs had obtained a
mortgage commitment that met the conditions specified in the Agreement of
Sale.
9. Creampuff also represented to Defendant that Plaintiffs had accepted
the mortgage commitment and intended to make settlement under the
Agreement of Sale.
10. Prior to February 25, XXXX, and in reliance on Creampuff’s
representation, Defendant removed carpeting from the premises and took
other action and incurred expenses in preparation for settlement under the
Agreement of Sale.
11. Creampuff advised Plaintiff prior to February 25, XXXX, not to
inform Defendant that Plaintiffs refused the mortgage commitment.
12. On February 25, XXXX, Joan Buyit indicated to Defendant for the
first time that there was “a problem” with the Plaintiffs’ commitment.
13. Plaintiffs refused to make settlement under the Agreement,
allegedly because the mortgage commitment they received did not meet the
conditions specified in the Agreement of Sale. Complaint, paragraphs 9-10.
14. Plaintiffs have also alleged that they never accepted the mortgage
commitment. Complaint, paragraphs 11-12, and Exhibit “C” to Complaint.
COUNT I
15. Paragraphs 1-14 of this Complaint against Additional Defendant are
incorporated by reference.
 16. Based on the above, Creampuff is alone liable to Plaintiffs or, in the
alternative, is liable over to Defendant in indemnity or contribution for any
amounts which may be adjudged against Defendant.
WHEREFORE, Defendant Kathryn Jones demands judgment against
additional Defendant Creampuff for any amounts that may be adjudged
against Defendant and in favor of Plaintiffs.
COUNT II
17. Paragraphs 1-14 of this Complaint against Additional Defendant are
incorporated by reference.
18. In the event the mortgage commitment did not meet the conditions
set out in the Agreement of Sale, which Defendant specifically denies, then
Creampuff misrepresented that fact to Defendant.
19. Creampuff additionally misrepresented Plaintiffs’ intention to
accept the mortgage commitment.
20. Creampuff further misrepresented Plaintiffs’ intention to make
settlement under the Agreement of Sale.
21. Creampuffs’ actions violated the Real Estate Licensing Act, 63 Pa.
Consol. Stat. §455.604 (1976).
22. Based on the above, Creampuff has made misrepresentations of
material facts for the purpose of inducing Defendant to act or to refrain from
acting in reliance on those misrepresentations.
23. Alternatively, Creampuff’s misrepresentations were negligent or
fraudulent.
24. Defendant acted and refrained from acting in reliance on
Creampuff’s misrepresentations.
25. By reason of its misrepresentations to Defendant, Creampuff is
liable directly to Defendant for any damages that Defendant does not recover
from Plaintiffs under Defendant’s Counterclaim against Plaintiffs.
26. As a result of Creampuff’s misrepresentations, Defendant has
sustained damages totaling $19,099.72, plus interest, costs, and Defendant’s
reasonable attorneys’ fees.
COUNT III
27. Paragraphs 1-26 of this Complaint against Additional Defendant are
incorporated by reference.
 28. Based on the above, Creampuff has breached its duty as an agent of
Defendant to act with standard care and with the skill that is standard in the
locality for the kind of work which Creampuff was employed to perform.
WHEREFORE, Defendant Kathryn Jones demands judgment against
Additional Defendant Creampuff for $19,099.72, plus interest, costs, and
Defendant’s reasonable attorneys’ fees.
COUNT IV
29. Paragraphs 1-26 of this Complaint against Additional Defendant are
incorporated by reference.
30. Based on the above, Creampuff has breached its duty to Defendant
not to act on behalf of an adverse party in a transaction connected with its
agency without Defendant’s knowledge.
31. Alternatively, Creampuff has breached its duty to act with fairness
to each of its principals and to disclose to each all facts which it knew or
should have known would affect reasonably the judgment of each in
permitting the dual agency.
WHEREFORE, Defendant Kathryn Jones demands judgment against
Additional Defendant Creampuff for $19,099.72, plus interest, costs, and
Defendant’s reasonable attorneys’ fees.

BEFORE ME, the undersigned authority, personally appeared

KATHRYN S. JONES, known to me to be a credible person, and after being
duly sworn, upon oath deposed and stated the following:
“That the allegations in the Complaint against the Additional Defendant are true and
correct to the best of my knowledge, information, and belief.”
Further deponent sayeth not.

SWORN TO AND SUBSCRIBED BEFORE ME by KATHRYN S.

JONES on this ______ day of November, XXXX, to certify which witness
my hand and seal of office.

1. Plaintiff, Quality Products Corporation (“Quality”) is a Delaware

corporation having its principal place of business in New York, New York.
2. Third-Party Defendant, Heavy Metals Company (“Heavy Metals”), is
a Pennsylvania corporation having its principal office and place of business
in Philadelphia, Pennsylvania.
 3. Jurisdiction of this claim is based upon the diversity of citizenship of
the Plaintiff and Third-Party Defendant, under Title 28, United States Code,
Section 1332.
4. The amount in controversy in this claim exceeds $10,000 exclusive
of interest and costs.
5. Plaintiff incorporates by reference, as if set forth separately and in
full, the allegations in paragraphs 5-11 of its Complaint in this action, which
Plaintiff filed with the Court on October 20, XXXX, and a copy of which
was served upon Middleman Steel Company on or about December 18,
XXXX.
COUNT I
6. In or about November and December, XXXX, Defendant,
Middleman Steel Company (“Middleman”), made a contract with Heavy
Metals to purchase certain quantities of steel, which Middleman afterward
sold to Quality as abrasion-resistant steel. The terms of their contract
required that the quantities of steel Middleman purchased from Heavy
Metals were to be abrasion-resistant steel.
7. At the time of the contract for the sale of the quantities of steel to
Middleman, Heavy Metals knew that Middleman was a steel warehouse,
engaged in the business of reselling steel to others, and that the steel Heavy
Metals sold would come to rest in the hands of an ultimate consumer, who
would be some person or company other than Middleman.
8. Quality was the ultimate consumer of the steel Heavy Metals sold to
Middleman and is a third-party beneficiary of the contract between
Middleman and Heavy Metals, and of all warranties, express and implied, on
the part of Heavy Metals in that contract.
9. The steel that Heavy Metals sold to Middleman for resale to Quality
under the contract was not abrasion-resistant steel, but was steel of different
and inferior physical and chemical properties.
10. By failing to deliver to Middleman abrasion-resistant steel as
Middleman had ordered, Heavy Metals breached the contract, and the
express and implied warranties in that contract, causing loss and damage to
Quality as alleged in its Complaint.
WHEREFORE, Plaintiff demands judgment in its favor against Third-
Party Defendant Heavy Metals Company for all sums which Quality had to
expend as a result of the Third-Party Defendant’s breaches, plus interest and
costs.
COUNT II
11. The allegations in paragraphs 1-10 are incorporated by reference.
12. Heavy Metals is engaged in the business of selling the steel it sold
to Middleman and afterwards that Middleman sold to Quality.
13. Heavy Metals expected that the steel that it sold to Middleman
could reach the user or consumer without substantial change in the condition
in which it was sold, and the steel did reach Quality in that condition.
14. The steel Heavy Metals sold to Middleman was in a defective
condition because it was not abrasion-resistant steel as Heavy Metals
represented it to be, and was unreasonably dangerous to Plaintiff’s property.
15. As a result of the defective condition of the steel, Plaintiff suffered
damage to its property in that the machinery Plaintiff manufactured from the
steel became inoperative and required the expenditure of large sums for
repairs.
WHEREFORE, Plaintiff demands judgment in its favor against Third-
Party Defendant Heavy Metals Company for all sums which Quality had to
expend as a result of the Third-Party Defendant’s sale of the steel, plus
interest and costs.
COUNT III
16. The allegations in paragraphs 1-15 are incorporated by reference.
17. Heavy Metals failed to exercise reasonable care in supplying steel
to Middleman under the contract in Count I by delivering steel that was
labeled erroneously and described as abrasion-resistant steel when it was not
abrasion-resistant steel.
18. As a result of Heavy Metals’ negligence in delivering steel to
Middleman knowing that Middleman was to resell the steel to another,
Quality suffered damages by having to expend large sums of money to repair
machinery components manufactured of the steel Heavy Metals delivered.
WHEREFORE, Plaintiff demands judgment in its favor against Third-
Party Defendant Heavy Metals Company for all sums which it had to expend
as a result of the Third-Party Defendant’s negligence, plus interest and costs.
COUNT IV
 19. The allegations in paragraphs 1-18 are incorporated by reference.
20. Heavy Metals knowingly and willfully supplied non-abrasion-
resistant steel to Middleman, which had ordered the steel as abrasion-
resistant, and misrepresented the character of the steel it shipped as abrasion-
resistant, when it knew full well that the steel did not have the physical and
chemical properties of abrasion-resistant steel.
WHEREFORE, Plaintiff demands judgment in its favor against Third-
Party Defendant Heavy Metals Company for all sums that it had to expend
as a result of the Third-Party Defendant’s willful delivery of nonconforming
steel, plus interest and costs, plus punitive damages.

Defendant, the Good Corporation, answers the Complaint as follows:

FIRST DEFENSE
1. Defendant admits that Plaintiff seeks to bring this action under the
statutory sections alleged but denies that it has violated any provision of the
Federal Trade Commission Act or any rule issued by the Commission and
denies that the Plaintiff is entitled to recover civil penalties or obtain any
other relief.
2. Defendant denies the allegations in paragraph 2.
 3. Defendant denies that venue in the Southern District of Florida is
proper.
4. Defendant denies the allegations in paragraph 4 and further states
that they constitute conclusions of law that require no answer.
5. Defendant denies the allegations in paragraph 5 and further states
that it does not know what the term “purchase money loan” means as used in
the Complaint and that these allegations constitute conclusions of law which
require no answer.
6. Defendant admits the allegations in paragraph 6.
7. Defendant admits that the Federal Trade Commission purported to
issue a Trade Regulation Rule concerning Preservation of Consumers’
Claims and Defenses on November 18, XXXX, and that
NINTHu Defense
73. The Rule concerning Preservation of Consumers’ Claims and
Defenses is vague, unspecific, confusing, and misleading, and is therefore
void and unenforceable.
TENTH DEFENSE
74. The Rule concerning Preservation of Consumers’ Claims and
Defenses is vague, unspecific, confusing, and misleading; and Defendant
and all Credit Unions identified in the Complaint attempted in good faith, to
comply with it.
ELEVENTH DEFENSE
75. The Rule concerning Preservation of Consumers’ Claims and
Defenses attempts to regulate Defendant based upon acts of others who are
not within the control of Defendant, in violation of the United States
Constitution.
TWELFTH DEFENSE
76. Substantial evidence in the rule-making proceeding did not support
the Rule concerning Preservation of Consumers’ Claims and Defenses.
THIRTEENTH DEFENSE
77. Defendant has not engaged in an “unfair or deceptive act or
practice” within the meaning of Section 5 of the Federal Trade Commission
Act.
FOURTEENTH DEFENSE
78. Defendant did not accept the proceeds of purchase money loans
with actual knowledge or knowledge fairly implied on the basis of objective
circumstances that such acceptance was unfair or deceptive and prohibited
by the Rule concerning Preservation of Consumers’ Claims and Defenses.
FIFTEENTH DEFENSE
79. At the time that Defendant made any alleged sale of a used car,
Defendant had no knowledge, and no reason to know, that the Purchaser had
executed a consumer credit contract that did not contain the notice in the
Rule concerning Preservation of Consumers’ Claims and Defenses.
SIXTEENTH DEFENSE
80. No person has sustained any injury because of the matters alleged in
the Complaint.
SEVENTEENTH DEFENSE
81. Defendant at all times exercised reasonable care and diligence to
ensure that any consumer credit contract executed in connection with the
purchase of a used car as alleged in the Complaint contained the notice in the
Rule concerning Preservation of Consumers’ Claims and Defenses.
EIGHTEENTH DEFENSE
82. Upon information and belief, Defendant alleges that this action is
frivolous and without merit and that Plaintiff brought it under pressure from
special interest groups that compete with Defendant in the sale of used cars.
WHEREFORE, Defendant, The Good Corporation, demands judgment
in its favor and requests that the Court dismiss the Complaint and grant to
Defendant the costs of this action and reasonable attorneys’ fees, together
with such other and further relief as may be just and proper.
 In this appendix, you will find four sample briefs that were filed in the
California Superior Court. The first brief was filed in support of a motion for
summary judgment. (The names of the parties have been changed.) As is
true in some other courts, in the California Superior Court, the motion brief
is called a “memorandum,” not to be confused with an “interoffice
memorandum.” The second brief is a trial brief, filed in preparation for trial.
The last two briefs were filed in preparation for mediation.
As for finding good examples of appellate briefs and oral arguments,
the Internet is a great source. Certainly, not all the samples that you find are
good ones; not even all briefs and arguments presented to the United States
Supreme Court are desirable models. However, with selective searches, you
can locate any number of well-constructed examples.
The Office of the Solicitor General produces very good briefs. That
office conducts all litigation on behalf of the United States in the Supreme
Court and supervises the handling of litigation in the federal appellate courts.
To access its briefs, go to its website, http://www.justice.gov/osg. Then click
on “Briefs.”
You may want to examine the Solicitor General’s helpful brief in
Florida v. Powell (2009 term), which deals with the Miranda warning. You
would click on “Type of Filing by Term,” and then click on “2009,” the term
in which the Court chose to hear the case. Then, under “Merits Stage,” click
on “Amicus Briefs.” Although the brief is an amicus brief, it is drafted as if
it were the main brief on the merits. Once you access the brief, you should
click on “View PDF Version” to see the brief as it was actually formatted. In
order to read the Solicitor General’s main brief in Johnson v. United States
(2009 term), which deals with the definition of “violent felony” under the
Armed Career Criminal Act of 1984, you would follow the same procedure,
except that you would click on “Briefs” instead of on “Amicus Briefs.”
The Mayer Brown law firms offers an online collection of well-
constructed briefs drafted by its attorneys at
http://www.appellate.net/briefs/defaultNew.asp. To find the brief in Day v.
McDonough, a case dealing with the statute of limitations in habeas corpus
proceedings, you would survey the list until you found the name of the case.
If a lawyer from the firm had presented the oral argument, you could click
on “Oral Argument” and find both a transcript and a recording of the
argument. In this instance, another lawyer gave the oral argument.
Therefore, for a recording of the argument, you would access
http://www.oyez.org, find “Recently Updated Cases,” and click on “More.”
Locate opinions filed in 2006, click on the case, find “Media Items,” and
click on “Oral Argument.”
Another source is the United States Supreme Court’s website,
http://www.supreme courtus.gov. It offers transcripts of oral arguments
beginning with the Court’s October 2000 term. It also provides a link to
briefs in recent cases on the American Bar Association’s website, “Preview
of United States Supreme Court Cases,”
www.americanbar.org/publications/preview_home.html.
A note of caution: Different courts have differing rules for formatting
briefs and making oral arguments, and different lawyers have differing ways
of constructing briefs and making oral arguments within the prescribed
formats. Thus any briefs that you consult may not conform exactly to the
rules that your law school has for formatting briefs. The value in consulting
other briefs and oral arguments lies not in finding a document to imitate, but
in getting a general idea of what style and level of analysis you should seek
to attain.
This is a pretrial motion brief. It follows California citation rules. Your
jurisdiction may also have its own citation rules that you should follow when
you file documents in court. The important thing is that you use one citation
form consistently throughout the document.

RUTAN & TUCKER, LLP

Brandon Sylvia (State Bar No. 261027)
611 Anton Boulevard, Fourteenth Floor
Costa Mesa, California 92626-1931
Telephone: 714-641-5100
Facsimile: 714-546-9035

Attorneys for Defendant

ABC CORPORATION, INC.
 TABLE OF CONTENTS

I. INTRODUCTION
II. STATEMENT OF FACTS
A. Salazar I
B. Salazar II
III. ARGUMENT
 A. In California, the Doctrine of Res Judicata Is Informed By the
“Primary Right” Theory
1. The Doctrine of Res Judicata Bars Subsequent Proceedings That
Present Issues That Were or Should Have Been Raised in a Prior
Action Between the Same Parties and in Which There Was a Final
Judgment
2. California Follows the “Primary Right Theory” in Determining
Whether Issues Raised in an Earlier Proceeding Are “Identical” to
Those Raised in a Later Case
B. Salazar’s Third and Fourth Causes of Action Are Barred By Res
Judicata
1. The Identical Parties Are Involved in Both Salazar Cases
2. The Prior Case Ended in a Final Judgment on the Merits401
3. Because the Wage Claims Asserted in Salazar II Involve the Same
Primary Right as the Wage Claims Asserted in Salazar I, Salazar’s Third
and Fourth Causes of Action Are Barred By the Doctrine of Res Judicata
4. Application of Res Judicata to This Situation Serves the Interests of
Justice, Fairness, and Judicial Economy
IV. CONCLUSION
 TABLE OF AUTHORITIES

STATE CASES
Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327
Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Assoc. (1998)
60 Cal.App.4th 1053, review denied, 1998 Cal. LEXIS 1960
Consumer Advocacy Group, Inc. v. Exxon-Mobil Corp. (2008) 2008 Cal.
App. LEXIS 2279
Federation of Hillside and Canyon Assoc. v. City of Los Angeles (2004)
126 Cal.App.4th 1180
Gates v. Superior Court (Bonpane) (1986) 178 Cal.App.3d 301
Grisham v. Phillip Morris U.S.A., Inc. (2007) 40 Cal.4th 623
Murphy v. Kenneth Cole Prods. (2007) 40 Cal.4th 1094
Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888
Sutphin v. Speik (1940) 15 Cal.2d 195
Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154
Wick v. Wick Tool Co. (1959) 176 Cal.App.2d 677

CALIFORNIA STATUTES

California Code of Civil Procedure Section 998

Labor Code Section 226(a)

OTHER AUTHORITIES

8 Cal. Code Reg.

Section 11040
Section 11040(3)(A)
Section 11040(11)(B)
I. INTRODUCTION.
Prior to filing this action, Plaintiff David Salazar (“Salazar”) sued his
employer, alleging failure to pay overtime premium wages. Salazar
eventually accepted Defendant’s California Code of Civil Procedure Section
998 (“Section 998”) offer and a final judgment was entered in his favor.
Salazar has now filed this second wage and hour lawsuit against the same
employer based on additional violations of the identical wage orders that
were the subject of the first action. In his initial lawsuit Plaintiff sought and
received a monetary judgment for wages, penalties, and attorneys’ fees
arising out of violations of Industrial Welfare Commission (“IWC”) Wage
Order No. 4-2001 (“IWC Wage Order No. 4”) (8 Cal. Code Reg. §11040.) In
this lawsuit Plaintiff again seeks a monetary judgment for wages, penalties,
and additional attorneys’ fees arising out of violations of IWC Order Wage
Order No. 4.
Plaintiff freely admits he was aware of the additional violations while
litigating the first action, yet chose not to pursue them. By piecemealing a
single lawsuit into at least two separate lawsuits, Plaintiff has succeeded in
creating two opportunities to drag his ex-employer into court, and more
importantly two opportunities to recover attorneys’ fees for alleged wage
and hour violations that absolutely could have and should have been
addressed in the first wage and hour lawsuit. The two lawsuits focus on the
identical plaintiff performing the identical job for the identical employer
over the identical time period.
To permit Plaintiff to bring one lawsuit for overtime, another for meal
breaks, theoretically another for rest breaks, and yet another for pay stub
violations, violates the most basic concepts of res judicata. Since wage and
hour claims typically take the form of class actions, permitting such claim
splitting would transform one wage and hour lawsuit into four or five suits,
encouraging multiple lawsuits, multiple claims for attorneys’ fees, and create
a feeding frenzy for wage and hour attorneys. For these reasons, as well as
those detailed below, Defendant respectfully requests that this Court enter
judgment for Defendant and against Plaintiff on Plaintiff’s Third and Fourth
Causes of Action for meal period premiums and penalties.
II. STATEMENT OF FACTS.
A. Salazar I.
On December 31, 2007, Salazar filed a complaint against ABC
Worldwide, LLP (“Worldwide”) in limited civil court (“Salazar I”). In
Salazar I Plaintiff alleged that his employer, Worldwide, failed to pay
overtime as required by the applicable IWC Wage Order, and that
Worldwide had failed to provide itemized wage statements as required by
Labor Code section 226(a). Salazar subsequently filed a First Amended
Complaint to make minor technical corrections to his pleadings; the
substance of his claims remained unchanged. (Ex. 1.)
Discovery commenced, and pursuant to a Request for Production of
Documents (“RFP”), Worldwide provided Salazar with his employee file,
copies of Salazar’s time cards, and other documents on April 21, 2008.
(Decl. ¶3.) Because the photocopies of Salazar’s time cards were difficult to
read, on May 28, 2008, Worldwide subsequently provided Salazar with color
copies of each time card. (Id.; Ex. 2.) On July 8, 2008, Salazar’s attorney
informed Worldwide that he had lost the time cards so Worldwide again
provided Salazar with documents responsive to the RFP, including the color
copies of Salazar’s time cards, on July 14, 2008. (Decl. ¶3.)
On September 9, 2008, Plaintiff was terminated. At the time of his
termination Plaintiff received his final paycheck as well as an additional
check for $835.81, along with a document stating, “Although we do not
believe any overtime wages are due and owing you, the attached payment
for $835.81 is based on the following…:” (See Defendant’s overtime
computation provided to Plaintiff, attached hereto as Exhibit 3.) The letter
detailed the times, dates, and amounts of overtime that Plaintiff was
allegedly owed. (Ex. 3.)
On September 22, 2008, Defendant made a Section 998 Offer to
Compromise of $7,500, “for all damages, actual or statutory, reasonable
attorneys’ fees and costs incurred” in Salazar I. (Ex. 4.) On October 8, 2008,
Plaintiff accepted the $7,500 offer to compromise and on December 1, 2008,
judgment was entered for Plaintiff and against Worldwide for $7,500. (Decl.
¶6; Ex. 5.) Pursuant to the terms of the judgment, Plaintiff’s counsel
received a check for $7,500. (See check for $7,500 made out to Polaris Law
Group, attached here as Exhibit 6.)
B. Salazar II.
 On October 31, 2008, Salazar filed this lawsuit arising out of his
employment with Worldwide (“Salazar II”) in unlimited civil court. Salazar
named and served ABC Corporation, Inc. as the defendant, and has alleged
violation of the Fair Employment and Housing Act (“FEHA”) based on
discrimination, as well as claims for wages and penalties for failure to
provide meal periods. Plaintiff concedes that he was well aware of these
violations while litigating Salazar I. In response to a special interrogatory
seeking the factual support for Plaintiff’s meal period claim, Plaintiff
responded under oath as follows:
I determined these dates by reviewing the subject time cards provided to me by defendant
in a previous lawsuit. The time cards confirm that I missed meal periods on the subject date
because there is no clocking out for lunch on those days. (Exs. 7 and 8.)

Thus, Plaintiff concedes that despite having knowledge of these specific

meal break claims, he opted not to pursue them. Instead, after prevailing in
Salazar I on claims of wage and hour violations, and receiving payment of
attorneys’ fees as part of that award, Plaintiff immediately filed Salazar II
alleging the additional wage and hour claims and seeking an additional
attorneys’ fees award out of the same conduct that occurred during the same
time period while working for the same employer.
ABC filed an answer on November 17, 2008, consisting of a general
denial of the claims alleged, and a number of affirmative defenses, including
res judicata.
III. ARGUMENT.
A. In California, The Doctrine of Res Judicata Is Informed By the
“Primary Right” Theory.
1. The Doctrine of Res Judicata Bars Subsequent Proceedings That
Present Issues That Were or Should Have Been Raised in a Prior
Action Between the Same Parties and in Which There Was a Final
Judgment.
“Res judicata” describes the preclusive effect of a final judgment on the
merits. Under the doctrine of res judicata, “if a plaintiff prevails in an action,
the cause is merged into the judgment and may not be asserted in a
subsequent lawsuit.” Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888,
896-97. The practical effect of the doctrine is that res judicata “bar[s] not
only the reopening of the original controversy, but also subsequent litigation
of all issues which were or could have been raised in the original suit.”
Gates v. Superior Court (Bonpane) (1986) 178 Cal.App.3d 301, 311
(emphasis added).
A crucial aspect of res judicata is the scope of the preclusion. As the
authorities quoted above imply, the doctrine does not only preclude those
issues actually raised in a prior action. Instead, “[i]f the matter was within
the scope of the action, related to the subject-matter and relevant to the
issues, so that it could have been raised, the judgment is conclusive on it
despite the fact that it was not in fact expressly pleaded or otherwise urged.”
Sutphin v. Speik (1940) 15 Cal.2d 195, 202 (underline added, italics in
original). Thus, res judicata is properly invoked to bar a subsequent lawsuit
“when that suit alleged a different theory of recovery for the same injury, or
a different remedy for the same injury, or a somewhat greater factual
elaboration of the same injury” already sued upon in a prior suit. Grisham v.
Phillip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 642 (citations omitted);
see also Wick v. Wick Tool Co. (1959) 176 Cal.App.2d 677, 687 (“The rule
has the effect of coercing the plaintiff to present all of his grounds for
recovery in the first proceeding,…”).
The doctrine of res judicata promotes judicial economy by
“preclud[ing] piecemeal litigation by splitting a single cause of action or
relitigation of the same cause of action on a different legal theory or for
different relief.” Id. Judicious recognition of the doctrine “benefits both the
parties and the courts because it seeks to curtail multiple litigation causing
vexation and expense to the parties and wasted effort and expense in judicial
administration.” Gates, 178 Cal.App.3d at 311 (internal quotation and
citation omitted).
In the present case Plaintiff concedes that that he was aware of these
specific wage and hour issues while litigating Salazar I. (Ex. 8.) Given the
above-quoted authorities, this fact alone compels a finding that these issues
“could have been raised in the original suit.” Gates, 178 Cal.App.3d at 311.
As detailed below, Plaintiff cannot bring a claim based on his employer’s
violation of IWC Wage Order No. 4 and simultaneously knowingly withhold
a similar claim against the identical employer for additional violations of the
same wage order.
A prior judgment bars a subsequent action if (1) the parties in the first
and subsequent proceedings are the same, or are in privity; (2) there was a
final judgment on the merits in the prior action; and (3) the issues decided in
the prior adjudication are identical with those presented in the later action.
See Consumer Advocacy Group, Inc. v. Exxon-Mobil Corp. (2008) 2008 Cal.
App. LEXIS 2279, *15 (Consumer Advocacy Group) (citing Citizens for
Open Access to Sand and Tide, Inc. v. Seadrift Assoc. (1998) 60 Cal.App.4th
1053, 1065, review denied, 1998 Cal. LEXIS 1960, *1 (Citizens for Open
Access)). Additionally, even if these elements are met, res judicata will not
be applied “if injustice would result or if the public interest requires that
relitigation not be foreclosed.” Id. at *16.
2. California Follows the “Primary Right Theory” in Determining
Whether Issues Raised in an Earlier Proceeding Are “Identical” to
Those Raised in a Later Case.
As noted above, a second suit is barred by an earlier action only if “the
issue or cause of action in the two actions is identical.” Citizens for Open
Access, 60 Cal.App.4th at 1067 (emphasis added). “To define a cause of
action, California follows the primary right theory.” Id. According to the
primary right theory, “a cause of action is comprised of a primary right of
the plaintiff, a corresponding primary duty of the defendant, and a wrongful
act by the defendant constituting a breach of that duty.” Consumer Advocacy
Group, 2008 Cal. App. LEXIS 2279 at *16 (citing Mycogen Corp., 28
Cal.4th at 904). The purpose of this doctrine is to ensure that “[a] party
cannot by negligence or design withhold issues and litigate them in
consecutive actions…on matters which were raised or could have been
raised” in a prior action. Sutphin, 15 Cal.2d at 202.
The “most salient characteristic” of a primary right is that it is
indivisible. Mycogen Corp., 28 Cal.4th at 904. Thus, “[e]ven where there are
multiple legal theories upon which recovery might be predicated, one injury
gives rise to only one claim for relief.” Id. (emphasis added). This is so even
though the violation of one primary right “may entitle the injured party to
many forms of relief,” as the relief and the cause of action are “not
determinative of the other.” Id. As will be discussed below, Salazar’s claims
for overtime premiums (in the first case) and meal period premiums (in this
case) are separate forms of relief arising from a single primary right.
B. Salazar’s Third and Fourth Causes of Action Are Barred By Res
Judicata.
Salazar’s latest claims regarding meal period payments, and his
attempts to recover penalties thereon, are barred by res judicata due to the
earlier judgment between the parties. First, the parties to both cases are
clearly in privity, as both are between Salazar and his employer. His
transparent attempt to sue different entities does not hide the fact that he was
employed by one employer during this time period. It is also indisputable
that the first Salazar claim ended in a final judgment. Finally, as the
following analysis will make clear, Salazar has attempted to impermissibly
split his single right for unpaid wages into two separate lawsuits.
1. The Identical Parties Are Involved in Both Salazar Cases.
Worldwide and ABC are clearly in privity with one another. As noted in
an earlier footnote, the defendant in this case is a majority-owned subsidiary
of ABC Worldwide, LLP. (“Worldwide”). (Decl. ¶3.) Worldwide, in turn, is
the operating partnership of ABC Conglomerate, Inc., the defendant in
Salazar I. As such, the interests of ABC and Worldwide are identical.
Furthermore, that Salazar alleged wage claims against both entities—based
on the same period of employment, same shifts worked, and the same
paychecks—essentially admits that the two are in privity with one another.
2. The Prior Case Ended in a Final Judgment on the Merits.
Salazar’s first lawsuit ended in a final judgment. On December 1, 2008,
judgment was entered pursuant to a Section 998 offer in Salazar’s favor in
the first case on all the claims alleged in Salazar’s complaint—including the
wage claims. (Ex. 5.) It is therefore undeniable that the first case resulted in
a final judgment.
3. Because the Wage Claims Asserted in Salazar II Involve the Same
Primary Right as the Wage Claims Asserted in Salazar I, Salazar’s
Third and Fourth Causes of Action Are Barred By the Doctrine of
Res Judicata.
Salazar’s claim for unpaid overtime (in the first case) and for failure to
provide meal periods (in this case) constitute two attempts to recover for
injury alleged to the same primary right. The scope of a “primary right” will
necessarily depend on how the “primary injury” is defined, and “[a]n injury
is defined in part by reference to the set of facts, or transaction, from which
the injury arose.” Federation of Hillside and Canyon Assoc. v. City of Los
Angeles (2004) 126 Cal.App.4th 1180, 1202-03. Courts have also analyzed
the source of the primary right to determine whether separate claims may be
alleged. See, e.g., Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th
327, 343 (holding that a statutory right to seek authorization for indemnity
and contractual action for indemnity involve different primary rights).
Because the facts and transactions forming the basis of Salazar’s
present wage claims are identical to the facts upon which he already
recovered, his wage claims in this case should be barred. First, both of
Salazar’s claims arise from an alleged breach by Worldwide of the statutory
obligation to pay Salazar proper wages pursuant to IWC Wage Order No. 4.
Furthermore, the facts underlying both claims are identical, and constitute
attempts to recover wages allegedly owed to Salazar that accrued during the
time he was employed by Defendant. As such, Salazar’s meal break claims
arise from the alleged violation of the primary right for which he already
sued, and should therefore be barred.
a. Because Salazar’s Claims Both Arise From the Same Factual
Scenario, a Single Primary Right Is Involved.
Salazar’s claims for overtime and meal period premium payments
invoke a single primary right because the facts underlying each claim are
identical. See Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154,
160 (“The cause of action…will therefore always be the facts from which
the plaintiff’s primary right and the defendant’s corresponding primary duty
have arisen.”) (emphasis in original). Both claims allege, in different words,
that Salazar’s wages were not properly paid according to applicable statutes.
Thus, although Salazar’s claims differ superficially, they both seek recovery
for the same primary injury: unpaid wages.
Additionally, the existence of all of the alleged wage and hour
violations were apparent from Salazar’s time cards and pay statements—
documents that were twice provided to Salazar during Salazar I. (Decl. ¶3.)
Plaintiff himself concedes he was aware of these wage and hour violations
while litigating Salazar I. (Ex. 8.) Thus, Plaintiff made a conscious and
knowing decision to not litigate a portion of wage and hour claims and to
bring them in a separate action. Such a decision to intentionally transform
one lawsuit into two violates the most basic precepts of California law. As
stated earlier, “[a] party cannot by negligence or design withhold issues and
litigate them in consecutive actions…on matters which were raised or could
have been raised” in a prior action. Sutphin, 15 Cal.2d at 202. Salazar’s meal
period claims should have been brought in his first lawsuit, and because they
were not, he cannot now assert them. See Tensor Group, 14 Cal.App.4th at
160 (explaining that res judicata bars a matter “within the scope of the [first]
action, related to the subject matter and relevant to the issues, so that it could
have been raised…”).
b. Because Salazar’s Right to Overtime and Meal Period Payments Both
Arise From Statute, Both Claims Invoke a Single Primary Right.
Not only are the obligations to pay overtime and meal periods similar in
structure, they share a common source. Both the first and second Salazar
complaints refer to IWC Wage Order No. 4 as the wage order governing
Salazar’s employment with Worldwide. That wage order sets forth the
various statutory obligations of an employer, including the obligation to pay
overtime wages and to provide meal breaks or a premium payment for
foregone breaks. See 8 Cal. Code Regs. §§11040(3)(A) (governing payment
of overtime premium), 11040(11)(B) (providing for premium payment for
missed meal breaks). These obligations exist independently from any
employment contract an employee may have entered into. Compare, e.g.,
Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 343 (finding
that contractual and statutory rights to indemnity involve separate primary
rights). Thus, an employee’s “primary right” to payment of either overtime
or meal period premiums springs from a single source—the statutory
obligation of the employer found in Wage Order No. 4.
c. Because Overtime and Meal Period Premium Payments Have an
Identical Function and Purpose, They Serve to Protect a Single
Primary Right.
That overtime and meal period payments arise from a single primary
right is further manifested by the identical purposes of the statutes under
which such claims are brought. According to a recent California Supreme
Court decision, “[t]he IWC intended that, like overtime pay provisions,
payment for missed meal and rest periods be enacted as a premium wage to
compensate employees, while also acting as an incentive for employers to
comply with labor standards.” See generally Murphy v. Kenneth Cole Prods.
(2007) 40 Cal.4th 1094, 1109-14 (concluding that meal period payments—
like overtime premium payments—are “wages”). Thus, because the purpose
of overtime and meal period premium payments is identical, both forms of
recovery protect the same primary right.
d. Salazar’s Fourth Cause of Action—For Penalties Due to Unpaid Meal
Break Premium Payments—Is Similarly Precluded, as it Is Based on
 Alleged Violation of the Same Primary Right.
As already discussed, Salazar’s claim for unpaid wages for foregone
meal periods is precluded by res judicata. As such, Salazar’s attempt to
recover penalties based on his meal period wages must also fail. Like his
meal period claim, this claim must have been brought—if at all—in the first
case, where Salazar alleged that Worldwide breached its duty to pay proper
wages. Thus, Salazar’s Third and Fourth Cause of Action are barred by res
judicata, and should be dismissed by this Court.
4. Application of Res Judicata to This Situation Serves the Interests of
Justice, Fairness, and Judicial Economy.
Although a court may decline to apply res judicata when application of
the doctrine would result in injustice, such is not the case here. Instead, the
interests of justice, fairness, and judicial economy all dictate that res judicata
be applied to the wage claims asserted in Salazar’s second lawsuit.
Allowing Salazar to bring separate lawsuits for overtime premiums and
meal break premiums would open the door for the endless splitting of wage
and hour claims. Within the specific realm of wage-and-hour law, a
plaintiff’s attorney interested in generating fees could bring separate lawsuits
for minimum wage payments, overtime payments, meal break payments, rest
break payments, and pay stub inaccuracies, as well as penalties for
nonpayment of each form of wages. One court appearance then becomes five
court appearances, one deposition of one plaintiff becomes five depositions
of the same plaintiff, and one trial becomes five trials. This explosion of
litigation is further incentivized because wage and hour attorneys will be
permitted to collect fees for all five court appearances, all five depositions,
and all five trials. To allow separate lawsuits for each claim would have the
same effect as encouraging plaintiffs’ counsel to bring five suits instead of
one because their counsel could recover five times the attorneys’ fees.
Given the frequency of wage and hour class actions and sheer tonnage
of concomitant documents and billing, permitting such claim splitting in this
area of the law will exponentially increase these inefficiencies. Permitting
plaintiffs’ counsel to transform one action, let alone one class action, into
five separate actions, undercuts the most basic concepts of fairness and
judicial economy. The entire purpose of the doctrine of res judicata is to
promote judicial economy by precluding piecemeal litigation, and limiting
the wasted effort and expense of multiple lawsuits. Gates, 178 Cal.App.3d at
311.
This unfortunate outcome is compounded by the knowledge that all the
facts, evidence, and proof necessary to proceed on all five actions is
typically available in the initial wage and hour action where the time
records, job descriptions, and relevant information is produced and analyzed.
In the case at bar, Plaintiff admittedly had all of this information while
litigating Salazar I. As of May 28, 2008, he knew the date, time and duration
of every meal break he had ever taken. (Ex. 2.) He took this information and
did nothing, opting instead only to pursue a relatively small overtime claim.
Now he seeks to be rewarded by garnering a second attorneys’ fees award
for refusing to combine these actions. As stated above, a party cannot
negligently or intentionally withhold claims and then litigate them in
successive actions. Sutphin, 15 Cal.2d at 202. This Court should prudently
refuse to allow Salazar to split his wage claim into separate lawsuits, and
should find that the wage claims asserted in Salazar’s second case are barred
by res judicata.
IV. CONCLUSION.
For the foregoing reasons, ABC respectfully requests that this Court
find that Salazar’s Third and Fourth Causes of Action are barred by res
judicata, and that the Court enter judgment in favor of Defendant and against
Plaintiff on the Third and Fourth Causes of Action in Plaintiff’s First
Amended Complaint.

Here is the trial brief:

Here are the two mediation briefs:
 2. A true and correct copy of the First Amended Complaint in Salazar I is attached as Exhibit 1 to
the Declaration, filed concurrently herewith. All further citations to exhibits refer to exhibits attached
to the Declaration.
3. ABC Corporation, Inc., is a majority-owned subsidiary of ABC Worldwide, LLP, the operating
partnership of ABC Conglomerate, Inc. (Decl. ¶3.)
 Some people enjoy the great fortune of having learned the rules of
grammar and punctuation in eighth grade, high school, or college. Others
have learned a few rules here or there or by osmosis. If you fall into the
latter group, it is time to make sure that you know at least the basics. If you
are very deficient, you need to consult one of the many books on writing
composition and grammar. If you do not already have one of these grammar
books from college or high school, you should get one. You also should
consult with a writing specialist at either your law school or college.
This appendix is not designed to be a comprehensive remedial
handbook. Instead, it reviews the rules of grammar and punctuation most
likely to create difficulties for the law student. Part A explains six rules of
grammar and offers exercises to help you test your learning. Part B reviews
the main rules for using commas, semicolons, colons, and dashes. It also
discusses quotations.

Part A: Grammar
Part A discusses six rules:

1. Make sure each modifier unambiguously refers to the word that you
want it to modify.
 2. Make sure each pronoun clearly refers to the word for which it is a
substitute.
3. If you are referring to a singular noun, use a singular pronoun. If you
are referring to a plural noun, use a plural pronoun.
4. Make the subject agree with the verb.
5. Use “its” to denote the possessive and “it’s” to abbreviate “it is.”
6. Use “which” to introduce a nonrestrictive clause. Use “that” to
introduce a restrictive clause.

Rule 1. Make sure each modifier unambiguously refers to the word that
you want it to modify.

A modifier is a word, phrase, or clause that describes, alters, or clarifies

another word in the sentence. For example:

The statute gives manufacturers a second incentive to comply with the regulations.

“Second” tells us more about “incentive.” It modifies “incentive.” “To

comply” also is a modifier. It tells us more about “incentive.” The incentive
is designed to encourage manufacturers to comply with the regulations.
Watch out for misplaced modifiers. A sentence has a misplaced
modifier when the reader might think that the modifier applies to a word
different than the one the writer intended. The problem arises when the
modifier is in the wrong location. Here is an example:
The court discussed the need for a written contract in a brief paragraph.

“In a brief paragraph” might modify “discussed” and tell us how much
space the court’s opinion devotes to this topic. Alternatively, it might modify
“written contract” and tell us how long the written contract should be.
Because of the location of the modifying phrase, the reader may not know
which message you intended to communicate. Presumably the phrase
modifies “discussed.” If so, the sentence has a misplaced modifier. You can
clear up the ambiguity by relocating the phrase. Here are some acceptable
alternatives:
In a brief paragraph, the court discussed the need for a written contract.
The court discussed, in a brief paragraph, the need for a written contract.
The court, in a brief paragraph, discussed the need for a written contract.
 Sometimes, a poorly written sentence contains the modifier, but not the
word to which the modifier applies. Here is an example:
Faced with a statutory deadline, it is important to proceed quickly.

Who is faced with a statutory deadline? The sentence fails to tell us.
The initial phrase is a dangling modifier because the sentence does not
contain the word it modifies. The problem is easy to fix:
Faced with a statutory deadline, counsel must proceed quickly.

The next example illustrates a related problem:

Faced with a statutory deadline, quick action by counsel becomes necessary.

As written, the initial phrase seems to modify “quick action.” However,

the phrase must modify the actor, “counsel.” To solve the problem, place the
modifier next to the word it modifies:

Faced with a statutory deadline, counsel must act quickly.

Exercise
Please rewrite so that the modifiers unambiguously refer to the words
you want to modify.

1. To prevail before an appellate court, a sound record must be

developed before the trial court.
2. Once considered a major part of the civil procedure course, only
modest attention is paid to the forms of action in today’s law school
curriculum.
3. The commission encouraged the companies immediately to go into
production.
4. They only praised the decision, but not the rationale.
5. After examining the complaint, it is necessary to consider possible
pretrial motions.

Rule 2. Make sure each pronoun clearly refers to the word for which it
is a substitute.
The professor questioned the student about the issue that he was exploring.
 Does “he” refer to the professor or the student? Was the professor
exploring the issue or was the student exploring it? The sentence does not
tell us in an unambiguous fashion.
Here are three ways to rewrite the sentence, assuming “he” refers to the
professor:

1. The professor questioned the student about the issue that the
professor was exploring.
2. In exploring the issue, the professor questioned the student about it.
3. The professor explored the issue and questioned the student about it.

Be particularly careful when you use “this,” “that,” or “those.” Make

sure the pronoun clearly refers to an antecedent. For example:
The court encountered criticism for making a de novo review of the evidence. This is not
the function of an appellate court.

To what does “this” refer? We can solve the problem with a simple
revision:
The court encountered criticism for making a de novo review of the evidence. Making such
a review is not the function of an appellate court.

Exercise
Please revise these sentences so that the pronouns clearly refer to the
words for which they are a substitute.

1. A friend of the decedent testified that she had been harassed at work
in the weeks before the assault.
2. The plaintiff granted a single interview to a reporter. This would be
inconsistent with the court’s definition of media access.
3. The evidence was quite scanty. That made the prosecutor nervous.
4. Although taking exams dominates the month of December, it rarely
is as taxing as students expect it to be.
5. The distinction between public and private figures is that they have
media access to refute any defamation.

Rule 3. If you are referring to a singular noun, use a singular pronoun.

If you are referring to a plural noun, use a plural pronoun.
 Study this sentence:
If the corporation files for bankruptcy, they must notify their creditors.

“Corporation” is singular. The proper pronouns are “it” and “its.”

“They” and “their” are incorrect.
If the corporation files for bankruptcy, it must notify its creditors.

Here is another example:

Although the insurance company’s representatives accepted the premiums, they now refuse
to honor the policy.

The subject of the second clause is the insurance company, not the
insurance company’s representatives. Therefore, the correct pronoun is “it.”
Although the insurance company’s representatives accepted the premiums, it now refuses to
honor the policy.

Exercise
Please revise these sentences so that single pronouns refer to single nouns
and plural pronouns refer to plural nouns.

1. The Third Circuit was correct in determining that the statements were
capable of defamatory meaning. Their decision should be upheld.
2. This practice creates a monopoly-like situation for the third party in
which they are free to do whatever they wish.
3. The appellant’s punitive damage claim should be dismissed because
their fraud claim has been dismissed.
4. Every person in the neighborhood was asked to sign their name to the
zoning petition.

Rule 4. Make the subject agree with the verb.

If the subject of the sentence or clause is singular, the verb must be

singular. If the subject is plural, the verb must be plural. Although we know
this rule, we sometimes break it by being careless.
In each of these examples, the subject and verb do not agree:
 1. A variety of rhetorical devices appear in the appellate brief.
2. A lay dictionary, as well as a legal dictionary, are essential to an
office library.
3. Either of the appellant’s rationales require the court to accept a
highly innovative argument. (“Either” means “either rationale.”)
Exercise
Please revise these sentences so that subjects and verbs agree.

1. Everyone in the office say they met the deadline.

2. None of the memoranda recommend pursuing the matter.
3. The newspaper coverage in the surrounding counties were extensive.
4. Neither of the cotenants wish to partition the acreage.
5. The best part of the brief are the last five pages.

Rule 5. Use “its” to denote the possessive and “it’s” to abbreviate “it is.”

“It’s” is the contraction of “it is.” “Its” is the possessive of “it.” Just as
the possessive pronouns “her” and “his” have no apostrophe, the possessive
pronoun “its” has no apostrophe.
Although the argument appears innovative, its roots extend well into the last century.

“Its roots” means the roots of the argument. The pronoun refers to the
argument. Because “its” is a substitute for “the argument’s,” it is in the
possessive and has no apostrophe.
Because legal writing is formal, contractions should be used only rarely.
Therefore, rarely, if ever, will you use “it’s.” If you tend to confuse “it’s” and
“its,” remember that in legal writing, the correct word almost always is “its.”
Here are two correct examples.

1. Although both parties claimed the privilege of using the easement,

neither was willing to pay for its maintenance.
2. According to the first witness, the defendant shouted, “It’s time for a
couple more beers.”

Rule 6. Use “which” to introduce a nonrestrictive clause. Use “that” to

introduce a restrictive clause.
 Here is a simple way to decide when to use “which” and when to use
“that.” If you can or should place a comma before the clause, use “which.”
Otherwise use “that.”
The memo that I wrote under considerable time pressure is surprisingly good.

Suppose I wrote only one memo. The clause gives the reader additional
information: I wrote it under time pressure. The information in the clause is
not essential to identify the memo that is discussed in the sentence. We call
this clause a nonrestrictive clause because it adds information but is not
essential to identifying the word or clause that it modifies. In a sense, it is
parenthetical. We should place a comma before the clause and begin the
clause with “which.”
However, suppose I wrote several memos and wrote one of them under
time pressure. In this case, the clause does more than give the reader
additional information; it identifies the memo that I am discussing. We call
this clause restrictive clause because it is essential to identifying the word or
clause that it modifies. We do not place a comma before the clause, and we
begin it with “that.”
Exercise
Please rewrite the sentences that use “which” and “that” improperly.

1. Every business that qualifies can seek a tax exemption.

2. The building, which overlooked the river, attracted many tenants.
(Assume several other buildings also overlooked the river.)
3. The building which overlooked the river attracted many tenants.
(Assume that only this building overlooked the river.)
4. The comma that precedes the clause is unnecessary. (Assume that the
sentence contains two commas.)

Part B: Punctuation
Part B explains how to use the comma, colon, semicolon, and dash correctly.
It also discusses how to punctuate quotations.

1. The Comma
 The rules concerning commas are in flux. The conventional rules
require commas in specified situations. In many of these situations, however,
the trend is to omit the comma when it does not help the reader to
understand the sentence.
Here are six rules for using commas:

1. When using a conjunction to separate the independent clauses in a

compound sentence, place a comma before the conjunction.
2. Use a comma after an introductory phrase or clause.
3. Use commas to set off words, phrases, and clauses in a sentence.
4. Use commas to separate words, phrases, and clauses in a series.
5. Use a comma between two adjectives that modify a verb.
6. Use commas in dates.

Rule 1. When using a conjunction to separate the independent

clauses in a compound sentence, place a comma before the conjunction.

An independent clause is a clause that could stand alone as a sentence.

A compound sentence has two or more independent clauses joined by a
semicolon, colon, or a conjunction, such as “or,” “but,” or “and.” Place a
comma before the conjunction. Here are two correct examples:
An independent clause must have a subject and a verb, but a phrase need not have them.
An independent clause must have a subject and verb, and it must be able to stand
alone as a sentence.

When the subject of both clauses is only in the first clause, place a
comma before the conjunction, unless the conjunction is “and.” Here are two
correct examples:
An independent clause must have a subject and verb and must be able to stand alone as a
sentence.
An independent clause must have a subject and verb, but need not include a
preposition.

Pitfall: Do not separate two independent clauses with a comma. This

construction is called a comma splice. Here is a bad example:
An independent clause can stand on its own as a sentence, a dependent clause cannot.
 If you wish to place two independent clauses in the same sentence,
separate them with a semicolon or with a comma and a conjunction. We can
correct the bad example this way:
An independent clause can stand on its own as a sentence, but a dependent clause cannot.

Pitfall: Do not confuse a conjunction with a transitional word that

functions like an adverb. Such transitional words include “however,”
“therefore,” “thus,” and “moreover.” Do not treat these words as
conjunctions. Consider this bad example:
The word “and” is a conjunction, however, the word “however” is not.

This sentence is a compound sentence consisting of two independent

clauses. Because “however” is not a conjunction, no conjunction separates
them. In the absence of a conjunction, you must separate them with a
semicolon:
The word “and” is a conjunction; however, the word “however” is not.

Rule 2. Use a comma after an introductory phrase or clause.

The rule is self-explanatory. Here are two good examples:

1. After an introductory phrase, use a comma.

2. In the absence of a conjunction separating independent clauses, you
may decide to use a semicolon.

Rule 3. Use commas to set off words, phrases, and clauses in a

sentence.
Use commas when the word, phrase, or clause is really parenthetical or
otherwise interrupts the sentence. Here are three good examples:
1. A comma, one type of punctuation mark, is overused more than
other punctuation marks.
2. A comma, however, has many uses.
3. A grammarian would agree that, as a general rule, a writer should
use commas to set off a parenthetical.
Instead of using a comma, you also can use parentheses or dashes. See
the discussion of dashes later on in this appendix.
Rule 4. Use commas to separate words, phrases, and clauses in a
series.
 Here is an example:
Punctuation marks include the comma, the period, the colon, the apostrophe, the question
mark, and the semicolon.

Sometimes writers find the last comma unnecessary—here, the comma

after “question mark”—and omit it. However, sometimes the last comma is
necessary to avoid ambiguity:
The curriculum includes courses in property, contracts, trusts and estates, and legal writing.

Here, the last comma makes it clear that trusts and estates is a separate
course from legal writing.
Rule 5. Use a comma between two adjectives that modify a noun.
Here is an example:
An obtrusive, well-placed comma helps the reader out. If the clause does not seem
necessary, you may omit it: A comma helps the reader to understand a long, complex
sentence.

Rule 6. Use commas in dates.

Place a comma between the day of the month and the year:
September 22, 1945.

Under the traditional rule, you should use a comma between the month
and the year when you are not specifying the day:
March, 1952.

However, most writers omit the comma.

2. The Colon

A colon indicates that the words before the colon lead the reader to
expect what comes after the colon. For example:
There are three ways to punctuate the end of a sentence: a period, a question mark, and an
exclamation point.

The words before the colon lead us to expect the writer to tell us what
three punctuation marks can end a sentence. The words after the colon fulfill
the expectation. Sometimes a comma will serve the same purpose:
 In legal writing, there is one punctuation mark that we almost never use, the exclamation
point.

Here we could have used a colon instead of the second comma.

Because a colon is more dramatic and legal writing tends to prefer
understatement, most legal writers use a comma instead of a colon when
they can.
You also can use a colon to introduce a quotation:
The judge frequently quoted Justice Holmes: “The life of the law has not been logic; it has
been experience.”

3. The Semicolon

Use the semicolon in three situations:

a. When you want to combine two sentences into one sentence, separate them with a
semicolon. The semicolon indicates that the two sentences—now independent clauses—
have a close connection, but not close enough to use a conjunction. For example:

A semicolon can separate two independent clauses in a sentence; its use indicates a close
connection between the clauses.

b. When the second independent clause in a sentence begins with a transition acting as
an adverb—such as “however,” “therefore,” or “moreover,” separate the clauses with a
semicolon. For example:

You can join independent clauses with a conjunction; however, sometimes a semicolon
seems more appropriate.

c. Use a semicolon to separate items in a series when there are commas within some of
the items. For example:

Use a semicolon to show the close connection between independent clauses; to precede a
transitional adverb such as “however,” “therefore,” or “thus”; and to separate items in a
series when there are commas within some of the items.

4. The Dash

Use dashes to set off words that interrupt the continuity of a sentence.
For example:
Use dashes—make one by typing two hyphens next to one another—to set off words that
interrupt the continuity of a sentence.

Use dashes when the interruption is a major one. Otherwise, use

commas or parentheses, whichever seems appropriate. Usually parentheses
draw the least attention to the interruption. For example:
A dash (not a parenthesis) signals a major interruption in a sentence.

5. Quotations

The Bluebook, Rule 54 and the ALWD Citation Manual, Rules 47-49,
prescribe the rules for punctuating quotations. Here is a summary of
important rules:
a. Do not enclose block quotes with quotation marks.
b. When you omit words from the middle of a quoted sentence, insert three
periods separated by spaces and put a space before the first period and after
the last one (…). For example:
James Madison recognized a limitation on the danger of factions: “The influence of
factious leaders may kindle a flame within their…states, but will be unable to spread a…
conflagration through the other states.”

c. When you are using the quotation as a full sentence and are omitting words at the
beginning of the quoted sentence, do not use the three periods. If the first word you are
quoting is not capitalized, capitalize the first letter and put it in brackets. For example:

James Madison recognized a limitation on the danger of factions: “[F]actious leaders may
kindle a flame within their particular states, but will be unable to spread a…conflagration
throughout the other states.”

d. When you are using the quotation as a full sentence and are omitting words at the
end of the quoted sentence, use four periods. Separate the periods with spaces and put a
space before the first period. The last period is the period that ends the sentence. For
example:

James Madison recognized that factions could disrupt the political process in an individual
state: “The influence of factious leaders may kindle a flame within their particular
states….”

e. When you are quoting two consecutive sentences and omitting words at the end of
the first sentence and at the beginning of the second sentence, use four periods. Separate
the periods with spaces and put a space before the first period and after the fourth period. If
the first word of the second sentence, as quoted, is not capitalized, capitalize the first letter
and put it in brackets. For example:

For James Madison, the cure for factions lay in the great size of the republic: “In the
extended republic of the United States…a coalition of the majority of the whole society
could seldom take place on any other principles than those of justice and the general
good….[T]he larger the society…the more duly capable it will be of self-government.”

f. Place a period or comma inside the quotation marks. Place a semicolon or colon
outside the quotation marks. Place a question mark inside the quotation marks if it is part of
the quoted material. Place a question mark outside the quotation marks if it is not part of
the quoted material.
A

A.B.A. Model Code of Professional Responsibility, 303

A.B.A. Model Rules of Professional Conduct, 303
Abbreviations, 305
Abstract language, use of, 94-95,150, 252, 317
Abuse of discretion standard of review, 267
Active voice, 95-97, 214-216, 285
Adjectives and adverbs, use of, 250, 254
Adversarial models of negotiation, 190-192
Adverse information in statement of facts, 269, 271, 284-285,
Adverse precedent, 256, 303-304
Advising clients. See Client interviewing and counseling
Agency interpretation of statutes, 20
Agreement to mediate, 207-208
A.L.R. (American Law Reports), 28
ALWD Citation Manual, 5
Ambiguous words and phrases, 106-107
American Jurisprudence (West), 27
American Law Reports (A.L.R.), 28
Analogy, use of, 318
Analysis. See Legal analysis
Anger or emotional responses
email, 227
initial client interview, 111
Answers. See also Pleadings
generally, 3
drafting of, 235-237
exercises, 244-247
sample, 378-381, 390-392
verifications, 237
Appeals
generally, 265
process of, 265
record on, 265-266
standard of review, 266-268
abuse of discretion, 267
clearly erroneous, 266-267
de novo review, 267-268
importance to practitioner, 268
 state law issues, 14
Appellant, use of term, 270n , 322n
Appellate briefs
generally, 269-270
argument, 272, 295-305
checklist, 306-308
headings, 295-298
sample, 393-394
structure of, 295-298
substance of, 298-305
summary of, 272, 285-294
checklist, 306-308
conclusion, 306, 308
editing, 305
hallmarks of well-written brief, 272
headings, 295-298
advocacy with, 297-298
checklist, 306-307
number, 298
outline, 298
use of, 295
writing, 296-297
jurisdictional statement, 271, 275, 306
parts of, 271-272
persuasive writing, 249, 305. See also Persuasive writing
precedent, use in, 303-305
generally, 303
adverse, 303-304
footnotes, 304-305
hierarchy, 303
quotations, 304-305
rebuttal, 304
signals, 304-305
string cites, 304-305
procedural rules for, 270
question presented, 271, 276-277, 279-280, 306-307
record, 265-266, 269-270, 271, 273-274, 299
research, 299
statement of facts, 270, 271, 281-285, 288, 307. See also Record
substance of argument, 298-305
appellate process, understanding, 299
checklist, 307-308
editing, 305
formulation of arguments, 300
organization and, 300-302
persuasive writing, 305
precedent, use in, 303-305
record, familiarity with, 299
research, 299
rules of court, 299-300
 simplicity and, 300
types of arguments, 300
what to avoid, 302
summary of argument, 270, 272, 285-286, 287-294, 307
table of authorities, 270, 271, 275, 279, 306, 397
table of contents, 270, 271, 274, 278, 306, 396
text of constitutional, statutory, and regulatory provisions, 270, 271, 278, 280, 307
title page, 270, 271, 274, 278, 306
Appellate courts, 14, 15, 16
Appellate oral arguments, 321-328, 393
generally, 6, 321
argument, 326
argument aids, 323-324
authorities, 323
checklist, 328
conclusion, 326
introduction, 325
new information, advising court and opponent, 324
outline, 323, 326
preparation, 322-324
questions from judges, 310, 322, 327-328,
rebuttal, 326-327
record, 322
rehearsal, 324
roadmap, 325-326
sample, 393-394
setting, 322
structure, 325-327
techniques and tools. See Oral argument
Appellee, use of term, 270n , 322n
Attorneys
fees
initial client interview, 116-117
sanctions, 259, 261, 263
signature, 218-219, 244, 247, 306, 308
Audience for documents. See also Reader understanding
client opinion letter, 163
email communication, 223
memoranda, 125
oral presentations, 309-310
purpose of documents, 72

Binding authority. See Mandatory authority

Bluebook: A Uniform System of Citation, 5, 275, 441
“Boilerplate” term, 217
Brief answer in memoranda, 123, 131-133, 135-137
Briefs. See also Case briefs
generally, 3
appellate briefs. See Appellate briefs
 case briefs compared, 2. See also Case briefs
format, 3
mediation briefs, 208-209, 414-431
memoranda as, 2, 121n

Canons of statutory construction, 20-21

Captions in,
pleadings, 232-233
settlement agreements, 212-213
Case briefs, 35-46
generally, 2
class preparation, additional, 45-46
defined, 35
format, 36
parts of brief, 36-42
analysis, 41
citation, 39
facts, 39
holding, 41
issue, 40
name, 39
procedure, 39-40
purpose, 35-36
sample briefs, 38-39, 41-45
Case law. See Common law
Causal relationships, establishing, 313
Checklists
appellate briefs, 306-308
consultation, 187
context and structure, 78-79
initial client interview, 118-119
legal analysis, 70
motions, 261
negotiation, 200
oral arguments, 328
research strategy, 33-34
Chronological order
fact statements, 141, 282-283
oral presentations, 313
CIRAC, 48
Circuit courts, federal, 15, 16, 17
Citations
appellate briefs, 275, 304-305, 307, 308
case briefs, 39
form, 5
memoranda, 126
signals, 304-305
string cites, 304-305
Citators, 31
Class preparation. See Case briefs
Clearly erroneous standard of review, 266-267
Client intake form, 118
Client interviewing and counseling
communication skills, 5-6
consultation, 181-187
beginning, 183
checklist, 187
client’s goals and priorities, 183, 184
course of action, choosing, 185-186
keeping track of information, 183
option development, 184-185, 185-186
planning, 182-183
purpose of, 181
scenario, 181-182
settlement authority, 187, 196n
initial client interview. See Initial client interview
opinion letter. See Client opinion letter
settlement authority, 187, 196n
Client opinion letter, 163-170
generally, 2, 163
answering client question, 166-169
accuracy, 166-167
client’s concerns, 168-169
facts, 166
honest advice and conclusions, 168-169
recommendations, 166-169
authority in, 163, 166
exercises, 169-180
instructions and future planning, 168-169
samples, 351-367
style of, 163-166
audience focus, 163
colloquialisms, 165
concrete discussion, 163-164
jargon and stilted language, 165
spelling and grammar, 166
Closing in appellate brief, 306,308
Colloquialisms, 99, 107-108, 165, 305
Colon, use of, 440, 442
Comma, use of, 438-440, 441, 442
Common law, 16-18. See also Precedent
annotations, 26, 27, 28
case analysis, 55-64
case briefs. See Case briefs
headnotes to cases, 124
mandatory authority, 16-17, 77, 303
persuasive authority, 17, 77, 303-304
relationship between statutory law and common law, 20-21
sources of law and hierarchy, 13, 303-304
 weight of authority, 18, 77
Communication, electronic. See Email communication
Communication skills, 5-6
Competence of witnesses, 266-267
Competitive negotiators, 193-194, 199
Complaints. See also Pleadings
generally, 3
drafting, 233-235
exercises, 241-244
sample, 373-377, 383-389
verification, 237
Computer research, 29-31
books vs. computer, 30-31
nonlegal sources, 30
traditional research sources, 29-30
Conclusion
appellate brief, 306, 308
beginning of argument or discussion with, 81, 83-85
at end of argument or discussion, 83
memoranda, 123, 131-133, 135-137
oral arguments, 314, 326
Concrete language, use of, 94-95, 252, 317
Concurring opinions, 41
Confidentiality in mediation, 204, 207-208
Conflict, use in oral argument, 315
Congress, U.S., 18
Constitutions
appellate briefs, text in, 270, 271, 278, 280, 307
state, 13, 14
United States, 13, 15
Consultation with clients. See Client interviewing and counseling
Context of documents, 72, 78-79
Contingencies, 216-217
Contractions, 99, 107, 165, 225, 437
Cooperative negotiators, 193-194, 199
Corpus Juris Secundum (West), 27
Counterclaims, 3, 231, 237, 378-382
Court of appeals, U.S., 15, 16
Courts of general jurisdiction, 14
Courts of last resort, 14, 15, 265
Court system
federal courts, 15-16
state courts, 14-15, 17
CRAC, 48
Credibility of witnesses, 194, 266

Damage claims against United States, 15

Dash, use of, 441
Declarations, 217-218
Definition section of,
settlement agreements, 214
statutes, 18, 19, 20
Demand for relief, 235
Demurrer, 257
De novo review, 267-268
Dicta, 17, 41, 97
Digests, 28
Discovery
mental or physical examination of party, 267
motions to compel discovery, 258-259
Discussion
client opinion letter, 167-168
memoranda, 123, 144-152. See also Legal analysis
abstract writing approach, 150, 303
“digest” approach, 147-148, 303
example of, 151-152
exercises, 152, 157-161
historical development of law, 148-149, 303
“law discussion only” approach, 150-151, 303
quotations, overuse of, 149-150, 303
reasoning, make readily apparent in, 147-152
Dissenting opinions, 41
District courts, federal, 15, 16
Double negatives, 106
Drafts and revisions, 83

Economic model of negotiation, 191-192

Editorial statements, 281, 283
“Elegant variation,” concept of, 211
The Elements of Style (Strunk & White), 4
Email communication, 223-229
generally, 3, 223
advice, 226-227
audience, knowledge of, 223
composition guidelines, 224-226
emotion in, 227
exercises, 229
formatting of, 224
humor in, 226-227
proofreading, 226
tone, 225-226
unexpected reader, 225
use policies, 225-226
samples, 227-228
systems, differences in, 226
Emphasis
in oral argument, 316-317, 319
word placement for, 253
Equity and policy arguments
appellate briefs, 255
legal analysis, 51, 63
persuasive writing, 249, 255, 305
structure of documents, 78
Ethical considerations
adverse precedent, 303
motions, 260-261
negotiation, 199-200
Excessive variation of words and terms, 108
Expository writing, rule of, 83
Eye contact in public speaking, 319

Facts
appellate briefs, 265-266, 269-270, 271, 281-285, 288, 307. See also Record
application of law to, 50-55
case briefs, 39
client opinion letter, 166
findings of fact, 266, 268
memoranda, 123, 141-144, 153-161
oral argument, 325-326
persuasive writing, 254-255
pleadings, 239-240
False statements of material fact or law, 199-200
Federal courts, 15-16, 17
Federal Rule of Appellate Procedure
Rule 10(a), 265-266
Federal Rules of Civil Procedure
Rule 11, 260-261
Rule 12(b)(6), 257-258
Rule 35(a), 267
Rule 37, 258-259
Rule 52(a)(6), 266
Rule 56, 259-260, 268
Fees, attorney, 116-117, 259,
Findings of fact, 266-268
Flag burning, statutory interpretation example, 22-24
Footnotes, 35, 41, 304-305, 308
Form books, 232

Game theory approach to negotiation, 190-191

Gestures in public speaking, 319-320
Google Scholar, 30
Grammar. See also Paragraphs; Sentences
active voice, 95-97
adjectives and adverbs, 250, 254, 283
client opinion letter, 166
 correct use of, 166
double negatives, 106
parallel structure, 104-105
passive voice, 95-97
rules of, 433-438

Headings
appellate briefs, 295-298
advocacy with, 297-298
checklist, 306-308
number, 298
outline, 298
use of, 295
writing, 296-297
memoranda, 123, 127-128, 135-137
settlement agreements, 211
Headnotes to cases, 30, 124, 299
Historical development of law, 148-149, 303
Holding in case briefs, 41
Hornbooks, 17, 25, 34
House of Representatives, 18, 23
Humor
appellate briefs, 305
email, 226-227
oral argument, 315
reader’s understanding, 99
Imagery, use in oral argument, 318
Index to periodicals, 25n , 28
Initial client interview, 111-119
generally, 111
checklist for, 118-119
client’s perspective, 113-115
detailed information, need for, 114-115
getting started, 114
goals and priorities, 115
keeping track of information, 114
closing interview, 117-118
fees, 116-117
goals for, 115
greeting client, 112-113
option development, 116
planning for, 112
preliminary assessment of client’s problem, 116
preparatory explanation, 113
purpose, 111-112

Interlocutory orders, 265

Intermediate appellate courts, 15
International trade cases, 16
Interoffice memoranda. See Memoranda
Interview with client. See Initial client interview
IRAC (Issue, Rule, Application/Analysis, Conclusion), 48
Issue. See also Question presented
case briefs, 40
memoranda, 123, 128-131, 135-139
Its vs. it’s, 437

Jargon, 5, 165. See also Legalese

Judges
addressing during argument, 322
opinions, review of, 327-328
questions in oral argument, 310, 322, 327-328,
Jurisdiction
defined, 13n
federal courts, 15, 16
mandatory authority, 16-17
state courts, 14-15
statements
appellate brief, 271, 275, 306
complaint, 234n
Jury findings on appeal, 266n

Kennedy, Anthony, 321

Kennedy, John F., 317-318
KeyCite, 31
King, Martin Luther, Jr., 317-318

“Law discussion only” approach, 150-151, 303

Law review articles, 17, 25n, 29
Legal analysis, 47-70
generally, 47
case analysis, 55-64
case briefs, 35-36, 41
checklist for, 70
deductive argument, 48-50
generally, 48
application, 49-50
limitations, 49
use of, 49
facts, law applied to, 50-55
basic approach, 51
example, 51-55
 legal system and, 1-2
statutory analysis, 64-70
steps for legal argument, 47
Legal encyclopedias, 27, 124
Legalese, 4, 97-98, 232, 235
Legal periodicals, 25n , 28-29, 149, 275
Legal system, 13-24
common law, 16-18
mandatory authority, 16-17, 77, 303
persuasive authority, 17, 77, 303-304
sources of law and hierarchy, 13, 303-304
weight of authority, 18, 77
court system, 14-16
federal courts, 15-16, 17
state courts, 14-15, 17
legal analysis and, 1-2
sources of law and hierarchy, 13, 303-304
statutes, 18-24
canons of statutory construction, 20-21
mandatory authority, 16-17
relationship between statutory law and common law, 20-21
role of court and legislature, illustration of, 22-24
sources of law and hierarchy, 13
supremacy of legislature, 18-20
Legislative history, 20, 21
Legislative process, 18-20
LexisNexis, 29, 31
Loislaw, 29n

Mandatory authority, 16-17, 77, 303

Mayer Brown law firms, briefs by, 393
Media and legal system, 1-2
Mediation, 203-209
generally, 6, 203-204
agreement to mediate, 207-208
confidentiality, 204, 207-208
exercise, 209
mediation brief, 208-209, 414-431
mediator, role of, 204, 207
sample mediation briefs, 414-431
stages of, 204-207
agenda development, 205-206
brainstorming, 206
caucus, 206
conference, 206
introduction, 205
opening statements, 205
preparation, 204-205
resolution, 206-207
 voluntary, 207
waiver, 208
writing for, 207-209
Mediation brief, 208-209, 414-431
Mediator, 204, 207
Memoranda
generally, 2
citation format, 126
conclusion, 123, 131-133
exercises, 135-139
defined, 121
discussion, 123, 144-152. See also Legal analysis
exercises, 152, 157-161
reasoning in, 149-152
facts, 123, 141-144, 153-161
hallmarks of well-written memo, 124-126
citation format, 126
clear writing style, 124-125
creativity, 125-126
good judgment, 124
objective analysis, 124
thorough research, 124
heading, 123, 127-128, 135-137
issue, 123, 128-131, 135-139
negotiation and, 189
organization, 125
parts of, 122-123
precision and clarity, 125
purposes of, 121-122
reader understanding, 125
sample, 329-349
Metaphor, use of, 318
Modifiers, use of, 433-435
Motions. See also Persuasive writing
generally, 3
checklist, 261
to compel discovery, 258-259
to dismiss, 257-258
memorandum in support, 2
pretrial motions. See Pretrial motions
for summary judgment, 259-260, 268

Name-calling, 205, 318

Names in briefs, using parties’, 274, 282, 393
Negative implication, rule of, 21
Negative words or phrases in writing, 106
Negotiation
generally, 189
beginning of, 197
 checklist, 200
closing of, 199
communication skills, 5-6
ethics, 199-200
information exchange, 194-195, 197-198
planning for, 194-197
analysis of needs and interests, 196
evaluation of case, 194-197
information exchange, 194-195
opening offer, target, and bottom line, 195-196
personalities involved, 197
purposes of, 190
settlement authority, 187, 196n
styles of, 193-194
theories of, 190-193
adversarial models, 190-192
economic model, 191-192
game theory, 190-191
problem-solving negotiation, 192-193
social-psychological bargaining model, 192
trading, 198
New information, advising court and opponent about, 324
Notice pleading, 231-232
Novelty, use in oral argument, 315

Office of the Solicitor General, briefs by, 393

On-point authority, 16-17, 18, 32, 33, 77, 78
On Writing Well (Zinsser), 4
Opinion letter. See Client opinion letter
Opposing arguments, 304, 305, 312
Oral argument, 309-320
generally, 6, 309
appellate oral argument, 321-328. See also Appellate oral arguments
audience considerations, 309-310
fundamentals of good public speaking, 6, 319-320
emphasis use, 319
eye contact, 319
gestures, 319-320
pauses, use of, 319
posture, 320
reading, 319
speaking to be heard, 319
language use in, 317-318
imagery, 318
repetition, 317-318
rhetorical questions, 317
organizational patterns, 313-314
causal relationships, establishing, 313
chronological, 313
 problem to solution, 313
pro vs. con, 313-314
setting, 310-311
structure of, 311-314
introductions, conclusions, and transitions, 314
methods of proof, 312
organizational patterns, 313-314
strategy, 312
style and tools for, 315-318
conflict, 315
emphasis, 316-317
humor, 315
inappropriate tools, 318
language, 317-318
novelty, 315
suspense, 315-316
theme, 317
Organization
appellate brief arguments, 300-302
within arguments, 77-78
memoranda, 125
oral argument, 313-314
persuasive writing, 251-252
Outlines
appellate oral arguments, 323, 326
argument and discussions, 81, 82-83
headings, 298
memoranda, 125
persuasive writing, 251
structure in legal writing, 72-74

Paragraphs
generally, 81
cohesive paragraphs, 87-89
extraneous sentences, 88-89
focused discussion sections, 87-88
roadmaps, 76-77, 84, 125, 144, 251
structure of documents, 77-78
thesis, 84
topic sentences, 76-77, 85-86, 87-89, 251
transitions and repetition words, 89-90, 317-318
Parallel structure, 104-105
Parentheticals, 304-305
Parties
in briefs, 270, 271, 296
in complaints, 231, 232, 234
in settlement agreements, 212-213
Passim, use of, 275
Passive voice, 95-97
Patent cases, 15
Penal statutes, 19, 20, 21, 23
Personalized writing, 99, 108, 305
Personal jurisdiction, 13n
Personification, use of, 318
Persuasive authority, 17, 77, 303-304
Persuasive writing, 249-256
generally, 249
appellate briefs. See Appellate briefs
clear and credible arguments, 250-251
equity and policy arguments, 255
facts, 254-255
motions. See Pretrial motions
precedent, 255-256
well-organized argument, 251-252
best arguments first, 251-252
structure of, 251
writing style for, 252-254
concrete words and terms, 252
same subject in series of sentences, 253-254
word placement for emphasis, 253
Petitioner, use of term, 270n , 322n
Plain English, 1, 4, 98, 232
Plain meaning rule, 21
Pleadings, 232-247
generally, 3, 232
answers
generally, 3
drafting, 235-237
exercises, 244-247
verification, 237
captions, 232-233
complaint, 233
generally, 3
drafting, 233-235
exercises, 241-244
sample, 373-377, 383-389
verification, 237
numbered paragraphs in, 232, 235, 240
purpose and language of, 231-232
rules of procedure and, 232
sample, 373-392
verifications, 237
Pocket parts, 27, 299
Policy arguments. See Equity and policy arguments
Positive words or phrases in writing, 106
Posture in public speaking, 320
Preamble of statutes, 18, 20
Precedent. See also Common law
appellate briefs, 303-305
 generally, 303
adverse, 303-304
hierarchy, 303
rebuttal, 304
footnotes, 304-305
mandatory authority, 16-17, 77, 303
other jurisdictions, 21, 78
parentheticals, 304-305
persuasive authority, 17, 77, 303-304
persuasive writing, 249, 305
quotations, 304-305
rebuttal, 304
relationship between statutory and common law, 20-21
signals, 304-305
string cites, 304-305
weight of authority, 18, 77
Pre-law writing experience, 4
Pretrial motions, 257-261
checklist for, 261
ethical considerations, 260-261
form of, 257
motions to compel discovery, 258-259
motions to dismiss, 257-258
purposes of, 257
Problem-solving negotiation, 192-193
Procedural history of case, 39, 282
Procedural provisions of statutes, 19, 20
Procrastination. See Time Management
Pronouns
personalized writing, 99, 108, 305
use of, 433, 435-437
Proofreading
appellate briefs, 305
email, 226
Protocol for appellate oral arguments, 321
Puffery in negotiation, 199
Punctuation rules, 438-442
Purpose of documents, 72

Qualifiers, 106
Question marks, use in quotations, 442
Question presented, 271, 276-277, 279-280, 306-307. See also Issue
Quotations
appellate briefs, 304-305
overuse of, 149-150, 303
punctuation rules, 441-442
statement of facts, 285

R
Reader understanding, 93-109
generally, 93
content, 106-109
ambiguous words and phrases, 106-107
colloquialisms, 99, 107-108, 165, 305
contractions, 99, 107, 165, 225, 437
excessive variation, 108
personalized writing, 99, 108, 305
positives vs. negatives, 106
general advice, 94-101
active voice, 95-97, 214-216, 285
concrete language, 94-95, 252, 317
getting to the point, 94
legalese, 4, 97-98, 232, 235
technical terms, 98-99
tone, 99
sentence structure for, 101-105
full sentences, 104
intrusive phases and clauses, 103-104
logical order, use of, 102-103
parallel structure, 104-105
short sentences, 101-102
Rebuttal of opposing arguments, 304, 325, 326-327
Recitals, 213-214
Record
appeals, use in, 265-266
appellate briefs, use in, 265-266, 269-270, 271, 273-274, 299
oral arguments, 322
Rehearsal of oral arguments, 324
Releases, 220-221
Relief
appeals, forms of, 268
in appellate briefs, 306
demand for, 235
Repetition, use of, 86-87, 317-318
Research strategy, 25-34
A.L.R. and legal periodicals, 28-29
appellate briefs, 299
books vs. computer, 30-31
checklist for, 33-34
computer research, 29-31
digests, 28
keeping track of research, 33
legal encyclopedias, 27
memoranda, 124
negotiation and, 189, 194
nonlegal sources, 30
statutes, 26
traditional research sources, 29-30
updating research, 31
 when to stop, 31-33
appellate briefs, 299
finding same citations, 32
not following all leads, 32-33
on-point cases first, 32
where to start, 25-27
legal encyclopedias, 27
restatements, 26-27
statutes, 26
treatises, 26
Respondent, use of term, 270n , 322n
Restatements, 26-27
Rhetorical questions in oral argument, 317
Roadmaps
appellate oral arguments, 301, 325-326
conclusion first in, 81, 83-85
memoranda, 125, 144
persuasive writing, 251
structure of documents, 76-77
Rules of procedure, 232, 257, 259, 260, 265-268, 270. See also specific rules of procedure

Sanctions
discovery, 259
Rule 11, 260-261
Sarcasm, 226-227, 305
Secondary authority, 17, 78, 271. See also specific types
Semicolon, 441
Senate, U.S., 18
Sentences
extraneous, 88-89
full sentences, 104
intrusive phrases and clauses, 103-104
logical order of, 102-103
parallel structure, 104-105
persuasive writing style and, 252-254
short sentences, 101-102
structure, 101-105
topic sentences, 76-77, 85-86, 87-89, 251
Settlement agreement, 211-221
generally, 3, 211
drafting, 219-220
exercise, 222
headings, 211
parts of, 211-219
caption, 212-213
closing, 218-219
contingencies, 216-217
declarations, 217-218
definitions, 214
 operative language, 214-216
recitals, 213-214
title, 211-212
transition, 213
release, 220-221
sample settlement agreements, 212n, 214n, 369-371
Settlement authority, 187, 196n
Shepard’s Citation Service, 31, 32, 33, 299
Short answer in memoranda, 123, 131-133, 135-139
Short sentences, use of, 4, 101-102
Signals, 304-305
Signature of attorney, 218-219, 244, 247, 306, 308
Slang, 99, 165, 318
Social-psychological bargaining model of negotiation, 192
Sources of law and hierarchy, 13, 303-304
Spelling, 11, 166, 266
Stages of mediation, 204-207. See also Mediation.
agenda development, 205-206
brainstorming, 206
caucus, 206
conference, 206
introduction, 205
opening statements, 205
preparation, 204-205
resolution, 206-207
Standard of review on appeal, 266-268
abuse of discretion, 267
clearly erroneous, 266-267
de novo review, 267-268
importance to practitioner, 268
Stare decisis, 16, 47, 78. See also Precedent
State constitutions, 13, 14
State courts, 14-15, 17
State legislatures, 18
Statement of facts in appellate briefs, 270, 271, 281-285, 288, 307. See also Record
Statutes, 18-24
appellate briefs, text in, 270, 271, 278, 280, 307
canons of statutory construction, 20-21
legal analysis, 64-70
mandatory authority, 16-17
relationship between statutory law and common law, 20-21
research strategy, 26
role of court and legislature, illustration of, 22-24
sources of law and hierarchy, 13, 303-304
supremacy of legislature and legislative process, 18-20
“Straw man” approach to proof, 312
String citations, 304-305
Structure of documents, 72-79. See also specific documents
checklist, 78-79
organization within arguments, 77-78
 outlines, use of, 72-74, 81, 82-83, 125, 233, 251, 298
placement of policy and equity arguments, 78
roadmaps, topic sentences, and transitions, 76-77, 85-86, 87-90, 251, 317-318
strategy and, 74-76
Style of writing. See Writing style; specific documents
Subject matter jurisdiction, 13n
Subject-verb agreement, 436-437
Substantive provisions of statutes, 19, 20
Summary judgment motions, 259-260, 268
Summary of argument in appellate briefs, 270, 272, 285-286, 287-294, 307
Supreme Court, U.S., 15-16, 17
oral argument transcripts, 394
Rule 34(h), 285-286
Surprise, use in oral argument, 315-316
Suspense, use in oral argument, 315-316

Table of authorities in appellate briefs, 270, 271, 275, 279, 306, 397
Table of contents in appellate briefs, 270, 271, 274, 278, 306, 396
Technical terms, defined, 98-99
Terms of art, 108
That vs. which, 437-438
Themes of argument or discussion, 81-91
generally, 81
conclusion first, 81, 83-85
oral argument, 305, 313
outline, 81, 82-83
paragraphs, effective writing of, 81, 85-91
cohesive paragraphs, 87-89
topic sentences,76-77, 85-86, 87-89, 251
transitions and repetition words, 89-90, 317-318
Thesis paragraph, 84
Thesis sentences. See Topic sentences
Third-party defendant, complaint against, 387-389
Time management, 7-11
generally, 7
assignments, 8-9
workload, 7-8
writer’s block, 8-9
writing methods, 8
writing process
planning, 10
complications, 11
deadlines, 10-11
details, 11
drafts, 10
Title page in appellate briefs, 270, 271, 274, 278, 306
Tone
appellate briefs, 305
email, 225-226
 reader understanding, 99
Topical organizational pattern, 314
Topic sentences, 76-77, 85-86, 87-89, 251
Torts, 26, 27, 60, 61n, 108
Transitions, 89-90, 213, 317-318
Treatises
appellate briefs, 275
persuasive authority, 17
research strategy, 26, 124
Trial courts, 14, 15
Types of legal writing, 2-4. See also specific documents

United States Constitution, 13, 16

United States Court of Appeals for the District of Columbia, 16
United States Court of Appeals for the Federal Circuit, 16
United States Supreme Court. See Supreme Court, U.S.

Verbosity, 5
Verb-subject agreement, 436
Verification and pleadings, 237
Vetoes, 18
Visual aids in oral presentations, 311

Weight of authority, 18, 77

Westlaw, 23, 24
Which vs. that, 437-438
Wikipedia, 30
Witness credibility, 194, 266
Word choice, 106-109
abbreviations, 305
ambiguous words and phrases, 106-107
colloquialisms, 99, 107-108, 165, 305
concrete language, 94-95, 252, 317
contractions, 99, 107, 165, 225, 437
excessive variation in, 108
jargon and stilted language, 5, 165
legalese, 4, 97-98, 232, 235
oral argument, 317-318
personalized writing, 99, 108, 305
positives vs. negatives, 106
qualifying words, 106
slang, 99, 165, 318
technical terms, 98-99
terms of art, 108
tone, 99
Writer’s block, 8-9
Writing, process of, 10-11. See also Time management.
planning, 10
complications, 11
deadlines, 10-11
details, 11
drafts, 10
Writing style, 4-5, 124-125. See also specific documents
abstract writing approach, 94-95,150, 252, 303, 317
client opinion letter, 163-166
“digest” approach, 147-148, 303
memorandum, 124-125
persuasive writing, 252-254