Introduction to Legal Writing

Tuesday, Oct. 20, 2009

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Stern, Simon
Legal Writing.ppt

Overview
1. A few general points in legal writing
2. Memo structure / paragraph structure
3. Remember the audience: objective vs.
persuasive writing; analogies &
distinctions
4. Strategies for revising

Basic points
1.
2.
3.
4.

Keep It Simple
Be Precise
Support Your Arguments
Front-load your conclusions

1. keep it clear and simple.

In order to effectuate the attainment of a more
substantive and comprehensive equality
jurisprudence, legal theorists and civil rights
advocates must engage in a sober reading of
Lawrence, Gratz, and Grutter. A recent law
journal article (emphasis added)

Legal writing is supposed be

complicated, right? Wrong.
Words to Avoid
said, as in said vehicle
hereinafter
heretofore
aforesaid
furthermore
In general, multisyllabic words that were
appealing because of their multisyllabicity

2. be precise
The basis for Judge Fletcher's opinion is that
. . . unwelcome physical conduct of a sexual
nature is sufficient to establish a cause of
action under Title VII of the Civil Rights Act,
regardless of whether that harassment
constitutes discrimination because of race,
color, religion, gender, or national origin. I
disagree because this completely eliminates
an essential element of that statute, that the
harassment be because of discrimination
against one of the five specified
categories of persons named in the statute.
Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061,
1070 (9th Cir. 2002) (Hug, J., dissenting)

3. Support your arguments

Why legal writing is different
Most forms of writing are designed to
entertain or inform, in a context in which
the reader trusts the writer. Most forms of
legal writing assume a skeptical audience,
an audience prepared to challenge every
argument. This is true even for in-house
memos. Your goal is to support every
argument, with analysis and with authority.

Analysis and authority

Analysis: avoid conclusory arguments. Every
major step of the argument must be explained
and justified.
Authority: every doctrinal argument must be
supported by legal authority. Rely primarily on
cases, statutes, and regulations (if applicable).
You may also use treatises and journal articles,
but not as a first resort. If you can do without
treatises and journal articles, so much the better.

Memo Structure
The first lesson: keep it boring.

Suspense

Curiosity
(detective)

(Legal memo)

1. Butler poisons
wine

4. Lord H dies

1. Butler poisons wine

2. Butler brings
wine to Lord H.

2. Butler brings
wine

4. Lord H dies

3. Lord H. drinks
wine

3. Lord H drinks
wine

2. Butler brings wine

4. Lord H dies

1. Butler poisons
wine

3. Lord H drinks wine

Memo Structure
1. Problem Posed & Short Answer
2. Facts
3. Discussion
- Umbrella, CRAC / TRAC / IRAC

4. Conclusion

Our case
Madame Sosostris gives palm readings for
$10 on Bloor Street. She is charged under
s.365(b) of the Code, which provides that
everyone who fraudulently undertakes,
for a consideration, to tell fortunes is
guilty of an offence punishable on summary conviction. Witnesses are prepared
to testify that Madame Sosostris refers to
her clients as delightful ignoramuses.

A Short Discursus on Facts

Separate facts from other things
Focus on the determinative facts; separate them
from other kinds of facts
Purge analysis of hidden and unsupportable
assumptions

How to Frame the Question

x Will Madame S. be convicted under s. 365(b)?
x Is Madame S. guilty of fraudulently telling
fortunes?
Can Madame S. be convicted for fraudulently
telling fortunes for a consideration under s.
365, given that she has a commercial palmreading business and has been known to call
her clients delightful ignoramuses?

A Possible Short Answer

Madame S will likely be convicted if the finder of
fact concludes that in calling her clients
ignoramuses, she meant that she duped them
into believing in her powers. But Madame S.
may be able to avoid conviction if she can show
that by ignoramuses, she meant that her
clients lack her special talents. While the law is
unclear, it appears that a fortune-teller who
honestly believes that she can predict the future
can avoid liability for fraudulently telling
fortunes, because her honest belief negates the
required mens rea for this offence.

The Discussion Section

Umbrella paragraph or section
Summarize the legal rule for each issue
Any other info about the rule? (i.e., burden of
proof? presumptions?)
Identify elements not in dispute & why
Roadmap to rest of memo

Element 1: CRAC
Element 2: CRAC
And so on.

CRAC
State your Conclusion (i.e., a one
sentence prediction about how a court
would rule on the factor you are
discussing)
State the governing Rule of law
Apply the rule to your facts, using
analogies and counteranalogies
State your Conclusion again
Rinse, wash, and repeat

Umbrella Paragraphs
Whether Madame Sosostris will be convicted depends on
whether her conduct is deemed to be fraudulent. The mere
telling of a fortune is not per se illegal, as the Crown must
prove an intent to delude or defraud. R. v. Dazenbrook
(2004), 64 O.R. (3d) 27 (Ont. C.A.). The offence in s.365(b)
does not require proof that the predictions were false or that
the accused expressly claimed to have the power to predict
the future. R. v. Labrosse (2006), 82 O.R. (3d) 522 (Ont.
C.A.). In Labrosse, the Supreme Court of Canada held that
an accused may be convicted if she did not honestly believe
she could predict the future, but the court left open the
question of whether conviction is appropriate if she had an
honest belief about this ability. Because blameworthy
conduct is an essential requirement for criminal liability in
Canadian law, Madame S. will likely be acquitted if she
show that she had an honest belief about her abilities.

How Not To Do It
There are many considerations that bear on
the possibility of conviction for fraudulently
telling fortunes. In Dazenbrook he was
charged with defrauding but he lacked the
proper mens rea. In Labrosse she did not
honestly believe what she was saying so
she was convicted. But the most important
thing is that without the proper mens rea a
person accused of a crime cannot be
convicted.

CRAC for Madame S.

Madame S. can probably escape liability here if she can
show that she honestly believed she could tell the future.
In general, a party can be charged with fraud only if she
sought to deceive another party, to the financial
detriment of the latter. For example, in [case], the
accused was held liable for fraud because . . . [more
examples]
Courts have been reluctant to hold parties liable for fraud
unless the party knew that she was making false
representations.
Therefore, if Madame S can show that she believed in her
ability to tell the future by reading palms, she will likely
escape liability for fraud.

CRAC for Madame S, contd

In this case, whether Madame Ss conduct
is deemed fraudulent depends in large
part on whether the Crown can show that
she thought she was duping her clients.
[similar caselaw, if available]

Topic v. Thesis Sentences

Topic sentences: favoured by teachers of
composition; excellent for writing essays.
Terrible for writing legal memos.
A thesis sentence prepares the reader for
the remainder of the paragraph, and
deliberately avoids giving away the
argument that is to follow. This is a bad
idea in legal writing.

Topic v. Thesis sentences

Thesis sentences: disfavoured by
teachers of composition, but loved by
teachers of legal writing. Remember the
lesson: keep it boring. Begin the
paragraph by explaining, as concisely and
directly as possible, the concepts to be
discussed and the conclusion they will
point to.

Topic v. Thesis Sentences

Topic sentence [avoid]:
Wapner v. Denton dealt with when a choice is
sufficiently voluntary to constitute assumption
of the risk.

Thesis sentence [better]:

A choice is not voluntary if the person is
forced to choose between the threatened
harm and another equal or greater harm.

Topic v. Thesis Sentences

Topic sentence [avoid]:
In evaluating liability for fraud, courts have
considered a wide variety of factors including
materiality.

Thesis sentence [better]:

An accused cannot be convicted for fraud if
her allegedly false representations were not
material to the transaction.

Bill Brand is charged with criminal assault

on his wife for forcibly entering his
estranged wifes house at nighttime.
Questions:
Did Brands acts constitute burglary?
Did Brands acts constitute assault?

Rule for Burglary

To establish a burglary, the state must
prove that the accused broke and
entered the dwelling of another with the
intent to commit a felony therein.

Breakdown of Rule:
Rule:
For a burglary conviction, the Crown must prove
all of the following elements:
a. Breaking
b. Entering
c. Dwelling house
d. Of another
e. Intent to commit a felony therein.

Do the Richardson facts establish the

elements of burglary?
For a burglary conviction, the Crown must prove that
Brands conduct constituted a breaking and entering
of the dwelling house of another in the nighttime with
the intent to commit a felony therein. The state must
prove each of these elements beyond a reasonable
doubt. [Cite to applicable authority.]
[Proceed to discuss each element]
a. Breaking
b. Entering
c. Dwelling house
d. Of another
e. Intent to commit a felony therein.

Potential questions
How did Mr. Brand get into the house? Did
his method of entry constitute breaking?
Is his wifes house considered the dwelling
of another?
Did his conduct inside the house constitute
a felony? And if so (or not), what can be
inferred about his intent upon entry?

Highlight the most important questions,

in your explanation and in your
structure, for example:
Here, the most difficult question is whether
Mr. Brand broke into the dwelling house
of another, and accordingly this memo
will address that issue first.

What if you need more information?

It is always appropriate, when writing a memo, to
devote space to factual questions that need to
be ascertained.
Normally, when writing a memo for a supervisor,
it is best to return with the factual questions that
you know need to be answered, because your
supervisor may know or be able to get the
relevant details, and may simply have failed to
realize they were significant.

Structuring the Discussion Section:

Issues with Several Elements
Here we are discussing burglary and assault.
I. Mr. Brand Cannot Be Charged with
Burglary
A,B,C . . . Elements of Burglary
A.1, A.2, etc.

II. Mr. Brand Can Be Charged with Assault

A,B.C, . . . Elements of Assault

Objective versus Persuasive Writing

Remember the audience. In objective
writing (such as a memo), we assess the
landscape as a reasonable person
would, and include all relevant objects that
complicate the landscape. There is
nothing wrong with advancing a particular
position in a memo, but it is crucial that
you give due regard to all sides of the
issues. You are not helping your
supervisor (or the client) if you ignore the
counterarguments.

Objective versus Persuasive Writing

In persuasive writing (such as a factum), we
describe the landscape as we want others
to see it, focusing on key objects that
support this perspective. Who is the
audience? The court. Your goal is to get
the court to adopt your position.

The Writers Job in a Memo is . . .

to guide the reader through a forest of

saplings

The Writers Job in a Factum is

to guide
the reader to
the base
of the
sequoia

Analogies and Distinctions

Again, remember the audience. What is
your reader looking for?
Beddoes held that no cause of action arises
under s.3 of the Ontario Human Rights
Code against an owner of commercial real
estate, because that kind of property is not
a dwelling.

A bad example:
the point is buried at the end
In Beddoes v. Tulkinghorn (1982) 344 O.R. (2d) 319 (Ont.
C.A.), the court held that where the owner of Tulkinghorns Properties, Inc. refused to sell rent space for a law
office to an Indian-Canadian attorney, the landlord was
not liable under s.3 of the Ontario Human Rights Code,
because even though (1) the neighborhood was zoned
for residential housing; (2) the office space was in the
same building as an apartment complex, and (3) the
office space included a kitchen, the office itself was not a
dwelling and residential use of the space was
specifically prohibited in the lease.

A better example:
the point appears at the outset
Courts have consistently held that a refusal to
rent office space does not violate s.3 of the
Ontario Human Rights Code. For example, the
Ontario Court of Appeal has held that where a
landlord refused to rent space in an office
building to an Indian-Canadian attorney who
wanted to open a law office, the landlords
refusal did not make unavailable [to the
attorney] . . . a dwelling, but the plaintiff might
have a cause of action under various other civil
rights statutes. Canard v. Petts (1998), 22 O.R.
(3d) 817 (Ont. C.A.).

Analogies must be explicit and

obvious
OK but not great:
Here, the rental property was a video
rental shop.
Better:
As in Canard, the rental property here was
not a dwelling but instead was available
only for commercial, non-residential use.

Distinctions must also be explicit

and obvious
Not great: Here, Ms. Murphy advertised her
garage in the newspaper as a charming
and spacious junior efficiency.
Better: Unlike Canard, which involved an
office space for which residential use was
impermissible, here Ms. Murphy sought to
rent her garage for residential use.

Canard involved a commercial office

space that was not equipped for
residential use and for which residential
use was prohibited. Here, by contrast,
Ms. Murphy installed a stove and
bathroom in her garage, and she
advertised it for rent as a residential unit.

Revising
Goals of Revision:
1
2
3
4

Clarify the Facts

Clarify the Argument
Streamline Your Sentences
Make Your Citations Easy to Understand

Clarify the facts

a.Dont leave implicit any details that need to
be explained, but dont burden the reader
with unnecessary details.
b.Review for any relevant facts that are
missing.
c.Make sure you didnt leave out relevant facts
just because they dont support your
position.
d. Create short forms for names of parties and
statutes.

Clarify the argument

A. The order of your arguments should
reflect a deliberate choice about how to
present them effectively. Front-load your
most important ideas and arguments; put
the secondary ones later. Consider
relegating minor points to the footnotes.
This applies to the argument as a whole,
and to each section and paragraph.

Clarify the argument, contd

B. Keep in mind your basic theories and
the result you are seeking. Look out for
sections, paragraphs, and sentences that
might distract the reader. If you need to
address minor points that interfere with the
flow of your argument, consider putting
them in a footnote.

Clarify the argument, contd

C.
Use topic sentences. One way to check for
effective use of topic sentences is to read only
the topic sentence of each paragraph. That
should allow you to track the development of the
argument.
D.
When dealing with a multi-part legal test, or
setting out various alternatives, use numerals
and then deal with each point in the enumerated
order. Even if the court didnt use this approach
when explaining a test, it may be a helpful way
to present the issues.

Streamline Your Sentences

A. When possible, use verbs instead of nouns.
E.g., administered a test tested
raised the argument argued
presented a claim claimed
B.
Be sparing of adverbs, but be aware that a
well-chosen adverb can be your friend.
E.g.: The defendant states that the test for
good faith includes motive, but that is
incorrect. The defendant incorrectly treats
motive as a factor in the test for good faith.

Streamline Your Sentences, contd

C. Keep subjects and verbs close together.
S V ... DO S V- DO
(bad) The Crown, despite failing to point to any
proof that Ms. Barr was even aware of the
relevant regulations, proposes to saddle her
with liability for knowing violation of the
Metropolitan Public Carriage Act.
The Crown charges Ms. Barr with knowingly
violating the Metropolitan Public Carriage Act
even though there is no evidence that she had
ever heard of the relevant regulations.

Streamline Your Sentences, contd

D. Keep verbs close their complements, and if
possible, build the complement into the verb.
(bad) The court held that the statute, which
required all persons wishing to post handbills
to register in advance, was unconstitutional.
(better) The court held unconstitutional the
statute, which required preregistration for all
persons wishing to post handbills.
(even better) The court rejected [struck down,
invalidated] the statute requiring preregistration
for all persons wishing to post handbills.

Make it easy to understand the

authorities you cite
Review your quotations to make sure they
are effective and concise. Quote only as
much as you need. If you are quoting a
fact-intensive decision in which the court
explained the details at length, consider
replacing that part of the quotation with
your own, shorter description, outside of
the quotation. Use ellipses to shorten the
quotation.