Legal Reasoning and Legal Writing : Structure, Strategy, and Style

by
Edition: 5th
Format: Paperback
Pub. Date: 2005-03-01
Publisher(s): Wolters Kluwer
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Summary

The new edition of this highly successful text remains grounded in the premise that legal reasoning and legal writing are learned better when they are taught together. Building on that foundation, The book offers complete coverage of how to form a legal argument and how to write an effective legal memorandum. the Fifth Edition preserves the features that earned the book its loyal following: comprehensive coverage of writing an office memo, a motion memo, and an appellate brief, along with chapters on oral argument, client letters, and client interviewing the best available explanation of the reasoning underlying the proof of a conclusion of law in Explanation of the Paradigm for Organizing a Proof of a Conclusion of Law thoughtful treatment of all aspects of legal reasoning, from rule-based analysis To The strategy of persuasion instruction on the process of writing, As well as the mechanics of style and grammar textual explanations that include example and exercises when appropriate appendices including an office memo, two lawyers letters, a motion memo, and two appellate briefs the skillful guidance of author Richard K. Neumann, Jr., who is highly regarded for both his scholarship and his writing This extensive revision responds to feedback from both students and instructors: Chapter 2 on Rules of Law rewritten to make the material more accessible the chapter on Organizing Proof of a Conclusion of Law (formerly Chapter 10) has been reorganized into 4 separate chapters with new exercises to make the material more understandable for students examples, exercises, and skill explanations are updated and refined new chapter on demand letters Please visit the new companion website to learn more about this book. Website: http://www.aspenlawschool.com/neumann5

Table of Contents

Preface xxvii
Acknowledgments xxix
I INTRODUCTION TO LAW AND ITS STUDY
1(50)
An Introduction to American Law
3(12)
The Origin of Common Law
3(3)
How American Courts Are Organized
6(2)
State Courts
6(1)
Federal Courts
7(1)
An Overview of the Litigation Process
8(5)
Phase 1: Pleadings and Service of Process
8(2)
Phase 2: Between Pleadings and Trial
10(1)
Phase 3: Trial
10(1)
Phase 4: Post-Trial Motions
11(1)
Phase 5: Appeal
12(1)
Phase 6: Post-Appeal Proceedings
12(1)
Criminal Cases
13(1)
The Importance of Understanding Procedure
13(1)
The Adversary System
14(1)
Rule-Based Reasoning
15(14)
The Inner Structure of a Rule
15(7)
Organizing the Application of a Rule
22(2)
Some Things to Be Careful About with Rules
24(1)
Causes of Action and Affirmative Defenses
25(2)
Where Rules Come From (Sources of Law)
27(2)
Exercise I. The Uniform Commercial Code and Unconscionability
28(1)
Exercise II. The Freedom of Information Act and the Federal Register
28(1)
Exercise III. The Federal Rules of Civil Procedure and Motions to Compel
28(1)
An Introduction to Judicial Decisions and Statutes
29(14)
The Anatomy of a Judicial Decision
29(7)
Exercise I. Dissecting the Text of Roberson v. Rochester Folding Box Co.
30(6)
The Interdependence Among Facts, Issues, and Rules
36(4)
Exercise II. Analyzing the Meaning of Roberson v. Rochester Folding Box Co.
40(1)
The Anatomy of a Statute
40(3)
Exercise III. Analyzing the Meaning of §§ 50 and 51 of the New York Civil Rights Law
41(2)
Briefing Cases
43(8)
Introduction
43(1)
How to Brief a Case
43(8)
Exercise. Briefing Costanza v. Seinfeld
49(2)
II INTRODUCTION TO LEGAL WRITING
51(20)
The Art of Legal Writing
53(6)
The Language as a Professional Tool
53(2)
Your Writing and Your Career
55(1)
Predictive Writing and Persuasive Writing
56(1)
The Art Forms of Legal Writing
57(2)
The Process of Writing
59(12)
Writing in Four Stages
59(1)
Analyzing
60(2)
Organizing
62(1)
The First Draft
63(1)
Overcoming Writer's Block
63(2)
Rewriting
65(1)
Plagiarism
66(1)
Some General Advice about Writing
67(4)
III OFFICE MEMORANDA
71(26)
Office Memoranda
73(6)
Office Memorandum Format
73(5)
Writing an Office Memorandum
78(1)
Initially Obtaining the Facts: Client Interviewing
79(6)
Introduction
79(1)
Lawyers and Clients
80(1)
How to Interview
81(4)
How to Begin
81(1)
How to Learn What the Client Knows
82(1)
How to Conclude
83(2)
Predictive Writing
85(12)
How to Predict
85(5)
How to Test Your Writing for Predictiveness
90(7)
Exercise I. Nansen and Byrd
92(2)
Exercise II. The Hartleys and Debenture
94(3)
IV ORGANIZING PROOF OF A CONCLUSION OF LAW
97(48)
A Paradigm for Organizing Proof of a Conclusion of Law
99(12)
Why We Need to Organize Proof of a Conclusion of Law
99(1)
A Paradigm for Structuring Proof
100(3)
Why Readers Prefer This Type of Organization
103(1)
Varying the Paradigm Formula to Suit Your Needs
104(7)
Varying the Sequence
104(1)
Varying the Depth
104(1)
Combining Separately Structured Analyses
104(1)
Exercise I. Changing Planes in Little Rock
105(2)
Exercise II. What You See or What U See
107(4)
Varying the Depth of Rule Proof and Rule Application
111(10)
Introduction
111(1)
Conclusory Explanations
112(1)
Substantiating Explanations
113(1)
Comprehensive Explanations
113(3)
Cryptic Explanations
116(5)
Exercise. Punitive Damages and Bedbugs
116(5)
Combining Proofs of Separate Conclusions of Law
121(12)
Introduction
121(1)
How to Organize Where More Than One Element Is at Issue
121(3)
How to Organize Where More Than One Claim or Defense Is at Issue
124(1)
How to Organize Alternative Ways of Proving a Single Conclusion
125(1)
How to Organize Where There Are Other Separate but Related Issues
125(1)
How to Start Working with Multi-Issue Situations
126(7)
Exercise. After the Night in the Bar
127(6)
Working with the Paradigm
133(12)
Using the Paradigm to Outline and to Begin Your First Draft
133(2)
Rewriting: How to Test Your Writing for Effective Organization
135(10)
Exercise I. Griggs and the Anti-Bandit (Checking Organization During Rewriting)
138(2)
Exercise II. Teddy Washburn's Gun (Analyzing and Organizing)
140(5)
V. GENERAL ANALYTICAL SKILLS
145(70)
Selecting Authority
147(16)
Introduction
147(1)
The Hierarchy of Authority
148(3)
How Courts Use Dicta
151(1)
How Courts React to Foreign Precedent
152(2)
How to Use Foreign Precedent and Other Nonmandatory Authority to Fill a Gap in Local Law
154(3)
Laying the Foundation
154(2)
Filling the Gap
156(1)
How to Select Nonmandatory Precedent
157(1)
How to Work Effectively in the Library
158(5)
Exercise. The Hierarchy of Authority
161(2)
Working with Precedent
163(20)
Eight Skills for Working with Precedent
163(1)
Formulating a Variety of Rules from the Same Precedent
164(1)
Analogizing and Distinguishing
165(1)
Eliciting Policy from Precedent
166(1)
Synthesis and Reconciliation
167(2)
Testing for Realism and Marketability
169(14)
Exercise I. Emil Risberg's Diary (A ``Confidential or Fiduciary Relation''?)
169(8)
Exercise II. Qkast (The Partial Breach Issue)
177(6)
Working with Statutes
183(22)
Ten Tools of Statutory Interpretation
183(9)
How to Present Statutory Analysis in Writing
192(13)
Exercise I. Plagiarism and the Board of Bar Examiners
194(6)
Exercise II. The Ironwood Tract
200(5)
Working with Facts
205(10)
What Is a Fact?
205(2)
Identifying Determinative Facts
207(2)
Building Inferences from Facts
209(2)
Identifying Hidden and Unsupportable Factual Assumptions
211(4)
Exercise I. The Menu at the Courthouse Cafe
213(1)
Exercise II. Welty's State of Mind
214(1)
VI GENERAL WRITING SKILLS
215(62)
Paragraphing
217(10)
How Paragraphing Reveals Your Organization
217(1)
Probative Paragraphs and Descriptive Paragraphs
218(1)
Thesis Sentences, Topic Sentences, and Transition Sentences
219(1)
The Two Most Common Ways of Botching the Beginning of a Paragraph
220(3)
How to Test Your Writing for Effective Paragraphing
223(4)
Exercise I. The First Weeks of Law School (Probative and Descriptive Paragraphs)
224(1)
Exercise II. Maldonado's Citrus Croissants (Thesis and Topic Sentences, Paragraph Coherence)
225(1)
Exercise III. Escape from Prison (Paragraph Unity, Coherence, and Length)
225(2)
Effective Style
227(24)
James P. Degnan, The Ph.D. Illiterate
227(1)
Clarity and Vividness
228(1)
Conciseness
229(3)
Forcefulness
232(4)
Punctuation and Other Rules of Grammar
236(1)
How to Test Your Writing for Effective Style
237(14)
Exercise I. Kalmar's Driveway (Clarity and Conciseness)
248(1)
Exercise II. Smolensky at the Plate (Clarity and Forcefulness)
249(2)
Citations and Quotations
251(26)
Why Legal Citation Is Complicated
251(1)
Touring the ALWD Citation Manual and the Bluebook
252(2)
The ALWD Citation Manual
253(1)
The Bluebook
253(1)
Citation to Specific Types of Authority
254(6)
Citation to Cases
254(4)
Citation to Statutes
258(2)
Rules Governing All Citations
260(7)
Quotations
267(3)
How to Test Your Writing for Effective Use of Quotations
270(7)
Exercise I. The First Amendment (Quotations)
273(1)
Exercise II. Suing Presidents (Citations and Quotations)
274(1)
Exercise III. Disqualifying Judges (Citations and Quotations)
275(2)
VII LETTERS AND EXAM ANSWERS
277(22)
Client Advice Letters
279(6)
The Letters Lawyers Write
279(1)
Client Advice Letters
280(5)
Demand Letters
285(6)
Why and How Lawyers Write Demand Letters
285(1)
Strategy: Persuading through a Letter
286(2)
Legal Ethics and Demand Letters
288(1)
Structure of a Demand Letter
288(3)
How to Write Exam Answers
291(8)
How Exam Answers Differ from Other Forms of Legal Writing
291(1)
Answering Essay Questions
292(3)
Other Types of Questions
295(1)
General Suggestions for Taking Exams
296(3)
VIII THE SHIFT TO PERSUASION
299(94)
Developing a Persuasive Theory
301(14)
Introduction
301(1)
Strategic Thinking
301(1)
Professional Creativity
302(3)
Theories: Of the Case, of the Motion, of the Appeal
305(1)
Characteristics of a Persuasive Theory
306(2)
Developing a Theory
308(2)
Imagery and Story-Telling
310(5)
Exercise. Escape from Prison? (Developing a Theory)
311(4)
Developing Persuasive Arguments
315(24)
What Is an Argument?
315(2)
What Judges Expect from Written Argumentation
317(1)
Argumentation Techniques
318(15)
Argumentation Ethics
333(1)
How to Handle Adverse Authority and Arguments
334(5)
Exercise I. The Shoelaces
337(1)
Exercise II. The Painter and the Preschool
337(2)
Handling the Procedural Posture
339(14)
Why Procedural Postures Matter
339(1)
Types of Procedural Postures
339(8)
Motions Challenging the Quality of a Party's Allegations
340(1)
Motions Challenging Other Aspects of the Way in Which the Litigation Began
341(1)
Motions Challenging the Quality of a Party's Evidence
342(4)
Miscellaneous Case Management Motions
346(1)
Appeal
347(1)
Writing in a Procedural Posture
347(2)
Researching to Account for Your Case's Procedural Posture
349(4)
Exercise. Welty's Facts at Various Procedural Postures
351(2)
Motion Memoranda
353(6)
Motion Memorandum Format
353(3)
Writing a Motion Memorandum
356(3)
Point Headings and Sub-Headings
359(10)
How Points and Headings Work
359(3)
How to Evaluate Your Headings and Sub-Headings for Effectiveness
362(7)
Exercise. Point Headings and Sub-Headings
368(1)
Statements of the Case
369(14)
How a Statement of the Case Works
369(3)
How to Tell Your Client's Story Persuasively
372(6)
Fact Ethics
378(1)
The Record
379(4)
Exercise I. What Is a Fact? (Reprise)
380(1)
Exercise II. Story-Telling
380(1)
Exercise III. Topical Organization v. Chronological Organization
380(1)
Exercise IV. Escape from Prison? (Rewriting Statements of the Case)
380(1)
Exercise V. Drafting Statements of the Case
381(2)
Questions Presented
383(10)
The Purpose and Structure of a Question Presented
383(2)
How to Evaluate Your Questions Presented for Persuasiveness
385(8)
Exercise I. Bank Robbery (Questions Presented)
390(1)
Exercise II. Drafting Persuasive Questions Presented
391(2)
IX APPELLATE BRIEFS
393(32)
Appellate Practice
395(12)
Introduction to Appeals
395(2)
What Happens During an Appeal
397(3)
The Roles of the Brief and of Oral Argument
400(2)
Limitations on Appellate Review
402(5)
Appellate Briefs
407(8)
Appellate Brief Format
407(5)
How Judges Read Appellate Briefs
412(3)
Writing the Appellate Brief
415(10)
Developing a Theory of the Appeal
415(1)
The Process of Writing a Brief
416(3)
Handling the Standard of Review and the Procedural Posture Below
419(6)
X INTO THE COURTROOM
425(24)
Oral Argument
427(22)
Your Three Goals at Oral Argument
427(1)
The Structure of an Oral Argument
428(3)
Questions from the Bench
431(2)
Delivery, Affect, and Style
433(2)
Formalities and Customs of the Courtroom
435(1)
Preparation for Oral Argument
436(2)
State v. Dobbs and Zachrisson: An Oral Argument Dissected
438(11)
APPENDICES
449(88)
Basic Legal Usage
451(6)
24 Rules of Punctuation
457(14)
Sample Office Memorandum
471(6)
Sample Client Advice Letter
477(4)
Sample Demand Letter
481(4)
Sample Motion Memorandum
485(10)
Sample Appellant's Brief
495(24)
Sample Appellee's Brief
519(18)
Index 537

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