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