LEGAL WRITING (LGL 126)

INTRODUCTION

A continuation of LGL 125, incorporating and placing into practice research capabilities in preparing memoranda of law, brief, contracts, pleadings and other legal documents.

OBJECTIVES

1. The student will develop a basic understanding of legal writing.

2. The student will develop a basic understanding of the different kinds of legal writing.

3. The student will be given the opportunity to draft various types of legal documents.

APPLICABLE TEXTBOOKS

There is no text book required for this course. Numerous handouts and samples will be available in the instructor’s website for use in this course.

BASIC CONCEPTS TO BE TAUGHT IN COURSE

This course is designed to acquaint the student with the basic kinds of legal writing. Included will be a study of legal writing principles and techniques. These concepts will be taught through lectures, readings and practice writing assignments.

COURSE REQUIREMENTS

All the writing assignments will be done during class. You will need a yellow legal pad and a ballpoint pen. Each assignment should not exceed two written pages and therefore should easily be written during the hour allotted at the end of class.

Absentee policy: You can miss two classes without a grade penalty. You will be permitted to make up the two missed writing assignments only during my office hours. If you only make up only one of those assignments, the other nine will be averaged for your grade. Failure to make up the second one will reduce your grade accordingly. Other than those two, no missed assignments can be made up.

Every assignment (with the exception of the rough draft of the legal argument) will be graded. Each assignment will be worth 10% of your final grade.

Your grade will be based on:

Neatness - Format - Conciseness - Clarity - Logic - Grammar

COURSE CONTENT

Class #1: General introduction to course - Guidelines in legal writing - Assignment is to download course materials

Class #2: In class writing sample: what it says about you - Elements of a case brief - (Goodwyn, How to Brief a Case, Sample Case Brief) - Brief Smith v. Landmark Communications at end of class for discussion next week.

Class #3: Evaluation of Smith briefs - Brief Jordan v. Jordan at end of class for discussion next week.

Class #4: Evaluation of Jordan - Brief Nolde Brothers v. Wray at end of class for discussion next week.

Class #5: Evaluation of Nolde Brothers briefs - Brief Montgomery v. Commonwealth at end of class for discussion next week.

Class #6: Evaluation of Montgomery briefs - Legal memoranda (elements, using Sample Memo, 7-11 robbery) - Write memo at the end of class for discussion next week (George McPherson scenario).

Class #7: Evaluation of legal memos - Write memo (Legal Memorandum #2 assignment) at end of class for discussion next week.

Class #8: Evaluation of legal memos - Discussion of legal pleadings (elements) - Write initial pleading at end of class for discussion next week

Class #9: Evaluation of initial pleadings - Discussion of Answers (elements) - Write Answer for grade at end of class for discussion next week.

Class #10: Evaluation of answers - Discussion of Adams and Nelson cases - Self-defense analogies - No writing assignment

Class #11: Discussion of interrogatories (elements) - Write a set of interrogatories at end of class for discussion next week

Class #12: Evaluation of interrogatories - Discussion of Peregoy case - Discussion of “How to formulate a legal argument” - Write rough draft of legal argument at end of class for discussion next week

Class #13: Evaluation of rough drafts - Discussion of Parsons and Hopson cases - Write polished legal argument at end of class

Class #14: Evaluation of interrogatories - Discussion of legalese

Class #15: Preparation of client interview form/checklist for a divorce case

Class #16: Contract writing

LEGAL WRITING - CLASS SUMMARIES

Class #2

Students are to prepare a writing sample in class. We will then exchange papers and discuss what such a sample tells about the writer. This is designed to highlight just how important good writing is to a prospective employer.

We will then discuss the elements of a case brief, using the sample case brief of Goodwyn v. Goodwyn as well as “How to brief a case” and “Sample case brief” (all from the downloaded material). This material should be clear enough to allow you to brief a case even if you missed the lecture which covered this.

Assignment: brief Smith v. Landmark Communications (from downloaded material).

Class #3-#4-#5

All three classes follow the same pattern of discussion of the completed case brief assignment. In order to make up any of these assignments, you simply need to write the brief in my office about an hour prior to the next class. The background material needed for these assignments is all contained in Class #2.

Class #6

We will discuss the elements of a legal memorandum. The “Sample memorandum” and “Memorandum #1 assignment” from the downloaded material will be used for this assignment.

The memorandum differs from a case brief in that you reach legal conclusions from the rules of the relevant cases. It requires you to research the law in order to obtain the applicable rules. That is usually from court cases or statutes.

The “Question Presented” section of the memo should be in the form of a question, and should be “self-contained.” Look at “How to brief a case” and re-read the material on self-contained questions. The same concept applies here. Also, your question should include both relevant facts and the legal issue. That will help put the legal principle into a factual context.

The “Factual Background” is similar to the “Facts of the Case” from the case brief. It need not be extensive as long as it puts the problem into perspective.

“Discussion of the Issues” is obviously the heart of the memo. It should include a clear summary of the rules of law that will apply. You will then apply those rules to the facts. For example, suppose there is a rule in baseball that the umpire with a better view of the play has the power to overrule the call made by another umpire. You might just lay that rule out in general first. Then you would apply it to the scenario in issue. For example, the first base umpire could not see the play because ....

Remember, this is not rocket science. It is merely the application of a rule to a situation.

Be as objective and logical as possible. Your conclusion must flow naturally from your application of the rule.

At the end of this portion of the memo, after you have laid out the rule and applied, include a factual conclusion (what I sometimes describe as a mini-conclusion) that you expect the reader to reach. In the baseball analogy, you could say that the second base umpire’s call should therefore be followed.

Then in your “Conclusion,” you reach the ultimate conclusion, such as “The runner should therefore have been considered safe.”

Class #7

The assignment to be written during this class will simply be to write another memorandum. The background material needed for this assignment can be found in Class #6.

Class #8

We will discuss the elements of an initial pleading in a civil case. You will need the “Sample Initial Pleading” and “Background” downloaded material for this assignment.

An initial pleading is basically the beginning of a civil case, in which the plaintiff describes what happened and what he is seeking. Use the sample and follow that format. For our purposes, you can leave out the section dealing with service on the registered agent, as that only applies if the defendant is a corporation.

The top third of the page includes the name of the court and the parties. The “At Law” on the right will later include the case number that the clerk assigns to the case, and for now is left as shown.

“Motion for Judgment” - This heading was used in what are called “law cases” (ones in which a money judgment was sought) as opposed to a “Bill of Complaint” which was used in an equity or chancery case (one in which some judicial order was needed, such as a decree of divorce). As of the first of this year, this distinction has been eliminated. All civil actions are to be called “complaints.” Therefore, the heading should be changed accordingly.

The paragraph immediately following the heading is introductory and should be followed appropriately. Note that the formats includes double-spacing.

The main body of the document must be in numbered paragraphs. These are more accurately called numbered sentences and should each include a separate fact or allegation. This allows all parties and the court to easily identify a specific portion of the document.

The first of these numbered sentences should deal with jurisdiction and venue requirements. For example, in a divorce case, the plaintiff must prove that at least one of the two parties must have been both a domiciliary and resident of Virginia. Otherwise, the court lacks jurisdiction over the case. This must be alleged in the pleading (and later, of course, proven by the plaintiff). In a personal injury case, the injury must have occurred in Virginia - and the case must be brought either where the defendant lives or where the accident occurred. In other words, whatever the requirements are, deal with them in the first one or two numbered sentences.

Next, include a factual description of what happened. It should read like a story. For example, the plaintiff was waiting for a red light and was struck from behind by the defendant’s vehicle. It should be clear and easily understood. These include what you allege to be the facts.

You need not include a summary of the evidence you have to support it. Just make the allegations so the defendant and the court is aware of your position.

You should then include an allegation of the damages you suffered. You can summarize your financial losses and physical damage.

Once you have told your sad tale, you must include an allegation that what the defendant did was legally improper. For example, the defendant-doctor’s failure to remove a sponge from the plaintiff at the conclusion of an operation amounted to negligence.

The “WHEREFORE” clause includes what you are asking the court to do - what relief you are seeking.

You will then include a signature line and line for the signature and address and phone number of counsel.

You will obtain the scenario from the downloaded material. Use only the material that is appropriate for the plaintiff - it does not include the conference between the defendant and his attorney or the material in the second half dealing with the appeal.

Class #9

In this class, we discuss the elements of an “Answer” to the initial pleading. The format is the same as that of the initial pleading, with two exceptions. There is no need to include the address of the defendant, and there will be a case number, having been assigned to the initial pleading by the clerk when filed.

There is a similar introductory paragraph following the heading and leading up to the numbered paragraphs.

These numbered paragraphs respond to the allegations of the initial pleading. In Virginia, an allegation which is not denied is deemed to be admitted. So you must be careful to respond to all the allegations. There are three possible responses to each allegation: admit it, deny it, or demand proof of it.

You must admit what is true, deny what you know is false, and you should demand proof of what you don’t know (such as what may have happened after the plaintiff was taken from the scene). Follow the form of the response in which you demand proof that is found in the sample pleading that is part of the downloaded material.

After you have dealt with the allegations, you then can include a heading, called “GROUNDS OF DEFENSE,” in which you can allege technical defenses which do not arise out of your earlier responses. These might include affirmative defenses, such as the plaintiff’s contributory negligence, which would act as a complete defense.

Put the heading following the last numbered paragraph of your responses and then begin with the next number in sequence. So the paragraph following #7 in your response will be identified as #8, immediately under the heading of GROUNDS OF DEFENSE.

This will be followed by the WHEREFORE clause, in which you ask the court to dismiss the case. Following this will be a signature line and space for the attorney’s signature and address.

Then there will be a CERTIFICATE OF SERVICE, which must always be included in all the pleadings following the initial one.

Although not part of this assignment, an answer can also include a counterclaim, in which you seek damages for the plaintiff’s wrongful actions (as well as denying your own wrongdoing) and a cross-claim, in which you bring in a third party, alleging that such third party should be liable to you if you are found liable to the plaintiff.

Your assignment is to switch hats and become counsel for the defendant and to write an answer, including a grounds of defense.

Class #10

There is no writing assignment for this class.

Class #11

Interrogatories are written questions sent from one party to another as a form of discovery. They are pleadings and are filed as such with the court. In Virginia, they are limited to thirty unless leave of court is obtained.

They are similar to the cross-examination of a witness. When you prepare them, you should be very specific, keeping in mind that the respondent does not wish to help you. Therefore, if you ask whether he or she had been drinking prior to the accident, you might get a response that simply says “Yes.” That is all you asked, and that is all you’ll get for an answer.

You therefore need to ask follow up questions as part of the questions. For example, “If so, what did you drink, how much, who was with you” etc. And be sure to ask, not just about drinking, which will include water, orange juice, etc., but specifically about alcoholic beverages. You get the idea.

Imagine the answers you might get, and ask appropriate follow up questions.

Your assignment is to prepare interrogatories for the defendant to answer. You are acting as counsel for the plaintiff in this one. You need not put this in a pleading format, but may simply write the questions themselves. Your assignment is to write 10 of them. Include any appropriate follow up questions (which do not count toward the 10!).

Class #12

This class will be devoted to the preparation of a legal argument. This is going to be the heart of an appeal brief by the plaintiff. She lost her case at the trial level. After the plaintiff had finished presenting her case (known as the case-in-chief), the defendant moved to dismiss it. This motion is routinely made at that point. The defendant argues that the plaintiff has not established a prima facie case. This means that there is not enough evidence to establish the elements of her case.

The trial court agreed and dismissed her case. He specifically found that her own case had established that she was contributorily negligent as a matter of law. This means that a reasonable jury could only have reached one conclusion, namely that she was contributorily negligent. He therefore found that there was no issue for the jury to decide.

The plaintiff, now called the appellant, will argue that this should have gone to the jury, that there was an issue for the jury to decide. Basically, she will argue that the question of her contributory negligence was at least arguable. If she is correct, that judge should have submitted the case to the jury.

You will use the cases found in the downloaded “Background” material. Use the first two cases as examples of scenarios in which a judicial finding of contributory negligence as a matter of law would have been proper. This would mean that a reasonable jury could only find contributory negligence, that there would be no reasonable argument about this.

Then compare the facts of the third case (King) to our case. That case was found to have been a question for the jury. If the issue of negligence was arguable in that case, you could argue that it also should be arguable in our case. Compare the relative risks involved with attempting to walk across an ice-covered parking lot with walking across the street in a crosswalk in front of an oncoming vehicle. Remember that you only need to argue that jurors could reasonably disagree about this in order to make your point.

The final case is almost identical to ours. Compare them with the ultimate argument being that the same result should apply in both cases.

By the way, when referring to our case (which I did above), call it the case-at-bar. Don’t refer to it by its official name. And when using the other cases, be sure to include the proper citations.

Class #13

We will go over the rough drafts and your assignment will be to write a polished, final draft of your argument.

Class #14

We will go over the final drafts of your arguments. We will practice removing legalese from sentences. The goal is to simplify.

Class #15

We will put together a client interview form/checklist for different types of cases.

Class #16

We will discuss contracts and the importance of clarity.