Advanced Legal Research and Writing - Class 8 Notes

Advanced Legal Research and Writing: Class 8

Class Overview

  • Developing a research plan and outlining your project (Sloan Chapter 11 pages 245-264).
  • Assignment #2 is due today.
  • Assignment #3 is due 4/15 by 6pm.
  • Proper grammar (PEL Chapters 1-4 pages 3-32).

How to Create a Research Plan

  • Obtain preliminary information about the issue(s).
  • Plan the steps for your research.
  • Work effectively and efficiently on locating the relevant information to answer the questions posed.

Obtaining Preliminary Information

  • How much time do I have to complete this assignment?
  • What do I need to produce? (brief, letter, memo, pleading, etc.)
  • What type of research resources do I have available and are there any limitations?
  • Which jurisdiction's law applies?
  • Should I start my research by reading secondary sources? (Pro-tip: YES!)
  • Can I ask anyone for guidance before I begin my research?

Planning the Steps in Your Research

  • Develop an issue statement(s) and generate your search terms.
  • Outline your search strategy (look at figure 11.1 on page 250 for an example flowchart for determining your research path).
  • Also see sample research plans in figures 11.3 to 11.6 on pages 261-264.

Work Effectively and Efficiently

  • Keep copious notes while you research.
  • Save important documents, cases, sources in your research folders.
  • Know when to STOP! (Hint: when you start seeing the same/similar results each time you effectuate a search).

Finding Help

  • What to do if you can’t find anything?
    • Make sure you understand the issue(s) – talk to your partner/supervisor again and make sure you understand your task.
    • Rethink your search terms.
    • Use secondary sources.
  • Use this same approach if you find TOO MUCH information!

Creating an Outline

  • BEFORE you start writing, creating an outline of your document will save you time and avoid unnecessary confusion and duplicate work.
  • Write out each issue.
  • Under each issue, list your relevant facts/search terms.
  • Under each issue, list each case, statute, resource you found that is helpful to the determination of that issue.

Example Outline

  • Issue #1: whether the defendant committed burglary
    • D entered the home through the kitchen door
    • D took a TV set from the family room
    • People v. Jones (2015) 23 Cal.App.5th 234 (discusses the elements of burglary crime)
    • Pen. Code § 459

Chapter 1 Plain English

  • Why plain English?
  • Good legal writing should not differ from ordinary, well-written English.
  • It does not need to sound as though it has been written by a lawyer.
  • Good legal writing should include:
    • Elimination of unnecessary words
    • Choosing common, everyday words when possible
    • Arranging words for clarity
    • Using active voice (instead of passive)
    • Avoiding overly long sentences

Chapter 2 Omit Surplus Words

  • Every sentence contains two types of words: working words and glue words
    • Working words carry the meaning of the sentence
    • Glue words hold the working words together to form a proper, grammatical sentence
    • If the proportion of the glue words is too high, this is a symptom of a badly constructed sentence
  • EXAMPLE:
    • A trial by jury was requested by the defendant.
      • Working words: trial, jury, requested, defendant
      • Glue words: a, by, was, by, the
      • Five of the nine total words in this sentence are GLUE words
    • The defendant requested a jury trial (only two glue words!)

Chapter 2 Avoid Compound Constructions

  • A compound construction uses three or four words to do the work of one or two
  • Examples:
    • By means of →\rightarrow by
    • In connection with →\rightarrow with, about, concerning
    • In relation to →\rightarrow about, concerning
    • On the ground that →\rightarrow because
    • Prior to →\rightarrow before
    • Subsequent to →\rightarrow after
  • More examples on page 12

Chapter 2 Avoid Word Wasting Expressions

  • One of the worst “offenders” that wastes words is “the fact that”
  • This phrase is almost always surplus
  • Shorten your sentence by simply stating the relevant fact
  • Examples:
    • The fact that she died →\rightarrow her death
    • Despite the fact that she had died →\rightarrow despite her death
    • Because of the fact that she had died →\rightarrow because of her death

Chapter 2 Avoid Word Wasting Expressions (Continued)

  • Other examples of common word-wasting expressions:
    • Sentences that use the words “case,” “instance,” or “situation”
    • In many cases you will find →\rightarrow often, frequently you will find
    • That was a situation in which the court →\rightarrow there, the court
    • A number of →\rightarrow some, several, a few, many
    • During the time that →\rightarrow during, while
    • There is no doubt that →\rightarrow doubtless, no doubt
  • More examples on page 14

Chapter 2 Avoid “It Is” Sentences

  • Pay attention to sentences that start with the word “it” followed by a form of the verb “to be” (i.e. “is”)
  • Ask yourself whether the “it” is referring to something specific – if it’s not, then you might be wasting words
  • Example:
    • The summons arrived this morning. It is on your desk.
      • This is OK! The “it” refers to something specific. (the summons)
    • It is obvious the summons was not properly served.
      • This is just extra verbiage because the “it” does not refer to anything specific

PEL Chapter 4 Using Active Voice

  • Active and passive voice are terms that describe how a sentence’s verb relates to its subject and direct object
  • Both active and passive voice are grammatically correct but active voice is a more effective writing choice
  • Example:
    • Active voice: John kicked the ball.
      • Here, John is the subject and he does the acting: he kicks the ball. (verb is kicks, ball is the object)
    • Passive voice: The ball was kicked by John.
      • Here, the verb is in passive voice (was kicked) and the subject is acted upon (ball is the subject and is being acted upon by John)

PEL Chapter 4 Using Active Voice (Continued)

  • The key difference between the active and passive voice:
    • Active voice: the subject of the sentence does the acting
    • Passive voice: the subject of the sentence is acted upon
  • What is the problem with passive voice?
    • It uses more words than active voice and tends to be more ambiguous
  • Example:
    • Active voice: The trial judge will deny your motion. (Trial judge is subject, verb is “deny”)
    • Passive voice: Your motion will be denied by the trial judge. (Motion is subject being acted on by the trial judge, and the verb is “will be denied”)

PEL Chapter 4 Using Active Voice - When to Use Passive Voice

  • When to use passive voice:
    • When the thing done is important, and who did it is not (The subpoena was served on January 19)
    • When you don’t know who did it (The data files were mysteriously destroyed)
    • You want your sentence to be ambiguous (The plaintiff’s teeth were knocked out – if, for example, you don’t want to emphasize that your client knocked the plaintiff’s teeth out)
    • When you want to place a strong element at the end of the sentence for emphasis (When the victim walked through the door, he was shot)

Preview for Next Week

  • PEL Chapters 5-7 pages 33-70 – sentence structure
  • Self-editing and refining your work product for review and filing
  • Assignment #3 Due by 6:00 PM