LJA Chapter 5

Using the Law: Analysis and Legal Writing

• Legal Writing goals:
  • Clear
  • Concise
  • Direct
• Core aim of legal analysis:
  • Process of comparing and contrasting facts and legal issues
  • Evaluate how your case aligns with the legal issue
  • Determine if the law is on your side or against you
  • If the law is against you, identify ways to still win

What is the goal?

• Legal analysis: the process of comparing and contrasting facts and legal issues
• Questions to guide analysis:
  • How does your case compare to the legal issue?
  • Is the law on your side?
  • Is the law against you? If so, how can you still win?
• Starting questions for a research project:
  1) What exactly is the research project? What is your goal?
  2) Who is the reading audience?
  3) What legal issues does the research explore?
  4) How will the reading audience benefit from the results of the research?
  5) List the most important points you must get across to your audience
  6) List the legal authority that supports each point in question 5

What do you do when you start? (cont.)

• Additional starter questions:
  7) Which citation manual? (It’s Bluebook, it’s always Bluebook)
  8) Is there a length restriction? If so, what is it?
  9) How long is your current draft?
  10) When must the project be completed?
• Reading audience considerations:
  • For a judge?
  • Persuasive Document: Trying to convince a judge to rule in your favor
  • For a supervisor?
  • Predictive Office Memorandum: Informing someone about the current state of the law

First Draft Planning

• Professor Connally’s process:
  • Rarely go straight into writing/typing
  • Hand write a loose outline
  • Think about which headings will be used
  • Write short sentences about the direction under each subheading
• Draft Outline structure:
  • Introduction: The United States opposes the defendant’s motion for XXXXXX.
  • Procedural History: Includes the date of indictment and any other relevant history.
  • Factual Background: On date X, defendant did Y. (Length varies)
  • Legal Argument: Short conclusory sentence(s) on why I win.
  • The Court should deny the defendant’s motion because .
  • First Argument (repeat as needed): Sentence summarizing defendant’s argument and why it’s wrong
  • Relevant Law: Sentences comparing my facts and relevant law
  • Conclusion: The court should rule in my favor.

Basic Legal Writing Tips

• Use Topic Sentences:
  • Clearly state the subject matter, usually the first sentence
  • Should not be wordy; conveys what you are trying to get across
• Short Sentences:
  • Wherever possible, use short sentences
  • Do you like to read long sentences? Judges, law firm partners, and senior associates are humans. The same rules apply
  • $25$ words or less; $3$ lines or less

Active Voice

• Focus on the actor and what they did (subject-verb-object or actor-what the actor did-the object)
• Examples:
  • The plaintiff did X.
  • The defendant did Y.
  • The judge ruled X.
• Avoid the word BY when possible
• Active vs. Passive examples:
  • Active: Barry kicked the ball.
  • Passive: The ball was kicked by Barry.
• Example in an academic context:
  • Active: Professor Connally teaches Introduction to Law and Advocacy on Tuesday and Thursdays.
  • Passive: Introduction to Law and Advocacy is taught by Professor Connally on Tuesday and Thursday.

More Active Voice

• Active vs. Passive examples:
  • Passive: A motion to suppress the confession was brought by the defendant.
  • Active: The defendant moved to suppress the confession.
• I.R.A.C. method:
  • Issue
  • Rule
  • Application/Analysis
  • Conclusion

IRAC

• I.R.A.C. stands for: Issue, Rule, Application/Analysis, Conclusion
• Structure helps organize legal reasoning in a consistent format

Issue

• What are we trying to answer?
• What’s at issue in this case?
• Example question: Did the police have probable cause to search the defendant’s car?

Rule

• What law applies?
• Example rules:
  • The Supreme Court ruled that officers need probable cause to search a vehicle.
  • The Supreme Court has also ruled that an officer’s plain sight observation of contraband is sufficient probable cause to search a vehicle.

Application

• Applying the law to the facts:
  • Observed cocaine and firearm on the passenger seat.
  • The officer searched after observing cocaine.
  • It is a federal felony to possess cocaine and a firearm.
  • The Supreme Court has held that an officer may search a vehicle if there is probable cause to believe the vehicle contains contraband.
  • The officer’s observations supplied probable cause to search the car.
• Conclusion: The officer had probable cause to search the car.

Types of Legal Writing

• Case Briefs: Short summary of a case
• Legal Memorandum: An informal interoffice document written to communicate the results of legal research and the resulting legal analysis
• Case Briefs (additional context): Law school focuses on reading cases and answering questions; writing case briefs helps organize thoughts

Case Briefs

• Case Brief Components:
  • Name and Citation of the Case: X v. Y, XX Case Reporter XX (Court Year)
  • Gives the party names
  • Judicial History: What happened in the lower court? e.g., district court findings
  • The Facts: What happened?
  • The Issue: What is the legal question before this court?
  • Rules: What rules (primary law) did the court rely on?
  • The Analysis: How did the court analyze the facts in light of the question and rules?
  • Holding: How did the court resolve the dispute?
• Case Brief Example: Brady v. Maryland

Brady v. Maryland: Case Snapshot

• Case name and citation:
  • Brady v. Maryland, 373 U.S. 83 (1963)
• Procedural History:
  • A jury in Maryland convicted Brady of first degree murder. The judge sentenced Brady to death. The Maryland Court of Appeals affirmed the trial court’s decision. Brady filed a motion for a new trial after Brady’s attorney discovered that the prosecution had withheld evidence. The state trial court denied Brady’s motion for a new trial. The Maryland Court of Appeals held that the prosecution’s withholding of evidence violated Brady’s right to due process, and ordered a new trial for Brady’s sentencing. Brady appealed the Court of Appeals decision arguing that he should receive a new trial on with respect to his guilt.
• Issue:
  • Did Maryland violate Brady’s due process rights when the Court of Appeals restricted the new trial to the issue of punishment?
• Holding and Reasoning (to be explored in subsequent slides):
  • Holding: The prosecutions withholding of evidence that was material to a defendant’s guilt or punishment was a violation of due process.
  • Reasoning: It is a matter of fairness. The government has an obligation to turn over exculpatory evidence. A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. How can a defendant defend himself if the government does not provide evidence that tends to show non-guilt or lesser involvement.

Brady v. Maryland: Facts, Issues, and Analysis (Detailed)

• Facts:
  • The state prosecuted Brady and Boblit for first degree murder in separate trials.
  • Brady’s attorney requested the turnover of Boblit’s statements; several statements were turned over but a July 8, 1958 statement from Boblit was not.
  • Brady testified and admitted participation but claimed Boblit committed the murder.
  • Brady’s attorney conceded Brady’s guilt in closing, but requested mercy on punishment.
  • After conviction, Brady discovered the unshared confession and that the Court of Appeals limited a new trial to punishment considerations.
• Issues:
  • Did Maryland violate Brady’s due process rights by restricting a new trial to punishment rather than guilt?
• Holding:
  • The prosecution’s withholding of exculpatory evidence was a due process violation.

Case Briefs: Details and Their Significance

• The holding emphasizes fairness and the government’s obligation to disclose exculpatory evidence
• Consequences:
  • Proper disclosure prevents trials that are unfairly weighted against the defendant
  • Brings the trial closer to the truth by ensuring all relevant evidence is available

Brady v. Maryland: Further Explanations

• Other opinions:
  • Case briefs typically summarize the majority opinion (what the law is)
  • Concurring opinions: separate opinions that agree with the outcome but differ on reasoning
  • Dissenting opinions: separate opinions that disagree with the majority
• Example definitions:
  • Concurring Opinion: A separate opinion written by one or more justices agreeing with the ultimate decision but differing in reasoning
  • Dissenting Opinion: A separate opinion disagreeing with the majority’s decision

Dissenting Opinion and Legal Memorandum

• Dissenting Opinion: A separate opinion disagreeing with the majority’s decision
• Legal Memorandum: An informal interoffice document communicating the results of legal research and the resulting analysis

Arrangement for Memo

• Structure varies by organization and supervisor
• Generally includes:
  • Statement of Facts
  • Issue Statement
  • Discussion/Analysis
  • Conclusion
• Look familiar? I.R.A.C. Citations
• Citations: Bluebook Uniform System of Citations (I.R.A.C.)

Citations

• Structure: Sentence followed by the authority it came from
• Example: Statement from the case. X v. Y, XX Case Reporter XX (Court Year)
• Example: Statement from the law. $ext{Fla. Stat. } 784.03$
• Id.: Shorthand in your writing, direct reference to an authority that was immediately previously cited
• Practical example: Florida Criminal Battery

Legal Writing Example (Narrative)

• Example narrative (fictional):
  • Raditz travels to Florida in search of his long-lost brother Kakarot. Raditz has not seen Kakarot in over $20$ years. Raditz locates Kakarot in the Florida Keys. Raditz travels to the Keys where he locates his long-lost brother Kakarot. He discovers that Kakarot has a son and that Kakarot is happy hanging out with his friends in the Keys. Raditz approaches Kakarot and informs him that he is Kakarot’s long-lost brother. He invites Kakarot to ditch his friends and have a few drinks with him at a local bar. Kakarot declines and says his name is Goku. Raditz becomes enraged and kicks Goku.
• Question: What, if any crime did Raditz commit?

Facts, Issue, Rule, Analysis, and Conclusion (Raditz example)

• Facts:
  • Parties: Raditz and Goku (a.k.a. Kakarot)
  • Location: Florida
  • Event: Raditz kicked Goku (Kakarot)
• Issue:
  • What, if any crime did Raditz commit?
  • Is there a Florida criminal law that covers this set of facts?
• Rule (from online databases):
  • $ext{Florida Battery} \frac{784.03}{1} ext{(1)(a)}$
  • The offense occurs when a person actually and intentionally touches or strikes another person against the will of the other; or intentionally causes bodily harm
• Analysis:
  • Facts + Law: How does the law interact with our facts?
  • Raditz kicked Goku; Goku did not consent; Florida law makes it a crime to touch or strike another person against their will
• Conclusion (Raditz):
  • Raditz committed the crime of battery

Putting it all together: Battery under Florida law

• Battery definition under $ext{Fla. Stat. } 784.03$:
  • A person actually and intentionally touches or strikes another person against the will of the other
• Application to the facts:
  • Raditz kicked Goku after Goku refused to drink with him
  • Goku did not consent to being kicked
  • The evidence shows Raditz committed battery by kicking Goku

Real-world relevance and implications

• IRAC and citations ensure consistency and clarity in legal writing
• Bluebook citations and proper case name reporting are essential for credibility
• Clear, concise, and direct writing improves persuasiveness with judges and legal professionals
• Understanding the difference between case briefs and legal memoranda helps in different professional contexts (courtrooms vs. offices)
• Ethical implications: disclosure of exculpatory evidence and maintaining fairness in judicial processes