Posted: March 21st, 2013 | Author: mariebuckley | Filed under: Research Tips, The Argument or Analysis, Thinking about the Cases | Tags: legal research tips, legal writing coach, legal writing techniques, legal writing tips, legal writing training | No Comments »
The strength of any piece of legal writing turns on the depth and breadth of the research that supports the writing. But legal research is about much more than simply finding cases or presenting long lists of authority. Real understanding of the case law requires that you think outside narrow legal categories—such as intent, misrepresentation or reliance—and that you present the big-picture view of a body of law.
How do you get to that big picture view? You must focus on fact, rather than theory. Here’s one technique that may help you unearth the big picture.
Divide Your Cases into Two Categories: For You and Against You
Your key cases will generally fall into two categories: those in which the court ruled for the analogous party and those in which the court ruled against. So arrange your cases into two groups: cases which help and cases which hurt or yes and no. Within your yes and no groups, arrange your cases in order of importance. Think about your yes cases (and later, your no cases) as a whole. What case have you put first? Why? Is it the most analogous case? The leading case? The most recent case?
Review Each Group as a Whole to Identify Factual Trends
Now look for the factual distinctions between your yes and your no cases. For example, how egregious must palming off be before it justifies piercing the corporate veil? Is a court more likely to find reliance where a buyer was unsophisticated? If so, just how unsophisticated must the buyer be?
By considering each group of cases as a whole, you will see factual patterns that are not apparent from reading any single case but go to the core of a court’s reasoning. If you know these factual patterns, you can comment authoritatively on the reasons behind the law, rather than simply parroting back citations and vague legal theory.
Yes and No? Isn’t that too simple?
It’s so simple that it clarifies complex ideas. For example, Thurgood Marshall and his colleagues relied on factual distinctions to make history in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). There, Marshall and his colleagues had little precedent going their way. If they organized their research into yes and no cases (and perhaps they did), their no pile would have been huge and their yes pile would have been empty. Since they had little law on their side, they did what brilliant advocates do. They argued the facts.
In their oft-cited brief (also cited in Steven Stark’s, Writing to Win), Marshall and his colleagues effectively dismissed the Board’s many equal protection cases by categorizing them as simple “nuisance cases, sewage cases and cases of overhanging cornices”—a “cautious calculation of conveniences” that could not compare to the rights of children “to be treated as entire citizens of the society into which they have been born.”
Look for Patterns in the Facts
Obviously, you must identify factual analogies between your case and the precedent. However, you must also identify factual trends in the precedent. For example, if you are asking the court to pierce the corporate veil, review all cases in which the court did pierce the veil to identify any facts that will support a pierce. Then give the court concrete reasons to accept your argument by focusing on facts. For example, say “A court may pierce the corporate veil whenever a company’s capitalization falls below a certain ratio.” Avoid generic statements of law, such as “A court will pierce the corporate veil to prevent fraud.”
So – divide and conquer!
P.S. My book, The Lawyer’s Essential Guide to Writing, contains lots of yeses and nos.
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Posted: November 15th, 2012 | Author: mariebuckley | Filed under: Talking About the Cases | Tags: legal writing, legal writing coach, legal writing techniques, legal writing tips | 1 Comment »
Handling case law is an art form and the lawyer who can do it well is not only an advocate, but an artist as well. So let’s talk about the techniques that skilled advocates use to present case law—techniques that lead to a deep and concise overview of large bodies of research. Their secret? Skilled advocates give an overview of a body of law, rather than simply listing cases.
Give a Global Picture of Your Research
Often the most important part of your research is what you did not find. If no court has ever ruled against your position, then you miss an opportunity if you simply cite the 1,001 cases that favor your position. Emphasize the absence of any opposing authority by stating, for example, that No court has ever declined to find personal jurisdiction over a defendant who maintained an office within its jurisdiction. If only two cases go against you, emphasize the paucity of opposing authority by explaining Only two reported cases have ruled that . . . . If the authority is split, search for the factual distinctions and, if you can, explain that The most analogous cases hold that . . . . If you are writing a research memorandum and no cases go your way, you must flatly disclose the absence of helpful authority.
Discuss the Most Recent or Most Important Law First
Unlike in the fact section of a brief—where we often present the detailed facts in chronological order—you should not present your cases chronologically. Instead, give your readers a snapshot of current law by beginning with the most important or most recent cases. Provide historical context only if that context helps explain current law.
Learn the Lingo for Talking About Cases
Discussing case law is an art form and shorthand phrases make your job easier, as long as you don’t slip into legalese. A case can be distinguishable, controlling, relevant, analogous, seminal or binding. Discussing patterns in the case law is even more challenging so certain well-used phrases—such as this court squarely addressed or this court has long recognized—are helpful. (Click here for a list of the Lingo for Talking About Cases.)
Discuss Key Cases in Prose, Rather Than in Parentheticals
Your most important cases should always be discussed in prose, rather than in a parenthetical. The decision to discuss a case in prose shows that you assign a higher value to that case than to the cases that you discuss in parentheticals. But even if you discuss a case in prose, you might still need to write parentheticals to flesh out minor facts or the procedural history of the case. (And, yes, you should use parentheticals to share the facts of minor cases.)
Use Signal Phrases Every Time You Introduce a New Case
Your readers want to know immediately whether a case is the leading or most analogous case or whether it narrows a concept, states a different position, simply provides an example or repeats earlier information. Therefore, always assign a value or weight to the case by using signal phrases that show why you are citing that case. Use phrases such as in the leading case, in an analogous case, in particular, by contrast, however, for example, recently, also or again. But, again, be careful not to begin every sentence in a paragraph with a signal phrase or you will compromise the rhythm of your writing.
Summarize Case Law Succinctly
In Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 748 (2007), Justice Roberts summarized the law before Brown v. Board of Education of Topeka with a gifted economy of words. He explained simply, “Before Brown children were told where they could and could not go to school based on the color of their skin.” 551 U.S. at 747. If Justice Roberts can reduce decades of constitutional jurisprudence to a few pithy words, you should be able to discuss a statute-of-limitations case or the doctrine of piercing the corporate veil in a sentence or two.
We’ll talk another time about how to discuss the facts of cited cases. Prose or parenthetical? Stay tuned ….
P.S. My Book, The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques (ABA, 2011), is full of fascinating tips like this. Order it here.
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