Seeing the Big Picture in the Cases

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!

-Marie

P.S. My book, The Lawyer’s Essential Guide to Writing, contains lots of yeses and nos.

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The Art of (Not) Quoting

Quote Sparingly.

Judges and senior attorneys want you to summarize the cases for them. Quote from cases only if the language is extremely significant.

Introduce Quotations with Substantive Sentences

The sentences that introduce your quotation should summarize the quoted language. For example, introduce a quotation with a sentence, such as In Smith v. Jones, the First Circuit also outlined the factors that determine whether more than a corrective disclosure is required. An effective introductory sentence spares the reader the agony of actually reading the quote. Avoid introducing quotations with bland phrases that tell nothing about the material to follow, such as In Smith v. Jones, the court held that. . . .

Avoid long quotations.

Long quotations beg not to be read. Readers love block quotes because the block format highlights just what part of the page they can skip. And skip it they will. If you must include a long quote, consider breaking it up into smaller parts so that you can keep it in your paragraph. Begin with The court stated that. . . . Continue with The court explained that. . . . Conclude with The Court cautioned that. . . .

But if you must quote a long passage, put it in a block.

If you must quote a passage of fifty words or more, set off that quote in block format: double space before and after the quote, single space within the quote and indent five or ten spaces at the left and right margins.

-Marie

P. S. My Book, The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques, contains many more scintillating tips like this!

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Weave Adverse Case Law into Your Argument or Analysis

Happy New Year! Let’s continue our series on how to present case law. We’ve talked about the lingo for discussing patterns in the case law. We’ve noted that skilled advocates don’t just list cases, they summarize a body of law and give a global picture of the research. And we’ve also talked about the three key issues in any case discussion. (Remember? Facts. Facts. Facts.) Now let’s talk about how to handle the elephant in the room—adverse case law. Your ethical obligations require that you mention it, but how do you talk about it without hurting your case?

Adverse case law rarely deserves a dedicated introductory sentence that flatly states its holding. If you break adverse case law into a separate section or paragraph, you may find yourself arguing the other side’s case, no matter how carefully you distinguish that law. Instead, weave opposing authority into your argument and present it offensively by using transitional words such as however and although.

For example, if you are arguing that the corporate veil should not be pierced, you should not begin your discussion of a case allowing a pierce by stating, In Jones v. Nasty Corp., the court pierced the corporate veil where Nasty Corp. was undercapitalized. Rather, explain that Although Jones v. Nasty Corp. allows a court to pierce the corporate veil where a corporation is undercapitalized, our client—unlike Nasty Corporation—is adequately capitalized. Couching troublesome authority in an although clause helps dilute its impact. For example, you might say that Although courts will pierce where the corporation has committed fraud, Client X never misrepresented its identity.

If you “wrap” your discussion of opposing authority with language that helps your case, you will meet your ethical obligations without losing control of your argument.

-Marie

P. S. My Book, The Lawyer’s Essential Guide to Writing contains many fascinating tips like this!

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Use Pattern—Such As Parallel Construction—to Make Your Work More Readable.

What Is So Special About Pattern?

The human mind loves pattern. Poetry, for example, touches us through its rhythm, cadence and rhyme before it moves us with its meaning or symbolism. But patterns not only make a work appealing, patterns can also make a work more readable.

How? Once the reader senses a pattern in the writing, the reader begins to look for that pattern—unconsciously—and the pattern pulls the reader along. So strong writers exploit the human mind’s inherent love of pattern by using pattern to make a work flow.

Forms? Seriously?

The most common examples of pattern in legal writing are forms. Because we are so familiar with common legal forms, they make reading easier because we know where to look in the form for certain information. But don’t be enslaved to a form. Use a form only if it follows the three essential rules of writing.

Pattern Within Prose: Parallel Construction 

Within our prose, the patterns may be subtle, but pattern is still a valuable tool. The key pattern in our prose is parallel construction.

If you begin a paragraph with a strong introductory sentence stating your conclusion about the law, your reader will become conditioned to look for that introductory sentence in following paragraphs. If you begin each section by stating your conclusion and then supporting and applying that conclusion to the facts, your reader will easily absorb later sections following a similar pattern. A section in which you discuss a rule then distinguish exceptions to the rule leads your reader to expect a similar order in later sections.

Use Pattern to “Condition” Your Reader

Once you have “conditioned” your reader by establishing a pattern, use that pattern consistently and your work will be more readable and accessible—even though your reader may not be consciously aware of the underlying pattern.

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Honestly, it took me many years of coaching to understand this all-important principle,  so I hope you find it helpful.

 P. S. My Book contains many more tips on writing.

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In legal argument, avoid the mysterious “one.”

In legal argument, avoid the third person “one,” as in “one could argue” or “one might add.” Too many “ones” arguing can lead to ball bouncing—a distracting batting back and forth of ideas.  Also avoid “on the one hand” because it leaves the reader waiting for you to talk about “the other hand,” which is like leaving your reader to wait for an invisible shoe to drop.

Simply get to the point. Don’t say:

One could argue that the world is flat.

Simply say:

The world is flat.

Chances are that enough parties are already involved in your case, so you don’t need to add a mysterious, invisible player.

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Let your tone suggest integrity and wisdom.

You probably learned one of the most important rules of practicing law in kindergarten. Remember when your teacher told you not to use fighting words? It was wise advice.

In legal writing, you should aim for a tempered, balanced tone. Spare the vitriol and accusations. Wisdom and reason speak for themselves and need not hide behind fighting words. Let your pitch suggest your integrity and show the court that you are reasonable and worth dealing with. An understated tone conveys your honesty and candor. A shrill tone suggests that you should not be trusted.

And keeping a balanced tone should not mean that you sacrifice passion and zeal. For example, in his dissent from the Supreme Court’s recent decision allowing corporate spending in campaigns, Justice Stevens finished with a biting comment that nailed his thoughts in history. Showing that his ninety years have not diminished his convictions, Justice Stevens concluded: “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 979 (2010) (Justice Stevens, dissenting) (also available at http://www.supremecourt.gov). Words are an advocate’s sharpest tool so let your convictions inspire your language.

So avoid the fighting words and play nice!

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Use “Signal” Words to Tell the Reader Where You Are Going.

Think of your argument or analysis as a line drive from point A to point B. Occasionally, you must detour to discuss an exception or a contradictory point. Your reader will appreciate directional signals at those transitions. ”Similarly,” “for example,” “in particular” and “in addition” let the reader know that you are developing the main point. “However,” “although” and “by contrast” show that you are taking a detour to discuss an exception to a rule or to distinguish opposing authority. “Therefore” signals a conclusion. “Again” tells your reader that, yes, you have already discussed this point so they can relax. These directional signals are powerful tools that let your reader know the value of a sentence before they read that sentence.

Here are some helpful “signal” words:

• First, Second, Third
• For example
• Similarly
• In particular
• By contrast
• However or But
• Again
• Also
• Therefore
• Finally (every reader’s favorite word).

But be careful not to begin every sentence within a paragraph with a signal word or your sentences will sound formulaic. Vary the form of your sentences occasionally. For example, instead of saying “Similarly, in Smith v. Jones, the court held that….” say “In Smith v. Jones, the court also held that …. ”

So are you sending good signals to your reader?

So Just Where does the Transition Go?

Unlike in civilian writing—where the transition often goes before the next heading—the transition in legal writing goes after the heading because the heading itself is a form of transition. Thus, the first paragraph or the first sentence after the heading serves as the transition to the new topic. Many legal writers mistakenly put the transition before the heading—a mistake that leads to cumbersome transitions, such as This memorandum will now address. . . . (Scroll down to see yesterday’s post on why sentences like this just don’t do anyone any favors.)

So don’t let your transitions wander to strange places. Do you know where your transition is tonight?

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A sentence that simply announces what you will do next is a waste of space and time.

Many writers try to transition by writing a sentence that simply announces what they are planning to do next. They write sentences like these:

I will now turn my attention to . . . .

A question still remains . . . .

I might add that . . . .

This paper next addresses . . . .

It is interesting to note that . . . .

A sentence that simply announces what you will do next wastes space—and your readers’ time—because it does not say anything new or add value. As we have discussed in earlier posts, you should use your “leads” to transition. If you have used your “leads” to lay out the structure of your argument, you do not need to waste a sentence telling your readers what the next point is. They already know, so you can simply leap into the next topic.

In my next post, I will turn my attention to . . . . OOOOOPS!

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One Lead Sentence Goes a Long Way.

A lead sentence that summarizes your argument serves as the transition not only to that argument. It can serve as the transition to later paragraphs, as well. If the reader already knows where your argument is going, you need not waste time on careful transitions between paragraphs later on.

Consider Justice Breyer’s transitions to his section discussing the interest in stake in school desegregation cases in Parents Involved in Community Schools, 551 U. S. 701 (2007). There, Justice Breyer used his opening sentence to summarize the three major elements behind that interest and then addressed each element individually. In this passage, his opening sentence establishes the bridge for transitions to later paragraphs. Here is how he begins four successive paragraphs:

“Regardless of its name, however, the interest at stake possesses three essential elements.”

“First, there is a historical and remedial element: an interest in setting right the consequences of prior conditions of segregation.”

“Second, there is an educational element: an interest in overcoming the adverse educational effects produced by and associated with highly segregated schools.”

“Third, there is a democratic element: an interest in producing an educational environment that reflects the ‘pluralistic society’ in which our children will live.”

551 U.S. at 838–840 (emphasis added).

One lead sentence goes a long, long way . . . .

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Transition by Leading Each Paragraph with a Strong Topic Sentence

If you “lead from the top” by beginning each paragraph with a strong topic sentence, that lead sentence serves as a transition to the new topic. Indeed, strong lead sentences are one of the best transition techniques in your arsenal.

Consider these lead sentences from Justice Roberts’ opinion overturning the school assignment system in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007):

“The principle that racial balancing is not permitted is one of substance, not semantics.”

“Jefferson County phrases its interest as ‘racial integration,’ but integration certainly does not require the sort of racial proportionality reflected in its plan.”

“Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of students.”

“The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals.”

“The reasons for rejecting a motives test for racial classifications are clear enough.”

551 U.S. at 732-735, 742.

Justice Breyer also used strong declaratory statements to transition between thoughts in his dissent in that same case. Note his focus on facts:

“The historical and factual context in which these cases arise is critical.”

“Overall these efforts brought about considerable racial integration. More recently, however, progress has stalled.”

“In fact, the defining feature of both plans is greater emphasis upon student choice.”

“Experience in Seattle and Louisville is consistent with experience elsewhere.”

“Indeed, the consequences of the approach the Court takes today are serious.”

551 U.S. at 804, 805, 846, 849, 861, 865.

I know. It makes you nervous. You want to write a transition sentence before you leap into the next topic. But in legal writing, the transition goes at the beginning of the topic. Lead from the top. (Have I said that before?)

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The Truth About Transitions

Writing—like life and music—is hardest at the transitions, so many lawyers worry about how to transition effectively. But transitioning between sections and thoughts is easier than you may think. If you follow the principle of leading from the top, your leads all function as transitions. In other words, you already know how to transition. You just don’t know that you know.

An effective opening and strong leads make the work of transitioning later in the paper much easier. If you have opened your paper by “leading from the top,” you have already primed your readers about what to look for and you can spend less time easing them between sections because they already know where you are going. Headings and lead sentences also serve as transitions because they tell the reader what to look for in the section or paragraph.

Lawyers often spend too much time transitioning, not realizing that the form of legal writing enables us to transition quickly between topics. Because our readers are trained to be familiar with the forms in which we write, transitions between topics can be more abrupt than in civilian prose.

In my next few posts, I’ll talk about some of the techniques for writing strong transitions. Stay tuned!

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