Introduction to U.S. Style Legal Writing

Lecture for the Georgian Bar Association

October, 17, 2014Professor Edward C. Harris

Chicago-Kent College of LawCopyright © 2014

Sources of Law in the U.S. Primary vs. SecondaryMandatory vs. PersuasiveWeight of a source is dependent on position

of law making body in the hierarchy of authority.

Sources of Law in the U.S. Legal Systems in the U.S.

50 State Systems plus Washington, D.C. 1 Federal SystemMilitary Legal System (not important for our

purposes)

Sources of Law in the U.S.Each system contains the obvious branches

of government: Legislature (creates constitutional and

statutory law)Executive (executes the law – but executive

orders)Judicial (interprets law, but may make case

law)

Sources of Law in the U.S. Primary – the law! Constitutions

Federal and stateStatutes

Federal and stateAdministrative RegulationsMunicipal Ordinances Case Law

Priority in the order above!

Sources of Law in the U.S.Constitutions

Highest sourceGeneral in characterDescribes the relationship and powers of each

of the branches of government, but also includes important human/civil rights

Sources of Law in the U.S.Statutes (Fed and State)Laws on specific subjects

Process – two houses of congress/state legislature, plus approval of the President/Governor

May be still too general on the subject for people and businesses to know what the law requires; May need the further source of administrative

regulations for specifics

Sources of Law in the U.S.Administrative Regulations (Fed and State)Municipal Ordinances

All of the above are ENACTED sources of law

Sources of Law in the U.S.Case lawRule of common lawStatutory interpretation (or of an

Administrative Regulation). How does it apply and how does it bind other

courts??? The rule vs. the reasoning

Reasoning by analogy – analogous vs. distinguishable

Sources of Law in the U.S.Secondary sources…

Not the law; commentary about the lawLots of different secondary sourcesUsed to:

Aid understanding Find other primary sources

Sources of Law in the U.S.Sample of secondary sources:

Legal encyclopediasTreatises / hornbooksRestatements (common law areas)Uniform laws and commentaryLaw review and journal articlesLegal dictionariesDigests (not really a secondary source – a

finding tool)

Analytical ParadigmsIRAC

Typical for law school exams, but some lawyers use this in various forms of analysis

Issue, Rule, Application, ConclusionCRuPAC

Analytical ParadigmsThe paradigm that you use (whether IRAC or

CRuPAC or something else) will change slightly and the language you use will change based on whether you are writing predictively or persuasively

Predictive “Likely”Need to hedge to avoid having your words

being interpreted as absolute

Analytical ParadigmsCRuPAC

Conclusion: Start with this, and you may need to wait until you

know the answer to write this portion. Your reader wants to know the result at the

beginning.

Analytical ParadigmsCRuPAC

Rule Here you want to state the relevant portions of the

rule or rules that govern your facts. You may need more than one rule Move logically through this section by stating

general rules first, then more specific rules, and exceptions to the rules

Analytical ParadigmsProof of the rule:

Your reader needs to know that the rule really is the rule in your jurisdiction.

How? Citation to the applicable authority (simple) Explanation of the rule (more complex)

Could be discussion of legislative record, case law, how the law has been applied to similar situations, etc.

By the time your reader has read this information, he or she feels confident that the law is in fact the correct law, her or she understands it and how it applies

Analytical ParadigmsApplication of the rule to the relevant facts.

In your application of rule to facts, you need to make it obvious to your reader that the application of the rule leads to the conclusion that you mentioned at the beginning (and again at the end).

Don’t leave out facts that could have an impact on the conclusion.

Don’t leave out aspects of the rule that might be relevant to your prediction.

Here is where you might also hint at information that you do not have and need to know.

Analytical ParadigmsAlso in the application of rule to facts, you

might want to also compare how the rule has been applied in the past to similar situations by the court (or relevant decisional body). This helps your reader see that your application of rule to facts is consistent with how the decisional body has previously applied the rule.

This type of comparison is typically reserved for lengthier legal analysis, e.g., a full-length office memo.

Analytical ParadigmsConclusion:

Restate your conclusion and perhaps add something that indicates what you think the result means… such as, “the employer should consider a settlement negotiation with the former employee rather than take a risk of losing at trial…”

Language and OrganizationThe overall piece

Section to section… (1) Intro/issue/background; (2) analysis (1, 2,3, or 4

parts); (3) do each of your main parts to the analysis need to be further divided into subparts? (4) conclusion

Subsection to subsection – logical pathUse headings and subheadings to guide the

readerParagraph to paragraph – logical path - one

main idea leading to the next main ideaSentence to sentence – same

Analytical ParadigmsUse of transitional words and phrases to show

the logical flow of ideas: In addition,…Further,…On the other hand, ….However,… Although,…. there is nevertheless….

These words mean something very specific and demonstrate the logical relationship between the idea that comes before and the one that follows. They give clear signals to your reader.

Analytical ParadigmsA few other language basics:

Articles – definite and indefiniteVerb form and agreementActive voice vs. passive voice

Transactional Drafting (Contracts)“Legalese” vs Plain EnglishOrganizing a contract (see course materials

Section 4)Definitional terms or terms of art: how to

define, how to use, and consistency, consistency, consistency!

Transactional Drafting (Contracts)Parts of a typical contract – what they are

and what they do: Title Introductory ParagraphRecitalsTransitional clauseTransactional provisions (substantive)

Definitions Key elements of the transaction – this is the “what”

and “how” of the transaction

Transactional Drafting (Contracts)Transactional provisions (continued)

Representations and Warranties Covenants Term, termination, and breachAnything else??? Notices

Transactional Drafting (Contracts)Miscellaneous provisions:

Severability Choice of lawChoice of forumAttorneys feesModificationAssignment No waiver Merger clause – Parole Evidence Rule

Transactional Drafting (Contracts)Miscellaneous (continued)

Liquidated damages ??? Maybe in the main body of the contract under “breach”

Force majeure Other???

Signature BlockName, title, and date

Notary? Annexes