Effective writing

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Drafting the Discussion & Beyond

Text of Effective writing

  • 1. Effective Writing, Organizing & Editing
      • There is no such thing as good writing.
    • There is only good rewriting.
    • -Justice Brandeis
  • Professor Mathis Rutledge

2. The Prediction

  • When you make a prediction, be sure to include your reasoning

3. The Prediction

  • What side am I on?
  • Be objective
  • Its okay to flip flop during the writing process, but after editing
  • Make a Decision/Prediction

4. Addressing Opposing Arguments

  • Brainstorm and make a list
    • Could a counter-argument be made based on the plain meaning of the rule, case comparisons, or public policy
  • Look at what parties argued in similar cases
  • Look at dissenting opinions
  • If possible, explain how the client can address the opposing argument
  • What is your prediction regarding its success

5. Analogous Cases

  • Before describing, set out the rule or point the case is used to illustrate
  • The proximity of the structure to the primary residence is also a relevant factor.InMcIntyre , for example, when holding that the porch . . .
  • In the cases in which the courts have held that the plaintiff consented to the interception, the defendant had told the plaintiff that all of his or her phone calls would be intercepted.For example, inGriggs-Ryan v. Smith,the defendant . . .

6. Explain Your Conclusions

  • Give a reason to support your conclusions
  • Dont make unsupported conclusory statements
    • Explain WHY the factual similarities between the cases are significant

7. Roadmaps & Transitions

  • A roadmap places things in context for your reader
  • Transitions tell the reader where they are, what to expect, and how the pieces are connected.
    • Example:Ms.Johnson can make four arguments.First, she can argue that . . .Second, Ms. Johnson can argue that . . .

8. Effective Transitions

  • Refer to cases, or puts things in context
    • In Hughes, the Court found
    • In the instant case
    • From the Plaintiffs perspective

9. Generic transitions

  • Generic transitions link sentences & paragraphs
  • Important, but overuse is distracting
  • Dont become married to one word
    • However
    • Although
    • Like
    • See H-37-38

10. Sophisticated vs. Unsophisticated Roadmaps

  • Avoid first person pronouns
  • Focus on the Court as actor
  • In this memorandum, I (we) will examine three issues.First, I will look at whether the statute applies.If I find that it does not, then I will look at whether the Oregon Wilderness watchers had an easement.If I find that an easement was created, then I will examine the scope of the easement.

11. Sophisticated Version

  • In deciding this case, a court will consider three issues.First a court will determine whether the statute applies.If it does not, the court will then determine whether the Oregon Wilderness Watchers had an easement.If the court determines that an easement had been created, the court will then decide the scope of the easement.

12. Organizing the Issues

  • Familiar Order - if elements are listed in logical order (criminal, contract issues)
  • Threshold Issues if have an issue that will be dispositive
    • Standing criminal case; exhaustion of administrative remedies
    • Remember factors are flexible standards.Elements are requirements.The absence o a factor is usually not dispositive

13. Effective Sentences, Paragraphs & Words

  • Involves editing
    • There is no such thing as good writing.
    • There is only good rewriting.-Justice Brandeis
  • The best writing uses your own language
    • Avoid overuse of quotations

14. Word Choice

  • Should be precise and correct
  • Beware of shades of meaning

15. Problem Words

  • Regardless is a word.Irregardless is not.
  • Judgment is preferred spelling in American legal writing over judgement (used in British writing)
  • That vs. Which.That refers tonecessaryinformation.
    • The clause that you need the most is not punctuated.
  • Which is used foralternateinformation that is nonessential to the sentences meaning.
    • The clause, which is not essential to the sentence, disappeared from the eye when it was set off with commas.

16. Problem Words

  • i.e./e.g. i.e. is an abbreviation ofid est that is , and is used to indicate an inclusive list or statement.
    • I like literature;i.e.,I read everything I can get my hands on.
  • Compare with e.g., an abbreviation ofexempli gratiameansfor example .
    • I like literature;e.g.,I am reading all of Alice Walker this month.

17. Problem Words-Affect/Effect

  • Affect verb :to influence; to cause a response.
  • Effect noun:result or accomplishment;or as a verbto cause or bring about common use in legal writing
  • Effects (plural noun):goods or property:The deceased mans effects were willed to charity.

18. Problem Words:Its/Its

  • Its is
    • possessive
    • Mary knew the paper had its faults, but she did not know how to fix them.
  • Its
    • is the contraction of it is or it has
    • Its clear to me now how its become such a common mistake.

19. Commonly Confused Words

  • Statue
  • Council
  • Ensure
  • Its
  • Cite
  • Principle
  • Compliment
  • Tortious
  • everyday
  • Statute
  • Counsel
  • Insure/Assure
  • Its
  • Site
  • Principal
  • Complement
  • Tortuous/Torturous
  • every day

See Brian Garners Redbook for additional examples 20. Order ideas logically

  • Brainstorm, then group ideas
  • create pre and post drafting outline
  • write main ideas in margin in rough draft
  • Pull out the topic sentence out of every paragraph, can the reader get the gist of the memo
  • Does the order of the question match brief answer, rule explanation and application?

21. Headings

  • Roadmaps, guide the reader
  • Satisfy the readers needs
    • Element One; The Line-up;
    • The Admissibility of Line-up Identifications

22. Headings

  • Consistency is key
    • cant have A without B; I without II
    • formatting - sentences, typeface
  • Should always be independent of text
    • Never count on the reader to review the heading to understand the text

23. Readability

  • Dont make your paragraphs overwhelming (too long)
  • Each paragraph should have a topic sentence (provides context)
  • Include transitions
  • Watch out for extra-long sentences (more than 4 lines) and consider revising

24. Paragraphs - Length

  • Avoid over-using long paragraphs (7-8 sentences)
    • 8-sentence paragraph is about a full page of type
    • A full page paragraph will have a negative visual impact on your reader
  • Length is ultimately determined by content
  • Variety in paragraph length will keep your reader interested
  • Too many short paragraphs makes writing look choppy

25. Watch for Parallel Construction

  • When you have info in a series, the information must be of the same grammatical type (nouns, adjectives, verbs, etc.)
  • Ex:The judge excluded the evidence because she thought it was irrelevant, immaterial, and bound to be prejudicial.
  • Better:The judge excluded the evidence, holding it irrelevant, immaterial and prejudicial.

26. Parallel Construction

  • Ex:The detective proposed a plan to raid the drug dealers office and arresting all his workers.
  • Better:The detective proposed raiding the drug dealers office and arresting all his workers.

27. Sentence Review

  • Subject + Verb (&amp