Good Writing and Talking Procedure

You will write two short-answer essay exams. Because you will have the time, I want to see them well-written and that you discuss the evidence and procedure in proper terms.

After the jump.

Good Writing

Skim this article on good writing.

See this post from Eugene Volokh (formerly at UCLA), which provides great tips for making your writing more concise and with less hedging. He makes four points; I am a huge believer in # 4. Read the whole thing, but here are his 5 tips:

    1) "When possible, quote instead of paraphrasing." Note his examples, though. He quotes important words, not entire parts with multiple ellipses.

    2) Generally speaking, put good quotes in the text; don't bury them in a parenthetical

    3) Of course, don't bury good quotes even further, in the footnotes.

    4) This is a closer call, but I suggest that you frame your quotes as legal facts. Note the examples he offers.

    5) While quoting is important, don't overquote. Especially if it means having to use lots of ellipses.

Finally, see this Twitter post; some of this is advanced--where you get when you have mastered the law and can focus on style. But you can put much of this to work in miniature in your student writing--especially about letting details (rather than subjective characterization) do the work and focusing on your arguments rather than repeating the other side. Note how the suggestions reduce the number of words needed. 

I will add a few more:

    • Go easy on transitions. Every sentence and every paragraph should not have a transition word at the beginning. Especially if the transition word does not reflect the connection between two points.

    • Adverbs are not your friends and adjectives are generally not your friends, either. Unless part of the legal standard (e.g., "plausibly allege" or "clearly establish"), stop using them. Saying the complaint is "plainly sufficient" does not strengthen your conclusion that the complaint is sufficient. Instead, give me facts showing why it is sufficient. This becomes more essential when your adverb changes the legal meaning. If a rule says "with particularity" and you make it "with reasonable particularity," you change the legal standard in an inaccurate way and probably make your argument harder.

    • Adverbs and adjectives and colorful language cannot replace analysis. Do not got for fifty-cent words to sound like a lawyer. Especially if you use the word incorrectly.

    • Do not list a series of random and disconnected rules in one paragraph and apply them the next. REA--state one rule (or related rules), explain them (including why these are the applicable rules and how they connect), then apply to the specific facts. When you discuss multiple rules, explain how they relate to one another. I saw a lot of improvement on this point compared with last semester.

    • Do not recite facts in a series (especially when you are just copying them) in your application. Apply them. Do not list facts in isolation--explain facts and how they meet the legal standard. You do not have the space--as you will in your LSV briefs--for a stand-alone Statement of Facts.

    • Do not use rhetorical questions. Do not use first-person ("I would say" or "we argue") or second-person ("you must do ___'). Third-person only ("A plaintiff must do ____").

    • Keep yourself out of your argument. Don't talk about yourself or what you are going to argue. Just argue it. So not "Plaintiff will argue X" or "It is the plaintiff's opinion that X;" just get to "X."

    • No italics, other than case names. Do not italicize or bold words for emphasis--trust your reader to know what words matter.

    • If you have multiple ellipses and changed capitals and brackets in a quotation, find a different way to write it.  Be especially careful when the words you omit in the ellipses actually change the meaning of the rule. Only quote when the language is truly meaningful. Don't quote a court's conclusion (e.g., "the court held that the plaintiff wins.")

    • When discussing precedent to support an argument, the conclusion of the prior case is less important than the reasoning. That a case came out a particular way is less important to your argument than the facts and reasoning of the prior case and why it lines up with the position you are pushing. When discussing precedent, focus your argument on what matters. If discussing a Supreme Court decision, what happened in the lower courts is not necessary (unless you are arguing something about the appellate process). If SCOTUS establishes a legal principle in a case, it does not matter what the lower courts had to say in that case.

    • Legal rule and standards stack and lead to other rules; you must follow them through, in order. Begin with the direct issue presented in the question and whatever rule answers that, then move to the other, supporting rules that control the analysis. There should be a logical flow to the legal rules you apply to answer the question.

    • Go to the primary source of law--the case, statute, or rule; do not work from your class notes summary of the source. If you do so, it is almost certain that you will inaccurately state the rule, including by omitting key language and thus changing the meaning of the text. You should not rewrite a rule in your notes during class. Your notes should mention a rule or statute, then you look at and mark-up the text itself. That's not a preference. It is essential to working with statutes.

    • If you begin with a tertiary or secondary source describing a primary source, go to the primary source to quote or describe that primary source. If the Bureau of Prisons web site discusses a statute, go find the statute and cite to that.

    • "Amongst" is not a word unless you are in a Shakespeare play. "Firstly" is not a word, ever.

Talking Procedure One purpose of this class is for you to learn how to talk and write about courts and procedure, using accurate terminology.

    Federal Courts:

        Supreme Court: Supreme Court of the United States (can shorten to SCOTUS on later usage in less formal writing)

        Appellate Courts: "United States Court of Appeals for the [Number] Circuit" (e.g., United States Court of Appeals for the Eleventh Circuit). Can be shortened on later mention to "[Number] Circuit" (e.g. Eleventh Circuit). Not "____ Circuit Court of Appeals." By the way, note that it is Court of Appeals.

        Trial Courts (single district): "United States District Court for the District of [State]" (e.g., United States District Court for the District of New Jersey). Can be shortened on later mention to "District of [State]"(e.g., "District of New Jersey")

        Trial Courts (multiple districts): "United States District Court for the [Direction] District of [State]" (e.g. "United States District Court for the Southern District of Florida"). Can be shortened on later mention to "[Direction] District of [State]" (e.g., Southern District of Florida).

    Florida Courts: Most state judiciaries follow similar language, but check the state you are talking about.

        Supreme Court: Supreme Court of Florida or Florida Supreme Court

        Appellate Courts: "[Number] District Court of Appeal" (e.g., "Third District Court of Appeal"). Can be shortened for our purposes to "[Number] DCA" (e.g., "First DCA"). Note that it is Court of Appeal (no s)

        Trial Courts/Circuit: "Circuit Court for the [Number] Judicial Circuit of Florida" (e.g., "Circuit Court for the Nineteenth Judicial Circuit of Florida"). Can be shortened to "[Number] Judicial Circuit of Florida" ("Nineteenth Judicial Circuit of Florida").

        Trial Courts/County: "County Court for [County], Florida" (e.g., County Court for Miami-Dade County, Florida)

Citing Procedure

As the Course Assignment document makes clear, I do not require full and complete citation or bluebooking in your papers. But I do care about how you refer to constitutional, statutory, and rule provisions--this is a code class and this matters. Again, I am less concerned about bluebooking and more about the section numbering

    Constitution: "U.S. Const. art. [Roman] § [#], cl.[#]" (e.g., U.S. Const. art. III § 2, cl.2). Amendments are U.S. Const. amend. (#), § #. (e.g., U.S. Const. amend. XIV § 5). Can shorten to just "Article [Roman] § [#]" (e.g., "Article III § 1" or "Article III" or "Fourteenth Amendment § 5"). But note proper use of roman numerals as opposed to numbers.

    Statutes: Most federal statutes are framed this way: "§ #(lower case letter)(#)(Upper Case Letter)(romanette)" (e.g., § 1332(b)(2)(C)(ii)). Some are "§ #lowercaseletter(lower case letter)(#)(Upper Case Letter)(romanette) (e.g., § 78a(b)(2)(A)(ii)). If the statute is well-known by its § #, it is ok to use that (e.g., § 1983).

    Rules: FRE #(lower case letter)(#)(Upper Case Letter)(romanette) (e.g., FRE 404(a)(2)(B)(i) or FRCP 50(a)(1)(B) or FRCrP 29(a)). The exception to this is the hearsay rules which are FRE #(#)(Upper Case Letter) (Romanette) (e.g., FRE 803(8)(B)(ii)).

    • You must take the time to identify and properly name whatever rule or statutory provision you discuss.

    • In citing provisions in rules and statutes, you must number to the most precise portion of the rule or statute containing the language you are discussing. If you are talking about FRCP 26(b)(2)(C)(iii), do not just say "FRE 803" or "806;" get precise.

    Cases: For purposes of the writing assignments in this class, follow the following:

        SCOTUS case discussed in class or reading: One name sufficient (e.g., Clapper)

        SCOTUS case you found in any outside research: One name + year (e.g., Monell (1978))

        Lower Court case discussed in class or reading: One name + Court + year (e.g., NetChoice (11th Cir. 2022))

        Lower Court case you found in your research: Both names + Court + year (e.g. Smith v. Jones (10th Cir. 2023))