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. Much of this is a review from Civ Pro last semester.
After the jump.
Good Writing
Start here, from a legal commentator: The
longer I spend writing for a living, the more I'm convinced that (at
least in nonfiction) the best prose is the unshowy kind that just
clearly explains to you what the hell the author is trying to say.
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. Here is another:
Relevant evidence is admissible, subject to exceptions. FRE 402.
rather than
The Federal Rules of Evidence require that relevant evidence is admissible, subject to exceptions.
5) While quoting is important, don't overquote. Especially if it means having to use lots of ellipses (see below)
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. Avoid repeated use of
cumbersome modifiers such as "furthermore" and "moreover."
• Adverbs are not your friends and adjectives are not really 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" or that something is "directly relevant" does not strengthen your conclusion that the complaint is sufficient or relevant; saying it is "clear" the plaintiff wins is meaningless. 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. Know your audience. Do not go for fifty-cent words to sound like a lawyer. Especially if you use the word incorrectly.
• Do not vomit a series of random and disconnected rules in one paragraph and apply them the next. REA--state one rule (or several related rules if they go together), explain them (including why these are the applicable rules and how they connect), then apply to the specific facts. If you discuss multiple rules, explain how they relate to one another. Note how multiple rules connect and present them in a logical order. If one rule leads to another, start with the first rule explain it, then cascade down to the ones that follow.
• Legal rules 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.
•
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 in your LSV or moot court briefs--for a stand-alone Statement of Facts. Facts are only
meaningful in light of the law.
• 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."
• Never use italics, other than case names. Never italicize or bold words for emphasis--trust your reader to know what words matter. Or as Prof. Lexi Lahav put it, "Italics are no substitute for argument. They do not improve the reader experience. They're just self-indulgent." Amen.
• 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.
• 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 and written rules.
• 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.
• Good writing is simple and understandable. Don't use a word unless you are sure you understand its meaning and are using it correctly.
• "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)
Lower Court case discussed in class or reading: One name + Court + year (e.g., NetChoice (11th Cir. 2022))
