Legal Research & Writing 2 : Week of 12 February

12 February

• Next week no writing; only citation. 5:55.
• Research worksheet is due week 6-- write it up (don't need to turn in)
• Brief: about 10pp. Maybe 12.
• Three issues: duty, immunity, public policy. We will eliminate duty (i.e., defendant admits to duty). You can still argue (viz Stephenson dissent) that duty is important, you just don't have to establish that there was duty.
• I am a plaintiff.
• Start with strongest point, explain why other side loses, and then why the other side's concern is not a problem.
• Our goal is why we win, not why they lose. We win because we win, not because they lose.
• Every thesis sentence is a reason why we win: why we are reading the law correctly, etc. No need to say "they are wrong," you just explain it mid-paragraph. Refer to their points, but do not explain them.
• Parts:
  • Caption: reproduce from materials.
  • Introduction: 1 paragraph-- general situation and procedural posture
  • Issues presented: separate numbered questions (just like QP, but no BA); present these so the answer would be yes (and in our favor); relevant law and facts, but presented persuasively. We will have 2: immunity and public policy.
  • Applicable Stautes: optional (no need to use R2T, because duty is admitted)
  • Statement of Facts: tell the facts in a way that make the reader sympathize with the clients. Plaintiff's facts statement should be quite different from Defendant's, for obvious reasons. Facts have to be viewed in the light most favorable to the non-moving party (plaintiff, in this case).
  • Argument: this is the big part. What authority should the court use, if there's unfavorable authority, how do we distinguish it? if non-mandatory authrority is needed, why should it be persuasive, etc. We must address mandatory authority, whether it's helpful or not (i.e., it does or does not apply).
  • Point Headings: a full sentence now. We'll cover what these are in detail. A summary of the brief's major point. E.g: summary judgment must be denied because blabla.
  • Conclusion: one paragraph. End with "for the foregoing reasons, plaintiff respectfully suggests that summary judgment be denied." And like that.
• Note that even if you think the proper recourse should be the legislature, you don't want to tell the judge that it's out of judicial bounds.
• Appeal to logic/reason and emotion. Educate about the law and request a change in behavior. Informing comes before persuading. Focus the reader on the similarities: emphasize rules, policies, and facts that support the point.
• Stick to the law: the judge will base the decision on the law. The facts are important, but the key is to use the law to persuade the judge.
• Problem definition may dictate the solution. We know we have to deal with public policy and immunity. Plaintiffs may stick close to the dissent in Stephenson: it's not about procurement, it's about a broken promise. Defendants will focus on precedent: history is in their favor.
• Argument techniques:
  • Syllogism: doi
  • Handcuff: take a generally agreeable proposition and lead from there
  • Emphasizing the purpose of the rule
  • Paradigm case: an outstandingly clear example
  • Hypothetical case: assume some facts for the sake of illustration
  • Extreme consequence
  • Policy arguments (need to address all 6 from Stephenson; this will probably be longer than the immunity section)
    • Lesser of two evils
    • FloodgatesL: increas in fraudulent claims, unlimited liability, etc.
    • Economic and social arguments (who can bear costs, who can avoid costs most efficiently)
• Organization will be key. Organizing principle should reflect the brief's purpose, and logically develop the thesis.
• Example: defendants were trying their darndest not to be procurers, does it make sense to immunize them as procurers?