There is no single correct answer as to whether or not Mr. Smart can be successfully defended. Most lawyers would not provide a single, succinct statement of rear-end accident law in Alaska. Your assignment, therefore, is not to provide a correct answer, because there may not be one, but instead to provide a logical and well-reasoned statement of the law as you perceive it. You will be graded on how you assemble the rules of law from each case you read and how you back up any rules you state with citations to specific cases. In other words, I want you to demonstrate one of the most important features of legal writing: You must not make statements of law without citing the authority from which you derived the statement. Proofread your final publish and correct all grammar and spelling errors. I will deduct points for a memo you file which has grammar and/or spelling errors.
SOME GUIDELINES TO FOLLOW FOR LEGAL WRITING
Review the following pages of the Guidelines for Legal WritingDownload Guidelines for Legal Writing
Citation format, pg. 12
Citing to specific page number when using quotations, pg. 13
Repeating citations, pg. 14
Quotations, pgs. 22-23
Complete your final publish of the memo a few days prior to handing it in. Let it lie on your desk for a couple of days. Then read the following legal writing guidelines and reread your memo to make sure you have followed each of the guidelines. You may find it difficult to catch typographical errors when you simply reread your own writing to yourself. A good practice is to read it out loud to yourself, or have someone else do the proofreading. The bottom line: Legal writing is expected to be totally free from typographical, spelling, and grammar errors. It is mandatory that your legal writing be totally devoid of such errors.
1. Remember the primary concept of legal writing is that one must support all major assertions with the citation of authority, usually a statute or case. Legal research locates the authorities. Legal writing organizes them in a convincing manner.
2. Put your conclusion up front in the form of a “summary of the law.” You are not writing the scriipt for a TV program where it may be preferable to leave your reader in suspense and force him or her to wait until the end for the answer. In legal writing, knowing from the beginning where you are going with your argument provides the reader with an opportunity to test your analysis step-by-step.
3. Avoid pronouns like “he” or “she,” as much as possible. Create a memorable name for the plaintiff and the defendant. The goal is to allow the reader to know immediately the identity of the person who is the subject of your sentence, without having to refer back to a previous sentence to understand who you are talking about. In a memo such as the one you are writing, one example would be to refer to “the following driver,” and “the driver in front,” or something similar, when discussing the five rear-end automobile accidents.
4. Use quotations freely. It is not only acceptable, but actually a good practice in legal writing, to quote verbatim pertinent parts of court cases or statutes which provide good law for your memorandum. However, always provide a citation to any quoted material using the correct format from the “Guidelines to Legal Writing” booklet. When appropriate, refer your reader to the specific page or subsection of the cited authority; e.g., “Sturm Ruger & Co. v. Day, 594 P.2d 38, 47 (Alaska 1979).” (Emphasis added).
5. If a quotation uses bold type or italics for emphasis, do the same in your quotation and put “(emphasis in original)” at the end of the quote. If you wish to emphasize certain words in the quotation using bold type or italics put “(Emphasis added)” at the end of the quote.
6. When citing case law, be sure the facts are about the same. In citing key cases in your memorandum, indicate briefly their facts. A footnote may be used for this task. Abstract statements of the law, without an accompanying statement of facts, are always suspect. Remember, to constitute reliable precedent a prior case must be “on point”; that is, the rule of law derived from the case must have resulted from a similar, but not necessarily identical, set of facts.
7. Avoid statements of opinion like “it is obvious,” “it is clear,” etc. If the issue is so “clear” and “obvious,” why is there a case pending in court? Your statement regarding how “clear” and “obvious” things are is only your opinion, which doesn’t carry any weight in a legal memorandum.
8. Similarly, avoid phrases which compromise and weaken your statement of the law, such as “I believe,” or “it seems to me,” or “from reading this case I feel that … .” Make explicit statements of the law without editorial comment and back up your statements with the citation of authorities.
9. When proofreading your final publish, be sure to correct any and all errors in spelling and grammar. While this is not an English class, spelling and grammar errors detract from the quality of your work. Below are some of the errors students often make in writing a legal memo:
a. Collective Nouns. Be careful with the use of singular and plural. The “court” is singular so that you would write, “The court supported its holding by citing two relevant cases in which it found … .” It is incorrect to write, “The court supported their holding by citing two relevant cases in which they found … .” However, the following use of the plural is correct: “All five justices agreed. They held the case should be overruled.”
b. Be consistent with capitalization. The Alaska Supreme Court capitalizes almost nothing so the rule should be, “When in doubt, don’t capitalize.” It never capitalizes words like “judge,” “plaintiff ,” “superior court,” or even “supreme court,” unless referring to the United States Supreme Court, in which case it will write “Court.” However, if a term is used as a proper name, the term will be capitalized: “Judge Beistline” or “the Alaska Supreme Court.” The rules on the use of capitalization in legal writing are not consistent. I will grade you only on consistency; that is, don’t write “Defendant” in one sentence and “defendant” in another.
c. Watch ending sentences with prepositions. “I am not sure who it was that I spoke with.” Instead, “I am not sure who it was with whom I spoke.” That’s a bit clumsy but it is a preferred rule of legal writing. Another example: “A common sense rule that the reasonable person would have to agree with” should be written, “A common sense rule with which the reasonable person would have to agree.” I acknowledge this rule can sometimes lead to ridiculous results. Remember the example provided by Winston Churchill: “Ending a sentence with a preposition is something up with which I will not put.”
d. Learn to use the verb “to hold.” It is a term of art in legal writing. Do not write, “The Butaud case said.” Instead write, “The court in Butaud held … .” Always use the verb “to hold” when stating a rule of law derived from a case.
e. Correct spelling is important. Minor errors seriously detract from the quality of a memorandum or brief. Be certain not to misspell “trial court” as “trail court,” or “liable” as “libel.” Computer spell checks won’t help you in either case. Careful proofreading is the only way to make certain you are filing a quality memo.
However, if a term is used as a proper name, the term will be capitalized: “judge beistline” or “the alaska supreme court.”
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