Legal Reasoning and Legal Writing: Structure, Strategy, and Style, Fifth Edition / Edition 5

Legal Reasoning and Legal Writing: Structure, Strategy, and Style, Fifth Edition / Edition 5

by Richard K. Neumann
     
 

ISBN-10: 073554655X

ISBN-13: 9780735546554

Pub. Date: 03/01/2005

Publisher: Wolters Kluwer Law & Business

The new edition of this highly successful text remains grounded in the premise that legal reasoning and legal writing are learned better when they are taught together. Building on that foundation, the book offers complete coverage of how to form a legal argument and how to write an effective legal memorandum.

The Fifth Edition preserves the features that earned

Overview

The new edition of this highly successful text remains grounded in the premise that legal reasoning and legal writing are learned better when they are taught together. Building on that foundation, the book offers complete coverage of how to form a legal argument and how to write an effective legal memorandum.

The Fifth Edition preserves the features that earned the book its loyal following:

  • comprehensive coverage of writing an office memo, a motion memo, and an appellate brief, along with chapters on oral argument, client letters, and client interviewing
  • the best available explanation of the reasoning underlying the proof of a conclusion of law in Explanation of the Paradigm for Organizing a Proof of a Conclusion of Law
  • thoughtful treatment of all aspects of legal reasoning, from rule-based analysis to the strategy of persuasion
  • instruction on the process of writing, as well as the mechanics of style and grammar
  • textual explanations that include example and exercises when appropriate
  • appendices including an office memo, two lawyer¿s letters, a motion memo, and two appellate briefs
  • the skillful guidance of author Richard K. Neumann, Jr., who is highly regarded for both his scholarship and his writing

    This extensive revision responds to feedback from both students and instructors:

  • Chapter 2 on Rules of Law rewritten to make the material more accessible
  • the chapter on Organizing Proof of a Conclusion of Law (formerly Chapter 10) has been reorganized into 4 separate chapters ¿ with new exercises ¿ to make the material more understandable for students
  • examples, exercises, and skill explanations are updated and refined
  • new chapter on demand letters

    Please visit the new companion website to learn more about this book.

    Website: http://www.aspenlawschool.com/neumann5

  • Product Details

    ISBN-13:
    9780735546554
    Publisher:
    Wolters Kluwer Law & Business
    Publication date:
    03/01/2005
    Edition description:
    Older Edition
    Pages:
    542
    Product dimensions:
    6.98(w) x 10.02(h) x 1.20(d)

    Table of Contents

    Prefacexxiii
    Acknowledgmentsxxv
    IIntroduction to Law and its Study1
    1.An Introduction to American Law3
    1.1The Origin of Common Law3
    1.2How American Courts Are Organized6
    1.2.1State Courts6
    1.2.2Federal Courts7
    1.3An Overview of the Litigation Process8
    1.3.1Phase 1: Pleadings and Service of Process8
    1.3.2Phase 2: Between Pleadings and Trial10
    1.3.3Phase 3: Trial10
    1.3.4Phase 4: Post-Trial Motions11
    1.3.5Phase 5: Appeal12
    1.3.6Phase 6: Post-Appeal Proceedings12
    1.3.7Criminal Cases13
    1.4The Importance of Understanding Procedure13
    1.5The Adversary System14
    2.Rule-Based Reasoning15
    2.1The Inner Structure of a Rule15
    2.2Organizing the Application of a Rule20
    2.3Some Things to Be Careful About with Rules22
    2.4Causes of Action and Affirmative Defenses23
    2.5Where Rules Come From (Sources of Law)25
    Exercise I.Attorneys' Fees26
    Exercise II.Making Records Available26
    3.An Introduction to Judicial Decisions and Statutes27
    3.1The Anatomy of a Judicial Decision27
    Exercise I.Dissecting the Text of Roberson v. Rochester Folding Box Co.28
    3.2The Interdependence Among Facts, Issues, and Rules34
    Exercise II.Analyzing the Meaning of Roberson v. Rochester Folding Box Co.38
    3.3The Anatomy of a Statute38
    Exercise III.Analyzing the Meaning of [section section] 50 and 51 of the New York Civil Rights Law40
    4.Briefing Cases41
    4.1Introduction41
    4.2How to Brief a Case41
    Exercise. Briefing Costanza v. Seinfeld47
    IIIntroduction to Legal Writing49
    5.The Art of Legal Writing51
    5.1The Language as a Professional Tool51
    5.2Your Writing and Your Career53
    5.3Predictive Writing and Persuasive Writing54
    5.4The Art Forms of Legal Writing55
    6.The Process of Writing57
    6.1Writing in Four Stages57
    6.2Analyzing57
    6.3Organizing59
    6.4The First Draft60
    6.5Overcoming Writer's Block60
    6.6Rewriting61
    6.7Some General Advice about Writing63
    IIIOffice Memoranda67
    7.Office Memoranda69
    7.1Office Memorandum Format69
    7.2Writing an Office Memorandum74
    8.Initially Obtaining the Facts: Client Interviewing75
    8.1Introduction75
    8.2Lawyers and Clients76
    8.3How to Interview77
    8.3.1How to Begin77
    8.3.2How to Learn What the Client Knows78
    8.3.3How to Conclude79
    9.Predictive Writing81
    9.1How to Predict81
    9.2How to Test Your Writing for Predictiveness86
    Exercise I.Nansen and Byrd88
    Exercise II.The Hartleys and Debenture90
    IVGeneral Writing Skills93
    10.How to Organize Proof of a Conclusion of Law95
    10.1A Paradigm for Structuring Proof95
    10.2Why Readers Prefer This Type of Organization98
    10.3How to Vary the Paradigm Formula to Suit Your Needs99
    10.4Variations of Sequence99
    10.5Variations in Depth99
    10.5.1Conclusory Explanations100
    10.5.2Substantiating Explanations101
    10.5.3Comprehensive Explanations102
    10.5.4Cryptic Explanations104
    10.6Combinations of Separately Structured Explanations104
    10.6.1How to Organize Where More Than One Element Is at Issue105
    10.6.2How to Organize Where More Than One Claim or Defense Is at Issue107
    10.6.3How to Organize Alternative Ways of Proving a Single Conclusion108
    10.6.4How to Organize Where There Are Other Separate but Related Issues108
    10.7How to Start Working with the Paradigm Formula109
    10.8Rewriting: How to Test Your Writing for Effective Organization111
    Exercise I.Griggs and the Anti-Bandit (Checking Organization During Rewriting)114
    Exercise II.Teddy Washburn's Gun (Analyzing and Organizing)115
    11.Selecting Authority119
    11.1Introduction119
    11.2The Hierarchy of Authority120
    11.3How Courts Use Dicta123
    11.4How Courts React to Foreign Precedent124
    11.5How to Use Foreign Precedent and Other Nonmandatory Authority to Fill a Gap in Local Law127
    11.5.1Laying the Foundation127
    11.5.2Filling the Gap129
    11.6How to Select Nonmandatory Precedent130
    11.7How to Work Effectively in the Library132
    Exercise. The Hierarchy of Authority134
    12.Working with Precedent135
    12.1Eight Skills for Working with Precedent135
    12.2Formulating a Variety of Rules from the Same Precedent136
    12.3Analogizing and Distinguishing138
    12.4Eliciting Policy from Precedent139
    12.5Synthesis and Reconciliation139
    12.6Testing for Realism and Marketability141
    12.7Pulling It All Together142
    Exercise I.Emil Risberg's Diary (A "Confidential or Fiduciary Relation"?)143
    Exercise II.The Allegheny Steel Corporation (The Partial Breach Issue)150
    13.Working with Statutes157
    13.1Ten Tools of Statutory Interpretation157
    13.2How to Pull Together Statutory Analysis (Before Writing)167
    13.3How to Present Statutory Analysis in Writing169
    Exercise I.Plagiarism and the Board of Bar Examiners170
    Exercise II.The Ironwood Tract177
    14.Working with Facts183
    14.1What Is a Fact?183
    14.2Identifying Determinative Facts186
    14.3Building Inferences from Facts187
    14.4Identifying Hidden and Unsupportable Factual Assumptions190
    Exercise I.The Menu at the Courthouse Cafe192
    Exercise II.Welty's State of Mind193
    15.Paragraphing195
    15.1How Paragraphing Reveals Your Organization195
    15.2Probative Paragraphs and Descriptive Paragraphs196
    15.3Thesis Sentences, Topic Sentences, and Transition Sentences197
    15.4The Two Most Common Ways of Botching the Beginning of a Paragraph198
    15.5How to Test Your Writing for Effective Paragraphing201
    Exercise I.The First Weeks of Law School (Probative and Descriptive Paragraphs)202
    Exercise II.Maldonado's Citrus Croissants (Thesis and Topic Sentences, Paragraph Coherence)203
    Exercise III.Escape from Prison (Paragraph Unity, Coherence, and Length)203
    16.Effective Style205
    James P. Degnan, The Ph.D. Illiterate205
    16.1Clarity and Vividness206
    16.2Conciseness208
    16.3Forcefulness211
    16.4Punctuation and Other Rules of Grammar214
    16.5How to Test Your Writing for Effective Style216
    Exercise I.Kalmar's Driveway (Clarity and Conciseness)226
    Exercise II.Smolensky at the Plate (Clarity and Forcefulness)227
    17.Citations and Quotations229
    17.1Why Legal Citation Is Complicated229
    17.2Touring the ALWD Citation Manual and the Bluebook230
    17.2.1The ALWD Citation Manual230
    17.2.2The Bluebook231
    17.3Citation to Specific Types of Authority232
    17.3.1Citation to Cases232
    17.3.2Citation to Statutes236
    17.4Rules Governing All Citations237
    17.5Quotations246
    17.6How to Test Your Writing for Effective Use of Quotations248
    Exercise I.The First Amendment (Quotations)251
    Exercise II.Suing Presidents (Citations and Quotations)252
    Exercise III.Disqualifying Judges (Citations and Quotations)253
    VClient Letters and Law School Examination Answers255
    18.Advising the Client in Writing: Client Letters257
    18.1The Letters Lawyers Write257
    18.2Client Letters258
    19.How to Write Exam Answers263
    19.1How Exam Answers Differ from Other Forms of Legal Writing263
    19.2Answering Essay Questions264
    19.3Other Types of Questions265
    19.4General Suggestions for Taking Exams266
    VIThe Shift to Persuasion269
    20.Developing a Persuasive Theory271
    20.1Introduction271
    20.2Strategic Thinking271
    20.3Professional Creativity272
    20.4Theories: Of the Case, of the Motion, of the Appeal275
    20.5Characteristics of a Persuasive Theory276
    20.6Developing a Theory278
    20.7Imagery and Story-Telling280
    Exercise. Escape from Prison? (Developing a Theory)281
    21.Developing Persuasive Arguments285
    21.1What Is an Argument?285
    21.2What Judges Expect from Written Argumentation287
    21.3Argumentation Techniques288
    21.4Argumentation Ethics303
    21.5How to Handle Adverse Authority and Arguments304
    Exercise I.The Shoelaces307
    Exercise II.The Painter and the Preschool307
    22.Handling the Procedural Posture309
    22.1Why Procedural Postures Matter309
    22.2Types of Procedural Postures309
    22.2.1Motions Challenging the Quality of a Party's Allegations310
    22.2.2Motions Challenging Other Aspects of the Way in Which the Litigation Began311
    22.2.3Motions Challenging the Quality of a Party's Evidence312
    22.2.4Miscellaneous Case Management Motions316
    22.2.5Appeal317
    22.3Writing in a Procedural Posture317
    22.4Researching to Account for Your Case's Procedural Posture319
    Exercise. Welty's Facts at Various Procedural Postures321
    VIIMotion Memoranda323
    23.Motion Memoranda325
    23.1Motion Memorandum Format325
    23.2Writing a Motion Memorandum328
    24.Point Headings and Sub-Headings331
    24.1How Points and Headings Work331
    24.2How to Evaluate Your Headings and Sub-Headings for Effectiveness334
    Exercise. Point Headings and Sub-Headings340
    25.Statements of the Case341
    25.1How a Statement of the Case Works341
    25.2How to Tell Your Client's Story Persuasively344
    25.3Fact Ethics350
    25.4The Record350
    Exercise I.What Is a Fact? (Reprise)351
    Exercise II.Topical Organization v. Chronological Organization352
    Exercise III.Escape from Prison? (Rewriting Statements of the Case)352
    Exercise IV.Drafting Statements of the Case353
    26.Questions Presented355
    26.1The Purpose and Structure of a Question Presented355
    26.2How to Evaluate Your Questions Presented for Persuasiveness357
    Exercise I.Bank Robbery (Questions Presented)362
    Exercise II.Drafting Persuasive Questions Presented363
    VIIIAppellate Briefs365
    27.Appellate Practice367
    27.1Introduction to Appeals367
    27.2What Happens During an Appeal369
    27.3The Roles of the Brief and of Oral Argument372
    27.4Limitations on Appellate Review374
    28.Appellate Briefs379
    28.1Appellate Brief Format379
    28.2How Judges Read Appellate Briefs384
    29.Writing the Appellate Brief387
    29.1Developing a Theory of the Appeal387
    29.2The Process of Writing a Brief388
    29.3Handling the Standard of Review and the Procedural Posture Below390
    IXInto the Courtroom397
    30.Oral Argument399
    30.1Your Three Goals at Oral Argument399
    30.2The Structure of an Oral Argument400
    30.3Questions from the Bench403
    30.4Delivery, Affect, and Style405
    30.5Formalities and Customs of the Courtroom407
    30.6Preparation for Oral Argument408
    30.7State v. Dobbs and Zachrisson: An Oral Argument Dissected410
    Appendices421
    A.Basic Legal Usage423
    B.24 Rules of Punctuation429
    C.Sample Office Memorandum441
    D.Sample Client Letter447
    E.Sample Motion Memorandum451
    F.Sample Appellant's Brief461
    G.Sample Appellee's Brief485
    Index503

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