The first lesson of legal writing: keep it clear and simple.

Introduction to Legal Writing Friday, Sept. 9, 2011 Available online under: U of T Faculty of Law website Faculty List and Directory Full-Time Faculty Stern, Simon Legal Writing.ppt

Overview 1. A few general points in legal writing 2. Memo structure / paragraph structure 3. Remember the audience: objective vs. persuasive writing; analogies & distinctions 4. Strategies for revising

Basic points 1. 2. 3. 4.

Keep It Simple Be Precise Support Your Arguments Front-load your conclusions

1. keep it clear and simple. * “In order to effectuate the attainment of a more substantive and comprehensive equality jurisprudence, legal theorists and civil rights advocates must engage in a sober reading of Lawrence, Gratz, and Grutter.” – A recent law journal article (emphasis added)

Legal writing is supposed be complicated, right? Wrong. Words to Avoid “said,” as in “said vehicle” “hereinafter” “heretofore” “aforesaid” “furthermore” In general, multisyllabic words that were appealing because of their multisyllabicity

2. be precise “The basis for [the majority] opinion is that . . . unwelcome physical conduct of a sexual nature is sufficient to establish a cause of action under Title VII of the Civil Rights Act, regardless of whether that harassment constitutes discrimination because of race, color, religion, gender, or national origin. I disagree because this eliminates an essential element of that statute, [namely] that the harassment be because of discrimination against one of the five specified categories of persons named in the statute.” -- Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1070 (9th Cir. 2002) (Hug, J., dissenting)

be precise, cont’d “Procedural fairness requires that decisions be … free of reasonable apprehension of bias.” (para. 45) The test is: “what would an informed person, viewing the [decision] realistically and practically … conclude.” (para. 46) Here, “I do not believe that a reasonable … member of the community would conclude that [the officer] approached this case with … impartiality. … I conclude that the notes of Officer Lorenz demonstrate a reasonable apprehension of bias.” (para. 48) -- Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (L’HeureuxDubé, J.)

3. Support your arguments Why legal writing is different Most forms of writing are meant to entertain or inform, in a context in which the reader trusts the writer. Legal writing assumes a skeptical audience, an audience prepared to challenge every argument. This is true even for in-house memos. You must support every argument with analysis and authority.

Analysis and authority Analysis: avoid conclusory arguments. Every major step of the argument must be explained and justified. Authority: every doctrinal argument must be supported by legal authority. Rely primarily on cases, statutes, and regulations (if applicable). You may also use treatises and journal articles, but not as a first resort. If you can do without treatises and journal articles, so much the better.

4. Front-load your conclusions Prof.: “I had trouble figuring out what’s going on in this case until I got to page 15.” Judge: “Yes, I see that.” Prof.: “Now that I know what the issues are, it seems to me that 12 of the first 15 pages could be omitted, since they don’t help to understand the issues.” Judge: “Yes, I see that.” Prof.: “Why did you wait until page 15 to state the issues?” Judge: “To be honest, I didn’t know what the issues were myself until I got to page 15.” What is the lesson of this interchange??

The Lesson (courtesy of Judge William C. Canby, Jr.)

The Written Product Should Not Recapitulate the Thought Process

Memo Structure The first lesson: keep it boring.

Source: Brewer & Lichtenstein, “A structural-affect theory of stories,” Journal of Pragmatics, 6, 473-486 (1982).

Suspense

Curiosity (detective)

(Legal Memo)

1. Butler poisons wine

4. Lord H. dies

1. Butler poisons wine

2. Butler brings wine to Lord H.

2. Butler brings wine to Lord H.

4. Lord H. dies

3. Lord H. drinks wine

3. Lord H. drinks wine

2. Butler brings wine to Lord H.

4. Lord H. dies

1. Butler poisons wine

3. Lord H. drinks wine

“Detecting Doctrines: The Case Method and the Detective Story,” p. 355 The case method teaches students that answers to legal questions generally cannot be found on the surface, but must be discovered by sifting the visible evidence to find a meaning that is buried at a deeper level. The corollary of this lesson is that when a legal interpretation depends on probing under the surface of a case to bring out implicit meanings, that interpretation should be preferred to one that remains content with the surface meaning. By conducting the search, the interpreter models the technique of an expert and thereby certifies her analysis as the product of a legal professional. The aesthetic values associated with this mentality include orderliness, precision, thoroughness, and ingenuity.

“Detecting Doctrines,” p. 363 [W]hat law students learn through the case method is how to read legal clues, and how to recognize various elements of the opinion as clues that can serve an instrumental function. . . . That these skills resemble those of the detective finds striking confirmation in a recent study of the reading strategies exhibited by successful law students. A study by Leah Christenson of high-achieving and low-achieving first year students showed that the first group, while reading an opinion for the first time, “talked back to the text, made predictions, hypothesized about meaning, and connected to purpose.” These students’ explanations for engaging dynamically with the text showed that they sought to “account for the author’s purpose, context and effect on the audience.” The low achieving students, by contrast, moved through the opinion in a more linear fashion without attending to its functions or goals. These students used strategies such as “paraphrasing, rereading, . . . underlining text, and making margin notes,” but tended to focus on minutiae instead of the big picture.

This just in … (fictional) spoilers don’t spoil! (Leavitt & Christenfeld, “Story Spoilers Don’t Spoil Stories,” 22(8) Psych. Sci. 1-3 (Aug. 2011)

Why might readers prefer to know the outcome? Leavitt & Christenfeld: “[S]poilers may allow readers to organize developments, anticipate the implications of events, and resolve ambiguities that occur in the course of reading.”

Is A Whistleblower Incentive Program Right for Canada? On February 24, 2004, Olympic gold medalist Myriam Bédard alleged that she was forced out of her job at Via Rail after she questioned some transactions related to the Sponsorship Scandal (CBC News Online, 2006). The Sponsorship Scandal and the related allegations of whistleblowers being silenced prompted the Canadian federal government to consider and implement significant legislative reforms such as the Federal Accountability Act to protect whistleblowers and deter potential fraud in the future. One of the possible reforms considered by the Conservatives was to introduce whistleblower incentive legislation similar to the False Claims Act (FCA) in the U.S. (May, 2006). This paper will first provide a brief background on the False Claims Act and explain why introducing similar legislation in Canada is worthy of consideration. Then, it will analyze the potential financial costs and benefits of implementing FCA-like legislation in Canada. Finally, it will explore the ethical implications of such legislation. By analyzing the financial and ethical implications, this paper aims to determine whether introducing FCA-like legislation would be good public policy in Canada.

Memo Structure • 1. Problem Posed & Short Answer • 2. Facts • 3. Discussion - Umbrella, CRAC / TRAC / IRAC

• 4. Conclusion

Our case Madame Sosostris gives palm readings for $10 on Bloor Street. She is charged under s.365(b) of the Code, which provides that “everyone who fraudulently … undertakes, for a consideration, to tell fortunes … is guilty of an offence punishable on summary conviction.” Witnesses are prepared to testify that Madame Sosostris refers to her clients as “delightful ignoramuses.”

A Short Discursus on Facts • Separate facts from other things • Focus on the determinative facts; separate them from other kinds of facts • Purge analysis of hidden and unsupportable assumptions

How to Frame the Question x Will Madame S. be convicted under s. 365(b)? x Is Madame S. guilty of fraudulently telling fortunes? Can Madame S. be convicted for “fraudulently” telling fortunes “for a consideration” under s. 365 of the Criminal Code, given that she has a commercial palm-reading business and has been known to call her clients “delightful ignoramuses”?

A Possible Short Answer • Madame S will likely be convicted if the finder of fact concludes that in calling her clients “ignoramuses,” she meant that she duped them into believing in her powers. But Madame S. may be able to avoid conviction if she can show that by “ignoramuses,” she meant that her clients lack her special talents. While the law is unclear, it appears that a fortune-teller who honestly believes that she can predict the future can avoid liability for “fraudulently” telling fortunes, because her honest belief negates the required mens rea for this offence.

The Discussion Section • Umbrella paragraph or section – Summarize the legal rule for each issue – Any other info about the rule? (i.e., burden of proof? presumptions?) – Identify elements not in dispute & why – Roadmap to rest of memo

• Element 1: CRAC • Element 2: CRAC • And so on….

CRAC • State your Conclusion (i.e., a one sentence prediction about how a court would rule on the factor you are discussing) • State the governing Rule of law • Apply the rule to your facts, using analogies and counteranalogies • State your Conclusion again • Rinse, wash, and repeat

Umbrella Paragraphs Whether Madame Sosostris will be convicted depends on whether her conduct is deemed to be fraudulent. The mere telling of a fortune is not per se illegal, as the Crown must prove an intent to delude or defraud. R. v. Dazenbrook (2004), 64 O.R. (3d) 27 (C.A.). The offence in s.365(b) does not require proof that the predictions were false or that the accused expressly claimed to have the power to predict the future. R. v. Labrosse (2006), 82 O.R. (3d) 522 (C.A.). In Labrosse, the Supreme Court of Canada held that an accused may be convicted if she did not honestly believe she could predict the future, but the court left open the question of whether conviction is appropriate if she had an honest belief about this ability. Because blameworthy conduct is an essential requirement for criminal liability in Canadian law, Madame S. will likely be acquitted if she show that she had an honest belief about her abilities.

How Not To Do It There are many considerations that bear on the possibility of conviction for fraudulently telling fortunes. In Dazenbrook he was charged with defrauding but he lacked the proper mens rea. In Labrosse she did not honestly believe what she was saying so she was convicted. But the most important thing is that without the proper mens rea a person accused of a crime cannot be convicted.

What is wrong with the preceding example? - The first line does not telegraph the argument; instead, it tells the reader, “Hold on tight, there’s a lot of stuff coming at you, and I’m not going to help you process it.” - The cases are summarized hastily, with no effort to provide context. It’s as if the reader is supposed to have already read them. Who is “he”? Who is “she”? Why were mens rea and “honest belief” at issue? - The big point is not presented at the outset; it arrives suddenly at the end - There are no citations - Takeaway: prepare your reader for what is to follow; take the time to explain the cases in detail; highlight the important points and quote from the cases to show what the courts emphasized.

CRAC for Madame S. Madame S. can probably escape liability here if she can show that she honestly believed she could tell the future. In general, a party can be charged with fraud only if she sought to deceive another party, to the financial detriment of the latter. For example, in [case], the accused was held liable for fraud because . . . [more examples] Courts have been reluctant to hold parties liable for fraud unless the party knew that she was making false representations. Therefore, if Madame S can show that she believed in her ability to tell the future by reading palms, she will likely escape liability for fraud.

CRAC for Madame S, cont’d • In this case, whether Madame S’s conduct is deemed fraudulent depends in large part on whether the Crown can show that she thought she was duping her clients. … [similar caselaw, if available]

Topic v. Thesis Sentences Topic sentences: favoured by teachers of composition; excellent for writing essays. Terrible for writing legal memos. A topic sentence leads the reader into the paragraph by hinting at what is to follow, and deliberately avoids giving away the argument that is to follow. This is a bad idea in legal writing.

Topic v. Thesis Sentences Thesis sentences: disfavoured by teachers of composition, but loved by teachers of legal writing. Remember the lesson: keep it boring. Begin the paragraph by explaining, as concisely and directly as possible, the concepts to be discussed and the conclusion they will point to. Do not hint at what will follow; state what will follow.

Topic v. Thesis Sentences Topic sentence [avoid]: – Wapner v. Denton dealt with when a choice is sufficiently voluntary to constitute assumption of the risk.

Thesis sentence [better]: – A choice is not voluntary if the person is forced to choose between the threatened harm and another equal or greater harm.

Topic v. Thesis Sentences Topic sentence [avoid]: – In evaluating liability for fraud, courts have considered a wide variety of factors including materiality.

Thesis sentence [better]: – An accused cannot be convicted for fraud if her allegedly false representations were not material to the transaction.

More (bad) topic sentences The voluntariness requirement for mens rea has been the subject of debate for many years. Courts have long sought a principled basis for the bar on relitigating fully adjudicated claims. The Rooker-Feldman doctrine is one of the most complicated aspects of the modern law of abstention.

Objective versus Persuasive Writing Remember the audience. In objective writing (such as a memo), we assess the landscape as a “reasonable person” would, and include all relevant objects that complicate the landscape. There is nothing wrong with advancing a particular position in a memo, but it is crucial that you give due regard to all sides of the issues. You are not helping your supervisor (or the client) if you ignore the counterarguments.

Objective versus Persuasive Writing In persuasive writing (such as a factum), we describe the landscape as we want others to see it, focusing on key objects that support this perspective. Who is the audience? The court. Your goal is to get the court to adopt your position.

The Writer’s Job in a Memo is . . .

to guide the reader through a forest of saplings

The Writer’s Job in a Factum is to guide the reader to the base of the sequoia

Analogies and Distinctions Again, remember the audience. What is your reader looking for? Beddoes held that no cause of action arises under s.3 of the Ontario Human Rights Code against an owner of commercial real estate, because that kind of property is not a “dwelling.”

A bad example: the point is buried at the end In Beddoes v. Tulkinghorn (1982), 344 O.R. (2d) 319 (C.A.), the court held that where the owner of Tulking-horn’s Properties, Inc. refused to sell rent space for a law office to an Indian-Canadian attorney, the landlord was not liable under s.3 of the Ontario Human Rights Code, because even though (1) the neighborhood was zoned for residential housing; (2) the office space was in the same building as an apartment complex, and (3) the office space included a kitchen, the office itself was not a “dwelling” and residential use of the space was specifically prohibited in the lease.

A better example: the point appears at the outset Courts have consistently held that a refusal to rent office space does not violate s.3 of the Ontario Human Rights Code. For example, the Ontario Court of Appeal has held that where a landlord refused to rent space in an office building to an Indian-Canadian attorney who wanted to open a law office, the landlord’s refusal did not “make unavailable [to the attorney] . . . a dwelling,” but the plaintiff might have a cause of action under various other civil rights statutes. Canard v. Petts (1998), 22 O.R. (3d) 817 (C.A.).

An even better example Courts have consistently held that a refusal to rent office space does not violate s.3 of the Ontario Human Rights Code, because that section extends only to residential property. For example, in Canard v. Petts, (1998) 22 O.R. (3d) 817 (C.A.), the court quoted the statutory prohibition on engaging in discrimination to “make unavailable . . . a dwelling” to a member of a protected class, but the court declined to apply the prohibition to commercial office space. In Canard, the defendant landlord refused to rent space in an office building to an Indian-Canadian attorney, because of the attorney’s ethnicity. The court held that because the office was not a “dwelling,” s.3 did not apply, although the plaintiff might have a cause of action under various other civil rights statutes.

Analogies must be explicit and obvious OK but not great: • Here, the rental property was a video rental shop. Better: • As in Canard, the rental property here was not a “dwelling” but instead was available only for commercial, non-residential use.

Distinctions must also be explicit and obvious Not great: Here, Ms. Murphy advertised her garage in the newspaper as a “charming and spacious junior efficiency.” Better: Unlike Canard, which involved an office space for which residential use was impermissible, here Ms. Murphy sought to rent her garage for residential use.

Canard involved a commercial office space that was not equipped for residential use and for which residential use was prohibited. Here, by contrast, Ms. Murphy installed a stove and bathroom in her garage, and she advertised it for rent as a residential unit.

Revising Goals of Revision: 1 2 3 4

Clarify the Facts Clarify the Argument Streamline Your Sentences Make Your Citations Easy to Understand

Clarify the facts a. Don’t leave implicit any details that need to be explained, but don’t burden the reader with unnecessary details. b. Review for any relevant facts that are missing. c. Make sure you didn’t leave out relevant facts just because they don’t support your position. d. Create short forms for names of parties and statutes.

What if you need more information? • It is always appropriate, when writing a memo, to devote space to any factual questions that still remain to be ascertained, if you need to them to evaluate the problem. • However, before putting those questions in the memo, check back with your supervisor about the factual questions that need to be answered. Your supervisor may know or may be able to get the relevant details, and may simply have failed to realize they were significant.

Clarify the argument A. The order of your arguments should reflect a deliberate choice about how to present them effectively. Front-load your most important ideas and arguments; put the secondary ones later. Consider relegating minor points to the footnotes. This applies to the argument as a whole, and to each section and paragraph.

Clarify the argument, cont’d B. Keep in mind your basic theories and the result you are seeking. Look out for sections, paragraphs, and sentences that might distract the reader. If you need to address minor points that interfere with the flow of your argument, consider putting them in a footnote.

Clarify the argument, cont’d C. Use thesis sentences. One way to check for effective use of thesis sentences is to read only the first sentence of each paragraph. That should allow you to track the development of the argument. D. When dealing with a multi-part legal test, or setting out various alternatives, use numerals and then deal with each point in the enumerated order. Even if the court didn’t use this approach when explaining a test, it may be a helpful way to present the issues.

Streamline Your Sentences A. When possible, use verbs instead of nouns. E.g., “administered a test”  “tested” “raised the argument”  “argued” “presented a claim”  “claimed” B. Be sparing of adverbs, but be aware that a well-chosen adverb can be your friend. E.g.: The defendant states that the test for “good faith” includes motive, but that is incorrect.  The defendant incorrectly treats motive as a factor in the test for “good faith.”

Streamline Your Sentences, cont’d C. Keep subjects and verbs close together. S … V ... DO  S – V- DO (bad) “The Crown, despite failing to point to any proof that Ms. Fitt was even aware of the relevant regulations, proposes to saddle her with liability for ‘knowing’ violation of the Metropolitan Public Carriage Act.”  “The Crown charges Ms. Fitt with ‘knowingly’ violating the Metropolitan Public Carriage Act even though there is no evidence that she had ever heard of the relevant regulations.”

Streamline Your Sentences, cont’d D. Keep verbs close their complements, and if possible, build the complement into the verb. (bad) “The court held that the statute, which required all persons wishing to post handbills to register in advance, was unconstitutional.”  (better) “The court held unconstitutional the statute, which required preregistration for all persons wishing to post handbills.”  (even better) “The court rejected [struck down, invalidated] the statute requiring preregistration for all persons wishing to post handbills.”

Make it easy to understand the authorities you cite Review your quotations to make sure they are effective and concise. Quote only as much as you need. If you are quoting a fact-intensive decision in which the court explained the details at length, consider replacing that part of the quotation with your own, shorter description, outside of the quotation. Use ellipses to shorten the quotation.

Prune and simplify! As the court explained in Beatty, “. . . however, criminal negligence requires a ‘marked’ departure from the ordinary standard of care, whereas civil liability for negligence may arise in any of the multifarious circumstances in which a party can be shown to have made only a trivial departure from that standard.”

Improved As the court explained in Beatty, “[C]riminal negligence requires a ‘marked’ departure from the ordinary standard of care, whereas civil . . . negligence . . . [requires] only a trivial departure from that standard.”

Prune and simplify! Meeker held that “[O]n the other hand, privacy, like property, has also been regarded by many thinkers, in a relevantly similar context, as a ‘bundle of rights’ . . .”

Improved Meeker observed that “privacy, like property, [may be] regarded . . . as a ‘bundle of rights.’” Meeker observed that “privacy . . . [may be] regarded . . . as a ‘bundle of rights.’”

Envoi

Go forth and simplify!