You will write three 1000-word essays. And you will talk
about the law throughout the semester, in class and during arguments. Although I do not care about
formal bluebooking in writing, I care about your writing and analysis. And I care about how you talk and write about courts and procedure, that you do so properly and
not with the (inaccurate) informality you often see.
After the
jump are tips on both. I expect you to these (it will improve your
papers), especially as to how you cite rules and statutes and how you
talk about courts.
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 Great Legal Stylists and read this post on good writing techniques.
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. Quote
the smallest necessary-and-complete portion of the source; you want to
focus the reader on the important part of the source; over-quoting
drowns out your voice and distracts readers from the stuff that matters. This becomes worse if you use ellipses, especially 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 rather than as a statement of what a court has said. An example on top if his:
A pleading must include a short and plain statement of the claim that is plausible on its face. FRCP 12(b)(6); Bell Atlantic v. Twombly
rather than
The
Supreme Court and the Federal Rules require that a pleading include a
short and plain statement of the claim that is plausible on its face.
5) While quoting is important, don't overquote. Especially if it means having to use lots of ellipses and brackets. If you
have multiple ellipses and changed capitals and brackets in a quotation,
find a different way to
write it. Be especially careful when the words you omit in the ellipses
actually change the meaning of the rule. Only quote when the language
is truly meaningful. Don't quote a court's conclusion (e.g., "the court
held that the plaintiff wins.").
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" does not strengthen your conclusion that the complaint is sufficient; 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 vomit a series of random and disconnected rules in one paragraph
and apply them the next. REA--state one rule (or several related rules),
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. Start with the rule that
answers the direct question, then cascade down to the ones that follow.
•
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 will in
your LSV 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."
• No italics, other than case names. Do not 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.
• 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.
• 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.
• Good writing is simple and understandable. Don't use a word unless you are sure you understand its meaning and are using it correctly.
Talking Procedure One purpose of this class is for you to learn how to talk and write about courts and procedure, using accurate terminology. I expect to see proper terminology in class discussions, in oral arguments, and in your writing.
Federal Courts:
Supreme Court:
Supreme Court of the United States (can shorten to SCOTUS on later
usage in less formal writing, including your written assignments in this
class). Not "United States Supreme Court."
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 Semester Assessments, make 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. In presenting a provision, look to and rely on the text of the provision, not the summary of the provision from your notes.
Constitution:
"U.S. Const. art. [Roman] § [#], cl.[#]" (e.g., U.S. Const. art. III § 2, cl.2).
Can shorten to just "Article [Roman] § [#]" (e.g., "Article III § 1" or "Article III"), depending on what you are talking about.
"U.S. Const. amend [Roman] § [#], cl. [#] (e.g., U.S. Const amend. I or U.S. Const. amend. XIV § 5]. Can also just call it "Fourteenth Amendment" or "First Amendment.
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:
FRCP #(lower case letter)(#)(Upper Case Letter)(romanette) (e.g., FRCP 26(b)(2)(C)(ii)).
Note: Do not use the § mark for FRCP.
• You must identify and properly identify whatever rule or statutory provision you discuss.
•
In citing provisions in rules and statutes, 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 "FRCP 26(b)" or
"26(b)(2);" get precise. If you are talking about both 26(b)(2)(C)(i) and
(ii), it is ok to say 26(b)(2)(C) to cover both sub-sections.
Cases: For purposes of the writing assignments in this class, go by the following:
SCOTUS case discussed in class or reading: One name sufficient (e.g., Monroe)
SCOTUS case you found in any outside research: One name + year (e.g., Monell (1978))
Lower Court case discussed in class or reading: One name + Court + year (e.g., NetChoice (11th Cir. 2022))
Lower Court case you found in your research: Both names + Court + year (e.g. Smith v. Jones (10th Cir. 2023))
