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Unformatted text preview: M11_GOLD0000_00_SE_CH11.QXD 12/5/09 6:09 AM Page 410 CHAPTER 11 Legal Writing and Critical Legal Thinking DIGITAL RESOURCES Chapter 11 Digital Resources at www.pearsonhighered.com/goldman Video Case Studies: Zealous Representation Issue: Candor to the Court Zealous Representation Issue: Signing Documents Chapter Summary • Web Links • Court Opinions • Glossary • Comprehension Quizzes Technology Resources M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:12 AM Page 411 LEARNING OBJECTIVES “ Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit. ” James Madison After studying this chapter, you should be able to: 1. Explain the process of critical legal thinking. 2. Explain the ethical duty of candor toward the tribunal. 3. Describe the similarities and differences between a memorandum of law and a court brief. 4. Explain the reasons for the various citation format rules. 5. Explain and describe the need for, and how to use, proper citation format. Paralegals at Work Amanda Chen had worked for the law firm of Douglas and Myers only a few weeks when the senior partner, who specialized in mergers and acquisitions, asked her to sit in on the initial meeting of a long-term client and the client’s daughter. One of the more senior paralegals on staff told Amanda that her role was to take notes. The partner never took notes. He conducted the interview, asked the questions, and didn’t want anyone else to interfere. After escorting the client and the client’s daughter, Bill and Tonya Johnson, from the reception area to the partner’s office, Amanda was asked to take a seat in the corner and record the meeting notes. Bill Johnson made it clear that he was paying the bill and that he expected his attorney to get the charges of driving under the influence against Tonya dropped. Tonya acknowledged that she had been drinking at a country western bar and knew she was well over the legal drinking limit. She had tested her alcohol level on a breath analyzer that the bar made available to its patrons. Upon leaving the bar, Tonya went out to her car, got in, started it, and then fell asleep at the wheel. A police officer found her in this condition, woke her, and took her to the hospital for a blood alcohol test. The officer cited her for operating a vehicle while under the influence of alcohol, based on her .09% blood alcohol reading. After the clients left, the partner told Amanda to prepare a memorandum of law that he could use to get the charges against the client’s daughter dismissed. After doing a little research, Amanda realized that the law was against the client’s getting the charges dismissed. 411 M11_GOLD0000_00_SE_CH11.QXD 412 12/5/09 1:12 AM Page 412 PA R T I I I Paralegal Skills Furthermore, in the meeting with her father and the partner, Tonya had admitted to being intoxicated. Based on the advice from the other paralegals, Amanda was concerned about putting anything negative into the memo and decided to write a memo presenting a case for dismissal. Consider the issues involved in this scenario as you read the chapter. INTRODUCTION FOR THE PARALEGAL Legal writing and critical legal thinking are intertwined. Legal writing can take a number of forms, memos, letters, opinions, memoranda of law for internal purposes, and briefs for the court. The differences in presentation are determined by the intended audience. The similarities are in the need for clarity and accuracy. Preparation of these documents starts with an understanding of the material facts of a case and identifying the legal issues. Critical legal thinking is used to identify what is material, what law applies, and then to apply the law to the facts and come to a conclusion that answers the issue or issues presented. Critical Legal Thinking Critical legal thinking The process of identifying the issue, the material facts, and the applicable law and applying the law to come to a conclusion. Issue The legal matter in dispute. Critical legal thinking is the process of identifying the issue—the legal matter in dispute—presented by a case, identifying the material (also called key or relevant) facts in the case and the applicable law, and then applying the law to the facts to come to a conclusion that answers the issue or issues presented. Critical legal thinking is the thought process that puts the pieces of the legal puzzle together. The critical thinking process starts with a clear understanding of the facts of the client’s case and identifying the legal issues in that case. Before starting the research, one must have a clear picture of all the material facts. Part of the interview with the client is to determine all the facts. Some of what the client thinks are important facts may in fact not be relevant in deciding the legal issue. And some of the facts that seemed unimportant to the client may in fact be relevant and on which the outcome may depend. For example, it may not seem important that the client was struck by a driver going north. It may be a material fact when it is determined that the street was a one-way street going south. Consider the timeline on a contract case. Assume that a client signed an employee noncompetition contract three months after starting employment. State law may deny the enforceability of the covenant not to compete unless entered into before commencing employment or unless contemporary, full and adequate consideration is given for signing the agreement after commencing employment. Understanding the relevant facts enables a review of the court cases and the statutory law to determine applicability to the client case. A difference of one fact may make all the difference in the world in the outcome of the case. Consider the case of the client charged with killing King Kong. The facts indicate that King Kong is not a human being. The murder statute of the jurisdiction defines murder as the taking of the life of a human being by another human being; therefore, the statute has not been violated. Other statutes may have been violated, but not the murder statute. The client may be guilty of hunting out of season, hunting without a license, or killing an endangered species, but not murder. For these issues, additional facts, immaterial in the murder prosecution, may become material. The material facts also would be different in the civil action by the owner of the animal in a suit for damages for loss of an irreplaceable item. What is relevant as a fact depends on the type of case—civil or criminal—and the wrong committed or the right violated. M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:12 AM Page 413 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking IN THE WORDS OF THE COURT Alaska Case Law WHITING V. STATE, A-8755 (ALASKA APP. 10-12-2005) MANNHEIMER, Judge. Michael T. Whiting appeals his conviction for felony driving under the influence, . . . the facts . . . : Whiting and his girlfriend and his girlfriend’s six-year-old son decided to go fishing in Gastineau Channel. Whiting piloted a skiff into the channel and then turned the motor off. The three occupants of the skiff fished while the skiff drifted in the channel; Whiting sat in the rear of the skiff near the motor. While Whiting was fishing, he was also drinking alcoholic beverages. A Coast Guard vessel approached the skiff . . ., discovered that he was under the influence. Whiting claimed that he had been sober when he piloted the boat into the channel, and that he did not become intoxicated until after he stopped the motor and the fishing began. . . . Whiting’s argument hinges on his assertion that the statutory definition of driving under the influence, AS 28.35.030(a) does not include the situation where an intoxicated person is in control of a watercraft whose engine is not running. Whiting’s assertion is incorrect. . . . this Court held that “operating” a watercraft includes being in control of the watercraft, even if its engine is not running. We addressed essentially the same argument in Kingsley v. State, 11 p. 3d 1001 (Alaska App. 2000). The defendant in Kingsley drove his car into a snow berm, where it became stuck. Kingsley turned the engine off and decided to remain in the car. According to Kingsley, it was only then that he consumed a bottle of whiskey and became intoxicated. Kingsley argued that, under these circumstances, he was not intoxicated when he was operating the vehicle, and he was never in “control” of the vehicle after he became intoxicated. We rejected this narrow definition of “control”. As Kingsley acknowledges in his brief to this court, a person who engages the engine of a vehicle and allows it to run is not merely exercising physical control over the vehicle but is also “operating” it. Thus, if the engine of Kingsley’s vehicle had been running when the police arrived, the State might have proved that Kingsley was operating the vehicle while intoxicated. But the State had to prove only that Kingsley was in actual physical control of the vehicle while intoxicated. . . . A person’s attempt to operate a vehicle may furnish convincing proof that the person is in actual physical control of the vehicle, but a person may exercise actual physical control over a vehicle without making active attempts to operate it. Whiting was the one who had piloted the skiff into the channel, and Whiting remained primarily in the rear of the skiff, nearest the motor, while his girlfriend and her son sat in the front of the skiff. Under these facts, as a matter of law, Whiting was in physical control of the skiff, and he was therefore operating the skiff for purposes of the DUI statute. The American justice system is based on the statutory law and case law. Just as in the criminal law issues discussed above, factual analysis requires determining the elements of the crime, looking at the statute, and applying the facts. It may be necessary to look at case law for precedent on the definition of an operative fact. For example, all states have laws prohibiting driving under the influence of alcohol. Some of these statutes also use the terms “vehicle” and “operating.” One of the material facts for the researcher to determine is what is defined as a vehicle and what conduct is defined as “operating.” Defense counsel must look carefully to try to differentiate the client’s fact pattern from decided cases. Slight variations in facts can be important in successfully arguing a case, or at least make a compelling argument. 413 M11_GOLD0000_00_SE_CH11.QXD 414 12/5/09 1:12 AM Page 414 PA R T I I I Paralegal Skills Facts Information or details. Material facts A fact significant or essential to the issue. Immaterial facts A fact not essential to the matter or issue at hand. Facts are pieces of information or details that in actuality or reality exist, or have occurred, as opposed to someone’s theory, supposition, or conjecture. Facts, in the law, are the circumstances of an event, motion, occurrence, or state of affairs, rather than interpretations of its significance. The car was going south on State Street at 55 miles per hour as shown on the radar unit. This is a fact. Supposition, conjecture, or theory, and not fact is the statement of the witness that everyone speeds down the street in front of their house, that the defendant has done it before, that they heard the car driven by the defendant while they were in the house watching TV facing away from the street, and that they heard the car going south at 55 mph. Facts may be divided into material (relevant) facts and immaterial (irrelevant) facts. A material fact is a fact that is significant or essential to the issue or matter at hand. An immaterial fact is one that is not essential to the matter at issue. Some facts, while not material, may lead to material facts. Consider the case of the person coming from the doctor’s office, driving within the speed limit, who strikes another car in the rear at a red stoplight. Is the fact that he was coming from a doctor’s office a material fact in the accident? It may be if he were given medication that caused blurred vision or drowsiness and if the doctor told him not to drive or operate any machinery. Certainly knowing this fact leads to the discovery of other relevant facts. Legal Writing There are as many writing styles as there are writers. Writers of novels have a style of writing that may devote pages to setting a stage for the characters and more pages developing the characters. Readers probably come to expect this and look forward to long paragraphs building the scene and setting the stage for the plot. Writers of short stories are more like skilled legal writers. They must quickly and accurately set the stage in few words and tell the story in a short space. Skilled legal Paralegals in Practice PARALEGAL PROFILE Ann L. Atkinson Ann L. Atkinson is a graduate of the University of Nebraska with a Bachelor of Science Degree in Education. She is also an Advanced Certified Paralegal with over 27 years of legal experience. Her professional memberships include the Nebraska Paralegal Association, the National Association of Legal Assistants, and the National Association of Bond Lawyers. Ann is currently employed by the law firm of Kutak Rock LLP in their Omaha, Nebraska office. I specialize in public finance law, which generally is transactional in nature—preparing, reviewing, and revising contracts or negotiated “deals” between parties. Specifically, I assist the attorneys as they work with state housing agencies or municipalities when they issue bonds for public purposes. The bonds represent a “loan” of money from bondholders. The attorneys with whom I work often act as bond counsel (where we are counsel for the bond issue itself), or we may also serve as underwriter’s counsel (in which we are counsel to the underwriter of the bonds). Since our department focuses primarily on singlefamily housing, we prepare all the documents that enable an issuer to issue bonds. These bonds then provide proceeds from which the issuer can offer single-family homes to first-time homebuyers at a “below market” interest rate. Our department also handles transactions for multi-family housing such as apartment buildings being constructed, acquired, and/or rehabilitated. In my position, I coordinate all the things that need to be done in order for a bond issue to close. In order to do so, I rely heavily on writing and critical thinking skills. Tasks include preparing initial drafts of bond documents, researching statutes, proofing and reviewing offering documents and third-party opinions, and assisting with bond closings including the preparation of closing transcripts. Thus, a knowledge of correct grammar, spelling, and punctuation is essential. Critical thinking skills are very useful when preparing documents because they help you follow document processes—the flow of funds, the timing requirements for notices, and knowing when and how to obtain amendment approvals. M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:12 AM Page 415 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking 415 writers are those that can explain, persuade, and state facts for the record accurately, concisely, and clearly. The purpose of writing is to communicate. If the writing does not communicate the subject to the reader, it has not served its purpose. Unlike the novelist or poet, the legal writer must follow a set of guidelines dictated by ethical concerns for honesty and candor, while at the same time clearly present the answer to clients that they may not want to hear, or persuade the court to the advocated point of view. Writing Styles Both the brief and the memorandum may be on the exact same set of facts, legal issue, and applicable law, but the writing style is totally different. The memorandum is a working document for the legal team to be used in the preparation and presentation of a case. As a result, it has to be an objective analysis of the case, including factual subtleties and analysis of the applicable law with any alternate interpretations. For example, as stated by the Ninth Circuit Court of Appeals in U.S. v. CASTRILLON, 716 F.2d 1279 in determining whether consent was voluntary, Memorandum A working legal document for the legal team for use in preparation and presentation of a case. . . . Fed.R.Crim.P. 12(e) states that “[w]here factual issues are involved in determining a [pretrial] motion, the court shall state its essential findings on the record.” Such a record is necessary to our review. . . . Compliance with the rule 12(e) requirement is particularly important in a case such as this, where we examine “all the surrounding circumstances” . . . Factual subtleties may well affect a determination of voluntariness under this test. . . The brief written for the court is designed to provide written advocacy of the client’s position and must be written to convince the court to adopt a position favorable to the client. The opinion letter to a client requires a different style. The opinion letter must explain to a client, who is generally untrained in the law, what legal options the client has and what can and cannot be done based on a set of facts provided by the client. In some ways it is an educational document, it must be informative and detail the options sufficiently to allow the client to act in an appropriate manner. For example, you have asked us to advise you on whether you may set off a cannon at high noon each day, based on the law in . . . Opinion letter A formal statement of advice based on the lawyers expert knowledge. A WORD OF CAUTION The ready availability and ease of use of email has created a new writing style that uses shorthand terminology such as LOL for “laugh out loud.” Those in the legal profession must remember that every email is a potential piece of evidence in an electronic discovery request. Emails are frequently forwarded to others. Shortcuts should not be taken in writing emails. The same formality and care that goes into a hardcopy letter on legal stationery should be used in writing the email. Even greater care should be used when the email may contain privileged or confidential information that may accidentally get into the hands of those not covered by the ethical obligation to keep it confidential and may in some cases, such as accidentally sending it to opposing counsel, result in a breach of the attorney–client or work–product privilege. CHECKLIST Memorandum of Law Template To: From: Date: Subject: Facts Issue(s) Discussion Conclusion M11_GOLD0000_00_SE_CH11.QXD 416 12/5/09 1:12 AM Page 416 PA R T I I I Paralegal Skills Duty of Candor Duty of candor Honesty to the court. The ethical obligation to be honest with the court is called the duty of candor, Rule 3.3 in the Model Rules of Professional Conduct. In some jurisdictions, such as Indiana, the ethical rule is titled. Conduct Toward the Tribunal. Rule 3.3. Candor Toward the Tribunal Web Exploration Contrast and compare the Indiana rule at http://www.state.in.us/ judiciary/rules/prof_conduct/index .html#_Rule_3.3._Candor_Toward_ the_Tribunal with the ABA Model Rules of Professional Conduct at www.abanet.org/cpr and the rule in your jurisdiction. (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse. Amended Sep. 30, 2004, effective Jan. 1, 2005. Source: West Digest Topics. Reprinted with permission of Thomson/West Publishing. The legal team has an ethical obligation not to mislead the court. Just one brief that intentionally distorts or hides the truth or intentionally misleads the court can destroy a legal career. Even if it doesn’t result in sanctions, suspension, or disbarment, judges talk with their colleagues, and a bad reputation for integrity to the court is hard to correct. At the least, the court always will remember that the attorney did shoddy work and may give more credibility to the opposing side in the future, even if later cases by the offending attorney are better prepared and more accurately on point. Preparing Office Memorandums In doing research and preparing the memorandum of law, the legal assistant must be careful to include all the relevant applicable statutes and case law. Some paralegals are intimidated by the gruff and even downright nasty attitude of certain lawyers, particularly trial counsel in the middle of a stressful case. The paralegals are afraid the lawyer will “shoot the messenger.” The reality is that the attorney must know the weaknesses in the case along with the strengths. Nothing is more upsetting to the attorney, whether in court or in a meeting with a client or opposing counsel, than to be surprised by a case, facts, or law that has not been covered in the office memorandum of law. Office memoranda are frequently indexed by subject and filed in the office for future reference. If the same or a similar fact pattern requires research, these provide a good starting point and can be a major time-saver. So that a memorandum may be indexed properly, the facts upon which the conclusion is based must be clearly stated. All statutes, regulations, and cases must be cited properly so anyone reading the memorandum in the future can look them up. Listing relevant websites used in the preparation also is helpful. M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:12 AM Page 417 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking Starting Point The starting point for the legal researcher is to understand the specific assignment. What is it that the researcher has been asked to research? For the memorandum of law, it usually is to answer a question: What is the current law on . . . ? What happens if . . . ? What is the procedure for . . . ? Before starting an assignment, the paralegal must be certain what is really being asked. Any questions should be resolved by asking the person for whom this is being prepared: “What does the attorney expect?” Where the paralegal’s knowledge of the subject area is sufficient, he or she may know that certain facts may change the outcome— such as the requirement in some states that a subscribing witness to a decedent’s will cannot be a beneficiary. Before starting, paralegals must be sure to have all the relevant facts, then restate what they believe they are being asked to research in the form of a statement of the question. For example: “You have asked for the law on the rights of individuals to . . . .” Part of the skill in legal writing is using analytical skills to find the similarities and differences in cases that can be used as persuasive argument for the position being presented for the client. This is the critical legal thinking aspect of the legal writing process. And writing is a process. It requires research, analysis, organization, writing, editing, and proofreading. Sometimes it requires starting over when the final document when viewed from the position of the ultimate reader does not communicate the necessary information or tell the story. In the legal working environment, time to rethink, re-research, and rewrite is a luxury. The pressure is on developing good skills to minimize the time necessary to produce an acceptable document, whether it is a letter, an office memorandum, or a court brief. Memorandum of Law Format A memo is frequently prepared by the supervising attorney with a request for research and an office memorandum of a specific subject or case. A sample of an assignment memo is shown in Exhibit 11.1. Frequently, the assignment is given in a face-to-face meeting. When the assignment is made orally, it is a good idea to confirm the specific assignment if there is any question of the details required. Exhibit 11.1 Assignment memo MEMORANDUM To: From: Date: File Re: Edith Hannah Glenn Hains January 23, 2006 Number: GH 06-1002 Commonwealth of Pennsylvania vs. Kevin Dones Our client was stopped by a police officer at the bottom of the hill on route 332 in Northhampton Township, at 3:30 on Sunday afternoon, January 15, 2006. He was riding a bicycle south on route 332 and was given a citation for speeding. The police used a radar unit and claimed a speed of 35 mph in a 25 mph zone. He administered a field sobriety test, which gave a reading over the legal limit, and client was given a citation for driving under the influence. He tells me he was riding a bike because his license was suspended for a previous DUI. Please prepare a brief memorandum of law, with citations and cases. 417 M11_GOLD0000_00_SE_CH11.QXD 418 12/5/09 1:12 AM Page 418 PA R T I I I Paralegal Skills Exhibit 11.2 Word search function Source: Microsoft product box shots reprinted with permission from Microsoft Corporation. The format or template for office memoranda is fairly standard, as shown in the Memorandum of Law Template. Some offices may add, for identification purposes, headings such as office file numbers or client identifiers. Some offices that maintain a paper format include subject matter legal terms or areas of law so they can be filed and retrieved if future cases require a memorandum on the same subject. Copies of memorandum are increasingly stored electronically as word processor files. These electronic files can be searched using a search function such as the file search function in Microsoft Word shown in Exhibit 11.2. When taking an assignment to do research and write a memorandum, a few basics have to be remembered. The attorney, in all probability, will not redo the research or do much more than refer to the material submitted with the memorandum. The memorandum must be an unbiased presentation of the law as it exists, clearly presented. If the content of the memorandum is not accurate and complete, the attorney relying on the analysis and discussion may be, at the least, embarrassed by the opposing counsel or, at the worst, by the court. Points to remember in preparing a memorandum of law are: ■ ■ Never rely on case law headnotes. Headnotes are not a primary source of the law. Always check the language of the court cases. It is the primary authority. M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:12 AM Page 419 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking ■ ■ ■ ■ ■ ■ 419 Check the dates of the cases and of the statutes. Be sure they are current law. Shepardize (GlobalCite, KeyCite, V.Cite) the cases you used and relied on to be certain they have not been overruled by a later case or law. Don’t be afraid to show the cases and law against your client’s position. Cite all sources used. Never plagiarize. Analyze opposing case law for any differences that may give the attorney a chance to argue that the negative cases are different in some factual or legal way. Ask, if you don’t understand the issues or question involved. It is better to admit that you are having a problem with the research than to give the attorney wrong, incomplete, or unintelligible information. The format of the memorandum of law is determined by the nature of the assignment, the number of issues, and the ultimate use that will be made of the memorandum, as well as personal preferences of the person making the assignment. The components of a memorandum of law and the components of a court opinion (case) are similar. Exhibit 11.3 presents a comparison. Some case opinions have a brief summary or syllabus of the case that is prepared by an editor, such as the West editors or Supreme Court editors, which is not an official part of the case but is provided for reader convenience. Some attorneys prefer to have a Brief Answer under the Statement of the Assignment in a Memorandum of Law. The brief answer is generally a shortened version of the main points of the conclusion. Samples of a traditional memorandum of law and one prepared for internal government use are shown in Exhibits 11.4 and 11.5. If you have ever “briefed” a case you will notice the similarity to the list of items shown in the comparison above. A sample of a case and a case brief is provided in Appendix A: How to Brief a Case. Facts Paralegals, of course, must have a clear statement of the facts from which to work. The facts relied upon in writing the memo must be part of the ultimate final memorandum. Other people may read the memorandum. They need to understand the specific facts upon which the analysis is based, particularly if they read it at a time when the Exhibit 11.3 Components of court opinions and memorandums of law COURT OPINIONS M E M O R A N D U M S O F L AW Caption: Parties, citation, relevant dates Heading: Assigning party, client, file number Judicial history: Prior proceeding (how the case got to this court) Statement of the assignment: History of what happened and why the client sought representation Issue: Legal question before the court Issue: Legal issues of clients raised in statement of assignment Facts: Relevant facts used to decide case Statement of facts: Relevant facts Analysis and discussion: Discussion of the facts, rules of law, issues, judicial reasons for decision Analysis and discussion: Discussion of each issue, how the applicable law applies, what relevant facts impact the decision Conclusion: Holding of the Court Conclusion: Restatement of the conclusion to each issue analyzed and discussed above, summarizing the main points M11_GOLD0000_00_SE_CH11.QXD 420 12/5/09 1:12 AM Page 420 PA R T I I I Paralegal Skills Exhibit 11.4 Sample memorandum of law prepared by leading legal research provider M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 421 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking Exhibit 11.4 Sample memorandum of law prepared by leading legal research provider (continued) 421 M11_GOLD0000_00_SE_CH11.QXD 422 12/5/09 1:13 AM Page 422 PA R T I I I Paralegal Skills Exhibit 11.5 Sample memorandum of law prepared by the U.S. Department of Justice U.S. Department of Justice Immigration and Naturalization Service HQADN 70/23 Office of the Executive Associate Commissioner 425 1 Street NW Washington, DC 20536 May 24, 2001 MEMORANDUM FOR Michael A. Pearson Executive Associate Commissioner Office of Field Operations FROM: Michael D. Cronin /s/ Acting Executive Associate Commissioner Office of Programs SUBJECT: Public Law 106-378, adjustment of status of certain Syrian nationals. This memorandum provides eligibility information and adjudication policy guidance for the implementation of Public Law 106-378, which pertains to the adjustment of certain Syrian nationals who were granted asylum after arriving in the United States after December 31, 1991. ELIGIBILITY Public Law 106-378 provides for the adjustment of status of a principal alien as well as an alien who is the spouse, child, or unmarried son or daughter of a principal alien. Principal alien. In order to be eligible for adjustment under this law, the principal alien must: 1. Be a Jewish national of Syria; 2. Have arrived in the United States after December 31, 1991, after being permitted by the Syrian government to depart from Syria; 3. Be physically present in the United States at the time of filing the application to adjust status; 4. Apply for adjustment of status under Public Law 106-378 no later than October 26, 2001, or, have applied for adjustment of status under another provision of law prior to October 27, 2000, and request to have the basis of that application changed to Public Law 106-378; 5. Have been physically present in the United States for at least one year after being granted asylum; 6. Not be firmly resettled in any foreign country; and Memorandum: Public Law 106-378, adjustment of status of certain Syrian nationals. REQUIRED FIELD OFFICE ACTION Field offices are to identify all potentially eligible Syrian asylee adjustment applications and forward them and the related A-files to NSC within 30-days of this memorandum. The appropriate code, “SY6, 7 or 8” and reference to Public Law 106-378 must be noted. A-files are to be routed to the NSC in separate batches, with individual cover sheets attached to the outside face of each file reflecting “SYRIAN ASYLEE P. L. 106-378”. If, for whatever reason, a field office cannot accomplish this goal, they are to provide a report to their respective region identifying each case, explaining the reason(s), and advising the anticipated date of completion of the A-file transfer. Regions are requested to review the report and take appropriate action. SERVICE CENTER ACTION ON APPROVED ASYLEE APPLICATIONS The NSC must review all asylum adjustment cases received via Direct Mail as well as all cases forwarded to them from the field to cull out those Syrian nationals whose applications contain evidence of Syrian nationality, arrival in the United States M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 423 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking 423 Exhibit 11.5 Sample memorandum of law prepared by the U.S. Department of Justice (continued) after December 31, 1991, and a grant of asylum or asylee dependent status. The NSC must also retrieve A-files belonging to qualifying Syrian applicants inappropriately coded as “AS” adjustments, and take corrective action. A list containing the names of Syrian asylees has already been provided to the NSC to help in this regard. The NSC will also track the total number of cases approved. After the NSC approves 2,000 principal beneficiaries under this law, the NSC will stop adjudicating applications, and will notify HQ ISD and HQ ADN that the numerical limitation has been reached. SUPPLEMENTAL FILING INSTRUCTIONS The Form I-485 supplemental filing instructions are being modified to instruct qualified applicants to identify themselves by writing ”SYRIAN ASYLEE P. L. 106-378” in Part 2, Block 2. Since many qualified Syrian asylees may be unaware of their special classification or the correct way to claim it, the NSC should review all newly submitted asylee adjustment applications, and, when appropriate, endorse the Form I-485 as described above. When an applicant’s eligibility to adjust under Public Law 106-378 has been verified, the adjudicator will check the “other” block in the “Section of Law” portion of the FOR INS USE ONLY Section of Form I-485 and will enter the notation, ”Public Law 106-378.” CONCLUSION Segregating the Syrian asylum adjustments for proper adjudication is essential to preserve the use of the 10,000 visa numbers authorized annually for other asylees who are eligible to adjust their status. If you have questions regarding the adjudication of Syrian-processed asylum adjustments, please contact your center or regional representative. If needed, service center. . . . Source: United States Department of Justice. paralegal is not available to answer questions, such as in the middle of a case, when out ill, on vacation, or if the paralegal has left the firm. It also is frequently necessary to recite other facts not relied upon and the reason for not considering them—that the result would be different. An example is a notation that this fact pattern is based upon the participants’ all being over the age of majority for contracting, or over the age to purchase and consume alcoholic beverages. Analysis A memorandum must present both sides of the issue and, in that respect, be a neutral, unbiased, objective presentation of applicable laws as they apply to the facts of the case. Issues that the opposing attorney or the judge may raise should be considered and presented. A good analysis will include a discussion of how the fact pattern may differ in cases that are not on point but may be used by opposing counsel. The memorandum the paralegal prepares may be the basis for the court brief that the attorney or someone else will prepare. To be able to meet the ethical obligation to the court, the person who presents a persuasive argument favoring the client must know all the relevant statutory and case law. Editing and Rewriting The written word is a reflection of the writer. Everyone who reads the memorandum will measure the researcher’s reputation and skill level. Each person who reads the memorandum will measure the writer’s communication skills. The paralegal, however, may be writing for a certain audience, and someone other than that might read the memorandum unaware of the intended reader. Certain elements of writing style transcend the audience. For example: ■ ■ Is it clear? Are the words used properly? M11_GOLD0000_00_SE_CH11.QXD 424 12/5/09 1:13 AM Page 424 PA R T I I I Paralegal Skills ■ ■ ■ ■ Is the spelling correct? Is it written using proper English grammar? If it is being written for an audience for whom English is a second language, is that made clear? Where there are variations in translation of foreign language terms, have these been clarified? For example, were the facts translated from words spoken by someone from Spain or someone from Puerto Rico, from someone who speaks Northern High German or Bavarian Southern German or Swiss German? Preparing Court Briefs Amicus curia Briefs submitted by interested parties, as a “friend of the court,” who do not have standing in the action. Each court has court rules on the requirements for briefs submitted by the parties and by “friends of the court—amicus curia.” The format and required sections of a brief prepared for the court is determined by these rules, and in some cases the personal preferences of the judge or justices. Before undertaking the task the preparer should always obtain a current copy of the court rules and as a practice pointer, contact the judge’s law clerk for any additional limitations or requirements. At times the court is unable to thoroughly read the brief before oral argument. In these situations the preliminary statement becomes an important part of focusing the court on the issues presented for your side of the case. Being able to state your side of the case briefly is not easy, but it is worth the effort. It requires clear, concise, and careful choice of words that will be remembered as the hearing progresses, and later when the court is making its analysis and decision. The table of contents, partial table of authorities, summary of the argument, and conclusion of an amicus curia brief submitted in a case to the United States Supreme Court is shown in Exhibit 11.6. Citations Citation A reference to the source of the information. Primary authority The actual law itself. Secondary authority Writings that explain the law. A legal citation is a reference to the source of the information that allows someone else to find the case or other material mentioned in a document. The form of the citation must allow others to find the material. The format must be one that others in the legal community generally accept and use. If a person in California submits a brief to a court, a person in New York or in Florida must be able to use the citation to locate the items referred to in the document in a traditional legal library or electronic law source such as Loislaw, VersusLaw, Lexis, or Westlaw. All legal authorities can be divided into two groupsprimary authority and secondary authority. Primary authority includes constitutions, statutes, cases, and administrative regulations. Everything else is a secondary authority explaining the primary authority or a finding tool providing a method of locating primary authority. With a consistent citation format, the reader can determine the source of the authority mentioned and find the applicable primary source (constitution, statute, regulation, or case) or secondary source or finding tool (treatise, encyclopedia, digest, or dictionary). Judges and lawyers in some states are abandoning the longstanding tradition of putting citations in the body of a document and now are putting the citations at the bottom of the document in the footnotes. They claim it makes reading legal opinions easier by eliminating the interference of the citations with the flow of words. Traditional Sources (Print) The traditional method for publishing primary and secondary authority is the paper form, including books, collections of books, and series of books. Where a case, statute, or regulation is available in more than one series of books, such as the official reporter of the state and a private publication such as those published by West Publishing, the citation to both locations—known as parallel citations—is required. The citation form is basically the same: M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 425 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking Volume Book or Series Page 232 Atlantic 2d 425 44 In this example, written as 232 A.2d 44, 232 refers to the volume in the Atlantic 2d series reporter service of West Publishing Company, and 44 refers to the page on which the authority may be found. Bluebook The most commonly used guide to citation form is the publication The Bluebook: A Uniform System of Citation. This is the generally accepted authority for proper citation form unless the rules of a particular court dictate a different citation format. Exhibit 11.6 Amicus curia brief filed with the U.S. Supreme Court (continued) M11_GOLD0000_00_SE_CH11.QXD 426 12/5/09 1:13 AM Page 426 PA R T I I I Paralegal Skills Exhibit 11.6 Amicus curia brief filed with the U.S. Supreme Court (continued) For example, the executive administrator of the Superior Court of Pennsylvania issued this notice: Pennsylvania Superior Court will be issuing opinions containing a Universal Citation. This citation will be as follows: Jones v. Smith, 1999 PA Super, 1. The second number is a Court-issued number on the opinion. Each opinion will also have numbered paragraphs, to be used for pinpoint citation, e.g., Jones v. Smith, 1999 PA Super, 1, 15. Citation to opinions that have not yet been issued an Atlantic 2d citation are to be in the Universal Citation number. After the official citation has been issued, citation is to be only the official citation, and not the Universal Citation. Effectively, the old citation format, citing to the book, is still to be used. ALWD Citation Format Association of Legal Writing Directors (ALWD) A society for professors who coordinate legal writing instruction. A citation format, written by the Association of Legal Writing Directors (ALWD), is provided in the ALWD Citation Manual, A Professional System of Citation. The ALWD is a society for professors who coordinate legal writing instruction in legal education. One of the attributes of the manual, as set out in the preface, is that it is “a set of rules that reflects a consensus in the legal profession about how citations should function.” The ALWD Manual includes, in addition to the general citation rules, an M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 427 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking appendix containing court citation rules for the individual states. Exhibit 11.7 shows the comparison between the Bluebook and the ALWD rules for citation format. Universal Citation Format The Universal Citation Guide represents an attempt by the American Association of Law Libraries (AALL), Committee on Citation Formats, to create a set of universal citation rules for American law that are vendor (publisher) neutral and medium (print and electronic) neutral. The various formats of electronic distribution require a system of citation that can be applied consistently to allow researchers to find the referenced authority regardless of the research tool used. Whereas the traditional, paper or book-based, citation uses information based on internal page numbers, the Universal Citation Format relies upon the courts to use numbered paragraphs in its opinions. Any publisher of the case law then can preserve the information provided by the court including the citation references to the case and paragraph. Anyone who has read and compared a case in a book with a case online is aware that the page size and the display are different. Unless the online computer display is in a photoimage format, such as Adobe PDF, locating a specific page or reference can be difficult. Librarians and courts are recognizing the need for pinpoint citations for the on-screen user. The Universal Citation Format represents an attempt to solve this problem. The difficulty with some courts is the requirement that the Universal Citation Format be used only until the hardcopy is published, at which time the traditional citation must be used. As a result, you may see the following citation format within documents: Jones v. Smith, 1999 Pennsylvania Superior 1, ___Pa Super___, ___A2d___(1999) in which the blank spaces are provided to insert the ultimate volume and page number in the print version when it is available. Appendix D lists court name abbreviations. 427 Web Exploration Check the ALWD website for the latest updates at www.alwd.org. Universal Citation Format A system for citation relying on the courts to number the paragraphs in their opinions. Web Exploration Download A Draft User Guide to the AALL universal case citation at http://www.allnet.org/ committee/citation/case.html. Other Citation Formats Many states, including Pennsylvania, have adopted as their official citation format one that originally was created by publishers such as West Publishing Company. These sometimes are referred to as vendor-specific citation formats. The West Publishing Company for- Vendor-specific citation mat is based on the West Regional Reporter system and its publications of federal material. format Citation format of a legal New methods of electronic information technology, in the form of databases, publisher adopted by a court. CD-ROMs, and the Internet, have created a number of problems with the traditional Web Exploration citation format. Some of the vendors have claimed copyright protection for their pagination systems. For a discussion on the use of citations in the traditional In 1985, West Publishing Company, in a case against Mead Data Central, argued format or as footnotes, see the successfully that the wholesale use of its pagination by a competing online publisher inNew York Times article “Legal fringed upon West’s copyright interest in the arrangement of cases in its court reports. Citations on Trial In Innovation v. And in a 1998 case involving Matthew Bender & Company and West Publishing ComTradition” by William Glaberson at http://www.nytimes.com/ pany, the Second Circuit held that West’s pagination was not protected by copyright. 2001/07/08/us/legal-citationsObviously, all claims to a pagination system or citation system that is vendor-specific on-trial-in-innovation-vwill result in some action to protect the corporate claim for copyright, trademark, or traditional.html. potential patent for some electronic methodology. Table of Authorities A table of authorities is a listing of the citations or other references in a document and Table of authorities A listing of the page numbers where they are located. A Table of Authorities creation tool is included the citations or other references in and the page in the two most popular word processor programs used in the law office, WordPerfect a documentare located. numbers where they and Microsoft Word. Each desired authority is first identified and marked by opening the Table of Authorities menu (pressing ALT SHIFT I) and organized by category, as shown in Exhibit 11.8. Each authority is marked and an identifier inserted in the document called a TA or Table of Authority Entry in MS Word. These marks are visible when the Hidden Marks button is selected, as shown in Exhibit 11.9. M11_GOLD0000_00_SE_CH11.QXD 428 12/5/09 1:13 AM Page 428 PA R T I I I Paralegal Skills Exhibit 11.7 Comparison of selected ALWD third edition rules and The Bluebook 18th edition rules RULE ALWD CITATION BLUEBOOK CITATION DIFFERENCES Typeface Ordinary type and italics (or underlining). Ordinary type, italics (or underlining), and SMALL CAPS. ALWD has one set of conventions, not two. No distinctions based on type of document (law review v. court document) or placement of citation within the paper. Different fonts required depending on type of document and where source is cited within the paper. ALWD: Rule 1 BB: B13 & Rule 2.0 ALWD does not use small caps as a typeface. Rule 1.1 in the third edition indicates that some journals and book publishers that do not follow ALWD require the use of large and small capital letters; Sidebar 23.2 provides examples of how to use large and small capital letters in various circumstances. Abbreviations and Spacing F. Supp. F.3d F. Supp. F.3d No substantial differences on spacing. Corp. Gov’t Int’l Pet’r ALWD abbreviations end with periods; some Bluebook abbreviations include apostrophes. In citations, ALWD gives the writer the flexibility to abbreviate words found in the appendices. In citations, the Bluebook requires that words in a case citation (as opposed to a case name used in a textual sentence) be abbreviated if the words appear in the Tables. ALWD provides flexibility regarding use of abbreviations. Federal Civil Procedure before Trial Federal Civil Procedure Before Trial ALWD eliminates the “and prepositions of four or fewer letters” part of the Bluebook, which brings legal citation closer to non-legal style. Indicates that the convention in law is to use words for zero through ninety-nine in all text and notes. However, ALWD provides flexibility on whether to designate numbers with words or numerals. Use words for zero through ninety-nine in all text and notes. No substantial differences, other than ALWD allows for more flexibility. However, ALWD inserts a comma in some fourdigit numerals: 3,000. Ordinal contractions are presented as follows: 1st, 2d, 3d, 4th, etc. Ordinal contractions are presented as follows: 1st, 2d, 3d, 4th, etc. 125–126 or 125–26 125–26 ALWD: Rule 2 Corp. Govt. BB: B5.1.1(v), Intl. B10.1, & Rule 6.1 Petr. Capitalization ALWD: Rule 3 BB: B10.6 & Rule 8 Numbers ALWD: Rule 4 BB: Rule 6.2 Page spans ALWD: Rule 5 BB: Rule 3.2(a) ALWD gives a choice on how to present a page span; you may retain all digits or drop repetitive digits and retain two digits on the right-hand side of the span, as in Bluebook 3.2(a). M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 429 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking 429 Exhibit 11.7 Comparison of selected ALWD third edition rules and The Bluebook 18th edition rules (continued) RULE ALWD CITATION BLUEBOOK CITATION DIFFERENCES Footnotes and endnotes n. 7 nn. 12–13 n. 7 nn. 12–13 ALWD requires a space after n. or nn. abbreviation. Supra n. 45. Supra note 45. Under ALWD, abbreviate note as “n.” and place a space after the period. Id. at 500. Id. at 500. Basically similar rules. ALWD eliminates the “5 id. in a row” rule found in Bluebook Rule 10.9. ALWD: Rule 7 BB: Rule 3.2(b)–(c) Supra and infra ALWD: Rule 10 BB: Rule 3.5 Id. ALWD: Rule 11.3 BB: B5.2, Rules 4.1, 10.9 & 12.9 In the ALWD Manual, id. cannot be used with Practitioner and Court documents. Rule 29.6. Cases Brown v. Bd. of Educ., 349 U.S. 294, 297 (1955). Brown v. Bd. of Educ., 349 U.S. 294, 297 (1955). ALWD: Rule 12 MBNA Am. Bank, N.A. v. Cardoso, 707 N.E.2d 189 (III. App. 1st Dist. 1998). MBNA Am. Bank, N.A. v. Cardoso, 707 N.E.2d 189 (III. App. Ct. 1st Dist. 1998). [required inclusion of district court information] [permissive inclusion of district information] BB: B5 & Rule 10 Under ALWD, case names are always italicized or underlined. Under ALWD, you do not have to abbreviate words in case names. For those who want to abbreviate, Appendix 3 provides a longer list of words that are abbreviated. ALWD requires division and district information for state appellate courts, and eliminates “Ct.” from most court abbreviations. For cases cited from Westlaw or LexisNexis, ALWD does not require the docket number of the case. ALWD also requires two asterisks to identify multiple pages of a pinpoint cite. Constitutions U.S. Const. amend. V. U.S. Const. amend. V. No substantial differences. 18 U.S.C. § 1965 (2000). 18 U.S.C § 1965 (2000). No substantial differences. ALWD: Rule 13 BB: B7 & Rule 11 Statutes ALWD: Rule 14 (continued) M11_GOLD0000_00_SE_CH11.QXD 430 12/5/09 1:13 AM Page 430 PA R T I I I Paralegal Skills Exhibit 11.7 Comparison of selected ALWD third edition rules and The Bluebook 18th edition rules (continued) RULE ALWD CITATION BLUEBOOK CITATION DIFFERENCES Sen. Res. 146, 109th Cong. (2005). S. Res. 146, 109th Cong. (2005). ALWD abbreviates Senate as “Sen.” instead of “S.” to avoid confusion with other abbreviations. BB: B6.1.1, B6.1.2 & Rule 12 Legislative Materials ALWD: Rules 15 & 16 Most forms are relatively consistent. BB: B6.1.6 & Rule 13 Court Rules Fed. R. Civ. P. 11. Fed. R. Civ. P. 11. No substantial differences. ALWD: Rule 17 BB: B6.1.3 & Rule 12.8 Administrative Materials 34 C.F.R. § 607.1 (2006). 34 C.F.R. § 607.1 (2006). C.F.R. citation is the same. ALWD: Rules 19 and 20 70 Fed. Reg. 10868 (Mar. 5, 2005). 70 Fed. Reg. 10868 (Mar. 5, 2005). Both require an exact date for Fed. Reg. citations. BB: B6.1.4 & Rule 14.2 Books and Treatises ALWD includes guidance about how to cite C.F.R. references found on unofficial electronic databases, such as Westlaw and LexisNexis. Rule 19.1(d). BB: B8 & Rule 15 Legal Periodicals ALWD: Rule 23 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1751, at 10–17 (3d ed. 2005). OR OR Charles Alan Wright et al., Federal Practice and Procedure vol. 7A, § 1751, 10–17 (3d ed., West 2005). ALWD: Rule 22 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure vol. 7A, § 1751, 10–17 (3d ed., West 2005). 7A Charles Alan Wright et al., Federal Practice and Procedure § 1751, at 10–17 (3d ed. 2005). Geoffrey P. Miller, Bad Judges, 83 Tex. L. Rev. 431 (2004). Geoffrey P. Miller, Bad Judges, 83 Tex. L. Rev. 431 (2004). Margaret Graham Tebo, Duty Calls, 91 ABA J. 35 (Apr. 2005). Margaret Graham Tebo, Duty Calls, A.B.A. J., Apr. 2005, at 35. ALWD places volume information after the title, just like any other subdivisions. ALWD separates subdivisions separated with a comma, but no “at.” ALWD requires that the publisher be included, no matter what type of document. ALWD uses et al. for three authors or more, compared with the Bluebook which uses et al. for two authors or more. ALWD eliminates most distinctions between Consecutively and nonconsecutively paginated articles. Include longer date for non-consecutively paginated journals, but do so within the parenthetical. M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 431 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking 431 Exhibit 11.7 Comparison of selected ALWD third edition rules and The Bluebook 18th edition rules (continued) RULE ALWD CITATION BLUEBOOK CITATION DIFFERENCES BB: B9 & Rule 16 Carrie Ann Wozniak, Student Author, Difficult Problems Call for New Solutions: Are Guardians Proper for Viable Fetuses of Mentally Incompetent Mothers in State Custody? 34 Stetson L. Rev. 193 (2004). Carrie Ann Wozniak, Comment, Difficult Problems Call for New Solutions: Are Guardians Proper for Viable Fetuses of Mentally Incompetent Mothers in State Custody? 34 Stetson L. Rev. 193 (2004). ALWD uses the term “Student Author” to replace Note, Comment, Recent Development, etc. Jodi Wilgoren, Prosecution Lays out Case for Harsh Sentencing of B.T.K. Killer in Gory Detail, 154 N.Y. Times A14 (Aug. 18, 2005). Jodi Wilgoren, Prosecution Lays out Case for Harsh Sentencing of B.T.K. Killer in Gory Detail, N.Y. Times, Aug. 18, 2005, at A14. Carolyn Kelly MacWilliam, Individual and Corporate Liability for Libel and Slander in Electronic Communications, Including E-mail, Internet and Websites, 3 A.L.R.6th 153 (2005). Carolyn Kelly MacWilliam, Annotation, Individual and Corporate Liability for Libel and Slander in Electronic Communications, Including Email, Internet and Websites, 3 A.L.R.6th 153 (2005). ALWD eliminates the “Annotation” reference. Black’s Law Dictionary 87 (Bryan A. Garner ed., 8th ed., West 2004). Black’s Law Dictionary 87 (8th ed. 2004). ALWD treats dictionaries like books. Legal Encyclopedias 98 C.J.S. Witnesses § 397 (2002). 98 C.J.S. Witnesses § 397 (2002). ALWD: Rule 26 68 Am. Jur. 2d Schools §§ 20–24 (2000 & Supp. 2005). 68 Am. Jur. 2d Schools §§ 20– 24 (2000 & Supp. 2005). No substantial differences; however, ALWD provides expanded coverage and includes a list of many abbreviations for state encyclopedias. Fed. Jud. Ctr., History of the Federal Judiciary, http://www.fjc.http://www.fjc. gov/history/home.nsf (accessed Aug. 18, 2005). Federal Judicial Center, History of the Federal Judiciary (visited Aug. 18, 2005), at http://www. fjc.gov/history/home.nsf. A.L.R. Annotations ALWD: Rule 24 BB: Rule 16.6.6 Legal Dictionaries ALWD: Rule 25 BB: Rule 15.8 BB: Rule 15.8 Internet ALWD: Rule 40 BB: Rule 18.2.3 ALWD permits the abbreviation of an organizational author’s name, to save space. ALWD uses “accessed” instead of “visited” to be consistent with non-legal citation guides. The Bluebook contains different formats for material that appears only on the Web and for material that appears on the Web and in other medium. The position of the date parenthetical moves depending on the type of information cited. (continued) M11_GOLD0000_00_SE_CH11.QXD 432 12/5/09 1:13 AM Page 432 PA R T I I I Paralegal Skills Exhibit 11.7 Comparison of selected ALWD third edition rules and The Bluebook 18th edition rules (continued) RULE ALWD CITATION BLUEBOOK CITATION DIFFERENCES Signals Signals are e.g., accord, see, see also, cf., contra, compare . . . with, but see, but cf., and see generally. Signals are e.g., accord, see, see also, cf., contra, compare . . . with, but see, but cf., and see generally. Under ALWD, all signals may be separated with semicolons. Under the Bluebook, a new citation sentence must start when there is a new type of signal. (Signals are categorized by type in the Bluebook—supportive, comparative, contradictory, or background—whereas in ALWD, the signals are ordered individually.) ALWD does not use any punctuation after a signal. ALWD lists federal, state, and foreign court cases first by jurisdiction, then in reverse chronological order. Federal (appellate and trial) court cases are ordered in reverse chronological order. Minor differences in the order when looking at the list of specific sources: State court cases are first, alphabetized by state, and then ranked within each state. (1) Under ALWD, statutes (federal and state) come before rules of evidence and procedure, whereas in the Bluebook, federal statutes and rules of evidence and procedure come before state statutes and rules of evidence and procedure. (2) Under the ALWD, the student-authored articles are classified with all other material in law reviews, law journals, and other periodicals, whereas in the Bluebook, the student-authored articles are separate, and cited after the non-studentauthored articles. The Bluebook says to block indent passages if they contain at least 50 words. ALWD does not require you to count the exact number of words in long quotations. ALWD: Rule 44 BB: B4 & Rule 1.2 Order of Cited Authority ALWD: Rule 45 BB: B4.5 & Rule 1.4 Quotations ALWD: Rule 47 ALWD says to block indent passages if they contain at least fifty words OR if they exceed four lines of typed text. BB: B12 & Rule 5 Source: Copyright © 2005, Darby Dickenson. Reprinted with permission. M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 433 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking 433 Exhibit 11.8 Table of Authorities selection menus Exhibit 11.9 Table of Authorities hidden characters The table of authorities may be inserted using the Insert Table of Authorities selection in the Reference tab, as shown in Exhibit 11.10. Cite Checking Cite checking is the process of verifying that the proper citation format has been used in a document. The term also means checking the referenced case or statute to determine that it is valid and that it has not been repealed or overturned. The strictness with which the citation rules must be applied, as well as the method—Bluebook, ALWD Citation Manual, or Universal Citation Format—depends on the wishes and demands of the attorney for whom the document is prepared or the court or judge to Cite checking The process of verifying proper citation format in a document. M11_GOLD0000_00_SE_CH11.QXD 434 12/5/09 1:13 AM Page 434 PA R T I I I Paralegal Skills Exhibit 11.10 Table of Authorities options menu whom it is submitted. Some courts view the presentation of improper citation format with a jaundiced eye, just as they view improper punctuation, improper spelling, and bad grammar. Others are upset if the citation to the paper references or online legal research service available to them is not used. Bluebook and ALWD Compared Which citation format is used depends on the local custom and courts in which the firm or supervising attorney practices (and the wishes of your instructors!). The two forms used most commonly—the Bluebook and the ALWD Manual—have a number of similarities. Both of these documents are divided into parts and rules—the Bluebook into three parts and the ALWD Manual into seven parts. The parts are further divided into rules. The Bluebook has 20 basic rules, and the ALWD 50 rules. Most of the rules have a common pattern, and some are the same, such as Bluebook Rule 12–Statutes, and ALWD Rule 14 on the method of citing the United States Code: 18 U.S.C. § 1965 (1994). Others are minor variations in presentation, such as Bluebook Rule 10.2.2, which provides, “Do not abbreviate ‘United States,’” and ALWD Rule 12.2(g) “United States as party: Cite as U.S. Omit ‘America.’” Sample Bluebook citation formats: Rule 11 Constitutions: Rule 10 Cases: Rule 12 Statutes: U.S.Const.art.I, § 9, cl.2. United States v Shaffer Equip. Co., 11 F.3d 450 (4th Cir. 1993) 42 U.S.C. § 1983 (1994) Sample ALWD citation formats: Rule 13 Constitutions: Rule 12 Cases: Rule 14 Statutory Codes: Session Laws, SlipLaws: U.S. Const.art. IV, § 5(b) Brown v. Bd. Of Educ., 349 U.S. 294 U.S. v. Chairse, 18 F.Supp. 2d 1021 (D. Minn. 1998) 18 U.S.C. § 1965 (1994) M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 435 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking 435 Advice from the Field PROFESSIONAL COMMUNICATION by Kathryn L. Myers, Associate Professor and Coordinator of Paralegal Studies at Saint Mary-of-the-Woods College in Saint Mary-of-the-Woods, IN There are countless misunderstandings, conflicts, and disagreements in every organization in the United States. Effective listening skills are almost extinct in many firms, and gossip among colleagues has become commonplace. The result is lost productivity, hurt feelings, hidden agendas, loss of innovative ideas, and mistrust among coworkers. The importance of professional communication skills in dealing with these problems cannot be overstressed. The Wall Street Journal recently reported a study involving more than one hundred Fortune 500 executives who ranked interpersonal communication first, across the board, as the most valuable skill they considered in hiring or promotion decisions. Lack of interpersonal communication skills impedes professional effectiveness in influencing persuading, and negotiating, all of which are crucial to success. Professional communication may take the form of written communication, active listening, or nonverbal communication, all of which require interpersonal communication skills. All three skills work together to define professional communication, but this article focuses specifically on written communication. Writing intimidates many people, but there are times when writing is the best way to communicate and often is the only way to get a message across. Good writers must have access to at least one quality writing guide. Some good choices are: The Elements of Style, by William Strunk, Jr., and E.B. White for lawyers, paralegals, and others engaged in formal writing; The Bedford Handbook, by Diana T. Hacker; How 10: A Handbook for Office Professionals, by James L. and Lyn R. Clark; and The Associated Press Stylebook for traditional journalists is the professional bible. The following tips are offered as examples of what careful writers must consider. BE CAUTIOUS Written communication is more concrete than verbal communication and is less forgiving of errors. Once something is written and sent, it cannot be taken back; and it cannot be nuanced or explained away as readily as can be done with the spoken word. Communicators in writing must meet the challenges of spelling, grammar, punctuation, and style in addition to the actual wording (rhetoric). Modern technology superficially makes writing seem easier by providing grammar and spelling checks, but these tools are not failsafe. They may actually contribute to egregious errors if the writer is not carefully involved with the writing and proofreading the material for sense. REMEMBER THE ABC’S OF WRITING Accuracy—Proof and reproof Brevity—Keep sentences short Clarity—Use active voice for clear meaning BEWARE OF COMMON ERRORS Commas—Use commas after each part of full dates (e.g., “Wednesday, July 13, 2005,” or “July 13, 2005,” unless the year falls at the end of the sentence. No comma is used with a calendar date expressed alone (e.g., “February 14.”) Do not use commas where the year stands by itself (e.g., “the year 2005 was special.”) Restrictive words, phrases, or clauses modify the main idea and are essential to its meaning. These are not set off by commas. Nonrestrictive words, phrases, or clauses, however, do not significantly change the meaning of the sentence and are set off by commas. Place commas inside quotation marks and parentheses. Semicolons—Use semicolons when there are two or more independent clauses that do not have coordinating conjunctions, or when the clauses are joined by a transitional expression such as “however.” Also use them to separate clauses in a series which have internal commas. Place semicolons outside quotation marks and parentheses. Colons—Use colons after independent clauses that introduce a formal list or enumeration of items, but not if a verb of being precedes the list. Use a colon after a business salutation and to introduce formal quotations (e.g., the court held: “no offense was proven . . .”) Dashes—Use dashes instead of commas to achieve greater pause and emphasis to what follows. Also use them in place of commas with parenthetical expressions or appositives that contain internal commas. Ellipsis—An ellipsis is a series of three periods to indicate one or more words are missing from the middle of a sentence in the quoted text. If the missing text is at the end of a sentence, this fact is indicated with a fourth period—the sentence period—at the end of the series. Quotation Marks—Quotation marks are used to show directly quoted speech or text as well as the titles of published articles. Quotations of 50 words or more do not use quotation marks but, rather, are written as separate paragraph(s), single spaced, and indented on the right and left margins greater than the normal text. Apostrophe—The apostrophe is used to indicate a missing letter in a contraction (e.g., “it’s” for “it is” or “don’t” for “do not”) or to denote singular possession (continued) M11_GOLD0000_00_SE_CH11.QXD 436 12/5/09 1:13 AM Page 436 PA R T I I I Paralegal Skills (e.g., “Mary’s”), or plural possession (e.g., “the companies’ policies.”) “Its” is the correct (albeit counterintuitive) possessive form of “it.” No apostrophe is used. All possessive case pronouns (my, your, yours, their, its, whose, theirs, ours) are written without apostrophes. When there is joint ownership, the apostrophe attaches to the last noun (e.g., “it was Dick and Jane’s home”). With individual possession where there are two or more nouns, each noun shows ownership (e.g., “it was either Dick’s or Jane’s”). WATCH YOUR GRAMMAR Active Voice—Using action verbs and active voice provides clear and readable sentences. Noun/Pronoun Agreement—A singular noun (legal assistant) must have a singular pronoun (his/her). Plural nouns (legal assistants) must have plural pronouns (their). Avoid confusion by writing in the plural form when possible. Subjective Case—Use the subjective case of a pronoun (I, he, she, you, we, they, who, it, whoever) for the subject, for the complement of a “being” verb, and after the infinitive “to be” when this verb does not have a subject directly preceding it. Objective Case—Use the objective case of a pronoun (me, him, her, you, us, them, whom, it, whomever) as the direct or indirect object of a verb, the object of a preposition, the subject of any infinitive, the object of the infinitive “to be” when it has a subject directly preceding it, and the object of any other infinitive. Noun/Verb Agreement—Singular nouns take singular verbs. Know the difference among present, past, and future tenses. Do not switch verb tenses in documents unless the material requires the switch. Identifiers (Modifiers)—Place identifiers (modifiers) (e.g., adjectives and adverbs) as close as possible to the words they identify (modify). Proper Pairs—Certain words (correlative conjunctions) must be used in pairs (e.g., either/or, neither/nor, not only/but also). Clichés, Slang, and Jargon—Avoid clichés: use them only when there is a sound reason to believe that a particular cliché will strengthen your rhetoric. Use slang and “legalese” only when it would be awkward for the reader not to do so, and only if you are sure the reader will understand the reference. A judge, for example, expects to read some amount of legalese. He or she likely would be disappointed to see none at all in a trial brief. Spelling—Use your spelling checker, but proofread to make sure you do not have correct spelling of the wrong word (e.g., “she was soaking in the tube.”) Great care should be taken to spell the names of people and companies correctly. Acronyms and Abbreviations—Except for acronyms and abbreviations in common usage and which are self-explanatory in context (e.g., “the Hon. James Parker” or “she is an interpreter with NATO”), give full titles and names when the acronym or abbreviation first is mentioned. Err on the side of spelling it out if there is any doubt. Numbers—In general, single-digit numbers should be written as words; double digit, as numerals in written materials unless the number is used to begin a sentence (e.g., “I had only 10 reference books when I began five years ago.”) Source Acknowledgement—The source of borrowed material of any kind must be attributed with quotation marks if directly quoted, or by attribution if not directly quoted (e.g., “I shall return,” Gen. MacArthur promised, or, “General Douglas MacArthur promised he would be back”). In formal research and in legal writing, complete citations must be provided according to the legal convention or the style prescribed by the particular publication. LETTERS Correspondence is a primary form of communication between the law firm and the world. It is vital that correspondence be crafted well to properly reflect both the reputation of the law office and your own professionalism. Correspondence must be free of grammar and spelling errors, and the research and analysis must be absolutely correct. There are different types of letters for different purposes: informational letters, opinion letters, and demand letters, to name a few. Although paralegals would not sign their names to opinion or demand letters, it is quite common for them to draft substantial portions of this correspondence. There are certain parts to a letter that are necessary for successful correspondence. Format—There are three primary formats: 1) full block, 2) modified block with blocked paragraphs, and 3) modified block with indented paragraphs. Letterhead—Preprinted letterhead needs no additional information; but subsequent pages need to contain an identification of the letter, or a header including the name of the addressee, the date, and the page number. Date—The full date appears below the letterhead at the left or right margin depending on the format used. Method of Delivery—This appears at the left margin below the date if delivery other than U.S. Postal Service is used. Recipient’s Address Block—The inside address is placed at the left margin and should include: The recipient The recipient’s title (if any) The name of the business (if appropriate) The address Reference Line—Usually introduced with “Re:” the reference line identifies the subject of the letter. Depending upon office requirements, it may contain case identification. Salutation—Legal correspondence generally is formal; and the salutation is followed with a colon, such as “Dear Ms. Myers:” You can use the first name if you know the person well, although it is a safer practice to M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 437 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking remain formal. It is best to address the letter to a named individual. This may mean calling the recipient business and identifying a person to whom the letter should be addressed. Body—The body of the letter should have three components: 1. Introduction: For normal business letters, your letter should start with an overall summary, showing in the first paragraph why the letter is relevant to the reader. Don’t make reader go past the first paragraph to find out why the letter was sent. 2. Main section: The body of the letter needs to explain the reason for the correspondence, including any relevant background and current information. Make sure the information flows logically to make your points effectively. 3. Requests/instructions: The closing of the letter is the final impression you leave with the reader. End with an action point such as, “I will call you later this week to discuss the matter.” Closing—Following the body of the letter, the closing consists of a standard statement and/or an action item. Signature and Title—Clearly identify the writer by name and title. Initials of Drafter—This is a reference to the author (KLM) and the typist (sbk). Enclosure Notation—“Enc.” or “Encs.” notations are used to identify one or more enclosures. Copies to Others—The traditional “cc” notation, formerly meaning “carbon copy,” now means “courtesy copy” and is used universally. Some writers, however, will use only “c” or “copy to,” along with the name(s), to identify others receiving copies of the document. PROOFREADING Even when you believe your draft is exactly what you want, read it one more time. This rule is for everything 437 you write whether it is a memorandum, letter, proposal, or some other document. It is true no matter how many drafts you have written. Use both the grammar and spelling checker on your computer, paying very close attention to every word highlighted. Do not place total faith in your computer. Instead, have both a printed dictionary and a thesaurus nearby to double-check everything your computer’s editing tools highlight, because the computer tools are not always reliable. Make sure your document is clear and concise. Is there anything that could be misinterpreted? Does it raise questions or fail to make the point you need to make? Can you reduce the number of words or unnecessarily long words? Do not use a long word when a short one works as well; do not use two words when one will do; and do not waste the reader’s time with unnecessary words or phrases. Is your written communication well organized? Does each idea proceed logically from one paragraph to the next? Make sure written communications are easy to read, contain the necessary information, use facts where needed, and avoid information that is not relevant. Be sure to specify the course of action you expect, such as a return call or an order. Close appropriately, whether formally or informally, according to the nature of the communication. This may seem obvious, but it is sometimes overlooked and can make written communications look amateurish. This diminishes your chances of meeting your written communication’s goals. Communication is vital to the success of any workplace; and in the legal arena, professionals live or die by the communicated word. Well-crafted documents are a positive step toward being a successful professional. Reprinted with permission of the National Association of Legal Assistants and Kathryn L. Myers. The article originally appeared in the May 2005 issue of FACTS & FINDINGS, the quarterly journal for legal assistants. The article is reprinted here in its entirety. For further information, contact NALA at www.nala.org or phone 918-587-6828. Concept Review and Reinforcement LEGAL TERMINOLOGY Amicus curia 424 Association of Legal Writing Directors (ALWD) 426 Citation 424 Cite checking 433 Critical legal thinking 412 Duty of candor 416 Facts 414 Immaterial facts 414 Issue 412 Material facts 414 Memorandum 415 Opinion letter 415 Primary authority 424 Secondary authority 424 Table of authorities 427 Universal Citation Format 427 Vendor-specific citation format 427 M11_GOLD0000_00_SE_CH11.QXD 438 12/5/09 1:13 AM Page 438 PA R T I I I Paralegal Skills SUMMARY OF KEY CONCEPTS Critical Legal Thinking: Definitions Critical Legal Thinking The process of identifying legal issues, determining the relevant facts, and applying the applicable law to come to a conclusion that answers the legal question the issues present. The paralegal must understand the audience for whom the document is being prepared: the client, the supervising attorney and other members of the legal team, or the court. Facts Facts are pieces of information or details that in actuality or reality exist, or have occurred, as opposed to someone’s theory, supposition, or conjecture. A fact is, in the law, the circumstances of an event, motion, occurrence, or state of affairs, rather than an interpretation of its significance. Material (Relevant) Fact A material fact is a fact that is significant or essential to the issue or matter at hand. Immaterial ( Irrelevant) Fact An immaterial fact is one that is not essential to the matter at issue. Legal Writing Standards 1. The language used must be clear to the intended reader. 2. The writer must make an honest presentation of the facts and argument. 3. Arguments advocating a new interpretation to the existing law, as well as the current law, must be clearly stated. 4. The ethical obligation to the court must be obeyed, including the presentation of adverse authority in the jurisdiction. 5. Factual variation must be presented, and the sources used clearly identified by proper citation in a format acceptable to the reader. Duty of Candor There is an obligation to be honest with the court and not to mislead the court. Preparing Office Memorandums Purpose 1. The memorandum is a working document for the legal team to be used in preparation and presentation of a case. 2. The paralegal must understand the specific assignment. For the memorandum of law, it usually is the answer to a question. 3. Office memoranda are frequently indexed by subject and filed in the office for future reference; if the same or a similar fact pattern requires research, it is a good starting point and can be a major time-saver. 4. The facts relied upon in writing the memo must be a part of the final memorandum; other people who read the memorandum need to understand the specific facts. 5. A memorandum must present both sides of the issue, and in that respect be a neutral, unbiased, objective presentation of applicable laws as they apply to the facts of the case. Issues that the opposing attorney or the judge may raise should be considered and presented. A good analysis includes a discussion of how the fact pattern may differ in cases that are not on point. Preparing Court Briefs Written for the court, the brief provides written advocacy of the client’s position and must be written to convince the court to adopt a position favorable to the client. Citations Purpose A citation should allow someone else to find the case or other material mentioned in a document, and the form of citation must do this. The format must be generally accepted and used by others in the legal community. M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 439 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking 439 Traditional Sources (Print) Citation Format The basic paper or traditional citation form is: Volume • Book or Series • Page e.g., 232 Atlantic 2d 44 232 refers to the volume in the Atlantic 2d series reporter service of West Publishing Company, and 44 refers to the page on which the authority may be found. Bluebook Citation Format Bluebook has been the generally accepted authority for proper citation form unless the rules of a particular court dictated a different citation format. ALWD Citation Format This citation format authority was written by Association of Legal Writing Directors. Universal Citation Format Traditionally, paper or book-based citation used information based on internal page numbers. Universal Citation Format relies upon the courts to provide numbered paragraphs in their opinions. Table of Authorities A table of authorities is a listing of the citations or other references in a document and the page numbers where they are located. Cite Checking Documents must be checked to verify that they use the proper citation format and that the referenced cases and statutes are valid and the cases have not been repealed or overturned. The strictness with which the citation rules must be applied, as well as the method—Bluebook, ALWD, or Universal Citation Format—depends on the wishes and demands of the attorney for whom the document is being prepared, or the court or judge to whom it is submitted. WORKING THE WEB 1. Summarize in a memo the requirements for briefs submitted to the United States Supreme Court, and the citation to the applicable rule. http://www .supremecourt.us.gov/ctrules/rulesofthecourt.pdf or http:// www.law.cornell.edu/rules/supct/overview.html 2. Use the Internet to find the information to prepare an internal office memorandum on the requirements for filing briefs in your jurisdiction’s highest court. For example, in California at http://www.courtinfo.ca.gov/ rules/titleone/title1-1-59.htm, or Kansas at http:// www.kscourts.org/ctruls/ctrul610.htm. 3. The Legal Law Institute at Cornell Law School offers a number of sources for the legal writer, including citation information. Use the LII website to download the section from Introduction to Basic Legal Citation by Peter W. Martin—“Who Sets Citation Norms”—at http://www.law.cornell.edu/citation/1-600.htm. 4. Use the homepage link from the Web page in question 3, and download your personal copy of the reference document. 5. If you are using the ALWD manual for citation rules, download a copy of the latest updates at www.alwd.org. CRITICAL THINKING & WRITING QUESTIONS 1. What is critical legal thinking? Explain and give an example. 2. Why is it important to have all the material facts before beginning the research to prepare a memorandum of law? 3. What is meant by “material facts?” Give an example of a material fact. 4. What is meant by an “immaterial fact?” Give an example. 5. What is the goal of legal writing? 6. Why should headnotes not be used in legal writing? 7. How important is it to Shepardize the cases in a memorandum of law or brief? When should this be done? Why? 8. How are the memorandum of law and the court brief similar, and different? Explain fully. 9. Contrast and compare the fact situation in the opening scenario and the Alaskan case of Whiting v. State in the chapter. What are the similarities, and what are the points that could be used to argue that the law does not apply? 10. How does the general duty to inform the court preserve the integrity of the judicial process? (Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238) 11. Are sanctions against attorneys for failing to observe a duty of candor to the court an appropriate remedy? [Beam v. IPCO Corp., 838 F.2d 242 (7th Cir. 1998)] 12. What are the relevant facts in the Palsgraf v. LIRR case found in Appendix A? What facts are interesting but not relevant facts? Create a computer search query using the facts in the Palsgraf case, and search the case law of your jurisdiction using these relevant facts. Prepare a short brief of the latest case you find, including proper Bluebook and ALWD citation format. M11_GOLD0000_00_SE_CH11.QXD 440 12/5/09 1:13 AM Page 440 PA R T I I I Paralegal Skills 13. What questions should a paralegal ask before preparing a memo of law or a brief? 14. Why should both sides of a case be presented in an office memo of law? 15. Why would an attorney request that all parallel citations be listed for each case listed in a memo of law? 16. How would knowing the intended audience influence the writing of a memo of law or a legal brief? 17. What level of confidentiality should be attached to the preparation and handling of a memo of law? Why? Building Paralegal Skills VIDEO CASE STUDIES Zealous Representation Issue: Candor to the Court The supervising attorney is due in another courtroom and asks the paralegal to appear for him and submit a brief, which the paralegal has prepared. The lawyer does not read the petition and accepts the paralegal’s statement that it is the current law on the subject. After viewing the video case study at www.pearsonhighered .com/goldman answer the following: 1. What is the duty of the legal team to present up-to-date information to the court when seeking relief? 2. Can legal research from a prior case be used in an argument to the court? 3. Who is responsible for misleading the court on the currency of the information, the paralegal or the attorney? Zealous Representation Issue: Signing Documents Court rules require that pleadings be signed by the attorney. With the court about to close and the statute of limitations running out that day, the paralegal signs the attorney’s name and files the paperwork. After viewing the video case study at www.pearsonhighered .com/goldman answer the following: 1. What is the purpose of having the attorney sign all pleadings? 2. Would electronic filing have avoided this problem? 3. What are the dangers in relying upon electronic filing of documents? ETHICS ANALYSIS & DISCUSSION QUESTIONS 1. What are the ethical issues in failing to properly cite authorities used in a document? 2. What are the ethical obligations in arguing to the court for a change in the law and not following the current law? 3. What are the ethical obligations to the client when analysis of the law indicates there is no valid claim? 4. Assume you have been working for a legal specialist in estate law for a number of years and have taken a number of advanced courses in the field. You are highly regarded in the paralegal community as the person to call for help in the field. Your supervising attorney decides to take a three-week bicycle trip through the Swiss Alps and leaves you in charge of the office. During his absence, you give a talk to a local senior citizens group on the advantages of preparing a will. You meet with most of the people in the audience after the talk and tell them a simple will can be prepared for $25 (your office’s standard fee) and proceed to take the information from them for a will. You prepare the individual wills and send copies marked DRAFT to each person, along with an invoice for the $25 fee with a note to return the fee if they wish to have the will completed. Everyone accepts and sends in the fee. Upon his return, the attorney looks over the wills, tells you they are “letter perfect” and says “It’s just what I would have done.” [Cincinnati Bar v. Kathman, 92 Ohio St. 92 (2001) quoting People v. Cassidy, 884 P.2d 309 (Colo. 1994).] What are the legal and ethical issues? 5. It is the week between Christmas and New Year’s Day. You are the only one covering the office while all of the lawyers and support personnel are on vacation. A client who is traveling in Asia calls and asks you to fax to his hotel a copy of an opinion letter prepared by your supervising attorney. You helped prepare the opinion letter and know that it contains a summary of the facts, including details about the opposing parties, case strategy, and potential violations of law. May you send it? What are the ethical issues, if any? 6. You are working for the local prosecutor as a paralegal. The District Attorney asks you to prepare an office M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 441 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking memorandum of law on the question: Is there any duty to advise the court of any changes in the law or facts after the case has been presented. 7. You prepared a memorandum of law for the firm’s trial attorney, and a brief for the court that was used in the 441 case that started today. Closing arguments will be made tomorrow. You now discover that there is case law that is favorable to the other side that effectively overturns the case law you used in the memo of law and brief. What do you do? Are there any ethical issues? Explain fully. DEVELOPING YOUR COLLABORATION SKILLS Working on your own or with a group of other students assigned by your instructor, review the scenario at the beginning of the chapter. 1. Divide the group into two teams. a. One team is to prepare a memo for the court in the form of a brief. b. One team is to prepare a memo of law for the partner. c. After the memos are finished, each group should compare and write a report on the differences between the memos. 2. As a group, prepare a memo that Amanda might prepare for the supervising paralegal or other attorney on the handling of the interview and any concerns or recommendations. 3. Discuss any ethical concerns that Amanda might have, based on the interview and the potential handling of the case. PARALEGAL PORTFOLIO EXERCISE Prepare a memorandum of law for the supervising attorney using the information in the memorandum assignment below. Use the statutory and case law of your local jurisdiction. Memorandum Assignment To: From: Date: File Re: Edith Hannah Glenn Hains January 23, 2006 Number: GH 06-1002 State of (your state) v. Kevin Dones Our client was stopped by a police officer at the bottom of a 1-mile-long 10% grade hill on state Route 332 in Northhampton Township, at 3:30 p.m. on Sunday afternoon, January 15, 2006. He was riding a bicycle south on State Route 332. He was given a motor vehicle citation for speeding. They used a radar unit and claim a speed of 35 mph in a 25 mph zone. He also was administered a field sobriety test, which gave a reading over the legal limit and was given a citation for driving under the influence. He tells me he was riding a bike because his license was suspended for having two previous DUIs. Please prepare a brief memorandum of law, with citations and cases. LEGAL ANALYSIS & WRITING CASES United States v. Shaffer Equipt. Co. 11 F.3d 450 (4th Cir. 1993) Issue: Continuing Duty to Inform Court of Changes in the Law Government counsel learned that its expert witness had lied about his credentials and that the witness had lied in other litigation. The attorney did not immediately notify the court or opposing counsel. In finding against the government, the court extended the duty of candor to include a continuing duty to inform the court of any development that may conceivably affect the outcome of litigation. Questions 1. Is preserving the integrity of the judicial process more important than the duty to vigorously pursue a client’s case? 2. Is there a duty to inform the court when an attorney suspects that a client may have committed perjury? 3. What additional burden is placed on the paralegal in preparing material for a case in light of this decision? M11_GOLD0000_00_SE_CH11.QXD 442 12/5/09 1:13 AM Page 442 PA R T I I I Paralegal Skills WORKING WITH THE LANGUAGE OF THE COURT CASE Golden Eagle Distributing Corp. v. Burroughs 801 F.2d. 1531 (9th Cir. 1986) United States Court of Appeals, Ninth Circuit Read, and if assigned, brief this case. In your brief, answer the following questions. 1. What is the intent of Federal Rules of Civil Procedure Rule 11? 2. What test does the court use to determine if sanctions should be imposed under FRCP Rule 11? 3. What is meant by the “ethical duty of candor”? Schroeder, Circuit Judge This is an appeal from the imposition of sanctions under Rule 11 of the Federal Rules of Civil Procedure as amended in 1983. The appellant, a major national law firm, raises significant questions of first impression. The relevant portions of the amended Rule provide: Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney. . . . The signature of an attorney . . . constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction. . . . In this appeal, we must decide whether the district court correctly interpreted Rule 11. . . . Golden Eagle Distributing Corporation filed the underlying action in Minnesota state court for fraud, negligence, and breach of contract against Burroughs, because of an allegedly defective computer system. Burroughs removed the action to the federal district court in Minnesota. Burroughs then moved pursuant to 28 U.S.C. § 1404(a) to transfer the action to the Northern District of California. . . . Burroughs next filed the motion for summary judgment, which gave rise to the sanctions at issue here. It argued that the California, rather than the Minnesota, statute of limitations applied and that all of Golden Eagle’s claims were time-barred under California law. It also contended that Golden Eagle’s claim for economic loss arising from negligent manufacture lacked merit under California law. Golden Eagle filed a response, 4. Is there a conflict between the attorney’s ethical obligations under the ABA Model Rules and the requirements of FRCP 11? 5. Do attorneys have any duty to cite cases adverse to their case? Explain. arguing that Minnesota law governed the statute of limitations question and that Burroughs had misinterpreted California law regarding economic loss. . . . After a hearing, the district judge denied Burroughs’ motion and directed the Kirkland & Ellis attorney who had been responsible for the summary judgment motion to submit a memorandum explaining why sanctions should not be imposed under Rule 11. . . . Proper understanding of this appeal requires some comprehension of the nature of Burroughs’ arguments and the faults which the district court found with them. . . . Kirkland & Ellis’s opening memorandum argued that Golden Eagle’s claims were barred by California’s three-year statute of limitations. The question was whether the change of venue from Minnesota to California affected which law applied. . . . In imposing sanctions, the district court held that Kirkland & Ellis’s argument was “misleading” because it suggested that there already exists a forum non conveniens exception to the general rule that the transferor’s law applies. . . . [The case cited] raised the issue but did not decide it. . . . Kirkland & Ellis’s corollary argument, that a Minnesota court would have dismissed the case on forum non conveniens grounds, was found to be “misleading” because it failed to note that one prerequisite to such a dismissal is that an alternative forum be available. . . . Kirkland & Ellis also argued that Golden Eagle’s claim for negligent manufacture lacked merit because Golden Eagle sought damages for economic loss, and such damages are not recoverable under California law [as demonstrated in the Seely case]. . . . The district court sanctioned Kirkland & Ellis for not citing three cases whose holdings it concluded were adverse to Seely: . . . The district court held that these omissions violated counsel’s duty to disclose adverse authority, embodied in Model Rule 3.3, Model Rules of Professional Conduct Rule 3.3 (1983), which the court viewed as a “necessary corollary to Rule 11.” M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 443 C H A P T E R 1 1 Legal Writing and Critical Legal Thinking . . . The district court’s application of Rule 11 in this case strikes a chord not otherwise heard in discussion of this Rule. The district court did not focus on whether a sound basis in law and in fact existed for the defendant’s motion for summary judgment. Indeed it indicated that the motion itself was nonfrivolous. . . . Rather, the district court looked to the manner in which the motion was presented. The district court in this case held that Rule 11 imposes upon counsel an ethical “duty of candor.” . . . It said: The duty of candor is a necessary corollary of the certification required by Rule 11. A court has a right to expect that counsel will state the controlling law fairly and fully; indeed, unless that is done the court cannot perform its task properly. A lawyer must not misstate the law, fail to disclose adverse authority (not disclosed by his opponent), or omit facts critical to the application of the rule of law relied on. . . . With the district court’s salutary admonitions against misstatements of the law, failure to disclose directly adverse authority, or omission of critical facts, we have no quarrel. It is, however, with Rule 11 that we must deal. The district court’s interpretation of Rule 11 requires district courts to judge the ethical propriety of lawyers’ conduct with respect to every piece of paper filed in federal court. This gives us considerable pause. . . . The district court’s invocation of Rule 11 has two aspects. The first, which we term “argument identification,” is the holding that counsel should differentiate between an argument “warranted by existing law” and an argument for the “extension, modification, or reversal of existing law.” The second is the conclusion that Rule 11 is violated when counsel fails to cite what the district court views to be directly contrary authority. . . . The text of the Rule . . . does not require that counsel differentiate between a position which is supported by existing law and one that would extend it. The Rule on its face requires that the motion be either one or the other. . . . The district court’s ruling appears to go even beyond the principle of Rule 3.3 of the ABA Model Rules, which proscribes “knowing” false statements of material fact or law. The district court made no finding of a knowing misstatement, and, given the well-established objective nature of the Rule 11 standard, such a requirement would be inappropriate. Both the earnest advocate exaggerating the state of the current law without knowingly misrepresenting it, and the unscrupulous lawyer knowingly deceiving the court, are within the scope of the district court’s interpretation. This gives rise to serious concerns about the effect of such a rule on advocacy. It is not always easy to decide whether an argument is based on established law or is an argument for the extension of existing law. 443 Whether the case being litigated is . . . materially the same as earlier precedent is frequently the very issue which prompted the litigation in the first place. Such questions can be close. Sanctions under Rule 11 are mandatory. . . . In even a close case, we think it extremely unlikely that a judge, who has already decided that the law is not as a lawyer argued it, will also decide that the loser’s position was warranted by existing law. Attorneys who adopt an aggressive posture risk more than the loss of the motion if the district court decides that their argument is for an extension of the law which it declines to make. What is at stake is often not merely the monetary sanction but the lawyer’s reputation. The “argument identification” requirement adopted by the district court therefore tends to create a conflict between the lawyer’s duty zealously to represent his client, Model Code of Professional Responsibility Canon 7, and the lawyer’s own interest in avoiding rebuke. The concern on the part of the bar that this type of requirement will chill advocacy is understandable. . . . . . . Were the scope of the rule to be expanded as the district court suggests, mandatory sanctions would ride on close decisions concerning whether or not one case is or is not the same as another. We think Rule 11 should not impose the risk of sanctions in the event that the court later decides that the lawyer was wrong. The burdens of research and briefing by a diligent lawyer anxious to avoid any possible rebuke would be great. And the burdens would not be merely on the lawyer. If the mandatory provisions of the Rule are to be interpreted literally, the court would have a duty to research authority beyond that provided by the parties to make sure that they have not omitted something. The burden is illustrated in this case, where the district court based its imposition of sanctions in part upon Kirkland & Ellis’s failure to cite authorities which the court concluded were directly adverse to a case it did cite. The district court charged the appellant with constructive notice of these authorities because they were identified in Shepard’s as “distinguishing” the case Kirkland & Ellis relied on. . . . Amended Rule 11 of the Federal Rules of Civil Procedure does not impose upon the district courts the burden of evaluating under ethical standards the accuracy of all lawyers’ arguments. Rather, Rule 11 is intended to reduce the burden on district courts by sanctioning, and hence deterring, attorneys who submit motions or pleadings which cannot reasonably be supported in law or in fact. We therefore reverse the district court’s imposition of sanctions for conduct which it felt fell short of the ethical responsibilities of the attorney. Reversed. M11_GOLD0000_00_SE_CH11.QXD 12/5/09 1:13 AM Page 444 ...
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This note was uploaded on 11/15/2011 for the course LEGAL PA101 taught by Professor Pamelabasmajian during the Winter '11 term at Kaplan University.

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