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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
2. Explain the ethical duty of candor
toward the tribunal.
3. Describe the similarities and
differences between a
memorandum of law and a
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)
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
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
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
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/
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
Re: Edith Hannah
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
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
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.
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
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
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.”
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.
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
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
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
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
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
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
and Spacing F. Supp.
F.3d F. Supp.
F.3d No substantial differences
on spacing. Corp.
Pet’r ALWD abbreviations end
with periods; some
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.
B10.1, & Rule 6.1 Petr. Capitalization
ALWD: Rule 3
BB: B10.6 & Rule
ALWD: Rule 4
BB: Rule 6.2 Page spans
ALWD: Rule 5
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
Supra and infra
ALWD: Rule 10
BB: Rule 3.5
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
ALWD requires division
and district information
for state appellate courts,
“Ct.” from most court
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
B7 & Rule 11
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 &
Rules 15 & 16 Most forms are relatively
consistent. BB: B6.1.6 &
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
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
databases, such as
Westlaw and LexisNexis.
Rule 19.1(d). BB:
B8 & Rule 15 Legal
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
ALWD separates subdivisions
separated with a comma, but
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
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
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
Rule 26 68 Am. Jur. 2d Schools §§
20–24 (2000 & Supp. 2005). 68 Am. Jur. 2d Schools §§ 20–
24 (2000 & Supp. 2005). No substantial
expanded coverage and
includes a list of many
abbreviations for state
encyclopedias. Fed. Jud. Ctr., History of the
(accessed Aug. 18, 2005). Federal Judicial Center,
History of the Federal
Judiciary (visited Aug. 18,
2005), at http://www.
ALWD: Rule 25
BB: Rule 15.8 BB: Rule 15.8
Rule 18.2.3 ALWD permits the
abbreviation of an
name, to save space.
ALWD uses “accessed”
instead of “visited” to be
consistent with non-legal
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
ALWD, the signals are
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
(2) Under the ALWD, the
are classified with all
other material in law
reviews, law journals, and
other periodicals, whereas
in the Bluebook, the
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
B4 & Rule 1.2 Order of Cited
B4.5 & Rule 1.4 Quotations
Rule 47 ALWD says to block indent
passages if they contain at
least fifty words OR if they
exceed four lines of typed
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
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
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
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
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’s title (if any)
The name of the business (if appropriate)
Reference Line—Usually introduced with “Re:”
the reference line identifies the subject of the letter. Depending upon office requirements, it may contain case
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
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
Amicus curia 424
Association of Legal Writing
Directors (ALWD) 426
Cite checking 433
Critical legal thinking 412 Duty of candor 416
Immaterial facts 414
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
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.
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://
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
4. Use the homepage link from the Web page in question 3,
and download your personal copy of the reference
5. If you are using the ALWD manual for citation rules,
download a copy of the latest updates at www.alwd.org. CRITICAL THINKING &
1. What is critical legal thinking? Explain and give an
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
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
2. Would electronic filing have avoided this problem?
3. What are the dangers in relying upon electronic filing of
documents? ETHICS ANALYSIS &
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
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
3. Discuss any ethical concerns that Amanda might have,
based on the interview and the potential handling of
the case. PARALEGAL
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.
Re: Edith Hannah
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 &
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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