Legal communication and research : lawyering skills for the twenty-first century / Ian Gallacher.
2015
KF240 .G35 2015 (Map It)
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Details
Title
Legal communication and research : lawyering skills for the twenty-first century / Ian Gallacher.
Published
Durham, North Carolina : Carolina Academic Press, [2015]
Call Number
KF240 .G35 2015
ISBN
9781611636109 (alk. paper)
1611636108 (alk. paper)
1611636108 (alk. paper)
Description
xxiv, 493 pages ; 26 cm
System Control No.
(OCoLC)907060715
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Foreword
xix
Acknowledgments
xxiii
Introduction
3
What You Should Learn from This Chapter
3
1.
Legal Research
4
2.
Legal Writing
5
3.
Goals of This Book
7
Focus Questions
8
Writing In Theory
ch. 1
Reading in Law School
11
What You Should Learn from This Chapter
11
1.
People Take a Long Time to Change
14
2.
Reading Should Be a Slow Process
14
3.
Reading on a Computer Is Not As Easy As Reading on Paper
15
4.
Suggestions for Effective Reading
16
A.
Don't Print Everything
17
B.
Slow Down
17
C.
Ask Questions and Read for a Purpose
17
Conclusion
18
Focus Questions
18
ch. 2
What Is Legal Writing?
21
What You Should Learn from This Chapter
21
1.
Legal Writing as Genre Writing
22
2.
Subverting Genre Expectations in Legal Writing
23
Focus Questions
25
ch. 3
Legal Rhetoric
27
What You Should Learn from This Chapter
27
1.
Rhetoric Used As a Tool to Communicate
28
2.
Metaphors and the Way They Work
30
3.
Logos, Ethos, and Pathos
31
4.
Coded Rhetorical Messages
32
Exercises
34
Focus Questions
34
ch. 4
The Reader As Client
35
What You Should Learn from This Chapter
35
Exercise
38
Focus Questions
39
ch. 5
Empathy, Lawyering, and Writing
41
What You Should Learn from This Chapter
41
1.
Empathy and Logic
42
2.
Empathy in Action
43
A.
Criminal Trials
44
B.
Civil Litigation
45
C.
Applied Empathy
46
3.
Empathy and Reading
49
Exercise
50
Focus Questions
53
ch. 6
The Ethics of Writing
55
What You Should Learn from This Chapter
55
1.
The Client Comes First
56
2.
Don't Plagiarize
57
3.
Plagiarism in Law School
57
4.
A Definition of Plagiarism
58
5.
Is Plagiarism a Problem?
58
6.
Why Is Plagiarism a Problem?
59
7.
Lawyers Tell the Truth
60
8.
Plagiarism Is Bad Lawyering
60
9.
Why Do Law Students Plagiarize?
61
10.
Plagiarism in Law Practice
63
11.
Disclose Mandatory Negative Authority
64
12.
Don't Engage in Ad Hominem Attacks
66
13.
Don't Improperly Characterize Facts or the Law
67
14.
Don't Make Things Up and Don't Lie
68
15.
Remember at All Times That You're an Advocate and an Officer of the Court
68
Conclusion
69
Focus Questions
69
The Writing Process
ch. 7
The Writing Process
73
What You Should Learn from This Chapter
73
Focus Questions
78
ch. 8
Voice
81
What You Should Learn from This Chapter
81
Exercise
86
Focus Questions
87
ch. 9
Words
89
What You Should Learn from This Chapter
89
Exercises
98
Focus Questions
99
ch. 10
Sentences
101
What You Should Learn from This Chapter
101
1.
Sentences Should Only Be As Long As They Need to Be
103
A.
Every Word in the Sentence Should Work Hard
104
B.
Avoid Throat-Clearing Phrases
104
C.
Once You've Written Your First Draft, Listen to Your Sentences
105
2.
Nearby Sentences Shouldn't Begin the Same Way
107
3.
Sentences Should Contain One Thought
108
4.
Sentences Should Flow from One to the Next
108
Conclusion
110
Exercises
110
Focus Questions
112
ch. 11
Paragraphs
113
What You Should Learn from This Chapter
113
1.
Topic Sentences
113
2.
Paragraph Length
114
3.
Paragraph Flow
116
4.
Thesis Paragraphs
117
Conclusion
118
Exercise
118
Focus Questions
119
ch. 12
Section Headings
121
What You Should Learn from This Chapter
121
1.
Outlines and Section Headings
122
2.
Why Narrative Headings Are Superior to Abstract Headings
124
A.
Narrative Headings Help Objective Analysis
125
B.
Narrative Headings Improve Persuasive Analysis
125
3.
Headings Can Show You When Not to Include Analysis
126
4.
Include Enough Headings to Make Your Analysis Digestible
127
5.
Headings Should Be Relatively Short
127
A.
Don't Include Too Much Detail
127
B.
Try to Keep Your Headings in the Active Voice
128
C.
If You Have One Subheading, You Need at Least One More
128
Conclusion
129
Exercises
129
Focus Questions
129
ch. 13
Case Quotations and Why to Avoid Them
131
What You Should Learn from This Chapter
131
1.
Quoted Language Is Unpersuasive
132
2.
Quoted Language Doesn't Force Us to Work with the Expressed Ideas
133
3.
Quoted Language Can Lead to Block Quotes
134
Conclusion
135
Exercises
135
Focus Questions
136
ch. 14
Legal Citation: Why Do We Care?
139
What You Should Learn from This Chapter
139
1.
Incorrect Citation Makes Your Authority Difficult to Find
140
2.
Lawyers Believe That Citation Is a Proxy for Attention to Detail
140
3.
Good Citation Can Get You a Job
141
4.
The Hidden, and Hiding, Effects of Citation
143
Conclusion
146
Focus Questions
147
ch. 15
Legal Citation: The Mechanics
149
What You Should Learn from This Chapter
149
1.
Introduction
150
2.
Court Opinions
150
A.
Federal Court Citations
151
i.
The Supreme Court
151
ii.
The Courts of Appeals
156
iii.
Federal District Courts
157
B.
State Court Citations
157
i.
Parallel Citation
158
ii.
Short-Form Parallel Citations
160
3.
Statutes
161
A.
Federal Statutes
161
B.
State Codes
162
4.
Regulations
163
Conclusion
164
Exercises
165
Focus Questions
166
ch. 16
Writer's Block and Some Ways to Overcome It
167
What You Should Learn from This Chapter
167
1.
The Good News about Writer's Block
167
2.
Ways to Stop Writer's Block Before It Happens
168
A.
Stop Caring about Your Writing (At Least At First)
168
B.
Schedule Your Writing Time
169
C.
Write in a Place without Distractions
170
D.
Stop Before You Have To
171
3.
Ways of Clearing Writer's Block Once You Find Yourself Blocked
172
A.
Take a Short Break
172
B.
Change Your Writing Medium
172
C.
Take a Longer Break
173
D.
Write an Outline of What Should Come Next
173
E.
Freewriting
174
Conclusion
175
Exercises
176
Focus Questions
176
ch. 17
Editing and Proofreading
177
What You Should Learn from This Chapter
177
1.
The Editing Process
178
2.
Edit on Paper
180
A.
Ease on the Eyes
180
B.
Freedom from Distraction
180
C.
Time for Thought
181
3.
Things to Look For While You Edit
181
A.
Look at Your Point Headings
182
B.
Look at Your Paragraphs
182
C.
Look at Your Sentences
183
D.
Look at Your Words
184
E.
Look at Your Punctuation
186
4.
Editing Should Involve Some Cutting
186
5.
Editing Is an Active Process
188
6.
Editing Sheets
188
7.
Proofreading
191
Conclusion
194
Exercise
194
Focus Questions
195
ch. 18
The Legal Memorandum
197
What You Should Learn from This Chapter
197
1.
The Interoffice Memorandum
199
A.
The "To" Line
200
B.
The "From" Line
200
C.
The "Date" Line
200
D.
The "Re" Line
201
E.
The "Question Presented"
201
F.
The "Short Answer"
202
G.
Statement of Facts
203
H.
Analysis
206
I.
Conclusion
207
2.
The Trial Memo
207
Conclusion
210
Focus Questions
210
ch. 19
Legal Correspondence
213
What You Should Learn from This Chapter
213
1.
The Letter and the Email
214
2.
Medium and Form
215
3.
The Letter Medium
215
4.
The "Quick Email" for Legal Analysis
217
5.
Writing a Letter
218
6.
Cover Letters
219
7.
Technical Considerations
219
8.
Consider What the Letter Can Do and What It Can't Do
220
A.
A Cover Letter Can Introduce You and Your Materials
220
B.
Your Cover Letter Can Explain Something Not in Your Materials
220
C.
A Bad Cover Letter Can Prevent You from Getting a Job
221
D.
A Cover Letter Can't Make Anyone Read Your Materials
221
E.
A Cover Letter Can't Substitute for Your Resume
222
F.
A Cover Letter Can't Get You a Job
222
Conclusion
222
Focus Questions
222
Analysis
ch. 20
Analytical Structure: Getting Started
227
What You Should Learn from This Chapter
227
1.
Example One
229
2.
Example Two
230
3.
Example Three
231
4.
Example Four
232
5.
Example Five
233
Conclusion
236
Focus Questions
237
ch. 21
Analytical Structure: Getting More Involved
239
What You Should Learn from This Chapter
239
1.
Summations and Conclusions
241
2.
A Brief Parenthetical Interlude
242
3.
Rules of Law
243
4.
Rule Expansion
245
5.
Rule Application and Counter-Analysis
246
6.
Conclusion
248
Conclusion
249
Focus Questions
249
ch. 22
Working with Facts
251
What You Should Learn from This Chapter
251
1.
Remember Ethics
252
2.
Tell a Story with Your Facts
253
3.
Try to Help Your Reader See the Action
253
4.
All Material Facts, but Only Material Facts
255
5.
Organize Your Facts the Way the Law or Facts Suggest
257
Conclusion
261
Exercise
261
Focus Questions
262
ch. 23
Identifying and Working with Legal Rules
263
What You Should Learn from This Chapter
263
1.
Rules, Regulations, and Statutes
265
A.
Mandatory and Permissive Rules
269
B.
Aspirational Rules
270
C.
Declarative Rules
270
2.
Elements and Factors Test
271
Conclusion
273
Exercises
273
Focus Questions
273
ch. 24
Working with Statutes
275
What You Should Learn from This Chapter
275
1.
The Three Modes of Judicial Statutory Interpretation
276
2.
The Textualist Approach
276
3.
The Intentionalist Approach
277
4.
The Contextualist Approach
278
5.
What These Approaches Mean for Lawyers
278
6.
The Canons of Construction
279
7.
How to Interpret Statutes in Your Work
280
Conclusion
281
Focus Questions
281
Persuasion
ch. 25
How to Persuade
285
What You Should Learn from This Chapter
285
1.
You Already Know How to Persuade Someone
286
2.
Your Audience Wants to Be Persuaded
287
3.
The Best Way to Win Is to Be Right
288
4.
The Truth Is Crucial
289
5.
Don't Oversell
289
6.
Don't Be Critical of the Other Side's Lawyer
290
7.
Let the Reader Characterize
290
8.
Be As Concise As Possible
291
9.
Only Fight the Fights You Need to Win
292
10.
Put Your Best Argument First
293
11.
Try to Be Positive Rather Than Negative
293
12.
Write in Clear, Simple Language
294
13.
Dress Your Writing Appropriately for Court
295
14.
If Possible, Sandwich a Bad Fact between Two Good Ones
296
15.
Consider Using Counter-Analysis
298
A.
The Dangers of Counter-Analysis
298
B.
Why Counter-Analysis Works
299
16.
The Pros and Cons of Policy Arguments
300
17.
Tell the Court What You Want To Happen
301
Conclusion
301
Focus Questions
302
ch. 26
Oral Argument and Oral Presentation
303
What You Should Learn from This Chapter
303
1.
Oral Arguments in Court
304
2.
What Happens during Oral Argument
305
3.
How to Prepare for and Argue in an Oral Argument
306
4.
Listening during Oral Argument
308
5.
Tips for Delivering an Oral Argument
309
A.
Understand How You React to Being Nervous
310
B.
Keep Your Knees Bent at All Times When Standing
311
C.
Maintain Eye Contact as Much as Possible
311
D.
Don't Keep a Pen in Your Hand While You Speak
312
E.
Use Your Hands, but Not Too Much
312
F.
Speak to the Back of the Courtroom
314
G.
Don't Speak When a Judge Is Speaking
315
H.
Be Careful What You Drink
316
I.
Dress Appropriately
316
J.
Always Be Respectful of Everyone Involved in the Oral Argument
318
K.
Try to Visit the Courtroom before Your Argument
320
L.
Don't Try to Be Funny During Oral Argument
321
M.
Never Object
322
Conclusion
322
Focus Questions
322
Legal Research
ch. 27
Why Bother to Study Legal Research?
327
What You Should Learn from This Chapter
327
1.
The Research Process in General
329
2.
Research Process for Lawyers
330
Focus Questions
331
ch. 28
How Do We Find Information?
333
What You Should Learn from This Chapter
333
1.
Encyclopedias
334
2.
American Law Reports
335
3.
Treatises
336
4.
Law Review Articles
338
5.
Loose-Leaf Services
341
6.
Restatements and Model Laws
342
Exercises
343
Focus Questions
343
ch. 29
Where Legal Information Is Stored
345
What You Should Learn from This Chapter
345
1.
Online Sources of Legal Information
345
A.
LexisNexis and Westlaw
346
B.
Bloomberg
347
C.
Google Scholar and the Internet
348
D.
Other Online Sources of Court Opinions
351
E.
Online Sources of Statutory Information
354
2.
Paper-Based Sources of Legal Information
354
Focus Questions
357
ch. 30
The Cost of Legal Research
359
What You Should Learn from This Chapter
359
1.
The Cost of Print-Based Research Materials
360
A.
The Cost of the Materials Themselves
361
B.
The Cost of Housing Print Materials
362
C.
The Cost of Maintaining the Materials
362
D.
Expenses and Income
362
2.
The Cost of Computer-Assisted Research
363
3.
Not Everyone Can Afford Computer-Assisted Legal Research
364
Exercise
365
Focus Questions
365
ch. 31
Key Numbers and Digests
367
What You Should Learn from This Chapter
367
1.
Key Numbers in General
367
2.
The Key Number System in Theory
368
3.
The Key Number System in Practice
369
4.
Digests
371
5.
Key Number Searching Online
373
Conclusion
374
Exercise
374
Focus Questions
374
ch. 32
The Research Process in Theory
377
What You Should Learn from This Chapter
377
1.
Organizing Information
378
A.
Indexing
378
B.
Pre-Indexed Information
379
C.
Self-Indexed Information
381
2.
Boolean Searching
383
3.
Problems with Self-Indexing
384
4.
Ranked Searching
385
5.
The Google Generation
386
6.
Other Problems Associated with Computer-Assisted Research
387
A.
Coverage
387
B.
Accuracy
388
C.
Specificity
388
D.
Language
389
Focus Questions
389
ch. 33
The Research Process in Practice
391
What You Should Learn from This Chapter
391
1.
First, Stop What You're Doing
392
2.
Be Honest about What You Do and Don't Know
394
3.
Go to the Secondary Sources First
394
4.
Moving from Secondary to Primary Source Research
395
5.
Refining Your Research
396
6.
What If You Don't Generate Good Results?
397
7.
How Do You Know When to Stop?
398
8.
Shepard's and KeyCite
399
Conclusion
401
Focus Questions
402
ch. 34
Legislative History
403
What You Should Learn from This Chapter
403
1.
Compiled Legislative Histories
404
2.
Doing It Yourself
404
A.
What Information Is in a Legislative History?
404
B.
Process and Numbering
405
C.
United States Code Congressional and Administrative News
407
D.
Congressional Information Service
407
E.
Congressional Record
407
F.
Commercial Database Sources of Legislative History Information
408
G.
Congress.gov
408
H.
Hein Online
409
Conclusion
409
Focus Questions
410
ch. 35
Statutory Research
411
What You Should Learn from This Chapter
411
1.
The United States Code
412
2.
United States Code Annotated
412
3.
United States Code Service
413
4.
Statutory Research Online
414
A.
LexisNexis and Westlaw
414
B.
Open-Access Services
414
Focus Questions
415
ch. 36
Regulatory Research
417
What You Should Learn from This Chapter
417
1.
Federal Rulemaking
418
2.
The Code of Federal Regulations and the Federal Register
418
3.
Online Resources for Federal Regulatory Research
419
Focus Questions
421
ch. 37
What to Do When Things Go Wrong
423
What You Should Learn from This Chapter
423
1.
What to Do When You Don't Find Enough Information
424
2.
What to Do When You Find Too Much Information
425
3.
What to Do If What You Find Doesn't Make Any Sense
426
4.
What to Do If You Find the Right Case in the Wrong Place
427
Conclusion
427
Focus Questions
428
ch. 38
Conclusion
429
Appendices
Appendix 1
Checklist for Editing Sheets
433
Appendix 2
Judicial Structure
435
1.
The Different Court Systems
435
2.
Where Court Decisions Can Be Found
436
3.
The Hierarchy of Authority
437
4.
The Federal Court System
438
A.
The Supreme Court
438
B.
The Courts of Appeals
441
C.
The District Courts
445
D.
Other Federal Courts
446
5.
The State Court Systems
447
Conclusion
448
Appendix 3
Litigation Process
449
1.
The Dispute
449
2.
The Parties
450
3.
Pre-Litigation
451
4.
Pre-Filing Investigation
453
5.
The Pleadings
453
6.
Discovery
456
7.
Motions
458
8.
Settlement
459
9.
Pre-Trial
459
10.
Trial
460
11.
Post-Trial
465
12.
Appeal
465
13.
Post-Appeal
469
14.
Enforcement
469
Conclusion
470
Appendix 4
The Three Branches of Government: A Quick Refresher
471
1.
Article I: The Legislature
471
A.
The House of Representatives
472
B.
The Senate
472
C.
Making Laws
473
i.
Starting Out
473
ii.
Committee Referral
474
iii.
Floor Consideration
474
iv.
Moving to the Other Chamber
475
v.
Conference Committee
475
vi.
Vetoes, Pocket Vetoes, and Overridden Vetoes
475
vii.
Legislation and Sausages
476
2.
Article II: The Executive Branch
476
A.
The President
476
B.
Presidential Powers
477
3.
Article III: The Judiciary
477
Index
479