Chapter 20—Critical Legal Thinking and Writing

A.Chapter Introduction

This chapter presents the student with an introduction to critical legal thinking and writing skills. Critical legal thinking is 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. A written opinion by a court is an example of critical legal thinking combined with writing. In the law office this is frequently seen in the office memorandum of law and the legal case brief submitted to a court. At the conclusion of this chapter, the student will be able to:

  • Explain the need for proper citation format.
  • Describe and demonstrate how to use appropriate traditional citation format.
  • Compare and contrast Universal Citation Format, Bluebook citation format, and AWLD Citation Format.
  • Define the ethical duty of candor to the court.
  • Differentiate the writing style in preparing an internal memo of law and the style for writing a court memo of law.
  • Explain the need for a clear definition of the facts and assignment before preparing a memorandum.
  • Explain the need to write for the intended audience.

B.Instructional Ideas

  • Have the students practice proper citation skills through drill and repetition.
  • Hand out copies of two cases that present similar legal issues. Engage in class discussion concerning any distinguishing legal or factual issues, and any analogous legal or factual issues.

C.Lecture and Class Discussion Outline

Critical Legal Thinking

Critical legal thinking involves 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.

Critical Legal Writing

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.

Standards

●The language used must be clear to the intended reader.

● The writer must make an honest presentation of the facts and argument.

● Arguments advocating a new interpretation to the existing law, as well as the current law, must be clearly stated.

● The ethical obligation to the court must be obeyed, including the presentation of adverse authority in the jurisdiction.

● Factual variation must be presented, and the sources used clearly identified by proper citation in a format acceptable to the reader.

Court Brief and Office Memorandum 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 preparation and presentation of a case.

●The brief written for the court provides written advocacy of the client’s position and must be written to convince the court to adopt a position favorable to the client.

Duty of Candor—There is an obligation to be honest with the court and not to mislead the court.

Office Memorandum

● 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.

● The paralegal must understand the specific assignment. What have you been asked to research? For the memorandum of law, it usually is the answer to the question.

● 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.

● 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.

●The written word is a reflection of the writer. Everyone who reads the memorandum will measure the writer’s reputation and level of researching skill.

Citations

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.

Traditional Sources (Print)

Basic paper or tradition citation form:

Citation Format

Title, - Volume - Book or Series - Page - (Court-Year)

Abercrombie v. Fitch, 232 S.W.3d 44 (Mo. App. 2001)

Abercrombie v. Fitch, indicates the parties on appeal using last names only of the first named party, 232 refers to the volume in the South Western 3d series reporter service of West Publishing Company, and 44 refers to the page on which the authority may be found, Mo. App. refers to the Missouri Court of Appeals, and 2001 indicates the decision was rendered in the year 2001.

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 Manual Citation Format—A citation format authority written by Association of Legal Writing Directors.

Universal Citation Format—Traditional, 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.

Cite Checking

Documents must be checked to verify that the proper citation format has been used, 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.

D.Internet Resources

E.Suggested Answers

Questions for Critical Legal Thinking and Writing

1.“It is appropriate to remind counsel that they have a ‘continuing duty to inform the Court of any development which may conceivably affect the outcome’ of the litigation. Fusari v. Steinberg, 419 U.S. 379, 391, 95 S.Ct. 533, 540, 42 L.Ed.2d 521 (1975) (BURGER, C.J., concurring). When a development after this Court grants certiorari or notes probable jurisdiction could have the effect of depriving the Court of jurisdiction due to the absence of a continuing case or controversy, that development should be called to the attention of the Court without delay. See this Court’s Rules 34.1(g) (petitioner’s statement of the case shall contain all that is material to the issues); 34.2 (respondent’s brief may correct any omission from petitioner’s statement); and 35.5 (parties may file supplemental briefs after briefs on the merits to point out intervening matters not contained in the merits briefs).” Triverton Board of Licensing Commissioners v. Patore, 469 U.S. 238, 240.

2.“Furthermore, tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.” Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 247.

3.“Although we take an extremely dim view of this futile attempt to mislead the court, we decline to award fees and costs to IPCO. By misrepresenting rather than distinguishing Bushko, Beam’s counsel performed a greater disservice to this court and his client than to IPCO. A more effective presentation of appellant’s position might well have increased rather than decreased IPCO’s legal expenses. We are generally reluctant to award fees and costs to opposing counsel for inadequate argumentation of a potentially meritorious appeal, e.g., Magnus Electronics, Inc. v. La Republica Argentina, 830 F.2d 1396, 1405 (7th Cir.1987), and decline to do so in this case. We note, however, that lawyers owe a duty of candor to the tribunal. Counsel for appellant would be well advised to observe that violations of this duty can lead to sanctions even more severe than payment of an opponent’s fees and costs.” Beam v. IPCO Corp., 838 F.2d 242, 249 (7th Cir. 1998).

4.What are all of the relevant facts? What is the attorney really asking for? What is expected from this assignment?

5.All relevant law pertaining to an issue should be presented in order to analyze the strength or weakness of alternative positions.

6.So as to identify alternative sources for the material presented.

7.Knowledge of the audience determines whether the writing is to be informative (office memorandum) or persuasive (court brief).

8. High, as it relates the law to a specific client’s legal problem.

Ethics Questions for Analysis and Discussion

1.Failure to properly cite presents ethical competency and candor issues.

2.The argument must be based on good faith belief that change is required.

3.So advise the client.

Case for Discussion

1.United States Environmental Protection Agency (EPA) brought cost recovery suit under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The United States District Court for the Southern District of West Virginia dismissed case due to breach of duty of candor towards court on part of government attorneys. Government appealed. The Court of Appeals held that government attorneys breach duty of candor owed to court by failing to reveal that EPA’s on-scene coordinator for cleanup had misrepresented his academic credentials in pending and other cases, and that civil and criminal investigations were pending against coordinator, but dismissal of case was too severe a sanction. Affirmed in part, reversed in part, vacated and remanded.

Case for Briefing

1.To ensure that claims presented to the court are either supported by existing law or good faith argument for modification of current law. It is an effort to minimize frivolous claims.

2.Sanctions should only be imposed if an attorney submits motions or pleadings that cannot reasonably be supported in law or in fact.

3.Attorneys are expected to present the state of the law upon an issue fairly and fully.

4.No, as the court distinguishes the duty of zealous representation and the duty of candor.

5.Yes, to fulfill the duty of candor.

F.Feedback

In the space provided, write the proper Bluebook citation for the example given.

1.Monty Python versus Benny Hill, Volume 914, Federal Reporter, Second Series, Page 234, Eighth Circuit Court of Appeals, 1991.

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2.United States versus Cassius Clay, Volume 463, United States Reports, Page 1123, 1969.

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3.Larry Tate versus Darren Stevens, Volume 908, Supreme Court Reporter, Page 138, 1979.

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4.Montgomery Burns versus Homer J. Simpson, Volume 167, United States Supreme Court Reports, Lawyers' Edition, Second Series, Page 602, 1971.

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5.Jed Clampett versus Milburn Drysdale, Volume 890, Federal Supplement, Page 564, Western District of Missouri, 1987.

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6.Oliver Windell Douglas versus Hank Kimble, Volume 645, Federal Reporter, Page 348, Third Circuit Court of Appeals, 1918.

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Properly rewrite the following incorrect Bluebook citations in the space provided.

7.Volume 819, Federal Reporter, Second Series, Page 456, Eighth Circuit Court of Appeals, 1994.

F.2d, 819, 456 (8 Cir., 1991)

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8.Volume 463, United States Reports, Page 1123, 1972.

1123 U.S.R. 463 (1972)

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9.Volume 106, Supreme Court Reporter, Page 788, 1966.

106 S.Ct.R. 788 (U.S., 1966)

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