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Stella Varvis

What is good legal writing? Justice Coté Justice Mary Morel Matthew Jason Justice Cote • Legal research – • Write persuasively Why lawyers write badly: 1. 7 years of imitating really bad writing 2. 7 years of being taught to hide and not be caught in a controversial statement 3. To be a lawyer you have to dress like a lawyer and bad writing is that 4. Assume if you’re not sure you can produce substance you produce style and form – persuasive more or less opposite of loud mouth showoff • No writing is worth anything unless it is designed for and served a purpose. Who is the audience? • Rare you will achieve anything in your writing unless it is understandable, but easy to understand • Produce something short and sweet • Simple and shortly focused • Start with what you’re going to say, say it, summarize it Justice Mary Morel • Credit sources 1. Consider legal requirements – statutory requirements or common law requirements or rules of Court 2. Outline – create beginning, middle, and end that is recognizable o Introduce your subject, tell what you’re looking for 3. Divide documents into sections and subsections o (Lenzion decision) 4. Organize facts – sequential order, around issues (what facts are needed to address the issue?) 5. DEALWITH THE COUNTERARGUMENTS o Definitely orally Writing Style • Use plain English • Average words per sentence: 21 words • Subject, verb, and object(?) together • Prefer use of active voice over passive voice • Turn words that end in “ion” into verbs • Avoid multiple negatives Matthew • Keep your client in mind • Good legal writing: 1. Precision o Get to the point – what are you writing for? State that right away o Focused statement 2. Flexibility o Think about the audience – preparing for lawyer, make a certain quality to provide to client o What is this assignment in preparation for? (Ask senior lawyer) 3. Suitability o When writing directly to a client – opinion letter or reporting letter – keep in mind particular client you’re writing to o Some clients require a more detailed explanation 4. Tone o Be formal o Don’t be funny • Beware of email – treat in the same way you would letters o Draft, review • Legalisms – no need for it, leave them out • Take the time to review your work – no spelling or grammar errors, autocorrect o Once you have a draft, strike out every word that is not necessary o Shorter sentences easier to understand o Complete sentence – punctuation September 11, 2013 “This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.” • Last antecedent allows it to apply to whole paragraph • Drafting matters Plain language, simple sentences, precision, research, getting facts right Relatively short, complete answer, give to clients or reply on in courts Logic, reasoning, showing how you arrive at your conclusion How to Read a Case Why do we read cases? • Precedent – common law jurisdiction – any written decision forms common law o In common law, you’re going to look at the previously decided cases and that will form part of the law o Precedential value – to what extent that case can inform us and how useful it is • Stare decisis o How to use those cases o Judges are bound to follow the decisions in higher courts with respect to an issue o Argue to court they should follow it if it’s binding o Read cases to distill the law to our clients (whether or not they have a chance) and prosecute their case o Avoid undesirable consequences that result when you don’t follow the law Anatomy of a Case • Case name (short name and full style of cause) o Long name is the complete list of all parties (e.g. interveners) o Sometimes long case name set from the parties at trial (on appeal) • Court (level, jurisdiction, judge) o List of courts in the McGill guide – know which court you’re in (precedential value) • Date o Some old cases are still good law, but law changes • Keywords (not part of the decision) o Almost always added in after the facts o Indexing references • Headnote (not part of the decision) o Summary of the case o CAN BE WRONG o SCC writes own headnotes, but never cite • Other information (counsel, cases considered, legislation considered, case history) • Judicial decision What is a Case Brief? • Concise (at-a-glance information) • Complete (everything you need to know) 1. Title (short form name, date, court) 2. Parties (plus interveners) 3. Procedural History o Summarize in a sentence or two 4. Facts o Tend to be obvious – jump out at you o Summarize using only essential facts – weed out surplus, stick to essential elements of what decides the case o Contract? Tort? Criminal? Corporate? 5. Issues o In the form of a question(s) o What did this case decide? 6. Decision o Who won – very brief o Appeal – allowed or dismissed?  Who appealed – what did lower court do  “Appeal dismissed, accused’s conviction confirmed” o Trial – plaintiff’s claim allowed, for how much? Or dismissed? o Criminal – accused convicted or acquitted? o Civil – award of damages 7. Reasons o Longer section (similar in length or facts or longer) o Rationale or reasoning of court o Reasons why the court decided the case the way they did o Detailed enough for a sense of the court’s thinking but don’t reproduce decision 8. Ratio o Bottom line legal principle o What does this case stand for? What’s it’s use of precedent? o 1 – 3 sentences 9. Commentary o Dissenting or minority judgment that raises important issue  Don’t have to include  Obiter – not essential (SCC obiter very valuable) September 18, 2013 Fact and Issue Determination 1 • Gathering facts, sorting as relevant or irrelevant • Legal Problem Solving o Assessing facts  Legally necessary facts may change as case progresses. May go back and revise what is relevant. Start broad and narrow down. o Determining legal issues o Researching the legal issues o Analyzing: applying the law to the facts o Reporting your findings • Topical indices • Secondary sources • Researching the case law and relevant legislation • Res judicata – same parties cannot reargue case once it has been decided Case law / common law • Essential common-law (i.e. case law) terms: o Doctrine of precedent o Stare decisis – courts must follow prior decisions or authorities of certain other courts o Authority • Precedent hierarchy o Earlier similar cases (“precedents”) are: 1. Binding – judge has to decide the case at bar (the case to be decided) in the same way as the earlier case; 2. Persuasive – judge must give the earlier case due consideration; OR 3. Distinguishable – earlier case contains an “essential difference” from the case at bar and therefore is inapplicable.  Is it significant? Considerations in Determining theAuthority of a Decision 1. Level of court? o Decision makers are bound by the rule of the court directly above them o Trial judges are not bound by their colleagues in the same court o CAdecisions binding on courts below them and on CAitself, with a few exceptions 2. Territorial jurisdiction? o Where is the court located? Higher court decisions from other jurisdictions can be persuasive, not binding, but there are a few exceptions.  Exceptions: pre 1907 Northwest Territory CAdecisions are binding onAlberta trial courts becauseAlberta did not have a court until 1907  Pre 1999 NWT CAdecisions are binding authority on Nunavut 3. Reversed/ overturned/ confirmed? o Sometimes courts adopt decisions, sometimes reversed or overturned by a higher case o “Noting up” – click on icon in Westlaw to see 4. Similarity of facts and/or legal issues o Only cases similar in facts and legal issues are relevant 5. Distinguished by some significant element? o Need to know more than just facts. Usually it is the facts that differentiate the cases, but it can also be the legal issues. Much of oral advocacy is persuading a judge why precedent is distinguishable. 6. Overruled by subsequent legislation? o Legislation overrules caselaw, with one exception: where a court finds that the legislation is illegal in that it violates the Constitution, or the Charter, or both. o Principles against retroactivity 7. Recent? o Generally speaking, the more recent the decision, the more persuasive it is. Many legal principles date back to earlier dates. 8. Majority judgment? o Majority: binding o Dissenting: particularly from SCC can be persuasive if it does not contradict the majority 9. “Leading” or “Adopted” case? o Many fundamental cases in 1L are leading or adopted o Leading may be from another jurisdiction (Britain,Australia, Britain, occasionally US) – case from other jurisdiction has been adopted and followed by Canadian Courts and therefore precedential. In court, to site a leading case you must site the Canadian case that follows it. Ratio v obiter • Ratio decidendi – the reason or the rational for the decision; the point in a case which determines the judgment or the principle which the case establishes • Obiter dictum – a remark or observation made by a judge that, although included in the body of the court’s opinion, does not form a necessary part of the court’s decision. o E.g. judge saying “becauseAand B occurred, the result is C, but if in fact Aand B hadn’t happened, and D and E happened, my decision is X.” This isn’t the ratio; he or she has made an aside. o Not binding, but persuasive • SCC – even obiter, if it’s a considered opinion, is generally going to be followed even if it’s not strictly binding Courts • Statutes tell us the jurisdiction of each court • Some courts don’t get their jurisdiction from statues • Superior level courts in provinces are not always called the Superior Court • Provincial courts have different divisions (civil, etc.) September 25, 2013 Citation Generally • Citation schemes must: o Properly credit sources by conveying full and accurate information, while o Keeping the citation text as brief The McGill Guide • The “Canadian Guide to Uniform Legal Citation” or the “The McGill Guide” is officially adopted by many legal journals, including theAlberta Law Review, as well as some courts. • The McGill Guide has not been officially adopted by the SCC or by theAlberta Courts Overview of the McGill Guide • General Form • General Rules • Specific Rules o Legislation, jurisprudence, government documents, secondary materials, etc. • Index • Appendices ** o A: jurisdiction abbreviations o B: commonly used court names.  3. Neutral citations (coming directly from the courts) o C: official (SCR, FCR), semi official (by the local law society –Alberta Law Reports, Alberta Reports), unofficial reports General Rules – Citing Cases • Whenever possible, provide at least two sources • ALWAYS provide the neutral citation if it is available • After the neutral citation provide the official reports (SCR, FCR) • If a neutral citation or official reporter is not available, provide the semi-official reports • Lastly provide other sources (electronic) Don’t copy the Carswell citation 1995 – SCC cutoff date – use page # not paragraph # • SCC’s website – judgments – case – pdf (gives page #) Components of a Case Citation 1. Style of cause o Names of the parties o Surnames only o Use style of cause provided by reporter, if one provided o Remember: “v” is pronounced “and” o No et al. if there are multiple parties 2. Neutral citation o General format Style of Cause Neutral Citation Pinpoint R v Latimer, 2001 SCC 1 at para 10 R v Senko, 2004ABQB 60 at para <> 3. Year of Decision o If there is no neutral citation then Year of decision appears after style of cause in parenthesis only if the year of the decision is not included as part of the citation from your chosen reporter. o R v Carosella (2005), 26 OR (3d) 209 (CA) o If reporter publishes yearly volumes then we include the “year” because it is a volume… 4. Printed Reporter Citations th o Consecutive volume numbers – (1993), 107 DLR (4 ) 457 o Volume designated first by year, then by volume within the year – [1993] 3 SCR 327 o Abbreviations o Series – # also abbreviated o Page – if talking to a printed reporter 5. Other parallel citations o Assist your reader o Arrange in order from most official to least official o See McGill Guide at to for the rules on official and semi- official reports o See McGill GuideAppendix C for assistance in ranking 6. Electronic Sources (PRINT FOR EXAM) o DON’T USE MCGILL o Westlaw:  Underwood v Underwood, 1995 CarswellOnt 88 (Gen Div) o Quicklaw:  Fuentes v Canada (Minister of Citizenship and Immigration), [1995] FCJ No 2006 (TD) o CanLii  Kellogg v Black Ridge Gold Ltd, 1993 CanLii 2848 (NWT SC) o ing_Cases_to_the_Alberta_Courts.pdf, page 2 o Always prefer to use printed reporters first. The only time we see an electronic source in citations is when there are no other options. 7. Jurisdiction and court o General rule – you must always be able to determine both the jurisdiction and the court level from the citation. o Examples:  R v Carosella (1995), 26 OR (3d) 209 (CA)  Hopp v Lepp, [1980] 2 SCR 192  Clearbook Iron Works Ltd v Letourneau, 2006 FCA42, 46 CPR (4th) 241 8. Pinpoint citation o Cite pinpoint reference to most official reporter mentioned first – i.e. neutral citation o Cite to paragraph number if possible, otherwise cite to page number o Separate consecutive numbers with a hyphen; separate non-sequential numbers by a comma o E.g. R v Proulx, 2000 SCC 5 at para 27, [2000] 1 SCR 61 9. History of proceedings o Case history is the last element of the citation if it is relevant to your argument o Use abbreviations aff’g (affirming) and rev’g (reversing) to indicate prior history. o Use abbreviations aff’d (affirmed) and rev’d (reversed) to indicate subsequent history. o R v Carosella, [1997] 1 SCR 80, rev’g (1995), 26 OR (rd) 209 (CA) 10. Citing Statutes o Criminal Code, RSC 1985, c C-46 s 746 o Title: Criminal Code o Statute Volume: RS (Revised Statutes) o Jurisdiction: C o Year: 1985 o Chapter Number: c C-46 o Section Number: 745 Note on Regulations • Federal Regulation: o Competition Tribunal Rules, SOR/87-373 • Provincial Regulation (Alberta): o Alberta Rules of Court, Alta Reg 124/2010 Good Resource for Legal Citation October 2, 2013 Legal Rules • Alegal rule is a rule that specifies the predictable legal consequences of certain actions so people can govern their affairs appropriately. o E.g. in legislation, common law, If/Then • If the required factual conditions exist THEN the specified legal consequences follow. • EXAMPLE: IF a person who is not a lawyer practices law, THEN the person is guilty of an offence and liable to a fine. If/Then/Unless • Some rules have exceptions: IF the required factual conditions exist THEN the specified legal consequences will follow UNLESS other factual conditions exist. • EXAMPLE: IF a person who is not a lawyer gives legal advice THEN the person is guilty of an offence and liable to a fine UNLESS the person is a student working for SLS who is being supervised by a practicing lawyer Multifaceted • Some rules are multifaceted, and all the conditions have to be met before the rule applies: If conditions 1 and 2 and 3 exist THEN the specified legal consequences follow. • EXAMPLE: IF a person drives a car AND he is not the owner of the car AND he does not have the owner’s permission THEN he is guilty of an offence and liable to a fine. Multifaceted rules may be conjunctive, disjunctive, aggregate or involve a balancing of factors. Conjunctive (“and”) • IF conditions 1 and 2 and 3 exist THEN the specified legal consequences follow. Must have all 3 conditions met. • EXAMPLE: Limitations Act Limitations Act, RSA2000, c L-12, s 3 3(1) Subject to section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. Disjunctive (“or”) • If conditions 1 or 2 or 3 exist THEN the specific legal consequences follow. Need only meet one condition. • EXAMPLE: If a person a) Is under the age of 18 b) Or is banned from licensed establishments THEN she or he is not allowed into a licensed establishment. EXAMPLE: Income Tax Act, RSC 1985, c 1 (5th Supp), s. 2 Aggregate (“some but not all”) • If conditions 1 or 2 and 3 or 1 and 3 THEN specific legal consequences follow. Have enough of the elements been met to result in the consequence? • EXAMPLE: Criminal Code, RSC 1985, c C-46, s 494(1) Balancing • If 1 outweighs 2 THEN the specific legal consequences will follow. Balance various factors to see which will win the day. • EXAMPLE: Cases where Charter principles and values may come into conflict; for example, the right to free speech versus the right to be free from discrimination as embodied by the hate speech provisions of the Criminal Code and federal/provincial human rights acts. Legal Reasoning "Elementary," said he. "It is one of those instances where the reasoner can produce an effect which seems remarkable to his neighbour, because the latter has missed the one little point which is the basis of the deduction.” The Memoirs of Sherlock Holmes (1893) Watson and Holmes in "The Crooked Man“ (Doubleday p. 412) Analogy • This is the most common form of legal reasoning. In order to form a proper analogy you need to: 1. Establish similarities between the two cases, 2. Announce the rule of law embedded in the first case, and 3. Apply the rule of law to the second case. **Consider whether the legislative provision you are interpreting is similar to the legislative provision in the jurisdiction** Syllogism • Consider the following example: All men are mortal Socrates is a man Therefore, Socrates is mortal. • Three parts: 1. Major premise (or fact/rule) -All men are mortal 2. Minor premise (or fact/rule) - Socrates is a man 3. Conclusion (inevitable from the preceding premise) - Socrates is mortal Brown v Board of Education • Unequal educational facility are not permitted under the US Constitution (major premise) • Aseparate educational facility for black children is inherently unequal (minor premise) • Therefore a separate educational facility for black students is not permitted under the US Constitution (conclusion) Prosecutor’s syllogism • Major premise: Begin with the major rule of law - “DOING [something] violates the law” • EXAMPLE: Taking things without the owner’s permission is theft Minor premise: Key facts from the case before you – “Y” did [something] • EXAMPLE: Mr. Moo took Ms. Boo’s purse from her desk without her permission. Conclusion: “Y” violated the law. • EXAMPLE: Mr. Moo committed theft. An argument that is correctly reasoned may be wrong, but an argument that is incorrectly reasoned is never right. Finding the answers • When faced with a legal problem, you will look to the law and o Find a rule precisely on point o Find no rule directly on point o Find a rule that does not clearly define the law o Find two or more rules that apply but might conflict, or o Find a rule that is analogous to the issue at hand but not directly on point. • What you find will determine the kind of argument you make – your legal reasoning. Judges do the same thing. But what if the cases don’t all say the same thing? • When you research you may find: o Arule precisely on point o No rule directly on point o Arule that does not clearly define the law o Two or more rules that apply but might conflict, or o Arule that is analogous to the issue at hand but not directly on point. • Take what you find and then consider how it applies to your new situation’s facts. Break issues down into sub-issues in closed memo Case 1:Aman fell on an icy sidewalk of a big department store. The sidewalk had been cleared of ice daily up to that point, but there had recently been a massive snowfall. The department store was not liable because, although it was foreseeable that such an accident could occur, the store did all it could do to prevent the accident. • RATIO?Aparty is not liable for negligence of a slip and fall if they take reasonable care to clear a sidewalk of snow and ice. • The stores actions in cleaning the sidewalk daily was amountable to reasonable care… Case 2:Aboy slipped and fell on an icy sidewalk. The ice was caused by faulty eavestroughs, which dripped water onto the sidewalk. The owner was liable because he could have foreseen the accident and did nothing to prevent it from occurring. • RATIO?Aparty is liable for negligence if an injury was foreseeable on his property and that party did not take reasonable care to prevent the injury. • Where an accident is foreseeable a property owner has a duty to take preventable actions Case 3:An owner posted a sign on her property stating “enter at own risk” because she had flooded her property for irrigation purposes. Aman slipped in the mud. The owner was not held liable because she had posted a warning. • RATIO?Aproperty owner is not liable if there was a foreseeable risk and an injury occurs and the property owner displayed a warning. *Warnings* - content and context of warning Important to realize if there’s something missing form the fact scenario given, whether that will affect analysis and recommendation to client. It might make sense to point it out and get more information. Identify if there are any missing facts or there is any missing information. Writing a legal memo • Must be objective o Weigh the different options – risks, exposure o What is likely going to happen? • Alegal memorandum is a form of legal writing. The process of legal writing involves 3 stages: 1. Planning 2. Writing 3. Revising • Always conduct each step carefully. Purpose of legal memo • To communicate legal analysis to other people (audience/reader) • To inform the reader by presenting the result of legal research, reading of law and reasoning about the particular client’s case (usually, the predictive opinion of the writer) Things to keep in mind • Know your audience: lawyer or client? • Know your purpose: objective versus persuasive • Do not assume knowledge in the reader • Remain objective about the strengths and weaknesses of the case • Follow prescribed conventions (for example, on citations) • STRUCTURE Structure of Legal Memo • FACTS • ISSUES • BRIEFANSWER • ANALYSIS • CONCLUSION Facts • Three categories of facts: 1. Legally relevant facts: must be included; knowledge of the law assists in identifying legally relevant facts 2. Background facts: significant so far as they help your reader link the relevant facts coherently 3. Residual facts: often subjective and emotionally charged; cloud an objective assessment of the case; should be excluded o Identify missing facts – if you’re making an inference, state that • How to organize your facts? o Chronologically o “Crux of an issue” o Topical Organization o Perceptual Organization • Remember: o Legal conclusions, and the decisions that flow fro
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