Index

Abstract of the record, 39-42 Abstraction ladder as tool for recognizing relevant legal authorities, 48-50 relevance to statutory interpretation research, 179-180 legal significance as crucial to, 49-50 Abuse of discretion, 20-21 Accuracy in case descriptions, 134-137 of law, importance of, 6 Addendum, see appendix Administrative agency decisions, appellate standards of review for, 21 Aesop, fable of the sun and the wind, 10 Agency determinations, as authority, 55-56 interpretations of statutes, deference of courts to, 174-175 decisions, appellate standards of review for, 21 Analogies, effective use of, in rule application section, 143-144 Analogous statutory language, research of, 61 Analogous authorities, using abstraction ladder to identify, 49-50 Antidisestablishmentarianism, 161 Antoinette, Marie 138 Appeal, record on, see joint appendix Appeals, requirements of courts to hear, generally, 13-14 Appellant, defined, 3 Appellate brief as type of persusasive document, 3 format requirements for, 186-196 Appellate jurisdiction, generally, 13-16 Appellate standards of review avoiding confusion with other standards of review, 34-35 generally, 16-24 Appellee, defined, 3 Appendix appellate briefs, format requirements for, 196 motion briefs, format requirements for, 204 Appendix, joint, see joint appendix Apples, comparing oranges to, in research, metaphorically, 46-48 Application, of rule, as element of CREAC unit of discourse, see rule application Argument appellate briefs, format requirements for, 192 connecting motion standard to, 30-31 differences in, based on level of court, 13-14 harvesting, as method of developing 63-68

headings within, see point headings identifying a theme for, 50-51 importance of organization in, 6 incorporating motion standard into, 29-31 motion briefs, format requirements for, 201 nonmandatory authorities, harvesting arguments from, 63-68 oral presentation of, 326-327 oral, generally, see oral argument reverse roadmap as means of structuring, 82-83 significance of appellate standards of review to, 17-24 summary of, as part of brief 233-237 use of abstract of the record when writing 41 use of controversial phrases-that-pay to develop, 76-77 using multiple types of standard of review within, 33-34

Ariely, Dan, 86 Articles, law review, as authority, 56 Ashcroft v.

as important to policy arguments, 81-82 cases as, generally 123-160; see also case descriptions distinction between source and, 148-51 executive branch as source of, 61 extra-legal sources as, 56-58 law review articles as, 56 legislative history as, 61 mandatory, as crucial for legal argument, 52 negative, how to address, 119-120 nonmandatory, how to use, 52, 55-56 regulations as, 55-56 using researach to find, 46-50 valid, generally, 51-59 validity of sources on the internet as, 58-59 when writing to court of last resort, 61-63

Background reading, importance of, in research, 46-47 Backstory, legal, as part of umbrella, 261-265 Bacon, Kevin, 251-254 Bell Atlantic v.

how to conduct, 177-179 importance of, 60

Brainstorming as part of research method, 52-53 organizational, use of research results in, 77-80

Brief, types of 3-4 Brief-writing, overview of writing process for, 6-8 Browsing, benefits of, in research, 176-177 Buddy system, in statement of the case, 229-230 Burden of proof, focus on, in summary judgment argument, 31 Case, as authority, generally 123-160 Case, statement of, see statement of the case Case citing another case, how to cite, 156-157 Case descriptions, 124-137 Case descriptions, parenthetical, use of quotations in, 139 Caseloads of courts, 4-6 Categories

Caption, motion briefs, format requirements for, 197

as focus of tension in legal arguments, 49 identifying, as part of research method, 52-53 usefulness in topic sentences, 257-259

Certificate of compliance appellate briefs, format requirements for, 195-196 motion briefs, format requirements for, 203-204

Certificate of service appellate briefs, format requirements for, 194-195 motion briefs, format requirements for, 203

Certiorari, writ of as part of appellate process, 3 reasons for granting, 14-15

Chevron test, use in regulatory statutory interpretation arguments, 173-174 Citations generally, 148-158 to record, use of abstract of the record to create, 42 Clarify, as way to address possible legal issue, 115-117 Clearly erroneous, as appellate standard of review, 18-19 Clerks, law, as readers, 2 Cognitivist school, of legal writing, 7-8 Cold court, preparing for, 350-351 Colon, as opportunity for persuasion, 293-294 Commitment, fear of, as reason for procrastination, 86 Competitions, moot court, see moot court competitions Computer difficulties of reading on, 3, 68-70, 269-272 polishing methods to use on, 307-309 Conclusion, appellate briefs, format requirements for, 192-193 element of CREAC unit of discourse, 96-97 motion briefs, format requirements for, 202 oral argument, considerations in moot court competitions, 353-354 oral argument, generally, 327-328 Concrete images, at bottom of abstraction ladder, 48-49 Connection-conclusion as element of CREAC unit of discourse, 95, 112 as part of template, 268-269 Copies of brief required, court rules and, 185-186 Court, application of various standards of review by categories of, 35 (chart) Court, level of, differences in argument based on, 13-14 Court, moot, see moot court competitions Court, trial see trial court Court of error, defined, 14 Court of appeals, intermediate, see, intermediate court of appeals Court of last resort arguments to, 13-14 best authorities to cite for, 61-63 definition, 14 jurisdiction in, 14-15 Court rules generally, 181-205 importance of following, 6-7 Courts, caseloads of, 4-6 Cover page, appellate brief, format requirements for, 186-187 CREAC unit of discourse, generally, 94-112 Credibility, establishing with document design, 295

Dash, as opportunity for persuasion, 293 Dating, research as like, 70 De novo, as appellate standard of review, 19-20 Dead fish, as metaphor for clarity of clearly erroneous factual finding, 19 Decisions, unpublished, 145-147 Decisions, nonprecedential, 145-147 Deference

as relevant to appellate standards of review, 17 as relevant to government action standard of review, 34 Definition provisions of statutes, 165-166 Definitions, of terms within statute, using dictionaries for, 168 Diction, in oral argument, 333-334 Dictionaries, use of, in defining statutory terms, 168 Digital platforms, concerns when creating abstract of the record, 42 Digital readers, writing for, generally, 269-272 Digital documents, difficulties of reading, 3, 68-70, 269-272 Digital research, see research Discourse, unit of, defined, 94 Discovery, as relating to timing of summary judgment motion, 28 Dismiss, motion to, motion standard for, 25-27 Disposition, of relevant issue, as element of case description, 126 Dispositive motions, defined, 25 Distinguishing cases, in rule application section, 143-144 Distraction, as interfering with writing, 89 Document design, generally, 295-302 Documents, persuasive, types of, 3-4 Draft, macro, definition of, 9 micro, definition of, 9 multiple, value of, 7-8 working, value of, 7-8 Dweck, Carol, 87 Evidentiary rulings, appellate standards of review for, 20-21 Executive branch, as source of authority, 61 Expectations, of readers and users, importance of meeting, 8 Explanation, of rule, as part of CREAC unit of discourse, 103-106 Expressio unius est exclusio alterius, statutory arguments based on, 169-170 Extrinsic statutory interpretation arguments, 172-176

Ejusdem generis, statutory arguments based on, 170-171 Emphasis how to show, 296-300 positions of, 229, 279-280 Enforcement provisions of statutes, 166 Enthymemes, use of, in issue statements, 214-215 Enumeration, point headings and, 238-239 (box) Error, court of, defined, 14 Evidence as alternate label for explanation in CREAC unit of discourse, 95, 120 as distinguished from findings of fact, 40 as relevant to motion standard for summary judgment motion, 28

Fable of the sun and the wind, relevance to persuasive writing, 10 Fact statement, see statement of the case Facts

as relevant to questions of law, 109-110 connection to phrase-that-pays as significant, 76 findings of, use of high-deference appellate standard of review for, 18 identification of, as part of research, 53-54 relevant, as element of case description, 126 statutory language as, 54, 111-112

Facts, legally significant, see legally significant facts Failure, fear of, as reason for procrastination, 87-88 Fear, as reason for procrastination, 86-90 Filing requirements, court rules and, 185-186 Filing, electronic, court rules and, 185-186 Filters, use of, in Boolean research, 178-179 Findings of fact,

high-deference appellate standard of review for, 18 need to distinguish evidence from, 40 First draft, generally, 9 Fish, dead, as metaphor for clarity of clearly erroneous factual finding, 19 Focus, as crucial to effective case descriptions, 127-128 Footnotes, avoiding citations in, 151-152 Formalism, 161 Format of oral argument, 315 Format, of briefs, generally, 181-205 Formula, as basis for analytical structure, 93-94 for effective topic sentences, 258 Foundational search terms, in research, 63-64 Framing language, in topic sentences, 258-259 Funnel of abstraction, see abstraction ladder

Gloss, judicial, see judicial gloss Google, differences between legal research and, 59-60 Government action standard of review, generally, 34-35 Grammar, statutory arguments related to, 169

Hard copy as helpful to brainstorming, 77-80 differences in reading compared to digital copy, 3, 68-70, 269-272 polishing methods to use on, 309-311

Hard-copy research, see research Harvesting arguments, see argument Heightened scrutiny, as government action standard of review, 34 Heuristic, defined, 94 as way to state rule, 75-76, 99

If-then structure as method of identifying phrase-that-pays, 75-76

Ignore, as way to address possible legal issue, 113-114 Ignore-tell-clarify-prove, 113 (chart) In pari materia, use of, in statutory interpretation arguments, 175-176 Independent clauses, as opportunity for persuasion, 288-289 Inductive reasoning, as way of finding rule, 101-103 Intentionalism, 163 Intermediate court of appeals

arguments to, 13-14 jurisdiction in, 15-16 Internal moots, benefits of, for moot court competitions, 346 Internet, validity as source of authority, 58-59 Intrinsic statutory interpretation arguments, 167-171 Introduction as issue statement, 209-210 in oral argument, for moot court competitions, 349 Iqbal, Ashcroft v., as foundational case for motion standards, 27 Issue analysis of, deciding depth of, 113 (chart), 113-117 choice of as relevant to persuasion in brief, 278-279 for oral argument, 316-317 identification of, as part of research, 54-55 relevant, as element of case description, 126 Issue statement effective writing of, 214-218 format requirements for appellate briefs, 187 motion briefs, 197 multi-sentence structure of, 211-212 questions presented as, 210-218 use of persuasive techniques in, 213-215 Italics for emphasis, 296-300

Joint appendix, defined, 38-39 Judges, reading requirements of, 4-6 Judicial gloss

as altering meaning of motion standard, 29 on meaning of phrase-that-pays, 76 on statutory language, impact of, 167

Jump cite, importance of, 157-158 Jurisdiction appellate, generally, 13-16 statement of format requirements for, 189-190 Jury findings, appellate standards of review for, 19n Justification, as part of document design, 300

Kevin Bacon, Six Degrees of, relevance to legal writing, 251-254 Key terms, see phrase-that-pays Kickback cases, accuracy issues when describing, 136-137

Ladder, abstraction, see abstraction ladder Lamott, Anne, 88 Last resort, court of, see court of last resort Law, relevant, see relevant law

Law accuracy of, importance, 6 decisions of, use of low-deference appellate standard of review with, 17

Law clerk complaints of, 134 importance of, as reader of appellate briefs, 16

Legal status as element of if-then rule, 99 in research questions, defined, 43

Legal writing theory, 7-8 Legal realism, 161 Legally significant facts

as part of research questions, 43-46 statutory language as part of, in research questions, 44-46

Legislative history as authority, 61 shortcuts for finding, 178 use in statutory interpretation, 172-173

Level of court, differences in argument based on, 13-14 Llewellyn, Karl, 161 Local rules, importance of following, 6-7 Lying, as ineffective tool of persuasion, 276-278

Macro draft, defined, 9 Mandatory authority, see authority Margins, court rules and, 184 Marriage, writing as like, 70 Memo, office, as compared to persuasive brief, 3 Micro draft, defined, 9 Mindset, relevance to effective legal writing, 87-88 Misrepresentations, in case descriptions, how to avoid, 134-137 Misstatements of law or facts by opponent, moot court competitions, 351-352 Mixed questions of law and fact, appellate standards of review for, 19-20 Motion, defined, 4 Motion brief

as type of persuasive document, 4 format requirements for, generally, 196-204

Motion standard avoiding confusion with other standards of review, 34-35 generally, 24-31

Motions, dispositive, defined, 25 Moot court competitions, generally, 339-356 Movant or moving party, defined, 4 Opinions, unpublished, see decisions, nonprecedential Opinions below, appellate briefs, format requirements for, 189 Opponent, dealing with arguments of, 117-121 Oral argument

Narrative reasoning, 223-229 Navigation, tools for digital readers, 271-272 Negative authority, how to address, 119-120 Non-moving party, defined, 4 Nonmandatory authority, see authority Nonprecedential decisions, see opinions, nonprecedential Notes of decisions, use of, when researching statutory interpretation, 176-177 NPR introductions, for long quotations, 141-142 Nudge, 90

Office memo, as compared to persuasive brief, 3

choosing issues to address in, 316-317 conclusion generally, 327-328 in moot court competitions, 353-354 CRAC argument of major points, 326-327 factual, legal, and procedural information, 317-319 format and purpose of, 314-315 generally, 313-337 infrequency of, 313-314 intellectual preparation for, 315-319 introduction generally, 321-326 in moot court competitions, 349 materials to take to the podium, 319-321 practice, as part of writing process, 10 questions as part of, 328-331 rarity of in intermediate courts of appeals, 14-15 in trial courts, 24-25 reasons for denying, 15 rebuttal as part of, 331-333 speaking style in, 334-336 use of brief to prepare for, 249 use of theme in, 325 (box) Oranges, comparing apples to, in research, metaphorically, 46-48 Organization of writing as opportunity for persuasion, 280 brainstorming research results to develop, 77-80 importance of, 6 methods for determining, 73-84 phrases-that-pay as focus of, 74-77 rules as focus of, 73-77 using reverse roadmap to determine, 82-83 Outline, working, how to develop, generally, 73-84 as organizational focus, 74-77 how to find, 75 in Boolean research, 178-179 in controversy, as significant to argument structure, 76-77 use of, in case descriptions, 127-128 use of, in topic sentences, 255-257 Pinpoint citations, importance of, 157-158 Plain language of statutes, reading of, 164-165, 167-171 “Plain language,” as Boolean search term, 178 Plausibility, as basis of motion standard language, 27 Pleading standard, motion briefs, format requirements for, 200-201 Plenary review, see de novo Point headings as part of template, 260-261 generally, 238-246 in.pdf documents, using bookmarks with, 245 Pointillism, in statement of the case, 229-230 Poker, as basis for analogy to goal of summary judgment motions, 28 Policy, public, defined, 80 Policy arguments generally, 80-82 supporting with authority, 57-58 Polishing, as opportunity for persuasion, 294-295 generally, 9-10 techniques for, 305-312 Positions of emphasis generally, 229 relevance to persuasion, 279-280 Practice arguments, for moot court competitions, 347-348 Precision, when analogizing and distinguishing cases in rule application, 143-144 Private memos, 84-88 Problems, mechanical, importance of avoiding, 6-7 Process, appellate, 3 Process, writing, overview of, for brief-writing, 6-8 Procrastination, generally, 85-90 Professionalism, in moot court competitions, 354-355 Proof, burden of, focusing on in summary judgment argument, 31 Proofreading, see polishing Prove, as way to address possible legal issue, 117 Public policy, see policy Punctuation, as opportunity for persuasion, generally, 292-294 Purpose provisions of statutes, 166 Purpose, reading for, impact on reading, 1 Purposivism, 161, 163

Pain, fear of, as reason for procrastination, 88-90 Paper, as helpful to brainstorming, 77-80 Paper documents, differences in reading, 3, 68-70, 269-272 Paragraph structure, as opportunity for persuasion, 283-284 Parenthetical case descriptions, see case descriptions Pari passu, use of, in statutory interpretation arguments, 175-176 Parties to the proceeding, format requirements for, appellate briefs, 187-188 Penalty provisions of statutes, 166 Persuasive techniques

exploiting opportunities for, generally, 275-302 generally, 7 in issue statements, 213-215

Petition for writ of certiorari, appendix to, as containing crucial record information, 38-39 Petitioner, defined, 3 Phrase-that-pays

defined, 74-75

Question presented, see issue statement Questions, as part of oral argument, 328-331 Quotations

effective use of, 137-142 use of NPR introductions with, 141-142 as different from users, 2 false images of, 2 importance of meeting expectations of, 8 law clerks as, 2 point headings and, 244-245 Readers and users, needs of, generally, 249 Reading for a purpose, impact on reading, 1 Reading requirements of judges, 4-6 Real life, differences between moot court competitions and, 341-342 Reasoning narrative, 223-229 relevant, as element of case description, 126 Rebuttal, in oral argument, 331-333 Record abstract of, see abstract of the record appendix to petition for writ of certiorari as crucial to, 38-39 citations to, use of abstract of the record to create, 42 defined, 38 Record on appeal, see joint appendix Regulations as authority, 55-56 statutory authority for enacting, 166 use in statutory interpretation, 173-174 Regulatory authority, statutes granting, 166 Relevant law, as part of research questions, 43 Relevant enacted law, format requirements for inclusion appellate briefs, 190-191 motion briefs, 200 Relevant facts, see facts Remedies provisions of statutes, 166 Research as like dating, 70 as more complex than Google searches, 59-60 benefits of browsing, 176-177 Boolean, benefits of, 177-178 brainstorming with results of, to structure argument, 77-80 creating abstract of the record as preparation for, 38-42 generally, 42-68 hard-copy, costs and benefits of, 68-70 legislative history and, 61 issues when using digital platforms to accomplish, 68-70 of appellate standards of review, 22-23 of motion standard, 28-29 relevant facts and, 53-54 statutory special concerns, 60-61 use of “notes of decisions,” 176-177 use of research questions in, 43-46 use of theme in, 50-51 when to stop, 70-71 Research questions, legal status as part of, 43 Respondent, defined, 3 Reverse roadmap, as means of structuring argument, 82-83 Review, plenary, see de novo Revision, generally, 9-10 Revisions, polishing of, 311 Roadmap paragraphs, as part of template, 265-268 oral argument, generally, 321-326 reverse, as means of structuring argument, 82-83 Rule as element of CREAC unit of discourse, 96-103 as focus of organization of argument, 73-77 as part of policy-based arguments, 80-82 if-then structure as way to state, 99 rule-choice-rule, 99-101 rule cluster as way to articulate, 99 using inductive reasoning to find, 101-103 Rule application as element of CREAC unit of discourse, 106-112 connection to rule summary, 108-109 use of analogy and distinction in, 143-144 Rule-choice-rule, 99-101 Rule cluster, as method for articulating rule in CREAC unit of discourse, 99 Rule explanation, as part of CREAC unit of discourse, 103-106 Rule summary as part of rule explanation, 105-106 connection to rule application, 108-09 Rulemaking authority, statutory grant of, 166 Rules, local, importance of following, 6-7 avoiding confusion in use of term, 32-34, 34 (chart) generally, 16-35 government action, generally, 34-35 in motion briefs, format requirements for, 200-201 motion standards, 24-31 use of, by categories of court, 35 (chart) use of multiple types in same argument, 33-34 Statement of the case format requirements in appellate briefs, 192 in motion briefs, 201 generally, 218-233 Status, legal, see legal status Statutes involved, see relevant enacted law Statutes as way of granting regulatory or rulemaking authority, 166 defining terms within, 168 how to read, 164-167 impact of judicial gloss on, 167 purpose provisions of, 166 reading plain language of, 164-165, 167-171 researching to find, 163-164 Statutory interpretation, generally, 161-180 Statutory language, as part of research questions, 45-46 Strict scrutiny, as government action standard of review, 34 String citations, how to avoid, 154-156 Structure, see organization Succinctness, as crucial in case descriptions, 126-134 Summary judgment, motion for, motion standard for, 27-28 Summary docket, 15 Summary of the argument, appellate briefs, format requirements for, 192 Sun and the wind, fable of, relevance to persuasive writing, 10 Superego, as interfering with writing, 84 Syllogisms, in statement of the case, 223-225 Trial court, as allowed to apply motion standard and government action standard of review, 33-34 Twombly, Bell Atlantic v., as foundational case for motion standards, 26-27 Typeface as aspect of document design, 296 court rules and, 184 Typographical errors, importance of avoiding, 7

Rational basis, as government action standard of review, 34 Reader-friendliness, as goal of document, 250-273 Readers, Schemas, 223-229 Scrabble, as metaphor for persuasive opportunities, 275-276 Search terms, foundational, in research, 63-64 Self-editing, difficulties of, 3 Semi-colon, as opportunity for persuasion, 292-293 Sentence structure

as opportunity for persuasion, generally, 284-290 citations and, 152-154 independent clauses as opportunity for persuasion, 288-289 statutory arguments related to, 168-171

Sentences, short, as opportunity for persuasion, 289-290 Serendipity, in research, benefits of, 176-177 “Shitty first drafts,” 88 Signature, format requirements for

appellate briefs, 193-194 motion briefs, 202-203 Significance, legal, as crucial to use of abstraction ladder, 49-50 Six Degrees of Kevin Bacon, relevance to legal writing, 251-254 Skidmore test, use in regulatory statutory interpretation arguments, 173-174 (footnote) Skipping, as action readers take when writing is not helpful, 2 Social perspective theory, 250 Source, distinction between authority and, 148-151 Sources, see authority Speaking style, oral argument, 334-336 Standard of review appellate, 16-24 appellate briefs, format requirements for, 191-192 as important to consider when creating abstract of the record, 40 Table of authorities, appellate briefs, format requirements for, 188-189 Table of contents, appellate briefs, format requirements for, 188 Tables, design of, 300-302 Teams, special, as metaphor for brief elements, 208 Tell, as way to address possible legal issue, 114-115 Template, use in legal writing, generally, 254-269 Tense, verb, see verb tense Term and connector research, 60 Text, emphatic, 296-300 Textualism, 161, 163 Thaler, Richard, 90 Theme identifying, 50-51 relevance of policy to, 50-51 use in oral argument, 325 (box) Theory, writing, generally 7-8 Thinking draft, value of, 7-8 Topic sentences as part of template, 255-259 formula for, 258

Umbrella, as location for articulating and connecting motion standard, 30-31 Under-does-when, as structure for research questions, 43-46 use in issue statements, 210-213 Underlining for emphasis, 296-300 Understanding, ease of, importance, 6 Unit of discourse, defined, 94 Unpublished decisions, see decisions, nonprecedential Upper-case type, 296-300 User-friendliness, revision for, 250-273 Users as different from readers, 2 importance of meeting expectations of, 8 point headings and, 244-245 Users and readers, needs of, generally, 249

Verb tense in case descriptions, 130 Verb use, as opportunity for persuasion, 285-288

Whether structure, use in issue statements, 210-213 Wind and the sun, fable of, relevance to persuasive writing, 10 Word choice

as opportunity for persuasion, 290-291 in oral argument, 333-334 Working draft, value of, 7-8 Writ of certiorari, as part of appellate process, 3 Writer’s block, how to avoid, 84-90 Writing and writer’s block, generally, 84-89 as like marriage, 70 avoiding mechanical problems in, importance of, 6-7 distraction as interfering with, 89 moot court competitions and, 343-347 organization of, 73-84 rules as focus of organization of, 73-77 using phrases-that-pay to organize, 74-77 working outlines and, generally, 73-84 Writing process overview of, for brief-writing, 6-8 role of oral argument in, 10 Writing theory, generally, 7-8