4.4 SUMMARY

You will be able to draft your argument much more effectively if you take the time to create a working outline for the argument. Use legal rules and their phrases-that-pay, policy-based rules, and other assertions to help you recognize the points that you want to make in your argument.

Chapter Four Review

1. One way to structure your argument is to identify the controversial phrases-that-pay in the rules you have identified, and address each controversial phrase-that-pays separately.

2. Another way to structure your argument is to identify the points that the court has to agree with in order to decide in your favor, working backwards from “The court has to agree to reverse [or affirm, or grant or deny the motion]. To reverse, it has to agree with Q. To agree with Q, it has to agree...”

3. Take time to consider policy arguments that might make the court more likely to decide in your favor. These arguments may or may not be tied directly to your other points.

4. Create a working outline that reflects the relationships between and among the points you have identified. 5. To fight procrastination demons: a. identify an early interim deadline and set up rewards or punishments to motivate you, perhaps by identifying what fears are most relevant to your procrastination. b. let yourself write a “shitty first draft.” c. include private memo notes to remind yourself or your teacher or supervisor of particular concerns you have. d. keep writing.

¹Wilson Huhn, The Five Types of Legal Argument 13 (2d ed., Carolina Academic Press 2008).

² See, e.g., Linda H. Edwards, Legal Writing: Process, Analysis, and Organization chs. 2-6 (5th ed., Wolters Kluwer 2010); Richard K. Neumann, Jr. & Kristen Konrad Tiscione, Legal Reasoning and Legal Writing ch. 2 (7th ed., Wolters Kluwer 2013).

³ See Chapter Five for guidance on using inductive reasoning to find rules. ⁴See, e.g., Laurel Currie Oates & Anne M. Enquist, The Legal Writing Handbook §§ 22.3.2 (5th ed., Wolters Kluwer 2010). ⁵ Note that you should not necessarily articulate your rule as an if-then statement in the argument itself; this technique is merely a method for identifying the phrases-that-pay. ⁶Of course, you may decide that courts should be analyzing issues that they have not analyzed in the past. See Section 5.1.2(c), “Using Inductive Reasoning to Find and Articulate Legal Rules.” ⁷E.g., Eckerberg v. Inter-State Studio & Publ’g Co., 860 F.3d 1079, 1085 (8th Cir. 2017). ⁸Section 4.1.3 will help you to identify policy-based rules. ⁹Cases listed are fictional.

¹⁰See, e.g., Elizabeth Fajans & Mary R. Falk, Comments Worth Making: Supervising Scholarly Writing in Law School, 46 J. Legal Educ. 342 (1996).

¹¹ See generally Ellie Margolis, Closing the Floodgates: Making Persuasive Policy Arguments in Appellate Briefs, 62 Mont. L. Rev. 59, 70 (2001). ¹²Id. at 66. ¹³For example, if you are arguing that traffic stops are dangerous for police officers, you might cite to statistical information about how frequently police officers are injured in the course of conducting traffic stops. ¹⁴See Chapter Five for a discussion of how to decide when to provide a complete analysis of an issue versus when to provide something less complete. ¹⁵See Mary Barnard Ray & Jill J.

¹⁷The case was Fish v. Kobach; one online commentary can be found here: http://the-law-firm.org/kris-kobachcourt-filing-mistakenly-leaves-in-probably-not-worth-arguing-note/.

¹⁸ Although this section of the text talks about avoiding procrastination, I recommend procrastinating just a little bit so that you can take the time to read this excellent article: David A. Rasch & Meehan Rasch, Overcoming Writer’s Block and Procrastination for Attorneys, Law Students, and Law Professors, 43 N.M. L. Rev. 193 (2013).

¹⁹ Dan Ariely, Predictably Irrational 183 et seq. (1 Exp. Rev. Ed., Harper Perennial 2010). See pp. 139-66 for discussion of procrastination specifically. ²⁰E.g., Rasch & Rasch, supra note 18, at 199, 207-08. ²¹Carol S. Dweck, Mindset: The New Psychology of Success 11 (Ballantine Bks. 2006) (defining a fixed mindset) (cited in Carrie Sperling & Susan Shapcott, Fixing Students’ Fixed Mindsets: Paving the Way for Meaningful Assessment, 18 Legal Writing: J. Legal Writing Inst. 39, 45 (2012)). To learn more about mindset, see Carol Dweck, Mindset, http://mindsetonline.com/ (last visited June 18, 2018). ²²See Rasch & Rasch, supra note 18, at 220, 237. Although Rasch and Rasch do not discuss mindset, they note that “[o]thers’ perceptive minds offer a storehouse of information, and you can benefit from knowing what they think is good, or not so good, about your work.... You will be more willing and less threatened to hear tough but true words about your legal writing if you believe those words will help you write better.” Id. at 237. ²³Anne Lamott, Bird by Bird: Some Instructions on Writing and Life 22 (Anchor 1995). ²⁴Rasch & Rasch, supra note 18, at 200. ²⁵Id. at 230. ²⁶E.g., id. ²⁷Cass R. Sunstein & Richard J. Thaler, Nudge: Improving Decisions About Health, Wealth, and Happiness 46 (Yale Univ. Press, 2008). ²⁸See id. at 232 (discussing the use of “commitment contracts” on Stickk.com).