Introduction to Advocacy
CLASS 1: Chapters 1 and 11:
v Two papers for the semester = Motion Brief and Appellate brief.
v The process of writing for lawyers.
1. Office memo
v Differences btw Office memo and Briefs:
§ Office memos are written to analyze problems objectively and give the audience an accurate prediction of the likely outcome.
§ Briefs are written to persuade the court to rule in favor of the court.
§ Office memos are written for other members of the law office.
§ Briefs are written for judges and/or law clerks, and opposing counsel.
§ Office memos have question presented, brief answers, statement of facts, discussion, conclusion.
§ Briefs have more parts than a memo and they typically include Table of contents, Table of authorities, Statement of Jurisdiction, e.t.c.
4. Adverse authority (Cases that go against your position):
§ Office memos – discuss adverse authority and their possible impact on the outcome of the case.
§ Briefs – Determine whether you must or should adverse authority. If disclosed, explain why your client should still prevail.
· Lawyers must disclose when the opposing counsel or judge does not know of this adverse authority.
· If this is disclosed, explain why your client should still prevail.
· Techniques to reduce the effect of adverse authority:
o Distinguish the facts.
o Discredit the authority – show that there is trend of not following the authority.
o Critiquing the reasoning upon which the decision was made – this should only be done with EXTREME tact.
5. Adverse facts (Facts that go against your position):
§ Office memos – Discuss ALL relevant facts and explain how they will affect the likely outcome of the case.
§ Briefs – Discuss ALL relevant facts (including adverse facts) but attempt to neutralize the adverse facts and emphasize the favorable facts.
v Important notes:
1. Research, Research, Research.
2. Follow the rules of the court.
3. Write clearly and in an organized way. Remember that the audience is very busy.
v Large scale organization:
1. Leading with your strongest argument.
v Small scale organization:
1. Place info where the audience is most likely to see it.
2. Use topic sentences to grab attention.
Intro to Persuasive writing continued; Overview of Civil Litigation; Citation and Research review – Chapter 3.
v The order of documents that are filed for suits
§ Statement of the basis of jurisdiction.
§ Short and Plain statement of the basis for the claim.
§ Demand for relief.
§ Response to allegations in the complaint.
§ Third party claims
3. Discovery: The process of gathering the facts related to the case. The “discovered” info is exposed to all the parties involved.
§ Depositions – Formal interviews done in person
§ Request for documents – Parties ask for documents
§ Interrogatories – Interviews that are done in writing.
v Pre-trail Motion:
§ This is a request to the court that it take some action.
§ Motions can dispose of a matter such as motion for summary judgment, or be related only to certain parts of the case such as a motion to exclude certain interview.
§ These motions can occur anywhere during the trial.
5. Appeal: The party who does not like the outcome of the trial can appeal.
Overview of Transfer of Venue memo assignment:
Writing the pretrial memo: Intro and format
Reading – Shapo Chapter 16 & 17
HW: Transfer of Venue memo and Venue memo research assignment
Federal courts have jurisdiction over:
1. Diversity cases: Parties have to be from different states, and the matter has to exceed a certain amount.
2. Subject matter jurisdiction such as Copyright cases.
3. Personal jurisdiction has to exist
4. Venue requirement: If a particular district court has both subject matter jurisdiction and personal jurisdiction, it still depends on whether venue is proper.
a. This is generally governed by federal statute
i. This includes the events that are involved in the case.
b. Sometimes it is true that the case can be brought in multiple venues.
For Assignment – PAGE LIMIT IS 6 PAGES:
v Assume venue, personal, and subject matter jurisdictions are proper in the first court. The defendant wants the case to be transferred to another court in a different district.
ents: Compl. ¶ 5; Stone Aff. ¶ 8.
o If a fact occurs in more than one source, you need to only cite one source, but it should be strategically done to help your argument.
o For facts that the opposing side says that you need to discuss, use this “Plaintiff claims/alleges that……”
§ This is the most important part of the document.
§ This is the section where we include why our client should prevail.
§ The first part of this section is the THESIS PARAGRAPH. The Format of this paragraph:
· Topic sentence stating overall conclusion you want the court to draw
· List of factors courts consider in interpreting statute
· Brief Summary of arguments (why the court should grant or deny the motion).
§ The next parts are a series of paragraphs developing your arguments using CREXAC:
· C = Conclusions.
· R = Rule.
· EX = Explanation of the rule – how the rule was applied in previous cases.
· A = Application – how the rule should be applied in this case.
o Counter arguments are addressed after my application.
· C – Connection-Conclusion: Final conclusion with a connection for the conclusion.
§ DO NOT ORGANIZE THE ARGUMENTS AROUND THE CASES!!!!
· Organize the arguments around the FACTORS.
§ Use only your strongest arguments.
§ In addition to making arguments to support your claims, we must address the other side.
· Do NOT emphasize the counter-argument: “Defendant will likely argue that …….”
o BAD = “Defendant might argue that transfer is warranted because of the location of documents.”
o GOOD = “Transfer is not warranted because of the location of documents.”
§ Very short
§ 1 sentence long
This is to remind the court of the relief that we are seeking.