The art of great lawyers

Charles Mwaura Kamau

The Art of Great Lawyers

The Art of Great Lawyers By Charles Mwaura Kamau LLB (Hons), LLM (Law & Corporate Governance)

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Charles Mwaura Kamau

The Art of Great Lawyers

“The gem cannot be polished without friction, nor man perfected without trials.” ~ Chinese Proverb

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Charles Mwaura Kamau

Copyright

All Rights reserved

The Art of Great Lawyers

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Charles Mwaura Kamau

The Art of Great Lawyers

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More Books by the author:

1. Foundations of Kenya's Company Law with Cases and Materials. http://www.amazon.com/dp/B00G1HHQ6W

2. Basic Principles of Criminal Litigation in Kenya (The Quick Law Series) http://www.amazon.com/dp/B00G1IB6PI

3. Wisdom of Ages: A survival guide to wealth, peace & happiness http://www.amazon.com/dp/B00GJ8HFCS

4. CHINA: Understanding the Country and it’s People http://www.amazon.com/dp/B00GR9GXOA

5. The Unbroken Spirit- A Story of the Enduring African Spirit, Libra Publishers 2013 (Celebrating Kenyan Golden Jubilee)

6. Principles of Kenyan Constitutional Law, (forthcoming, LawAfrica Publishers)

NOTE Look Out for the forthcoming ‘The Quick Law Series’ covering a wide range of law modules.

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Dedication

This book is dedicated to all those who have made or are aspiring to make the pursuit of Justice, Equality, Fairness and Freedom their vision and mission in life.

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INTRODUCTION “So you want to be a lawyer? It’s easy. Here’s a problem. Go out and do the research.

Then come up with some arguments. Then write them down in a brief. And argue them” Dear Reader The fundamental lawyering skills are: problem solving, legal analysis, legal research, factual investigation, communication, counselling, negotiation, litigation and alternative disputeresolution procedures, organization and management of legal work, and recognizing and resolving ethical dilemmas. These are the skills and competencies that make great lawyers.

Learn this well and you are ready to become a capable lawyer. A law degree or reading of law books has very little to do with lawyering. As a matter of fact most law books are meant to be consulted not read. Comprehend the blueprint and the entire edifice becomes a child’s play. The book summarises in clear and simple language, the principles of great lawyering.

This book is meant to give you a roadmap to developing these skills of top lawyers. The book is designed to help law students; law students can use this book independently to learn legal skills. It is written in such a way that students can progressively build their reasoning, researching and analytical skills. It is further intended as a text for legal methods and legal writing courses. The section on how to tackle problem and essay problems is section specifically written for the students.

For the student, I have this to say: The first step in mastering law is to become a dynamic learner. And this book will help you to develop as a dynamic learner. A dynamic learner does not settle for the first answer, but always considers alternatives. A dynamic learner recognises when a skill is needed and has the willingness to apply it. It is hoped that with this book on your side, as you pursue your dream of becoming a great lawyer, you will avoid

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becoming a lawyer in the sense that you have a law degree. You will be a lawyer in the sense that you will be ready to be a provider of services.

The book is also written with new advocates, law lecturers and the general public in mind.

For the new advocate who want to improve their legal reasoning, advocacy skills and analytical skills, the book is indispensable, most of its ideas might seem obvious, but that may be the very reason you need the book, because the ideas are obvious, your professors might have taken them for grated and thus neglected to impress upon you minds that, this skills are what make great lawyers. As for the law professors, I hope you will use the book as a supplement to your core texts on the introductory modules of law. The book also contains a comprehensive bibliography that can be used as a catapult to further research.

As for the general public, if you have ever been fascinated with the mysterious workings of the monolith that controls most of our lives from the womb to the tomb (in other words the law); this book will clear a few things on how the law and lawyers work. If you have ever been spellbound by the sleights of hands performed by the great lawyers on our television screens, then this book will let you in on some of those tricks. Above all, if you are ever in a legal fix and you do not have the money to pay the services of a great lawyer, ‘actively’ reading this book and concertedly applying its principles in your case will go a long way in tilting the scales of justice on your side.

There is a chapter on Logic, logic being the lifeblood of law. In case after case, prosecutors, defence counsel, civil attorneys and judges call upon the rules of logic to structure their arguments. Thinking like a lawyer means employing logic to construct arguments. This chapter offers a primer on the fundamentals of logical thinking. It endeavours to explain, in broad strokes, the core principles of logic. The reasoning being that; a person familiar with the basics of logical thinking is more likely to argue effectively than one who is not.

The chapter on legal research: Legal research instructors seldom have adequate class time to teach students the print and online sources needed to complete a research task successfully. The chapter on research will offer research tips that will improve one’s legal research. Everyone in the legal profession—law students doing research for a paper or as a faculty research assistant, summer associates and new attorneys doing research for more

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senior attorneys, and law professors and seasoned attorneys researching for themselves— can benefit from the ideas covered in this chapter.

The chapter on legal writing: The chapter has two main purposes. The first is to explain how lawyers construct legal arguments. In this regard, the chapter is meant to be a purely practical guide to the seemingly mysterious process by which lawyers take the raw materials of litigation — cases, statutes, testimony, documents, common sense — and mould them into instruments of persuasive advocacy. The chapter’s second purpose is to explain how to take a well-constructed legal argument and present it, in writing, in a way that legal decision makers will find persuasive. The chapter, in other words, is concerned with how to (1) build, and (2) present winning legal arguments.

Like any legal writing, good drafting requires knowing the law and the substance first, followed by clear organization and by writing appropriate to the audience. It also requires an artist's touch, to ensure that the design of the contract document will aid in its usability and clarity. Finally, good drafting requires critical evaluation, reading the document through the eyes of bad faith or hostile readers, and periodic review to assure that the document continues to meet the parties’ needs.

The chapter on advocacy offers guidance on making opening and closing speeches; planning and delivering examination-in-chief and cross-examination; questioning witnesses. Oral advocacy chapter: oral advocacy remains a critical skill for law students to learn and cultivate, no matter which facet of law practice they enter upon graduation. This chapter is targeted at oral argument novices. It discusses how a beginner to appellate oral argument may effectively prepare and deliver an argument. It offers a comprehensive set of instructions that will help you become an adept advocate. Only those advocates who are well-prepared are capable of delivering an effective oral argument that functions as an educational dialogue between attorney and bench.

The chapter on alternative dispute Resolution is written with the following entreaty of United States Supreme Court Chief Justice Warren Burger in mind: “The entire legal profession — lawyers, judges, law teachers — has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers — healers of

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conflicts. Doctors, in spite of astronomical medical costs, still retain a high degree of public confidence because they are perceived as healers. Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?”

No claim to originality is made. Most ideas contained in this book have been expressed elsewhere (for example, consult bibliography) and have been practised by great lawyers since the dawn of time. The author’s value addition has been to do the grunt work and collate some of these timeless and exclusive ideas under one roof.

As you engage with the ideas postulated in this book in the road to becoming a healer, remember that it takes time to develop expertise in legal problem-solving, legal drafting, legal advocacy and legal research. The skills can be developed only by actually working through the process of practice. Developing expertise requires repetitions of ‘training’ as against the hard world of consequences, of repeated success and failure, and some inductive efforts at understanding what works and what does not, what seems important and what does not.

Good luck.

Charles Mwaura Kamau (Advocate High Court of Kenya and Lecturer in Law, based in London UK)

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Table of Contents The Art of Great Lawyers ........................................................................................................... 1 INTRODUCTION ...................................................................................................................... 7 LEGAL DRAFTING.................................................................................................................. 15 Initial Stages ..................................................................................................................... 15 Writing the brief............................................................................................................... 18 Contents of A brief ........................................................................................................... 19 Reply briefs ...................................................................................................................... 23 Addendum........................................................................................................................ 24 LEGAL OPINIONS .................................................................................................................. 26 The formula of a legal opinion ......................................................................................... 26 Majority, Concurring & Dissenting Opinions ................................................................... 29 The case method .............................................................................................................. 33 Published Opinions .......................................................................................................... 34 Opinion Writing Guidelines.............................................................................................. 35 IRAC & CRARC .................................................................................................................. 37 DRAFTING GOOD CONTRACTS ............................................................................................. 45 Determine the substance of the contract. ...................................................................... 45 Analyse the audience ....................................................................................................... 48 Draft the contract ............................................................................................................ 54 Design the Document ...................................................................................................... 57 Evaluate the document .................................................................................................... 57 LOGIC FOR LAWYERS............................................................................................................ 60 Deductive Reasoning ....................................................................................................... 60 Inductive Reasoning: Generalisations.............................................................................. 64 Analogy ............................................................................................................................ 66

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ADVOCACY ........................................................................................................................... 69 Preparation ...................................................................................................................... 69 Identifying a Theme ......................................................................................................... 72 Preparing Your Argument ................................................................................................ 77 Using technology in courtroom ....................................................................................... 88 Golden Rules for the Examination of Witnesses ............................................................. 89 Presenting Evidence ......................................................................................................... 96 LEGAL RESEARCH ................................................................................................................. 98 Understanding research assignment ............................................................................... 98 Core principles of legal research.................................................................................... 101 Library catalogues .......................................................................................................... 102 Practical tips ................................................................................................................... 104 Free online legal databases: .......................................................................................... 106 ALTERNATIVE DISPUTE RESOLUTION ................................................................................. 109 Arbitration ...................................................................................................................... 109 International Law Governing Arbitral Agreements ....................................................... 114 Constructing the Arbitration Clause .............................................................................. 114 Mediation ....................................................................................................................... 117 Negotiation .................................................................................................................... 120 Conflict Resolution ......................................................................................................... 121 Priming-legal negotiation............................................................................................... 123 The art of negotiation .................................................................................................... 124 PROFESSIONALISM AND INTEGRITY .................................................................................. 129 EXAMINATIONS .................................................................................................................. 136 Essays ............................................................................................................................. 136 Referencing and avoiding plagiarism ............................................................................. 141

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Problem questions ......................................................................................................... 144 Back to basics: Grammar ............................................................................................... 147 Keys to clear legal writing .............................................................................................. 163 BIBLIOGRAPHY ................................................................................................................... 167

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LEGAL DRAFTING “(the) test of good writing is whether you can convey to your readers exactly what you intend to convey�. The Complete Plain Words by Sir Ernest Gowers The goal of this chapter is to share some practical tips for improving your brief writing.

Many of these tips will seem obvious. Yet it is surprising how often lawyers overlook them.

Please note there is no one right way to write a brief, however, there are some general themes of line, form, and colour that characterize a well-executed brief, even though much must be left to the style and imagination of the craftsman.

As drafters, lawyers not only litigate, but they also seek to avoid litigation. In litigation practice, they draft pleadings, Motions, interrogatories, jury instructions, settlement agreements, and orders, among other documents. In practice that seeks to avoid litigation, they draft contracts, public and private legislation, wills, trusts, and other documents. Here we shall concentrate on briefs, opinions and contracts.

In the course of reading this chapter, you should always keep it in mind that, Legal argument and legal writing are inseparable. You should also remember that, the underlying purpose of all legal writing is communication and persuasion.

Initial Stages Preparing to write a brief: A brief is a legal document prepared by a party to the Court. It contains information on the facts of the case, the legal issues to be decided, the law the Court ought to apply, and the decision the party desires the Court to reach.

The goal of a brief is to convince the Court that one's position is correct, logical and reasonable. To be compelling, a brief must also be understandable and concise. The Court will read many briefs throughout the session, so it is important to write in a clear and interesting manner.

Read and digest your instructions

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Be careful of forming strong views at the initial stage, or you may prejudice the depth and width of your analysis at the later stages. In reading instructions the point is to avoid labelling the case, for example; ‘breach of contract’ or ‘negligence’, too early. At the initial reading your goal is to absorb as much of the factual background as possible.

At this stage your mind should be asking questions about what has happened. Concentrate on the client’s central problem, rather than starting to take decision.

Clarify your client’s objectives The instructions will never ask you to write all you know that is vaguely legally relevant, but will set you specific tasks, which are normally set out at the start or the end of the instructions.

Having understood the instructions, you need to clarify your objectives. Write the instructions down and send it to the client, ask that he confirms you understood his instructions. Now it is time to construct your opinion on the matter.

Analyse the facts Before you form views on the appropriate legal solution you will need to carry out a thorough fact management exercise. The legal argument must be based on the facts, not twisted to fit your preconceived legal theory.

Having analysed the basic facts, three further stages of factual analysis are important in preparing to write an opinion, because they are all closely related to exercising your judgement on the chances of the case succeeding. (a) Identify any gaps in the facts.

Almost certainly your instructions will not give you all the facts, as it would be very expensive and time consuming for instructing clients or your boss to collect everything before sending a case to you. Your opinion will have to be based on the facts that are available. Gaps in the facts are important first because they may prove a weakness in

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developing a legal case, and secondly because in your opinion you will need to indicate to instructing solicitors what extra information should be sought. (b) Identify which facts are probably agreed, and which are probably in dispute.

The point is that a case can be most firmly founded on facts that are agreed. Where facts are in dispute, your case is open to challenge and is less strong. Again this will be directly relevant to exercising your judgement on the case. (c) Identify which facts you have evidence of This is especially important in relation to facts in issue—if you have a fact in issue on which you have little or no evidence your case is very weak. Again this will be important when you come to exercise your judgement. Also, your opinion should indicate to instructing clients where evidence is required. (d) Identify which facts you need evidence for Where there are facts which are disputable and you have no evidence, one way or the other, you need to carry some detective work and gather the evidence.

Construct a legal framework Once the facts are fully analysed it is safe to start analysing the legal issues. This is where the professional ability of the barrister begins to come into play, deciding what legal possibilities there are, and which is strongest. The first step is to identify the possible causes of action.

If they are many causes of action it is important to consider them separately.

Carry out any necessary research From the analysis you have done so far you have identified several matters that require research. Now is the time to carry out that research, a more focused way: remember, you are looking for answers to questions that you have identified, not researching the law for its own sake.

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Look at the case as a whole You are now in a position to pull everything together and allow the case to take shape.

You will start to create a skeleton plan for your opinion. You will inevitably start forming a view on the case as a whole, and on each issue. You probably have a fairly clear idea by now what your opinion is going to be, both overall and on the major issues. You therefore know what matters are most important and which matters will be subsidiary.

You must consider liability first, then damage.

Answer all the questions You have now put the whole case together and it has shape. In all probability you know by now what your opinion on each issue is going to be, but it’s worth going through and checking that you do have an answer to every issue you have raised and intend to discuss.

Of course, it may be a conclusion of uncertainty, where you use your judgment to express an opinion, in which case you need to think how you will express that opinion to give a clear indication of how strong you think the case is on that point.

Consider your advice Obviously your advice is to a considerable extent wrapped up in the answers you have given to the questions.

But do not forget evidence, further information required, procedural matters, and steps to take. Advice on these matters should also be incorporated into your opinion. It might be worth compiling a list of all the points of advice you intend to give under this heading, to ensure that nothing important gets left out.

Writing the brief

Draw up a skeleton plan

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Before writing your opinion, you should draw up a skeleton plan. It is a false economy to start by going straight into writing an opinion without drawing up a skeleton, as you will often find that you miss something out or get confused and have to start again. You should never have to waste time writing an opinion out twice. The properly planned opinion will be right on first attempt. However, this does not preclude the necessity of editing.

The broad structure of your opinion, and therefore your skeleton, should by now be clear to you. However, the value of a skeleton plan is that it tells you not just what you are going to write about, but what you are actually going to say. In other words, it contains your conclusions and opinions within the structure of issues.

The skeleton should present your case in logical, persuasive fashion. Break your analysis into parts. Readability is enhanced by headings and subheadings that tell a logical story. Use your plan to make topic headings for each major point in your brief.

Remember: There is no correct way to create a skeleton plan. Use whichever method suits you.

Contents of A brief Briefs must contain the following elements: 1. Title Page: The title of the case shows who is opposing whom. The name of the person who initiated legal action in that particular court will always appear first.

2. Table of Contents: Because the Argument is the most complex part of the brief, the headings and subheadings used within the argument section should also be listed in the contents with the corresponding page number.

3. Table of Authorities: This list not only verifies the sources used by the attorney, but is useful for the Court and for other attorneys to quickly determine what cases, statutes or other materials are being cited, and to easily locate these references in the original research materials used in preparing the case.

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4. Statement of the Issues: This is a very short introductory statement of the legal issues or points of law involved in the case. It tells the Justices precisely what legal issues the attorney team wants the Court to decide. These statements should be phrased to help one argue ’for’ a particular conclusion rather than simply against the other side.

NOTE

When noting issues, it may help to phrase them in terms of questions that can be answered with a precise ‘yes’ or ‘no’.

There is no substitute for taking the time to carefully frame the questions. The questions must actually incorporate the key provisions of the law in terms capable of being given precise answers. It may also help to label the issues, for example, ‘procedural issues,’ ‘substantive issues,’ ‘evidentiary matters’ and so on.

5. Statement of the Facts: The Statement of the Facts is a retelling of the facts from your client’s point of view.

Lawyers explain the situation in a way that helps their client. This is a very important part of the brief that sets the stage for the argument, and should be presented both to help the court understand the case and show your client in the best possible light. But, remember not to assume facts not given, and do not distort, change, or add to the facts.

The Statement of Facts is for telling the court what the case is about. The Statement of Facts should never be argumentative in tone. The argument portion of the brief is for contention about the significance of those facts. Nothing impairs a brief writer’s credibility more than an emotional, sarcastic, plaintive, or visibly one-sided Statement of Facts.

In appellant briefs, you should be especially careful how you refer to the court or administrative tribunal below. If you are the appellant or the petitioner, you are, of course, asking the appellate court to reverse the lower court’s decision and the appellate court knows that already. It knows you disagree with the outcome thus far. It will reverse in an appropriate case. But its initial inclination, almost always, will be sympathetic to the fellow

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judge who had to sit through the trial or to the tribunal that had to sift through the entire record now being selectively quoted on appeal.

Criticism of the lower tribunal therefore should be stated carefully and objectively.

Remember: The statements of fact section of a good student brief will include the following elements:

a) A one-sentence description of the nature of the case, to serve as an introduction. b)A statement of the relevant law, with quotation marks or underlining to draw attention to the key words or phrases that are in dispute.

c)A summary of the complaint (in a civil case) or the indictment (in a criminal case) plus relevant evidence and arguments presented in court to explain who did what to whom and why the case was thought to involve illegal conduct. d) A summary of actions taken by the lower courts, for example: defendant convicted; conviction upheld by appellate court e) Argument: This is the core of the brief. Students may find the argument to be somewhat like writing a persuasive essay with lots of research references. It presents support for the issues presented earlier. Solid research is used to back every part of the argument.

Arguments must be well-organized and convincing; lawyers will win or lose their case based on the quality and substance of what is said.

Each point the team wants the court to consider in deciding the case must be described, and the reasons explained with appropriate references to research materials used, and text citations inserted as frequently as needed. Make sure to follow the citation format applicable in your jurisdiction.

Structurally, each part of the argument ought to be first directed at supporting the various issues of one's own case, then also opposing the contentions anticipated to be brought up by the opposing party.

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Stylistically, the argument ought to be written in forceful, active and positive language.

NOTE In appellant courts ‘staying within the rules’ is very important. The rules are the first thing you must consider before writing your brief. Familiarise yourself with the rules of the court in your jurisdiction. Follow to the letter matters such as, length, formatting and binding of the brief.

When a court does have rules governing the format of a brief, obey them to the letter.

Remember: There are two primary determinants of the quality of the argument section of a brief: (1) the quality of the arguments available and (2) the analytical and writing skills of the lawyers involved.

Editing Ideally, editing is something that should be done on paper, not on a computer. Print the brief out and read it (preferably aloud), with a sharp red pencil.

Guidelines 1) First focus on the organization, the flow of the brief as a whole. Have you developed your arguments first -- that is, demonstrated why you should win as opposed to what’s wrong with the other side’s argument.

Check out the following a) the paragraphs, themes, and thoughts must flow from one to next b) your thoughts must be in sequence and your transition clear c) your central point ought to emerge clearly and quickly

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d) your logic must be explicit and sound e) Whether you have considered and anticipated to the best of your ability the counter arguments or alternatives to your arguments and framed your arguments in the light of them f) your tone must be appropriate g) Check that your paragraphs are not too long. The general rule is one thought or theme to a single paragraph. h) Eliminate rhetoric, hyperbole, and overstatement. Avoid metaphors and hypotheticals. Be careful that any quotations are correct. i) Get rid of adjectives and adverbs. Get rid of legal jargon. Get rid of redundant words. Get rid of any overstatement. Do not overwrite. Use the simplest word, not the fanciest word.

Get rid of tired clichĂŠs. j) Remember you are trying to persuade, not show how smart you are. Make it simple enough that a lay person would understand. k) Set the brief aside for a while. Then edit again. That way the writing will seem fresher in your mind and not as familiar. You will catch things you missed as you were reading the brief over before.

Reply briefs The reply brief must be (relatively) short, (relatively) punchy, and selective.

To be effective, the reply brief must identify from the start one or more overall themes in the argument or arguments with the best chance of winning and explain to the court where the appellee’s brief, which it just read, went fundamentally astray.

The function of a reply brief is to respond to an adversary’s arguments. The court can look back to your opening brief as a reminder of the overall structure of your argument and to answer nagging questions. It is therefore usually unnecessary to retrace all the steps of your

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logic in the reply brief, and it is far more acceptable in a reply than in an opening brief to concentrate on sharply focused (but polite) debate.

Addendum Never forget the importance of organization. It is vital to organize, not only the writing, but also the theory of the case.

Do not quote snippets from one precedent after another without fitting those precedents into an overall pattern.

Explain the client’s position in a way that makes sense from a policy (or common sense) perspective. Judges are concerned about both the institutional and the real-world consequences of the rules they adopt.

Heated rhetoric and overstatement are harmful. Perhaps the most common flaw in appellate briefs is writing in emphatic, unequivocal, and conclusory terms. Such briefs, overconfident, even cocky, in tone and uninformative in content, are likely to obscure what the judges must really decide and what analytical steps are needed to reach a sound decision — especially if the weakness in the argument has been glossed over in an effort to make the position seem stronger than it is.

Do not include false statements in your brief. It is stupid to lie to the court because it will sooner or later destroy your career. Just about the only function that you, the lawyer, servefrom the perspective of a busy judge with many controversies to resolve – is to be a conduit of useful and accurate information. Your function is to pull together the facts, apply them to the law, and explain your analysis to the judge in a helpful way.

Don’t brief the case until you have read it through at least once. Don’t think that because you have found the judge’s best purple prose you have necessarily extracted the essence of the decision. Look for unarticulated premises, logical fallacies, manipulation of the factual record, or distortions of precedent. Then ask, how does this case relate to other cases in the same general area of law? What does it show about judicial policymaking? Does the result violate your sense of justice or fairness? How might it have been better decided?

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Do not expect your judges to know your subject. Some education is inevitably necessary, and you need to start doing so at the start of your brief. Group your common themes together.

Tell your reader at the beginning of the brief where you are going and how you will get there. Provide a roadmap to the reader in advance, through an introduction or opening paragraphs.

Use transition to let the reader know you are moving to a new point.

The brief should march across the page. It won’t unless your transitions are clear. Topic sentence at the start of each paragraph should provide both transition and mapping. (A topic sentence is a sentence that sets out the meaning or main idea of the paragraph).

Headings and sub-headings do so as well. Your headings should be “argumentative” and explanatory.

Know the order of your authority. If your point on appeal rests on a statute, quote the statute first, and put a copy of the statute in your appendix or attached to your brief. That is what governs. Case law merely provides construction of the language of the statute.

When discussing case law, analyse it. Don’t just string-cite cases or regurgitate what an opinion says. Explain why the cases you rely on should control the case rather than the cases your opponent (or the lower court) cites.

Use your best three cases. If you cannot prevail on your best three cases having other cases won’t do you any good.

Formal conclusions are not worth the trouble. Start at the beginning; go to the end, and then stop.

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LEGAL OPINIONS This explains what judicial opinions are, how they are structured, and what law students and lawyers should look for when reading them.

When two people disagree and that disagreement leads to a lawsuit, the lawsuit will sometimes end with a ruling by a judge in favour of one side. The judge will explain the ruling in a written document referred to as an ‘opinion.’ The opinion explains what the case is about, discusses the relevant legal principles, and then applies the law to the facts to reach a ruling in favour of one side and against the other.

The formula of a legal opinion Heading The first part of the case is the title of the case. The title usually tells you the last names of the person who brought the lawsuit and the person who is being sued. These two sides are often referred to as the ‘parties’ or as the ‘litigants’ in the case. For example: Doe vs. Green.

As the case moves up the ladder the names are inversed. Thus for example if Doe appealed to the court of appeal the case would be titled as Green vs. Doe. In criminal law, cases are brought by the Public Prosecutor on behalf of the people.

Therefore the Republic becomes a party to the case; hence a case is titled as R vs. (name of party being prosecuted) Types of Disputes There are two basic kinds of legal disputes: civil and criminal. In a civil case, one person files a lawsuit against another asking the court to order the other side to pay him money or to do or stop doing something. An award of money is called ‘damages’ and an order to do something or to refrain from doing something is called an ‘injunction.’

The person bringing the lawsuit is known as the ‘plaintiff’ and the person sued is called the ‘defendant’.

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In criminal cases, there is no plaintiff and no lawsuit. The role of a plaintiff is occupied by a government prosecutor. Instead of filing a lawsuit (or equivalently, ‘suing’ someone), the prosecutor files criminal ‘charges’. Instead of asking for damages or an injunction, the prosecutor asks the court to punish the individual through either jail time or a fine. The government prosecutor is often referred to as ‘the state counsel’ or ‘prosecutor’. The person charged is called the ‘defendant’, just like the person sued in a civil case.

When a lawyer addresses a judge in court, she will always address the judge as ‘your honour’.

In legal opinions, however, judges will usually refer to themselves as ‘the Court’.

The Case Citation Following the case name you will find some letters and numbers. These letters and numbers are the legal citation for the case. A citation tells you the name of the court that decided the case, the law book in which the opinion was published, and the year in which the court decided the case.

It is important to try and cite the most authoritative law report. For many countries there is an official series.

Remember:

Great lawyers do not evaluate an opinion in terms of their agreement with the result, or according to how congenial with their personal philosophy it may be, or simply because they want to apply a value judgment in the choice, interpretation, or application of the controlling legal precept, for this too may be a personal valuation. Rather, they measure opinions on: a) how thoughtfully and disinterestedly the court weighed the conflicts involved in the case and b) how fair and durable its adjustment of the conflicts promises to be

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The first factor goes to the ‘reasonableness’ of the court’s decision, the second to the logical validity of the reasoning. (Harry Jones, 1974) The Facts of the Case The first part of the body of the opinion presents the facts of the case. In most common law jurisdictions there are no particular rules for what facts a judge must include in the fact section of an opinion. Sometimes the fact sections are long, and sometimes they are short.

Sometimes they are clear and accurate, and other times they are vague or incomplete.

The Law of the Case After the facts the opinion will then discuss the law. Many opinions present the law in two stages. The first stage discusses the general principles of law that are relevant to cases such as the one the court is deciding. This section might explore the history of a particular field of law or may include a discussion of past cases (known as precedents) that are related to the case the court is deciding. This part of the opinion gives the reader background to help understand the context and significance of the court’s decision.

The second stage of the legal section applies the general legal principles to the particular facts of the dispute. This part is in many ways the heart of the opinion: It gets to the bottom line of why the court is ruling for one side and against the other.

Appellate Litigation An ‘appeal’ is a legal proceeding that considers whether another court’s legal decision was right or wrong. After a court or tribunal has ruled for one side, the losing side may seek review of that decision by filing an appeal before a higher court. The higher court is known as the appellate or appeals court, as it is the court that hears the appeal. Generally, appellate cases are decided by panels of several judges.

During the proceedings before the higher court, the party that lost at the original court and is therefore filing the appeal is usually known as the ‘appellant.’ The party that won in the lower court and must defend the lower court’s decision is known as the ‘appellee’.

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Majority, Concurring & Dissenting Opinions In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision.

Not all cases have a majority opinion. At times, the justices voting for a majority decision (e.g., to affirm or reverse the lower court's decision) may have drastically different reasons for their votes, and cannot agree on the same set of reasons. Some judges may disagree and will write a separate opinion offering a different approach. Those opinions are called ‘concurring opinions’ or ‘dissenting opinions’, and they appear after the majority opinion.

A ‘concurring opinion’ (sometimes just called a ‘concurrence’) explains a vote in favour of the winning side but based on a different legal rationale. A ‘dissenting opinion’ (sometimes just called a ‘dissent’) explains a vote in favour of the losing side.

NOTE When you read a legal opinion, you’ll come across a lot of foreign-sounding words to describe the court system. You need to learn all of these words eventually; you should read cases with a legal dictionary nearby and should look up every word you don’t know.

What you need to learn from reading a case Know the Facts Facts are important because law is often highly fact-sensitive, which is a fancy way of saying that the proper legal outcome depends on the exact details of what happened. If you don’t know the facts, you can’t really understand the case and can’t understand the law.

Remember: Most common form of law school exam question presents a long description of a very particular set of facts. It then asks the student to ‘spot’ and analyse the legal issues presented by those facts.

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These exam questions test the student’s ability to understand the facts and spot the legal issues they raise.

Doing well on an issue spotter requires developing a careful and nuanced understanding of the importance of the facts. The best way to prepare for that is to read the fact sections of your cases very carefully.

Know the Specific Legal Arguments Made by the Parties Lawsuits are disputes, and judges only issue opinions when two parties to a dispute disagree on a particular legal question. This means that legal opinions focus on resolving the parties’ very specific disagreement.

The lawyers, not the judges, take the lead role in framing the issues raised by a case. The best lawyers are highly skilled at identifying and articulating their arguments to the court.

In an appeal, for example, the lawyer for the appellant will articulate specific ways in which the lower court was wrong. The appellate court will then look at those arguments and either agree or disagree.

Know the Decision The ‘decision’ of a case is the action the court took. It is often announced at the very end of the opinion. For example, an appeals court might ‘affirm’ a lower court decision, upholding it, or it might ‘reverse’ the decision, ruling for the other side. Alternatively, an appeals court might ‘vacate’ the lower court decision, wiping the lower-court decision off the books, and send it back to the lower court for further proceedings.

Remember: When a higher court ‘affirms’ a case it means that the lower court had it right (in result, if not in reasoning). Words like ‘reverse’, ‘remand’ and ‘vacate’ means that the higher court though the lower court had it wrong.

Understand the Reasoning of the Majority Opinion

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To understand the reasoning of an opinion, you should first identify the source of the law the judge applied. Some opinions interpret the Constitution while others interpret ‘statutes’, still other cases interpret ‘the common law’, which is a term that usually refers to the body of prior case decisions.

The source of law is very important because common law follows a clear hierarchy.

Constitutional rules trump statutory rules, and statutory rules trump common law rules.

After you have identified the source of law, you should next identify the method of reasoning that the court used to justify its decision. When a case is governed by a statute, for example, the court usually will simply follow what the statute says. The court’s role is narrow in such settings because the legislature has settled the law. Similarly, when past courts have already answered similar questions before, a court may conclude that it is required to reach a particular result because it is bound by the past precedents. This is an application of the judicial practice of ‘stare decisis’, an abbreviation of a Latin phrase meaning ‘That which has been already decided should remain settled’.

In other settings, courts may justify their decisions on public policy grounds. That is, they may pick the rule that they think is the best rule, and they may explain in the opinion why they think that rule is best. This is particularly likely in common law cases where judges are not bound by a statute or constitutional rule. Other courts will rely on morality, fairness, or notions of justice to justify their decisions. Many courts will mix and match, relying on several or even all of these justifications. (Kerr, 2007) Understand the Significance of the Majority Opinion Some opinions resolve the parties’ legal dispute by announcing and applying a clear rule of law that is new to that particular case. That rule is known as the ‘ratio decidendi’ of the case. This are often contrasted with ‘dicta’ found in an opinion.

‘Dicta’ refer to legal statements in the opinion not needed to resolve the dispute of the parties; the word is a pluralised abbreviation of the Latin phrase ‘obiter dictum’, which means ‘a remark by the way’.

When a court announces a clear a ratio decidendi, you should take some time to think about how the court’s rule would apply in other situations. Try to think of ‘hypotheticals’, (new sets of facts that are different from those found in the cases you have read). This exercise will help you to understand the significance of a legal rule and how it might apply to lots of

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different situations. Courts occasionally say things that are silly, wrongheaded, or confused, and you need to think independently about what judges say. Concurring and dissenting opinions often do this work for you.

Remember: A rule might look good in one setting, but another set of facts might reveal a major problem or ambiguity.

Judges often reason by ‘analogy’, which means a new case may be governed by an older case when the facts of the new case are similar to those of the older one. Therefore, the best way to evaluate which are the legally relevant facts for a particular rule is to consider new sets of facts.

Finally, you should accept that some opinions are vague. Sometimes a court won’t explain its reasoning very well, and that forces us to try to figure out what the opinion means. In such cases when you look for the ‘ratio decidendi’ of the case but b you can’t find one do not blame yourself, some opinions are written in a narrow way so that there is no clear decidendi, and others are just poorly reasoned or written. Rather than trying to fill in the ambiguity with false certainty, try embracing the ambiguity instead.

Remember: One of the skills of great lawyers is that they know what they don’t know: they know when the law is unclear. Indeed, this skill of identifying when a problem is easy and when it is hard (in the sense of being unsettled or unresolved by the courts) is one of the keys to doing very well in law school and in practice.

Precedent and authority Precedent is an earlier case that is relevant to a case to be decided. If there is nothing to distinguish the circumstances of the current case from the already-decided one, the earlier holding is considered binding on the court. Authority can be either mandatory or persuasive. Mandatory authority is law that is binding on the court deciding the case. A case is only a precedent as to a particular set of facts and the precise legal issue decided in light of those facts. If the case is not a precedent, but contains an excellent analysis of the legal issues and provides guidance for a court, it is a persuasive authority.

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Before using any legal authority to analyse a problem, you must know how that authority has been treated by later actions of a court, legislature, or agency. A case may have been reversed or overruled; a statute or regulation may have been amended or repealed.

When you read a statute, you must also read the cases that have interpreted the statute because the wording may be ambiguous. Concurrences and dissents are also very important. You need to read them carefully. To understand why, you need to appreciate that law is man-made.

Disagreement between the majority opinion and concurring or dissenting opinions often frames the key issue raised by the case; to understand the case, you need to understand the arguments offered in concurring and dissenting opinions.

Learning to ‘think like a lawyer’ often means learning to think like a judge, which means learning how to evaluate which rules and explanations are strong and which are weak.

The case method The Historical Reason The legal system inherited from England is largely judge-focused. The judges have made the law what it is through their written opinions. To understand that law, we need to study the actual decisions that the judges have written. Further, we need to learn to look at law the way that judges look at law.

In our system of government, judges can only announce the law when deciding real disputes: they can’t just have a press conference and announce a set of legal rules. A court has no power to decide an issue unless it is presented by an actual case or controversy before the court. To look at the law the way that judges do, we need to study actual cases and controversies, just like the judges.

In short, we study real cases and disputes because real cases and disputes historically have been the primary source of law.

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The Practical Reason Lawyers represent clients, and clients will want to know how laws apply to them. To advise a client, a lawyer needs to understand exactly how an abstract rule of law will apply to the very specific situations a client might encounter.

This is more difficult than you might think, in part because a legal rule that sounds definite and clear in the abstract may prove murky in application.

Great lawyers need a vivid imagination; they need to imagine how rules might apply, where they might be unclear, and where they might lead to unexpected outcomes. The case method and the frequent use of hypotheticals will help train your brain to think this way.

(Kerr, 2007) Published Opinions An opinion may be defined as a publicly stated, reasoned elaboration that justifies a conclusion or decision. Its purpose is to set forth an explanation for a decision that adjudicates a live case or controversy that has been presented before a court. To put it another way, a quality opinion will predict how similar factual scenarios will be treated. This explanatory function of the opinion is paramount. In the common law tradition, the court’s ability to develop case law finds legitimacy only because the decision is accompanied by a publicly recorded statement of reasoning available to all future readers.

It is important for a court to decide which cases merit published opinions and which do not.

In regard to publication of opinions, Benjamin Cardozo in ‘The Nature of the Judicial Process’ distinguished three categories of cases.

The first category which forms the majority of cases is comprised of those cases which are obvious, clear and easy.

In these cases: “The law and its application alike are plain (and the cases) could not, with semblance of reason, be decided in any way but one. Such cases are predestined, so to speak, to affirmance without opinion.”

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To publish an opinion in such cases would contribute nothing new to the body of law or to the reader. These cases do not merit even a non-precedential opinion. Instead, a plain judgment order or citation to the court opinion in the appendix is sufficient.

Cardozo’s second categories of cases form a considerable percentage in court rulings. In such cases: “the rule of law is certain, and the application alone doubtful (in such cases) [a] complicated record must be dissected, the narratives of witnesses, more or less incoherent and unintelligible, must be analysed, to determine whether a given situation comes within one district or another upon the chart of rights and wrongs. . . . Often these cases . . . provoke difference of opinion among judges. Jurisprudence remains untouched, however, regardless of the outcome.”

In this second category a non-precedential opinion is legitimate. The rule of law is settled, and the only question is whether the facts come within the rule. Such fact-oriented opinions do not add to jurisprudence and thus do not require publication.

It is only in Cardozo’s third and final category where an opinion for publication should be written. The cases comprise of ‘(a) percentage, not large indeed, and yet not so small as to be negligible’, this are cases where: “A decision one way or the other, will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law. (These are the cases where) The creative element in the judicial process finds its opportunity and power.”

From such cases, each modestly articulating a narrow rule, emerge the principles that form the backbone of a court’s jurisprudence and warrant the full-length, signed published opinions. Great lawyers know how to distinguish between these three categories.

Opinion Writing Guidelines The type of opinion to be prepared depends upon the purpose that the appellate opinion serves. This may include: 1) to ensure that substantial justice was done.

2) to provide a judicial mechanism for the progressive development of the law in the common law tradition. It is concerned with articulating and applying constitutional principles, authoritative interpretation of statutes, and the formulation of policy.

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3) to ensure uniform administration of justice throughout the jurisdiction.

The following steps are useful when writing an opinion.

Know your audience The writer of a published opinion must always be aware of the audience for whom he or she writes. Knowing who you audience is will play a great role on how you approach the purpose of an opinion.

Examples of audiences are: 1) Posterity 2) The bar.

3) Future judges 4) legislature- to show that new legislation is needed to clean up the common law mess in the general area 5) law students 6) the intelligent citizen 7) self- to satisfy yourself that the decision is right Remember:

Better opinion writers understand that they write for distinct primary and secondary categories of readers and target the tenor of their opinions accordingly.

Three ‘Cs’ Neil McCormick, Professor Emeritus of Public Law at the University of Edinburgh, Scotland, discusses the duty of an opinion writer in terms of the ‘three Cs.’ Consequence, Consistency and Coherence.

To consider consequence, the opinion writer must keep in mind that the case holding not only applies to the present case, but will apply also to future circumstances that incorporate identical or similar facts.

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The opinion must also be consistent with valid and binding legal precepts of the legal system.

The opinion must be coherent with an intelligible value or policy and not measured by a random set of norms.

The Anatomy of an Opinion

IRAC & CRARC IRAC

IRAC stands for Issue, Rule, Application, and Conclusion.

The issue section tells the reader what the party in the case is fighting over, in other words, what brings the parties into court. In writing about an issue, state the question or problem that you are trying to answer. This can be in the form of a question or a statement. In your writing eliminate facts that are not relevant to the court’s analysis.

Issue spotting is easiest when you know the laws and court holdings of your jurisdiction, so be sure to research and study thoroughly, but if you run across a question that is not addressed by the rules of your jurisdiction, don't fret. Use the opportunity to bring up rules from other jurisdictions that might persuade the court to make new precedence on that issue.

As for the rule bit, State the rule or legal principle. This may take the form of stating the elements required for a prima facie case. Rules can be found in laws, regulations, and precedents (court holdings from similar cases), but while all rules are mentionable, all do not carry the same strength.

The application should be the simplest part of your writing. If you know the facts, can see the issues, and know the rules pertaining to those issues, the application will write itself.

This is where you state your evidence and explain how you will arrive at your conclusion.

You may cite other cases, discuss policy implications, and discuss cases that run counter to

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your conclusion. Make sure that you weigh both sides and make counterarguments where appropriate. Use case law, analogising and distinguishing. Discuss any policy implications.

As for the conclusion, this is a statement that tells your reader what the result of your arguments is, or what it should be. The conclusion should answer the question presented.

Smart and great lawyers use IRAC variations to formulate their written arguments.

CRARC Of the many organisational models deviated from IRAC, one that fully captures all elements of persuasive legal writing is CRARC. CRARC stands for Conclusion, Rule, Application, Rebuttal and Refutation, and Conclusion. A great lawyer uses CRARC as a roadmap to structure an argument section when drafting a persuasive trial or appellate brief.

The Meaning of CRARC “C”: Conclusion.

The Conclusion section is a succinct summary of your main argument on an issue and why you should win.

This first “C” is a conclusion about how the court should deal with your legal issue.

The initial conclusion is your initial and most valuable opportunity to persuade the reader why you should win. This is what distinguishes CRARC from IRAC or IRARC. With the latter two, unlike with CRARC, you begin with a neutral restatement of an issue.

The Conclusion section shouldn’t be a blanket restatement of your point, sub-point, or subsub-point heading. Restatements waste an opportunity to persuade. The Conclusion should succinctly summarize the argument you’ll make in the CRARC ahead. It could be more detailed than a heading, but it needn’t be.

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In an appellate brief, the first Conclusion answers the question on appeal in your favour. In a trial memorandum, the first Conclusion will state why the court should rule in your favour on the issue in your case.

“R”: Rule.

The Rule section should consist of a statement or series of statements of the constitutional, statutory, or common-law authority you deem binding or persuasive in determining the legal issue. Raise all relevant rules for the first time in the Rule section, not in the Rebuttal and Refutation section.

Whenever possible, limit yourself to three or four rules. Paraphrase the law or quote directly from the law.

State your rules in order from those most favourable to your case to those least favourable to your case under the law. Then cite your strongest authorities first.

Cite relevant statutes or case law after each rule, but do not string-cite to show off your research.

The Rule section can be more than one paragraph; it should be as long as it needs to be to encompass the rule.

Don’t give more rules than the court needs to decide your case. Be brief and concise.

Raise binding authority before you raise persuasive authority. Consider using parenthetical explanations to explain case law.

“A”: Application.

Argue your facts here.

Apply to the facts of the case the rule you identified as relevant. If your rule has a set of elements or factors, then apply them to your facts accordingly.

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Even if the rule you’ve enunciated comes from a case that contains dissimilar facts, show how the rationale behind the rule applies in your case.

Don’t simply recite facts in the Application section. The Application section is where law and fact meld. Attach legal significance to the facts of your case. Merely stating, without applying, the facts of precedential cases won’t persuade the reader. Don’t expect the reader to compare the cases with your facts and reach the conclusions you urge.

Your Application contains your factual and legal arguments and should support your conclusion.

Case comparisons are ineffective, except when one case contains facts similar to your case.

In a thesis paragraph, provide only a brief application. You’ll apply the law to the facts in detail in later points and sub-points of the brief.

“R”: Rebuttal and Refutation.

Rebut your adversary’s strongest arguments one at a time and refute them, before moving on to the next rebuttal, with your strongest counter-arguments.

Bolster your credibility by showing the court that you recognize counter-arguments (those that criticise or distinguish the law or facts of a case you cited in the Rule section). Explain why your position is correct despite potential or apparent weaknesses.

Explain why your adversary’s arguments are unpersuasive.

Your first sentence in this section should begin with a statement showing how (1) the opponent’s case is unpersuasive for a specific reason, (2) your opponent’s use of a case is misplaced for a specific reason, or (3) the opposing argument isn’t compelling for a specific reason.

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After the first sentence in this section, state the law that shows the truth of the sentence.

Then apply the law to the case. Then conclude. To rebut a second or third argument, follow the same framework.

State your opponent’s position neutrally and honestly and then refute that position with facts or law favouring your position.

Don’t repeat rules you already gave in your Rule section.

“C”: Conclusion.

Your final conclusion should conform to the first “C” section and the point heading. But instead of arguing your issues, use the final conclusion to state the relief you seek. This is the narrow conclusion.

Tie the legal issue and your arguments to the relief you seek. The conclusion summarises the applicable sub-point or sub-sub point.

Be specific about how the court should decide your case. In appellate briefs, also state whether the trial court or the intermediate appellate court made a correct or an incorrect decision — whether the appellate court should reverse or affirm the decision.

This shows your reader that every line in between the first and last conclusion of a CRARC proves your first conclusion.

Remember: CRARC guides you to begin an argument with a persuasive conclusion statement instead of a neutral issue statement. It also directs you to craft a rebuttal that acknowledges the potential weaknesses of a client’s case and pre-emptively refutes the other side’s contentions. Anticipating a rebuttal will give you credibility without undercutting an argument.

Advantages of CRARC

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CRARC holds many advantages over both IRAC and IRARC for persuasive briefs. Both IRAC and IRARC begin with a neutral restatement of the issue in the case. When you restate an issue up-front, you miss an opportunity to persuade the reader.

CRARC guides you to begin your argument with a conclusion, which allows you immediately to tell the reader why you should win. It also helps you analyse important facts and prevents you from missing crucial facts. A properly CRARCed argument section addresses the strongest arguments first, followed by weaker arguments and public-policy arguments. This is the best method for persuasive writing.

It draws the court’s attention right away to the arguments with which it might agree.

Other variants (IRARC) Great Lawyers also use other variants when drafting, for example they may use IRARC when drafting an objective memorandum.

IRARC stands for Issue, Rule, Application, Rebuttal and Refutation, Conclusion.

The difference between CRARC and IRARC is that the former begins with a persuasive conclusion statement and the latter begins with a neutral issue statement.

IRARC is better than IRAC because, like CRARC, it compels you to provide a rebuttal and refutation.

Just like the Rebuttal and Refutation section in CRARC, the rebuttal section in IRARC will help you gain credibility with the reader, and it will help you focus your arguments.

Structuring the Brief A valuable way to organise a legal argument is to give the reader a roadmap, which CRARC provides. A roadmap serves as a mini-thesis that tells the reader what you’re about to discuss.

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Place your roadmap after your thesis and just before each individual CRARC. A roadmap constructed under the CRARC model instantly reveals the overall legal argument, the rule, how the rule applies to a particular set of facts, and the counter-argument, all before the reader begins to read the details of your argument.

Place your Rebuttal and Refutation in the right place in your brief so as not to undercut your argument. The places with the most emphasis in an argument are the beginning and the end, while the place with the least emphasis is the middle. With CRARC, an argument begins and ends with a persuasive conclusion.

The best place for your Rebuttal and Refutation, then, is in the middle of the argument. This section addresses the flaws in your argument and should be the least memorable. If you follow CRARC, you’ll place the Rebuttal and Refutation section in the middle of your argument, between your application and final conclusion.

This way, you show the reader that you understand your opponent’s position but you have good reasons to support your own position.

Use the CRARC model for each issue, and have the courage to limit the number of CRARCs to those issues that have a reasonable likelihood of success. Issues — and, thus, separate CRARCs — consist of individual grounds on which the court might grant the relief you seek if it agrees with you on that issue but disagrees with you on everything else.

Your strongest CRARC, or at least the one that will give you the greatest relief, should be listed first, although threshold arguments like those involving the statute of limitations or jurisdiction always go first. Because you’ll focus on proving your conclusion, using CRARC will help you avoid addressing tangential issues. (Lebovits, ,2010) Some Criticisms of legal Opinions The following are some criticisms against legal opinions. Great lawyers try to avoid them.

1) Drafting opinions which are too long and burdened with too many citations.

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2) Opinions whose discussion tends to ramble, failing to clearly define and analyse issue presenting lengthy and largely unnecessary discussion of the cases compared.

3) Opinion which make unstructured references to other cases without indicating what facts in those cases are material or immaterial to the case at hand.

4) Opinions which fail to set forth specific reasons for choosing one line of cases over others, saying.

For example: Avoid saying ‘ I think that is the better view’ and, ‘I prefer the majority view’, instead explain why you think a certain view is the better view.

5) Your opinion should not be chunky and sloppy but instead of clean and neat. Avoid overwriting and over-footnoting your opinion

The above expositions are not meant solely for opinion writers. They universally apply to all legal writing.

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DRAFTING GOOD CONTRACTS As a drafter of a contract you want to craft a document that accomplishes the objectives of the parties while protecting the interests of your client. To accomplish this, you must be able to predict what may happen between the parties, to provide for each contingency, and to protect the client with a remedy. Often you must do this quickly.

While each contract involves different concerns, depending on the subject and the context, all contracts involve common requirements and considerations.

It is some of these

requirements that we are concerned with in this section.

As a contract drafter you do not need to reinvent the wheel with each contract you draft.

Instead, by standing on the shoulder of great lawyers and drafters, you can ensure that your contracts are complete and effective.

For all drafters, a checklist can ensure that the contract will contain the necessary substantive provisions and that decisions about those provisions will have been made by design, not by accident.

The following six steps of contract drafting will help you to succeed in your task:

Determine the substance of the contract.

A contract must include the common law and statutory requirements for contract formation and any specific requirements for the contract being created.

Consideration Consideration is an exchange of something of value. Therefore, as a drafter you should be wary of drafting an illusory contract that promises nothing such as when one party has the option of not performing, perhaps because of a satisfaction clause, or when a party is not under any obligation to perform, perhaps because of the lack of mutuality.

Essential terms

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These are terms which are required in order for the contract to exist. For example, a contract for the sale of goods needs to identify the parties, price, quantity, date of delivery, and payment terms.

Definite terms: As a drafter you must consider statutory or judicial interpretations of key terms, and custom and usage. In addition, you must beware of relying on definitions outside the terms of the contract. Further, you must be sure the contract does not contain conflicting terms concerning material items.

Violation of the law In drafting you must avoid violating the law. For example, a contract may violate the law because it is illegal, it fails to follow the form required by law, it omits required language, it waives rights where the law does not permit waiver, or it includes unconscionable terms among others.

Capacity of the parties to contract When drafting you should consider whether issues of capacity are raised by the parties’ status, such as mental capacity, age, or lack of authority; or by the parties’ behaviour, such as fraud, duress, or undue influence.

Client’s interests In drafting a contract you should consider whether your client’s interests are best protected by including (or excluding) a merger (or entire agreement) clause, inspection clause, warranty, or an absolute promise to perform.

Performance As a drafter should consider what terms will best protect the client for occurrences outside its control, perhaps using a force majeure clause; what conditions must occur for

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performance; and what warranties should be included after checking for any prior oral or written representations, any description of goods, samples or models shown, any plans or blueprints, any specifications, any market or official standards, any brochures, any advertisements, and the quality of goods received.

If the client wants specific performance, you must establish the uniqueness of the goods or services, or the special circumstances of the sale.

For money damages, you must consider whether to provide expressly for consequential, incidental, cover, liquidated and punitive damages.

Remember: The laws governing money damages will vary in different jurisdictions.

Effect on third parties When drafting a contract you must consider whether to allow assignment of rights, delegation of duties, or transfer of rights and duties.

Additional requirements imposed by statute

Certain statutes may require or bar specific provisions concerning various subjects, such as contracts involving the sale of real estate, or parties, such as consumers. You must be conversant with concerned statutes when drafting such contracts.

Requirements of the client To determine the requirements of the client, as a drafter you must be familiar not only with the nature of the transaction, but also the nature of the client’s operation, including the client’s long-term and short-term business goals and the nature of the business in general.

Client’s goals: you must identify the client’s express and implied goals. Express goals are those that would be included in the contract, and implied goals might include the client’s way of doing business.

Degree of risk

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As a drafter you must determine each imaginable risk; you must be familiar with the nature of the contract and the business environment in which it will operate. The more you learn about how the client and the client’s industry operate the better you can determine what risks are involved.

You should consider the client’s prior experience as well as prior experience in the industry to determine if the risk is realistic and if the dangers are significant.

You must allocate the risk in a way that reasonably protects the client from risk she does not wish to assume. You must consider how the risk can be avoided (if at all), what the cost of avoidance would be, who would bear the cost of avoidance, how the risk could be reduced, how the risk could be spread, who would be liable for damages if the risk materialized, and what appropriate limitations on that party’s liability for damages might be included.

In addition, you must consider whether the law precludes a party from avoiding the risk.

Also remember, you cannot define the risk in the contract in a way that would make the contract illusory.

Analyse the audience All the advice already exposited on analysing your evidence applies here as well. In addition, make sure the document does not overload the reader with information. The document should be clearly written and easy to follow, and the document should be understandable given the expected reader’s knowledge and experience with the specific subject of the contract.

Identify the primary and secondary readers of the contract. Primary readers are the parties to the contract; secondary readers include anyone else who might read the contract. To illustrate, the primary readers of a residential lease are the landlord and the tenant.

Secondary readers might include, potential subtenants, judges interpreting the lease because of a litigated dispute or a forcible eviction, and service providers determining who is responsible for payment.

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The drafter must consider whether special explanations may be needed for technical terms or concepts or to avoid misconceptions.

3) Organize the material Most contracts contain a title, an introduction, recitals, definitions, operative provisions, declarations, a closing, and attachments. The drafter should consider each part of the contract to be drafted, consciously rejecting a segment rather than inadvertently omitting it.

Title The contract must include a title that accurately expresses the nature of the contract.

Introduction A contract should begin with an introduction that identifies the parties to the agreement, as well as the nature of the agreement.

The introduction will include essential information of the party names or special legal status, such as a corporation or limited liability corporation.

The introduction should be short; specific terms of the agreement belong elsewhere in the contract.

Recitals This section of the contract might also be called Premises. Its purpose is to state information that forms the foundation or background for the contract.

Recitals reflect what was true before the contract existed, not what the parties agree to do after the contract.

To avoid overdoing the recitals, the drafter should exclude any recital for which he or she cannot identify a purpose for including. Appropriate purposes for recitals include to clarify intent, such as the reasons why the parties want the contract; to resolve problems of negotiation, such as facts that would support arms-length negotiations; to add to

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consideration, such as when the consideration involves more than money or when the value of the consideration may not be readily apparent; or to bolster the importance of conditions in the contract, such as the reason why time is of the essence to one of parties.

A party to a contract may not have any remedy if a representation appears in the recitals and is not true. Likewise, an agreement (such as a definition) may not be enforceable when it is not within the operative provisions of the contract.

Avoid the use of ‘whereas’: While recitals are traditionally introduced with this term, the term is legalese that does not add meaning to the recitals. Simply numbering each recital will eliminate the need for this introductory word.

Definitions Definitions can appear at the beginning of the contract or where the word first appears.

Traditionally, drafters have placed definitions at the beginning of the contract in a definition section. However, this format can be awkward when referring to definitions in a lengthy document or when the definition section becomes quite long.

Modern drafters tend to place the definition where the word first appears. However, this also can be awkward when the word appears throughout a document, because the reader may have difficulty finding the original definition.

The better rule puts definitions at the beginning of the contract if the term appears in multiple sections of the document and puts the definition where the term first appears if the term appears in only that one part.

Definitions should conform to generally accepted drafting conventions. For example: As a drafter you should use consistent terminology throughout after defining a term. In other words, the drafter should always use the same word or phrase for the same concept unless a different meaning is intended.

In addition you should use definitions to define terms, rather than to include other substantive information. Definitions that are more than one sentence may violate this rule.

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Definitions ought to be drafted using present tense. Since a contract will operate indefinitely, definitions should read so that they express the current state and so that apply in future.

Definitions must appear prior to or contemporaneous with the first use of the defined term.

Definitions in the definition section must be in alphabetical order.

Operative provisions The operative provisions of a contract are those that establish the performance the agreement requires, the consideration for that performance, and the terms under which the agreement will operate.

Operative provisions are organized most effectively when the most significant provisions are at the beginning of the document and the administrative (or housekeeping) provisions, such as declarations of private law, are at the end. In addition, similar topics should be grouped together and identified with appropriate headings.

The divisions ought to make the contract easy to use as a reference document.

When drafting a contract you must provide each division with an appropriate heading. The headings ought to inform the reader of the topic of the division.

Each heading should be sufficiently general to cover all the contents of the division and sufficiently specific to avoid covering provisions covered elsewhere.

The headings should be stylistically consistent.

Each heading should be numbered or lettered using a consistent scheme.

You should organise the divisions in a logical manner. For example, closely related provisions ought to be placed together, more important provisions before the less important provisions and general rules before exceptions.

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Make sure not to forget the following provisions: Force majeure provision A force majeure provision determines what happens when performance becomes impracticable because of events beyond the parties’ control.

Merger provision A merger provision clarifies what constitutes the agreement and the enforceability of provisions not included.

Choice of law provision A choice of law provision states what law will apply in the event of a dispute. Beware that the choice of law provision may be mandated by international treaties or conventions.

Assignment and delegation provision A provision may state whether the parties may assign their rights under the contract or delegate their duties. For example: ‘Neither party may assign any right or interest in this contract without the written permission of the other party.’ This clause is meant to prohibit assignment of rights but not delegation of duties.

Modification provision A modification provision states how the parties may modify the contract.

Severability provision A severability provision states whether the parties can enforce remaining provisions if one or more provisions is unenforceable.

NOTE:

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If a contract includes a key provision that is unenforceable, the parties may not want to proceed under the contract even if the unenforceable provision does not go to the essence of the contract.

A Headings provision A headings provision states whether the headings are a substantive part of the contract. For example: ‘The headings in this agreement are for reference only and do not affect the interpretation of any term or condition in the agreement.’ A limitation of actions provision A limitation of actions provision states in what period a suit must be brought or what procedure to follow before filing a lawsuit.

An attorney fee provision An attorney fee provision allocates responsibility for attorney fees in the event of a dispute.

Dispute resolution provisions Dispute resolution provisions state how to resolve a dispute without litigating. To avoid the expense and inconvenience of litigation, modern contracts commonly include provisions for resolving disputes informally or as an alternative to litigation. For example, an informal dispute resolution provision might provide that the parties meet and discuss any dispute within a short period of time (such as ten days) after notice of the dispute.

An alternative dispute resolution provision might provide that the parties mediate their dispute before a mutually acceptable mediator prior to litigation or it might require that the parties arbitrate their dispute before an arbitrator whose decision will bind the parties.

Signature A person signing for an entity, such as a corporation, partnership, or trust, may need to disclose its relationship to the entity, such as a title or capacity.

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The contract ought to include a signature line for the parties signing the contract. The name of each person signing the agreement should be typed or printed under the signature line.

The title or capacity of each person signing an agreement should be included to confirm that the person has the authority to sign. The drafter also may want to specially verify that the person signing the contract has representative power.

Each signature may have a different date. In addition, the signature dates may be different from the agreement date in the introduction and the effective date of the contract.

Attachments If there are attachments incorporated by reference somewhere in the contract, the provisions of those attachments ought to be incorporated by reference consistent with the provisions of the contract.

As a drafter you must distinguish between attachments that are binding and attachments that are only for reference.

Draft the contract Write in clear short sentences Sentences written in a simple structure (subject-verb-object) are easy to read and understand.

Remember: Long sentences are hard to understand because the logical order is sometimes distorted and because the length may strain the reader’s memory.

Use strong verbs Strong verbs create a picture for the reader.

Draft in active voice

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Contracts must use active voice to express the responsibilities of the parties. Passive voice avoids directly stating who is doing what to whom and, therefore, it can be ambiguous.

Most passive voice involves ‘a to be’ verb with a past participle (such as is written), and it makes sense when followed with by whom or by what.

You should eliminate all passive voice absent an express reason for leaving it, such as when the parties to the contract do not know or do not want to disclose who the actor will be, or when the recipient of a representation or warranty wants it in passive voice, depending on the risk allocation desired.

The subject and verb ought to be close to each other. When the subject and verb are too far apart, the sentence is less clear and harder to read because the reader needs to retain all the information in the subject, plus any modifying clauses, before knowing what to do with it through the action that the verb communicates.

Use general terms when they are useful to give the parties the flexibility they need. General terms may be vague but they will not be ambiguous (and, therefore, dangerous) when they are used purposefully.

Avoid legalese When terms of art do not have a synonym in ordinary English, be sure to define them.

Legalese is wordy, imprecise, and archaic writing, including such terms as now therefore, be it known that in consideration of, and other similar phrases. Legalese can also create unclear references or provide an illusion of precision; the said Agreement or the within Agreement is really just this Agreement.

Avoid false imperatives.

Imperatives are authoritative and obligatory words.

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For example: Avoid using must when the appropriate word is shall. Must is reserved for creating a condition precedent.

A void using will when the appropriate word is must. Will is reserved for future tense.

May is reserved for circumstances when the act or the authority is discretionary.

Avoid use of May not. The phrase ‘may not’ negates discretionary authority. Since may indicates discretionary authority, some courts have construed ‘may not’ to also mean ‘may’.

Instead use ‘shall not’.

Use gender-neutral terminology Using gender-neutral terminology reflects good legal writing because it is precise, avoids unnecessarily offending the reader, and is an accurate reflection of the law.

Gender-specific terminology reflects a subtle, but powerful, gender bias because the reader is most likely to assume that the language refers only to the gender specified. In addition, gender-specific terminology is ambiguous. For example, gender-specific terms such as ‘he’ and ‘man’; always include men, but, depending on the context of the reference, they may or may not also include women.

Nearly every gender-specific occupational title has a gender-neutral equivalent that is gender-inclusive. For example, chairman becomes chair. Do your homework to identify them.

One way to eliminate gender-specific pronouns is to repeat the noun.

Punctuation When drafting you must be sure that the correct punctuation is used and that it is correctly placed. Many a lawsuit has disputed the terms of a contract because of the ambiguity that incorrect or misplaced punctuation has created.

Further rules on grammar and punctuation are dealt with, in a dedicated section, later.

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Design the Document A visually appealing document is one that will be easier to read, easier to understand, and easier to use as a reference.

Check margins, indentations, and spacing to be sure the writing does not appear cramped.

When writing is cramped, the reader tends to skip over it because reading it is too much work.

Check for any statutes or rules that might specify the type size and font for the type of contract.

Avoid unnecessary capital letters: Over-capitalizing nouns or using blocks of capitalized print can make a document more difficult to read besides being generally annoying.

Check blanks are included where needed for dates or signatures.

To avoid separating signatures from text, create a page break so that some of the text accompanies the signature or number pages.

Evaluate the document Evaluating the document through the eyes of someone who wants to avoid its provisions helps to uncover ambiguities and gaps in the text.

Check you have tabulated (outlined) the language of the contract to check for drafting errors.

Tabulation describes the outlining of sentences in a draft to evaluate their coherency and clarity. Tabulation helps break down dense material, helps point out drafting errors, and helps determine if a provision should be drafted in tabulated form (e.g., as a list) to aid in clarity.

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Tabulating a sentence helps the drafter find drafting errors, including the use of different terminology for the same thing, lack of parallelism, problems with modifiers, unclear sentence structure, problems with cross-references, and problems with connectors.

Check every provision consistent with the general purpose of the contract.

It is important to consider that words generally will be construed most strongly against the party using them. That the meaning of general words or provisions will be restricted by more specific descriptions of the subject matter. (Jacobson, 2008) Remember: When drafting effective contracts, the devil is in the details.

Addendum As a professional writer, you must possess literary skills. If such skills are not natural, they must be acquired or learned. If you want to write clearly and cogently, with words parading before the reader in logical order, you must first think clearly and cogently, with thoughts laid out in neat rows. To do so is to demonstrate respect for the elements of reflective thinking and the rules of deductive and inductive logic.

Any lawyer who is unwilling or unable to do this will confuse readers and cannot perform his or her duties properly.

Some tips on improving your writing

(a) You must practise your writing. Fluency comes, in part, from familiarity with the skill of writing. The more of it you do, the easier it becomes. (b) You should read the writings of others. If you spend some of your spare time reading (anything is recommended apart from menus and bus timetables) you should find that your own use of English becomes more fluent. If you come across a word which is unfamiliar to

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you, look it up in a dictionary: this is how to expand your vocabulary. If you read a sentence which is unclear, ask yourself why it is unclear; then make sure that you avoid writing something which is unclear for the same reason. (c) You must make sure that you are familiar with the basic rules which govern the writing of the English language. (d) Before starting to write a document, make sure that you know exactly what you want to say. (e) If you are uncertain of the spelling of a particular word, use a dictionary. If you are using a word processor, remember that most spell check programs will only question words which are not in the program. (f) If you cannot think of the word which conveys precisely what you want to convey, use a thesaurus. Most word processors have a thesaurus function, though a printed version may give you a wider choice

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LOGIC FOR LAWYERS Great lawyers are intimately familiar with the fundamentals of deductive reasoning.

Deductive reasoning, as Aristotle taught long ago, is based on the act of proving a conclusion by means of two other propositions. Further, great lawyers are familiar with the principles of inductive generalisation. An inductive generalisation, used correctly, does help resuscitate causes that seem hopeless.

The other powerful tool in great lawyer’s arsenal is, reasoning by analogy—another form of inductive reasoning. Analogies help lawyers and judges solve legal problems not controlled by precedent.

Deductive Reasoning The Syllogism Syllogism is a label logicians attach to any argument in which a conclusion is inferred from two premises. For example: All men are mortal.

Socrates is a man.

Therefore, Socrates is mortal.

Logic anchors the law. The law’s insistence on sound, explicit reasoning keeps lawyers and judges from making arguments based on untethered, unprincipled, and undisciplined hunches.

Deductive reasoning is the driving force behind most judicial opinions. Defined broadly, deduction is ‘reasoning in which a conclusion is compelled by known facts’.

Example: A is smarter than B and C is smarter than A, then we also know that C must be smarter than B. Or

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Imagine that you get a cold every-time you are rained on. Using deduction you will know that if you shower with cold water you will get a cold.

From these examples, we can get an idea of the basic structure of deductive arguments: If X and Y are true then, Z also must be true.

The specific form of deductive reasoning that you will find lurking below the surface of most judicial opinions and briefs is the syllogism.

According to the traditional jargon, the syllogism’s three parts are called the major premise, the minor premise, and the conclusion.

The major premise states a broad and generally applicable truth.

The minor premise states a specific and usually more narrowly applicable fact.

The conclusion then draws upon these premises and offers a new insight that is known to be true based on the premises.

Remember The basic principle of the syllogism is very straightforward: What is true of the universal is true of the particular.

If we know every member of a class has a certain characteristic, and that certain individuals are members of that class, then those individuals must have that characteristic.

In the study of law it is imperative to get in the habit of thinking in syllogisms. When briefing a case (or for students as you prepare a class assignment) the skeleton of the deductive syllogism should always poke through in your description of the case’s rationale.

Whenever possible, make the arguments in your briefs and memos in the form of syllogisms. A clear, well-constructed syllogism ensures each conclusion is well-supported with evidence, and gives the judge recognizable guideposts to follow as he shapes the law along his desired footpath.

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The skill can be learned through patience and practice.

Start with the basics; begin by stating the general rule of law or widely-known legal rule that governs your case as your major premise. Then, in your next statement, the minor premise, describe the key facts of the legal problem at hand. Finally, draw your conclusion by examining how the major premise about the law applies to the minor premise about the facts.

Example: Major Premise: The Constitution prohibits cruel and unusual punishment.

Minor Premise: corporal punishment is unusual punishment Conclusion: Executing corporal punishment is forbidden by the Constitution.

Although this might look simple, constructing logically sound syllogisms requires a lot of donkey’s work. You must thoroughly research the law’s nooks and crannies before you can confidently state your major premise. And you must become sufficiently knowledgeable about your case to reduce key facts to a brief yet accurate synopsis.

Finding Syllogisms in Legal Writing The syllogism is simple, and indeed it does undergird most legal arguments, but sometimes you have to dig a bit below the surface to excavate syllogisms. The fact that syllogisms aren’t immediately evident doesn’t mean that the writing is sloppy, or that it doesn’t use syllogisms. But it does mean that you’ll have to work a bit harder as a reader.

Remember: An argument’s basic structure may be obscured by an excess of verbiage. But an argument’s structure may also be obscured for us because it is too sparse and has missing components.

Such arguments may appear sounder than they are because we are unaware of important assumptions made by them. (S. Morris, 1994)

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Sometimes it’s more than a matter of rearranging sentences and rephrasing statements to match up with the syllogistic form. Sometimes a legal writer doesn’t mention all parts of the syllogism, leaving you to read between the lines. Logicians are certainly aware that an argument can be founded on a syllogism although not all parts of the syllogism are expressed.

If a premise or conclusion is obvious, then writer can save her precious words to make less obvious points.

In addition to not handing the reader syllogisms on a platter, legal writers also have the tendency to pile one syllogism on top of another. A series of syllogisms in which the conclusion of one syllogism supplies a premise of the next syllogism is known as a polysyllogism. Typically, poly-syllogisms are used because more than one logical step is needed to reach the desired conclusion.

NOTE A syllogism is a powerful tool because of its rigid inflexibility. If the premises of a syllogism are properly constructed, the conclusion must follow. But beware of bogus arguments masquerading as syllogisms.

For example: All law students are smart, and Steve is smart, therefore Steve is a law student. This is WRONG. And Legal writing is full of these mistakes. Learn to avoid them as well as to spot them.

Remember:

The principle behind the syllogism is that what’s true of the universal is true of the specific.

In deductive reasoning, you reason from the general to the particular.

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Accordingly, if you’re unsure about the nature of the general, you can’t draw proper conclusions about the particular.( Aldisert, 2007) Further, remember this: just because two things share a common property does not mean they also share a second property.

Avoiding common logical errors Certain logical errors crop up again and again, and so you should take particular care to avoid them.

Don’t cite inappropriate secondary authorities or cases from outside jurisdictions; logicians consider that an appeal to inappropriate authority.

Don’t rely on attacks on your opponent’s character. The fallacy of the personal attack, called an ad hominem in Latin, “diverts attention away from the question being argued by focusing instead on those arguing it.

Don’t rely on appeals to emotion.

Don’t rely on fast talking or personal charm to carry the day. A cool head coupled with rigorous legal research turns a case in your favour, not rhetorical tricks.

It is critical to read every legal document you come across with care. Bad reasoning can seem persuasive at first glance. Logical fallacies are especially hard to spot in briefs, memos, and court opinions because of the dense writing and complex fact patterns. Yet the effort is worthwhile. The ability to detect and avoid logical missteps will improve your writing immensely, and develop your ability to ‘think like a lawyer’.

Inductive Reasoning: Generalisations

Where an issue of law is unsettled and there is no binding precedent to supply a major premise for your syllogism, deductive logic will be of no use to you.

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Inductive generalisation is a form of logic in which big, general principles are divined from observing the outcomes of many small events. (Dan Hunter 1998). In this form of inductive logic, you reason from multiple particulars to the general.

The principle underlying this way of thinking is that the world is sufficiently regular to permit the discovery of general rules. If what happened yesterday is likely to happen again today, we may use past experience to guide our future conduct. The contrast with deductive reasoning is stark. Whereas syllogisms are mechanical and exact—if the premises are true and properly assembled, the conclusion must be true—inductive logic is not so absolute. It does not produce conclusions guaranteed to be correct, no matter how many examples scholars and lawyers assemble.

The absence of complete certainty, however, does not dilute the importance of induction in the law. As we stated at the outset, we look to inductive reasoning when our legal research fails to turn up a hefty, hearty precedent that controls the case. When there is no clear statute—no governing authority—to provide the major premise necessary for a syllogism, the lawyer must build the major premise himself.

In the words of Lord Diplock, the lawyer is required to draw upon ‘the cumulative experience of the judiciary’. Once he has assembled enough case law, a great lawyer tries to fashion a general rule that supports his position.

Inductive generalisations are easy enough to understand. However, you must be careful to assemble a sufficient number of examples before shaping a far-reaching rule. Don’t create bogus general rules from exceptional circumstances.

The difficulty comes in knowing how many instances are sufficient to make a generalisation.

Two? Tens? Hundreds? Thousands? This is where the art comes in. As a rule of thumb, the more examples you find, the stronger your argument becomes.

However, raw numbers are not enough to give you a reliable generalisation. The strength of an inductive argument rests not only on the number of examples you turn up to support

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your generalisation, but also on the representativeness of the sample size. Keep this in mind when your opponent makes an argument based solely on the use of statistics.

Remember: You will never completely escape the risks posed by the fallacy of hasty generalisation. We can never know with certainty that an inductive generalisation is true. The best that can be hoped for is that expert research and keen attention to statistics will divine workable rules that are grounded in the wisdom of human experience.

Analogy In the language of logicians, analogy is a process of reasoning from the particular to the particular. Analogy can help a law student as well as a budding lawyer advance untested legal arguments in the classroom and the courtroom.

Mastering the principles of analogy is not just another garden-variety lawyer’s skill. Rather, it is one of the most crucial aspects of the study and practice of law. (Lloyd L, 2005).

Unlike most concepts employed by logicians, the use of ‘analogy’ is not confined to the realms of higher mathematics and philosophy. (Irving, 1996) Most law students, and even most laypersons, are familiar with analogies.

At base, analogy is a process of drawing similarities between things that appear different. In the world of the law, analogies serve a very specific purpose. Lawyers use them to compare new legal issues to firmly established precedents. Typically, this means that a current case is compared to an older one, and the outcome of the new case is predicted on the basis of the other’s outcome.

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The Process of Analogical Reasoning 1) Establish similarities between two cases 2) Announce the rule of law embedded in the first case, and 3) Apply the rule of law to the second case.

This form of reasoning is different from deductive logic or inductive generalisation. Recall that deduction requires us to reason from universal principles to smaller, specific truths.

And the process of generalization asks us to craft larger rules from a number of specific examples. Analogy, in contrast, makes one-to-one comparisons that require no generalizations or reliance on universal rules. (Dan Hunter, 2006) A proper analogy should identify the respects in which the compared cases, or fact scenarios, resemble one another and the respects in which they differ. What matters is relevancy—whether the compared traits resemble, or differ from, one another in relevant respects. A single apt comparison can be worth more than a host of not-quite-right comparisons.

Remember: Determining whether an analogy is strong or weak is ‘a matter of judgment, not mechanical application of a rule.’ (Irving 1996) Criteria for appraising an analogical argument (1) the acceptability of the analogy will vary proportionally with the number of circumstances that have been analysed; (2) the acceptability will depend upon the number of positive resemblances (similarities) and negative resemblances (dissimilarities); or (3) the acceptability will be influenced by the relevance of the purported analogies.

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NOTE The more practice you get working with analogies, the more adept you will become at articulating why certain similarities or differences are relevant.

Addendum Logic is not the whole game. Even if your premises are true and your logical statements constructed properly, it is crucial to recognize that judges are motivated by more than the mandates of logic.

Judges have notions of how things should be—of what is wrong and what is right—and often strive to do justice as much as to fulfil the mandates of precedent. They have biases, too. In reading cases, writing briefs and arguing before a court, you will be more effective if you flesh out the logical bones of your arguments and attempt to appeal to the judge in other ways as well.

Remember: An argument that is correctly reasoned may be wrong, but an argument that is incorrectly reasoned can never be right.

A solid footing in logic will help you feel more secure when you find yourself in a complex doctrinal thicket.

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ADVOCACY “In war, then, let your great object be victory, not lengthy campaigns.” Sun Tzu, The Art of War

According to Sun Tzu’s Taoist philosophy which is similar to Aristotle’s Rhetoric; the art of persuasion involves not only the logic of one’s legal arguments (logos), it also requires personal credibility (ethos) and emotional impact (pathos). The truly effective Trial Warrior must establish the client’s ‘moral high ground’; how and why the arguments relied upon lead the trier of fact to a just, fair, and reasonable result.

Legal battles are like war, thus if you have ambitions to become a great lawyer, you will be well advised to study Sun Tzu’s principles. This chapter is a good introduction to the principles.

Preparation

It is essential to analyse the client’s and the opposing party’s respective financial and psychological capacities to sustain the litigation campaign. The best resource is usually the client, and a thorough client interview will elicit preliminary background information.

However, the investigative process does not end there; one should not overlook the Internet, private investigative services, public records, and individual and/or corporate searches (for example, property sub-searches).

It is equally important to research opposing counsel’s litigation tactics and prior trial experience. The best thing to do is to ask colleagues who might know your opponent, their opinions on your opponent’s ability, reputation, personality traits, and the like.

Early preparation entails the efficient procurement of all professional resources, including firm partners, associates, students-at-law, and law clerks. Particularly in the context of complex litigation or class actions, structure and organization, and the marshalling of all

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available resources — administrative, technological, investigative, and expert — into a cohesive, unified trial advocacy strategy is essential.

Sun Tzu said:

‘In war, then, let your great object be victory, not lengthy campaigns.’

The emphasis here is on early settlement. If settlement is not possible, then speed and efficiency, as opposed to prolonged or dilatory tactics, is favoured.

Oral argument The key to oral argument is also meticulous preparation. Your arguments need not be flashy and clever, but merely coherent and solidly grounded — arguments that plod on, point by point, clearly and relentlessly, to the finish line.

First you need to understand that the two main purposes of an oral argument are persuasion and education.

The next step is to conduct a brainstorming session where you think of: (a) a theme for your client’s case (b) the important points you need to make to the court, and (c) the questions that the judges may ask you.

Then, prepare a short outline to remind you of the points you must get across to the court.

Lastly, Practice and refine your argument.

The first purpose of oral argument—persuasion—is related to your role as an advocate before the court. This role requires you to attempt to convince the court that your client should win the appeal. You should have attempted to do this when you wrote the brief, and you should attempt to do this again during your oral argument.

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To persuade the judges that your client has the winning side of the case, your objective should be to convey to the court the theme of your client’s case and the key points of your client’s argument.

As for the second purpose, it is important to understand that an oral argument is not a monologue where the advocate simply gives a rhetorical account of his or her side of the case; rather, it is a dialogue between the bench and the advocates where the advocates serve as advisors to the court, educating the judges about the case.

In this educational dialogue that is an oral argument, appellate courts ask the advocates questions for several different reasons. First, and very commonly, the judges want to identify the most important issue or issues in a case. This may be necessary because the parties may have presented multiple issues in their briefs, some of which are fairly simple and can easily be disposed of by the court, and others that are intricate and require further and more involved discussion. In other words, the court may desire a dialogue with the lawyers to separate the wheat from the chaff.

Second, the parties’ briefs may only peripherally touch on issues that the court deems central to a case and about which the court wants to learn. Or, similarly, the briefs may not thoroughly discuss very complex issues about which the court needs more information.

Therefore, the court may want the advocates to clarify the facts, law, and public policy implications involved with those issues.

Finally, an appellate court’s decision in a case inevitably has consequences outside of that case. For instance, in their decisions, appellate courts often set forth rules of law that will be applied in future cases. Thus, the court may wish to question the advocates about the impact of its decision on future cases. For example, if the appellant urges the court to adopt a particular rule of law, the court may ask the advocates some questions about how that rule will operate in a case with facts different from the case at bar.

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Identifying a Theme As mentioned above, one of the key purposes behind oral argument is for the advocates to fulfil their obligation to persuade the court that their client’s position is the correct one. In fulfilling this obligation, a good oral advocate will identify a succinct theme of the case and convey that theme to the court.

This theme should be as simple as possible and should encapsulate your client’s case in one or two sentences.

Identifying Your Key Points Once you’ve identified your theme, write it down because you will use it, along with the written arguments made in your brief, to identify the key points you must make to win your case.

When doing this, keep in mind that you will have a limited time period within which to present your oral argument.

Since you will have a short amount of time to present your side of the case, you should concentrate on presenting to the court only the two or three most important points supporting your argument.

The most important points are those points that you would have to present to the court to win your case. With your theme in mind, review your brief and highlight these two or three critical arguments in your brief.

The Trial Warrior must know the five essentials for victory, which according to Sun Tzu are:

(1) He will win who knows when to fight and when not to fight.

(2) He will win who knows how to handle both superior and inferior forces.

(3) He will win whose army is animated by the same spirit throughout all its ranks.

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(4) He will win who, prepared himself, waits to take the enemy unprepared.

(5) He will win who has military capacity and is not interfered with by the sovereign In summary, the Trial Warrior asserts and maintains control over the litigation by complete knowledge of not only the facts and the law, but also of the relative strengths and weaknesses of both protagonists and antagonists, including his or her own limitations.

Trial advocacy involves the effective use of discovery techniques to gain tactical advantages at trial, including: a) To enable the examining party to know the case they have to meet

b) to allow for admissions and dispensing of formal proof of non-contentious matters; and c) to procure admissions on contentious matters

The resourceful Trial Warrior will anticipate the use of computer experts specializing in ediscovery as either an offensive or a defensive tactic, depending on the circumstances of the case.

The importance of organizational skills, particularly in complex litigation, manifested in the assembly of a litigation team, requires collaboration among colleagues, staff, investigators, expert, and lay witnesses. Sun Tzu also emphasizes the need for change in tactics and surprise manoeuvres, using opponents’ psychological predispositions to draw them into vulnerable positions.

This approach relies upon a group dynamic whose unity, coherence, and momentum propels the litigation team, rather than relying upon individual qualities and talents:

‘The clever combatant looks to the effect of combined energy, and does not require too much from individuals. Hence his ability to pick out the right men and utilise combined energy’.

Remember:

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Trial preparation is a dynamic, rather than static process. The trial brief, trial book, exhibit book, and various evidentiary proof checklists must be continuously revised and updated.

So, too, must preparation of lay and expert witnesses. Once the trial date has been set, the exercise of redrafting and editing the opening statement and closing argument, and refining, or sometimes discarding trial themes continues in earnest, as does the need to draft and revise written trial arguments and briefs of authorities, which should be provided to the trial judge at the beginning of trial.

A trial Warrior must maintain not only professional objectivity throughout, but also exhibit professional collegiality and civility as a means of fostering settlement. (Pribetic, 2008) Supporting Your Major Points and Preparing to Answer Questions Next, you need to consider how you will support the two or three main points in your argument. You also need to ponder the questions that the court may ask you during oral argument and prepare to answer those questions. So, try to view the case through the judges’ eyes. Put yourself in the judges’ shoes and ask yourself, ‘If I were a judge in this case, what would I want to know about the case from the advocates?’

In nearly every oral argument, the judges will ask questions about the governing legal authorities and the facts appearing in the record of proceedings that support your oral argument. Therefore, you should be prepared to answer questions about the facts and law.

Additionally, judges commonly wish to address the weaknesses of the parties’ cases. So, be especially prepared to answer questions about the weaknesses of your case.

In the context of trial advocacy, Sun Tzu’s admonishes against repeating the same tactics gained in one victory to a new and different set of facts. The Trial Warrior has to approaches each brief mindful of the personal idiosyncrasies of the clients, judges, and even opponent advocates.

He avoids relying on boilerplate precedents, outdated legal principles, or unpersuasive case law.

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Sun Tzu also said: “On the field of battle, the spoken word does not carry far enough: hence the institution of gongs and drums. Nor can ordinary objects be seen clearly enough: hence the institution of banners and flags�.

By analogy, a demonstrative exhibit, like a picture, is worth a thousand words. Subject to issues of admissibility and relevance, judicious use of demonstrative evidence to highlight, or simplify complex or technical expert evidence (for example, medical, accounting, or engineering), is a highly effective advocacy tool.

Sun Tzu identifies five dangerous roads and psychological dangers which the Trial Warrior must avoid in order to be victorious: (1) Recklessness, which leads to destruction (2) cowardice, which leads to capture (3) a hasty temper, which can be provoked by insults (4) a delicacy of honour which is sensitive to shame (5) over-solicitude for his men, which exposes him to worry and trouble.

Remember You must know well the law applicable to your case. This is so because the key function of appellate courts is to determine the outcome of legal issues. In most cases, appellate courts are required to say what the law is, how it applies to the case before it, and how it should or may apply in future cases. As a consequence, you can be certain that the court will ask you questions about the law.

Thoroughly review your brief and the legal authorities that are crucial to your argument, especially the authorities that directly relate to the key points of your oral argument.

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You should also reacquaint yourself with the facts of your case. To do this, you should revisit the record of proceedings from the case. Concentrate on the portions of the record that contain information crucial to your argument. Specifically, look for facts that you need to support the key points of your argument. Then, take a piece of paper and jot down the page numbers of the record that contain information critical to your case. Keep these record citations on hand for use when you put together an outline for your oral argument. (Dimitri, 2008) During your review of your brief, the law, and the record, the weaknesses of your case should become apparent to you. To further identify the weaknesses of your case, you should review your opponent’s brief to see which issues your opponent emphasizes in support of his or her argument. Focus on the legal authorities and facts that your opponent cites in his or her brief. Then, conduct a brainstorming session, during which you consider how you can minimize the impact of the weaknesses in your case.

Think of ways to explain why facts unfavourable to your case are not critical to deciding the core legal issues before the court. During this brainstorming session, write concise and assertive answers to the court’s possible questions regarding the weaknesses of your case.

Keep these answers for reference when you practice your oral argument later in the preparation process.

Preparing an Outline The next step in your preparation should be to write an outline for your oral argument.

This outline serves several purposes. First, your outline will serve to remind you of the two or three most important points supporting your side of the case. Second, your outline should serve to remind you of critical legal authorities and portions of the record of proceedings about which the court may question you during oral argument.

Remember, that an oral argument should be a dialogue between the bench and the advocate, not an uninterrupted speech. Therefore, you should avoid preparing an extensive outline for your argument.

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Prepare an outline that functions as a ‘safety net’, which is there to catch you if you forget to bring up a critical point that you must make to support your side of the case, or if you forget to mention a crucial legal authority or fact.

From the standpoint of format, you should begin by writing an outline that contains the two or three key points that support your argument. Place your most important point first. Use bullets or numbers to set each point apart from the others. Use buzz phrases or key words to describe each point rather than long, detailed sentences. By doing this, you will not be tempted to read your argument, and you will seem more natural and conversational as you deliver your argument to the court. Moreover, the more extensively you prepare for and practice your argument, the less likely you will need a detailed outline.

If there is a constitutional provision, statute, or administrative regulation at issue in the case, you might also want to place the relevant portions in your outline. Additionally, include citations to key portions of the record that you compiled while reviewing the record.

By placing this important information in your outline, you will be able to immediately access it should the court ask you about it.

Next, gather a set of small note cards. After reviewing the key judicial decisions in support of your argument, use a separate note card to write down the citation for each case. In addition, write a very short synopsis of the case, including the critical facts, holding, and reasoning. While the most important judicial decisions should be fresh in your mind through your thorough review of them, these note cards will permit you to jog your memory during oral argument should you forget certain details about a case.

Preparing Your Argument

The final stage in preparing to deliver your oral argument is to practice it. Aside from the initial stage of preparing to answer questions by reviewing the briefs, law, and record, practicing your argument is the most important stage of preparation because it enables you to hear criticism and to revise and refine your oral argument. Practicing your argument will

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also help you to anticipate questions that the judges may ask you during your actual oral argument.

Note questions that you didn’t anticipate in advance of your practice and earmark those questions so you can put more time into preparing to answer them in future practices.

Watch for any mannerisms that might distract the judges, such as speaking too quickly or using lots of gestures. Note these mannerisms for your next practice so you can work on eliminating them.

After practicing, you should revise and refine your argument.

NOTE Do not over-practice. While you should be well versed in the facts, law, and public policy of your case, you can get to the point of being so saturated with the case that you lose your zeal for it. It is important that you show enthusiasm for your case to the court during your oral argument. If you lose your eagerness to discuss the case with the court, the tone of your argument will be less persuasive.

Remember Put yourself in a confident frame of mind about your case. Oral advocates who project confidence at the podium are more impressive to the judges than advocates who are meek.

The best way to instil self-confidence is to prepare thoroughly.

Finally, know the remedy that you are seeking.

Delivering the Oral Argument ‘Think before you Speak pronounce not imperfectly nor bring out your Words too hastily but orderly & distinctly’. George Washington, Rules of Civility & Decent Behaviour in Company and Conversation.

You have prepared for your oral argument. You have practiced it several times. You have reached the day on which you will actually deliver your oral argument.

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In court you should wait to approach the podium until the chief judge of the panel tells you that you may proceed. When you reach the podium, you should not begin speaking until you have the attention of all of the judges on the panel. In other words, you know that you may begin when all of the judges are looking at you or the chief judge of the panel tells you to proceed.

As you begin speaking, treat your oral argument as a dialogue with the bench rather than an uninterrupted speech or monologue. Refrain from reading your argument to the court and maintain as much eye contact with the judges as possible. Indeed, the most important time to maintain eye contact with the judges is at the beginning of your oral argument.

In your opening, it is customary after greetings to begin ‘May it please the court’. You should also introduce yourself; tell the court which party you represent, and inform the court how much time you have reserved for rebuttal. After introducing yourself, you should give the court what is typically called a ‘roadmap’. Your roadmap should begin with the theme that you identified during your preparation.

Following the theme, your roadmap should contain your explanation of which issue or issues the case involves and which specific points you will discuss in your argument. Just as you did in your brief, you should frame your statement of each point persuasively and assertively, in terms that favour your client. Finally, you should tell the court what remedy you are seeking.

Following your introduction ask the judges whether they would like to hear a recitation of the facts. This will give the judges the opportunity to decline if they are already adequately familiar with the facts. If you do explain the facts, do so very briefly. When reciting the facts, focus only on those facts that are relevant to the points you will be making in your argument.

After reciting the relevant facts for the court, you should begin arguing the most important point in your argument, provided that you have not already received questions from the bench. Remember, your most important point is the point that gives you the best chance of success on appeal.

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Argue the most important point first so you do not get side-tracked from conveying your message to the court.

Follow your most important point by discussing the one or two other points that you need to make during your argument. There is no need to support each point in your argument with many references to citations and legal precedent, as this will probably bore the court and is likely to cause your argument to become unfocused.

Support your argument by explaining why your argument presents the most logical approach to solving the issues before the court. Do this in terms of the facts, governing legal concepts, and public policy involved in the case. Weave some equitable concepts into your argument by explaining why you should win in terms of common sense and fairness.

Remember Your delivery of your argument should be simple and deliberate. Use simple, concise sentences to promote comprehension. Do not speak too quickly or rush through your argument because you will be hard to understand. Furthermore, avoid a monotonous or meek delivery.

Avoid being overly dramatic with your argument. For example, do not pound on the podium or raise your voice too loudly. You may gesture with your hands, but do not overdo it to the point that it becomes distracting.

Answering Questions from the Bench

It is rare for an oral argument not to be interrupted by questions from the bench.

Remember, one of the primary reasons courts set cases for oral argument is to ask questions about the case.

Moreover, answering questions is the most important task you’ll have to handle in an oral argument. You should not treat questions from the bench as an intrusion upon your

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argument. Rather, you should welcome questions from the bench and strive to answer them to the court’s satisfaction.

Learning how to properly answer questions from the bench takes time and practice. The following steps are a good starting point. a) Listen to and understand the question.

Heed the words of George Washington: ‘When Another Speaks be attentive your Self and disturb not the Audience if any hesitate in his Words help him not nor Prompt him without desired, Interrupt him not, nor Answer him till his Speech be ended’ You must stop talking immediately when a judge asks a question. If you talk over the judges, you may miss part of the question, and you may appear to be giving too little deference to the judges. Make sure that you listen to the entire question, not just part of it. If you do not listen to the entire question, you may supply the judge with an answer to only part of the question, not all of it. More importantly, make sure that you understand the judge’s question.

If you do not understand the question, politely ask the judge to repeat it.

For example, you may say, ‘I’m sorry your honour, but I didn’t understand your question.

Could you please repeat it?’ b) Pause to digest the question and think about an answer.

Pausing is important because it gives you the opportunity to really ponder the question and to formulate a complete answer. Do not be frightened by a brief moment of silence in your presentation. Your oral argument does not have to be continuously filled with your speaking. Most judges will expect the advocates to momentarily pause. c) Answer directly.

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Never evade a question from the bench, and never put off your answer to a question by saying something like, “I am going to talk about that in a few minutes”. If you can answer the question with a ‘yes’ or a ‘no’, do so.

If you do not know the answer to the question, do not try to bluff the judges or evade the question by failing to answer it. Rather, be honest with the court and tell the judges that you do not know the answer to the question and then move on.

d) Explain the answer.

If you have given a ‘yes’ or ‘no’ answer to the court, tell the court why you have provided it with that answer. For instance, if you had to concede a negative point in your case through your answer to a question, explain why that concession should not prevent the court from deciding the case in your favour.

e) Relate the answer to your argument Find a way to relate your answer to one of the points that you intend to make in your argument, particularly to a point that you have not yet addressed.

NOTE If a judge asks you to concede to a weakness in your case, it may be appropriate to make the concession, particularly if admitting to the weakness will not affect the ultimate outcome of the case or the strength of your argument. Making a concession in this instance will permit you to gain credibility because of your candour with the court, which will strengthen your argument in the long run. In addition, advocates who refuse to concede any points may come across to the judges as unreasonable and overly strident.

Nonetheless, you should not be too conciliatory with the court, especially if a judge insists that you concede to a point that will result in defeat. If that happens, politely stand your ground and explain why the facts, law, and policy support your position.

Remember

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On rare occasions, you may encounter a moot court judge who is quite hostile with his or her questioning. Unfortunately, not all judges are civil with their questioning. No matter how hostile statements or questions from the bench may become, you should be graceful and poised. Tell the judge posing a hostile question or comment that you respectfully disagree and move on with your argument.

Sometimes you may encounter questions from the bench that are tangential or irrelevant to the issues before the court. Resist the temptation to characterize the question as irrelevant or unimportant.

Do not act as if the judge is creating an inconvenience to you with the question. Rather, be patient with the court and try to answer all questions from the bench, even if they take you off on what you consider to be a tangent.

To avoid being side-tracked, keep your answer to such a question concise and direct. Then, move on to whatever relevant points you need to discuss with the court.

Wrapping Up Your Argument After you have made the points you need to make and have answered all of the court’s questions, you should conclude your argument.

You are not required to use up the entire time that has been allotted for argument.

Therefore, ‘quit while you’re ahead’ and conclude your argument once you have made all of the necessary points during the argument and has answered all of the court’s questions.

Your conclusion should be brief. Revisit your theme, briefly summarise the points that you made during your argument, and repeat the remedy you are seeking from the court.

If you are in the middle of answering a question from the court when your time expires acknowledge that your time is up and ask the court for permission to continue your answer.

Then, after you have finished your answer, say, “Thank you,” and sit down. Do not launch into a prepared conclusion in which you reiterate the points you have made and repeat your prayer for relief.

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Rebuttal After the appellee has presented his or her argument, the appellant has an opportunity to give a short rebuttal. If you are giving a rebuttal, be as brief as possible. You should reserve time for rebuttal, regardless of whether you actually end up using that time. If you do not reserve rebuttal time, you will be unable to correct any factual or legal misstatements that opposing counsel made during his or her argument.

To ‘rebut’ something means to refute it or to respond to it. If you represent the appellant, you should keep this meaning in mind because you should use your rebuttal only to respond to points that the appellee raised in his or her argument. For example, you might use your rebuttal to correct or clarify any misstatements or unclear characterizations of the facts or the law that your opposing counsel made in his or her argument.

Never use rebuttal to raise new issues or to raise points that you were unable to cover in your opening argument.

Because the time allotted for rebuttal will be brief, you should cover no more than one or two points in your rebuttal. Be concise and direct in discussing these points. In addition, listen carefully and closely to your opposing counsel’s argument. Otherwise, you will not have anything to talk about on rebuttal.

NOTE If you represent the appellee, you should ‘go with the flow’ and modify your argument according to what the appellant says during her opening argument.

Remember Eye contact with the judges is extremely important during your presentation. You want to maintain a conversational tone with the judges, and eye contact with the bench will aid you in that goal. Further, when a judge asks you a question, you should focus on keeping eye contact with the whole bench, not just the judge who asked you the question. addendum

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Avoid verbal pauses and verbal filler. Verbal pauses are the “uhs” and “ums” that some people use when speaking. Speakers often use verbal pauses when they are thinking of what to say. Instead of using verbal pauses, simply pause silently.

Verbal filler is language that a speaker unnecessarily uses to preface a point that he or she is making. For example, we would submit that… you honour the … etc.

Your demeanour should be deferential but firm. Refer to each judge as ‘your Honour’ or by the judge’s title and name, such as ‘Justice Doe’. Refer to the judges collectively as ‘this court’ or ‘your Honours’. Avoid calling the judges ‘ma’am’ or ‘sir’.

Great lawyers know what George Washington meant when he said: ‘In Disputes, be not So Desirous to Overcome as not to give Liberty to each one to deliver his Opinion and Submit to the Judgment of the Major Part especially if they are Judges of the Dispute’.

Do not take a defensive tone with the judges. One of the worst things that you can do during an oral argument is to fight with a judge regarding a point about which you disagree.

This may make the judge upset at you and will unquestionably cause you to lose the respect of the court.

However, it is certainly permissible to disagree with a judge as long as you do so respectfully. For example: If you do not agree with a judge’s assessment of an issue or point, you could say, “with all due respect, your Honour, I disagree…,” and then use the facts and the law to give the reasons why you disagree. Logic is your best ally in this situation.

If you are making a point in response to a judge’s question that you made before in your argument, avoid prefacing your statement with “As I said before,” or, “As I said earlier.”

Similarly, avoid prefacing statements with the words “clearly” or “obviously,” especially if you are making a key legal point in your argument.

Remember:

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If the point was clear or obvious then there would be no need for oral argument.

Avoid reading long quotations from the record or the case law you are using to support your arguments. You will bore the judges if you do so. This does not mean that you may never quote from the record or the law. If you do so, keep the quote short.

Be yourself during oral argument. Everyone has a different style of speaking, so you should not try to mimic the speaking style of other advocates.

If you have prepared well for your oral argument, then you can afford to be yourself because you will give a good oral argument.

Rest assured that; there is no ‘right argument, out there in the universe, of all possible arguments’ that, if only you can find it, will in a single, satisfying blow, utterly devastate the other side and deliver victory to your case.

In the actual practice of law, as in most areas of life, disputes are almost never settled by the delivery of a decisive, knockout blow. Legal fights usually go the distance, and are won on points. The winner is the contestant who is fitter, better prepared, and more determined, and who lands the best blows.

Some few courtroom ‘Don’ts and Dos’ Don’t interrupt the judge. However, the judge may interrupt you; let the judge do so. The judge is trying to get you to focus on something the judge thinks as key to the decision.

Don’t embarrass the judge, who may be a casual acquaintance or someone you’ve had in a prior case, in front of opposing counsel by assuming familiarity or referencing common friends.

Don’t say you’re going off the record. Ask the judge to go off the record.

Do not stand directly in front of the bench or block opposing counsel’s line of sight to the witness or exhibit.

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Don’t sit on the counsel table while conducting your examination or addressing the Court.

Do not invoke as authority the fact that ‘things have always been this way’.

You have a professional, ethical obligation to show respect to opposing counsel. Fury, or indignation, are most powerful when virtually imperceptible. Be nice to opposing counsel.

No matter what. Assume the judge will read deposition transcripts, and every letter and email you send.

Be nice to court staff. Treat them with the respect you would afford a judge. Staff reports everything to the judge.

Be in court on time. This means getting to court early. A nine o’clock appearance requires your attendance at 8:55, not later. This includes your witnesses. Make sure your witnesses are lined up, waiting outside the courtroom, and assume testimony will go faster than predicted.

If you are running late, make sure you have the phone number of the court’s clerk so that you can call and explain, or at least call some of your colleagues, who might be in court’s vicinity and request them ‘to hold brief’ for you.

Pre mark exhibits, and agree with opposing counsel on their admissibility. Generally there are only a few exhibits in a case which truly present difficult issues of admissibility.

Consider providing direct testimony via declaration and having witnesses only available for cross-examination.

There is no substitute for a very good grounding in the evidence code. The judge is under no obligation to rule on objections you didn’t make, and it is highly unlikely you’ll be able to appeal on the basis of inadmissible evidence if you didn’t make the right objection at the time.

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Other futile approaches: a) Arguing that the last motion (or evidentiary ruling) was decided in favor of the other side, now it is your turn. b) Throw it all on the wall and see what sticks. c) Assuming the judge won’t read the cases anyway.

Lawyers are old enough to be drafted, drink beer, and get married: Don’t be petulant. Don’t whine. Do not make a face, such as one might after unexpectedly eating a lemon, as a response to the court’s ruling, or spin on your heels and walk out of the courtroom as a display of what you think about the court’s ruling. (Curtis. 2013)

Using technology in courtroom Technology is great if lawyers know what they’re doing; and a distraction and waste of time if they don’t.

Murphy’s Law holds that, what might go wrong will go wrong, trust inn this law when planning to use technology in a courtroom.

Bring in everything you need- thumbtacks, projector, screen, easels, pens, marker pens, extension cables, white-out, etc. Assume the courtroom is bare. Don’t even assume the courtroom has a table for your video projector.

Set aside time to meet with the courtroom clerk to discuss setting up equipment. Consult with the clerk before you start moving furniture or set up equipment. The clerk knows about lines of sight, fire exits, and other requirements.

Practice the presentation with exactly the same equipment and data sources, with the exactly the same personnel, as you expect to use at trial. You must practice with exactly the same software you plan on using at trial- versions may not behave the same way (this is

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true, by the way, of PowerPoint), or may be incompatible with files made by another version.

Your office is not the courtroom, The fact that you can hear those tinny laptop speakers doesn’t mean folks in a large courtroom with atrocious acoustics will. Internet connectivity in your office doesn’t mean you will have it in the courtroom. Don’t count on the lights being turned down in the courtroom in order to see your slide show.

Bring low tech backups, such as paper and foam core versions of items to be projected. Be prepared to give your closing, scheduled as a ‘multimedia shock and awe presentation on five screens’, with only paper notes.

High tech has an embracing, insidious power: it can distract you and the judge, and over reliance on it will reduce your flexibility to adapt to swiftly changing circumstances. It is easier to modify one’s opening when relying on notes than with a PowerPoint; it is simpler to redact a paper exhibit than the PDF form to be projected on a screen.

Talk to the other lawyers about sharing equipment. This reduces costs and, more importantly from the judge’s point of view, reduces clutter and the interminable delays as one array of equipment is set up and another moved away as the lawyers change places.

Bring tape to fix wires and cables.

Check out the courtroom in advance for the best location of projections, screens, displays, easels, and the rest. Think about lines of sight: Will the judge and opposing counsel be able to see? Have you interfered with free access by those in wheelchairs or who might use crutches?

Golden Rules for the Examination of Witnesses

Examination- in- chief

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If your witnesses are bold, and may injure your cause by pertness or forwardness, observe a gravity and ceremony of manner toward them which may be calculated to repress their assurance.

If they are alarmed or diffident, and their thoughts are evidently scattered, commence your examination with matters of a familiar character, remotely connected with the subject of their alarm, or the matter in issue; as, for instance,—where do you live? Do you know the parties? How long have you known them? etc.

And when you have restored them to their composure, and the mind has regained its equilibrium, proceed to the more essential features of the case, being careful to be mild and distinct in your approaches, lest you may again trouble the fountain from which you are to drink.

If the evidence of your own witnesses be unfavourable to you (which should always be carefully guarded against), exhibit no want of composure; for there are many minds that form opinions of the nature or character of testimony chiefly from the effect which it may appear to produce upon the counsel.

If you perceive that the mind of the witness is imbued with prejudices against your client, hope but little from such a quarter—unless there be some facts which are essential to your client's protection, and which that witness alone can prove, either do not call him, or get rid of him as soon as possible. If the opposite counsel perceives the bias to which I have referred, he may employ it to your ruin. In judicial inquiries, of all possible evils, the worst and the least to be resisted is an enemy in the disguise of a friend. You cannot impeach him; you cannot cross-examine him; you cannot disarm him; you cannot indirectly, even, assail him; and if you exercise the only privilege that is left to you, and call other witnesses for the purposes of explanation, you must bear in mind that, instead of carrying the war into the enemy's country, the struggle is still between sections of your own forces, and in the very heart, perhaps, of your own camp. Avoid this, by all means.

Never call a witness whom your adversary will be compelled to call. This will afford you the privilege of cross-examination,—take from your opponent the same privilege it thus gives to

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you,—and, in addition thereto, not only render everything unfavourable said by the witness doubly operative against the party calling him, but also deprive that party of the power of counteracting the effect of the testimony.

Never ask a question without an object, nor without being able to connect that object with the case, if objected to as irrelevant.

Be careful not to put your question in such a shape that, if opposed for informality, you cannot sustain it, or, at all events, produce strong reason in its support. Frequent failures in the discussions of points of evidence enfeeble your strength in the estimation of the jury, and greatly impair your hopes in the final result.

Never object to a question from your adversary without being able and disposed to enforce the objection. Nothing is so monstrous as to be constantly making and withdrawing objections; it either indicates a want of correct perception in making them, or a deficiency of real or of moral courage in not making them good.

Speak to your witness clearly and distinctly, as if you were awake and engaged in a matter of interest, and make him also speak distinctly and to your question. How can it be supposed that the court and jury will be inclined to listen, when the only struggle seems to be whether the counsel or the witness shall first go to sleep?

Modulate your voice as circumstances may direct, ‘Inspire the fearful and repress the bold.’

Never begin before you are ready, and always finish when you have done. In other words, do not question for question's sake, but for an answer.

Cross-examination

The best lawyers know exactly what they want. They ask a few questions, and sit down. The worst lawyers treat cross as a deposition, exploring this avenue and then the next, hoping, it seems, to find a little nugget which might be useful. This is not only a waste of time, but three classic dangers loom:

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(i) Loss of focus (no one may notice the nugget, lost as it is in a miasma of tedium)

(ii) an answer you don’t want, and

(iii) opening up the scope of re-direct to a thousand new subjects.

When outlining a cross-examination plan of the opposition’s expert, take into account the following fertile terrain for attack: a) Questionable credentials; b) Weak foundation for the expert opinion; c) Erroneous assumptions; d) Faulty science or lack of reproducible analysis; and e) Situational or cognitive biases While each trial lawyer develops a cross-examination style reflecting his or her personality traits, an effective cross-examination should reflect the dual objectives of aim deception and rapidity: ‘Rapidity is the essence of war: take advantage of the enemy’s unpreparedness, make your way by unexpected routes, and attack unguarded spots’.

Cross-examination requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self-control; power to read men's minds intuitively, to judge of their characters by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and, above all, the instinct to discover the weak point in the witness under examination.

Some golden rules

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Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate.

‘Truth, falsehood, hatred, anger, scorn, despair, and all the passions—all the soul—is there.’

Be not regardless, either, of the voice of the witness; next to the eye this is perhaps the best interpreter of his mind. The very design to screen conscience from crime—the mental reservation of the witness—is often manifested in the tone or accent or emphasis of the voice. For instance, it becoming important to know that the witness was at the corner of Sixth and Chestnut streets at a certain time, the question is asked, Were you at the corner of Sixth and Chestnut streets at six o'clock? A frank witness would answer, perhaps I was near there. But a witness who had been there, desirous to conceal the fact, and to defeat your object, speaking to the letter rather than the spirit of the inquiry, answers, No; although he may have been within a stone’s throw of the place, or at the very place, within ten minutes of the time. The common answer of such a witness would be, I was not at the corner at six o'clock.

Emphasis upon both words plainly implies a mental evasion or equivocation, and gives rise with a skilful examiner to the question, At what hour were you at the corner, or at what place were you at six o'clock? And in nine instances out of ten it will appear, that the witness was at the place about the time, or at the time about the place. There is no scope for further illustrations; but be watchful, I say, of the voice, and the principle may be easily applied.

Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.

In a criminal, especially in a capital case, so long as your cause stands well, ask but few questions; and be certain never to ask any the answer to which, if against you, may destroy your client, unless you know the witness perfectly well, and know that his answer will be

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favourable equally well; or unless you be prepared with testimony to destroy him, if he play traitor to the truth and your expectations.

An equivocal question is almost as much to be avoided and condemned as an equivocal answer; and it always leads to, or excuses, an equivocal answer. Singleness of purpose, clearly expressed, is the best trait in the examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth, or if by cunning, it is the cunning of the witness, and not of the counsel.

If the witness is determined to be witty or refractory with you, you had better settle that account with him at first, or its items will increase with the examination. Let him have an opportunity of satisfying himself either that he has mistaken your power, or his own. But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual conflict.

Like a skilful chess-player, in every move, fix your mind upon the combinations and relations of the game—partial and temporary success may otherwise end in total and remediless defeat.

Never undervalue your adversary, but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill; the negligence of one often cures, and sometimes renders effective, the blunders of another.

Be respectful to the court, kind to your colleague; civil to your antagonist; but never sacrifice the slightest principle of duty to an overweening deference toward either.

In concluding these remarks on cross-examination, the rarest, the most useful, and the most difficult to be acquired of the accomplishments of the advocate, is calm discretion. In addressing (the court) you may sometimes talk without having anything to say, and no harm will come of it. But in cross-examination every question that does not advance your cause injures it. If you have not a definite object to attain, dismiss the witness without a word.

There are no harmless questions here; the most apparently unimportant may bring destruction or victory.

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Great lawyers know when to sit down, as well as when to keep their seat. Fear not that your discreet reserve may be mistaken for carelessness or want of self-reliance. The true motive will soon be seen and approved. Your critics are lawyers, who know well the value of discretion in an advocate; and how indiscretion in cross-examination cannot be compensated by any amount of ability in other duties.

The attorneys are sure to discover the prudence that governs your tongue. Even if the wisdom of your abstinence be not apparent at the moment, it will be recognized in the result. Your fame may be of slower growth than that of the talker, but it will be larger and more enduring. (Cox, 1852) Nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers—and alas! Not only young ones—who seem to feel it their duty to cross-examine every witness who is sworn.

Cross-examination as to credit should be exercised with great care and caution.

The infinite variety of types of witnesses one meets with in court makes it impossible to lay down any set rules applicable to all cases.

Generally, the trial advocate must establish and maintain control of the expert witness by the following means: 1) Keeping the expert guessing; 2) keeping the expert on the defensive; 3) limiting opportunities for ‘lecturing’, ‘pontificating’, or ‘proselytising’; 4) limiting or eschewing open-ended questions; 5) buttressing your expert’s opinion through the opposing expert’s acceptance of your expert’s:

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a) Professional credentials, b) Factual analysis, c) Reasonableness of assumptions, d) Lack of bias and professional neutrality, and e) Scientifically rigorous use of methods, testing, protocols and procedures.

Often, the difference between a failed and successful cross-examination will depend upon the exercise of balanced judgment and modest goals:

According to Tsun Tzu:

‘Move not unless you see an advantage; use not your troops unless there is something to be gained; fight not unless the position is critical’.

Presenting Evidence Achieving mastery of procedural and evidentiary rules is not simply an exercise of recitation and rote memorization, but having the insight for when (and when not) to use them to strategic advantage. Interlocutory and pre-trial motions are tactics which should be used sparingly and only if one can predict how the opposition will react and whether it advances the overall objective: Tsun Tzu said: ‘If you know the enemy and know yourself, you need not fear the result of a hundred battles.

If you know yourself but not the enemy, for every victory gained you will also suffer a defeat.

If you know neither the enemy nor yourself, you will succumb in every battle’ If the other side’s pleadings are open to attack, one should weigh the costs and benefits of bringing a motion, as opposed to using this pleading deficiency to greater advantage at trial or eliminating any avenues of appeal.

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If, however, the factual and evidentiary record strongly supports a motion for summary judgment, then moving sooner, rather than later, is advisable, particularly where time and money are at a premium, and where the local procedural rules restrict a motion for summary judgment after the action has been set down for trial.

There are a few basic steps in using documentary evidence. These are painfully obvious, but it is far more painful when the steps are not observed.

1) Mark the exhibit, if it has not been pre-marked. Even if it has been pre-marked, provide for the record and the clerk (1) the number and (2) a very brief description of the item.

2) Provide copies to all parties and the court. You must have copies for the other parties and the judge. And no, they cannot be different versions than the original.

Copies should be marked ‘copy’ or some such to avoid the embarrassing problem. The witness never looks at a copy; but only testifies from the original exhibit.

3) Show the exhibit to the witness 4) Lay the foundation for admissibility if not done before 5) Ask that the exhibit be admitted 6) Keep all exhibits in one place once admitted or used.

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LEGAL RESEARCH To be a great lawyer, you need to develop exemplary research skills.

Legal research is a legal skill that teaches basic legal knowledge necessary for successful completion of law school. It also requires issue-spotting, legal analysis, and the application of law to facts.

Legal research is also a fundamental lawyering skill necessary for the practice of law. It is the lawyering skill that provides the knowledge necessary for other lawyering skills such as interviewing, writing, negotiation, and counselling.

A legal researcher needs to be able to identify issues; read and analyse primary sources, like cases and statutes; and determine which materials are relevant. This chapter will point you to the direction you need to take when undertaking a legal research assignment.

Understanding research assignment The starting point for any research assignment is to make sure you understand the assignment before you begin doing Research.

This means asking questions of the professor or attorney assigning the research and paraphrasing the request back to make sure the assignment is understood.

Remember: Any ambiguities in an assignment must be resolved before the research begins.

For example: The issue of Jurisdiction: You cannot conduct research for a case, statute, or regulation without knowing the relevant jurisdiction.

In addition to asking questions regarding the jurisdiction or the specific information being sought, a researcher should ask what form the final product is to take and when it is needed.

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The research process can be jump-started if the researcher begins with even one case, statute, treatise, or law review article on point.

Next use secondary sources to begin your research: The goal of legal research is usually to find relevant primary law.

Faced with the task of locating this law, a researcher has two choices: (1) search directly in primary law sources for relevant authority; or (2) use a secondary source to get citations to relevant authority.

It is generally best to begin research by going to a trustworthy secondary source—a legal treatise or a law review article.

For individuals who are new to a given area of law, including attorneys who have never practiced in that area, secondary sources provide a quick method by which they can get a grasp on potential issues and pitfalls within that topic. If not for secondary sources, each legal problem would have to be researched by sifting through primary materials and that would be a truly daunting task. (Valentine, 2010).

There are several good reasons to start with secondary sources. If the research topic encompasses multiple primary law sources, for example cases, statutes, and regulations, one would have to research in at least three different primary sources to find relevant authority in each category.

A secondary source on the issue would cite to the relevant primary authority in one publication, whatever the type. With a secondary source, someone else has already done the work of identifying the relevant information. ‘One of the most important tenets of carrying out efficient legal research is to find someone who has done the work for you’ (Marci, 2008)

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Secondary authority also aids the researcher in understanding the issue being researched by providing analysis and explanation.

Sources: Annotated statutes: These give the researcher ‘references to relevant judicial or administrative decisions, administrative code sections, encyclopaedias, attorney general opinions, legislative history materials, law reviews, and treatises’.

Law review articles: These provide in-depth analysis and usually have extensive footnotes, which can be an excellent source for references to primary and secondary authority. Law review articles are good at identifying weaknesses or new trends in the law that might address a client’s situation.

In addition, one can turn to the footnotes to find citations to relevant cases, statutes, administrative rules and regulations, legislative histories and any other primary or secondary documentation that has a relationship to the matter at hand.

Legal treatises: like law review articles, can provide analysis and explanation, along with references to primary and secondary authority. They can be multi-or single-volume works and range in focus from scholarly to self-help.

NOTE: Novice researchers should not begin with law review articles unless they already know something about the subject area. Law review articles generally cover narrow legal topics in great depth. Therefore, law review articles are excellent resources for more advanced research on narrow topics, but not necessarily for beginning researchers.

Generally there are four types of treatises: ‘critical, interpretive, or expository’, ‘student textbooks’, ‘practitioner-oriented books’, and ‘law for the general public’.

From secondary sources, you will generate a list of research terms. From the research terms, you can then move to primary sources (either statutes or cases).

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Remember: Before you plunge into primary sources, use secondary tools to get an overview of the area.

Core principles of legal research Legal research involves types of materials found more easily through law-specific databases.

You should evaluate what you find online. Distinguish material found on Wikipedia or other Internet sources from material found on reliable legal databases.

Read the entire text of primary law. Do not rely on headnotes or summaries as you might miss important parts of the entire case. Of course, you must make sure cases are still good law and that statutes are current.

In practice, lawyers stop their research when they run out of time and when the cost exceeds the benefit. In law school, students stop their research when their assignment is due.

It is important to relate to legal research, you must know how and when to use the materials.

It is rare for researchers to locate a relevant statute and apply it immediately to the facts without first researching case law. Legislatures write broad statutes to apply to a wide array of circumstances. To be able to predict how a court may apply a statute to the facts, researchers must know how the courts have interpreted the statute and applied it in the past.

It is very important that you take the time to interpret the information presented and read the later authorities to determine how those later authorities affect your analyses.

Update your case-law: the main goal is to determine whether the case has been overruled or reversed. If it has been overruled or reversed, you must determine whether it was overruled or reversed for the same issue or point of law on which they are relying.

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Read statutes very carefully. Too many researchers fail to take the time necessary to read the language of the statute and consider all its implications before deciding whether it is relevant to the research problem. Moreover, because few statutes are so clear that they can be understood in one reading, careful research will likely require researchers to read a statute several times before they understand its meaning and relevance. Also, you should watch for the definition of terms. There is often a separate definitions section.

Statutes seldom remain unchanged for very long. A future legislature may amend or repeal a statute for any number of reasons. Therefore, be wary of a statute that has not been altered in some way. Always check a law for recent changes. Look at the publication date to determine whether a law needs updating.

Remember: You can stop researching when you use both secondary and primary resources and locate the same authorities in both.

Library catalogues A library catalogue is composed of bibliographic records that describe the items in a library’s collection.

Use library catalogues and indexes to identify and locate relevant resources.

When you have a citation to a known item—for example a case, statute, regulation, treatise, or law review article—the goal is to locate the full text of the item in a library or through the library’s resources.

When beginning research on an issue—without a citation in hand—the need is to identify items (cases, treatises, etc.) that address that issue.

Most legal research projects involve trying to find relevant primary authority on a given issue of law.

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Library catalogues are a useful tool for finding relevant treatises. By searching a given library’s online public access catalogue (OPAC), you can identify items available in that library’s collection. For example: WorldCat is a free online union catalogue and gives researchers the ability to search more broadly and identify items in the collections of thousands of libraries around the world.

Use a catalogue to identify items related to a given issue, they focus on the title, contents, and subject fields.

The title field, as its name suggests, contains the title of the item.

The contents field will not appear in every catalogue record, but when present for a treatise it typically lists the treatise’s table of contents or chapter headings. The title and contents fields are created by a cataloguer using the same text used in the title and table of contents of a treatise.

The subject field is different. While the concepts expressed in the subject field are based on the topic(s) covered in the treatise, the words and phrases used do not come from the treatise itself but from a controlled list. The primary advantage to using a controlled list for subjects is uniformity. (Buckingham, 2010).

Indexes ‘Index means ‘to point to.’ Indexes ‘point to’ information located somewhere else . . . . ” (Dalrymple, 1995) A good index can be an especially useful tool because it will point to the same material in several ways (i.e., the same material will be indexed under more than one entry); use crossreferences to direct the user to similar or related terms; be structured in a way that gives context to the terms used; and help the user find material based on the concept covered and not the specific words used.

Indexes give the citation to articles, not the full text, this must then be located. If one uses a law review index on Westlaw or LexisNexis, links are provided from index entries to those

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articles that are available in full text. Hein-Online is an excellent resource, especially for older articles not available on Westlaw or LexisNexis.

You should not stop reviewing the index after finding just one statute reference; several statutes may address an issue. Sometimes a research term will be included in the index but will be followed by a cross reference to another index term. Referring to that term may lead you to relevant statutes.

When electronic full text of an article is not available, WorldCat can be used to find the nearest library that subscribes to the journal.

Although WorldCat does include entries for some articles, it is better to search for the title of the journal in which the article is published.

Digests are indexes to case law. Digests contain abstracts or digests of cases organized by subject.

Practical tips Researchers looking for a treatise should search their library’s OPAC or WorldCat. They should run keyword searches, which look in the title, contents, and subject (and other) fields. When the record for a treatise that appears to be relevant is found, the researcher should review the subject headings to identify additional search terms that can be used in a new keyword search. The researcher can also use the call number to find related items, either by going to the shelves and browsing, or by searching the catalogue using the known call number.

If keyword searching returns too many results, researchers should try to limit their keyword search to the title field alone. This will reduce the number of results and improve their quality, because a treatise with a researcher’s search words in its title is likely to be highly relevant.

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Note that a title keyword search, which looks for the search words anywhere in the title of an item, is different than a title search, which searches for items with a title that begins with the exact terms searched.

Researchers looking for statutes should consider using the print indexes to annotated codes instead of searching full-text databases. (In emerging jurisdictions such as Kenya, the starting point should be (www.kenyalaw.org) for common law cases a good starting point would be (www.bailii.org) and for legal articles and treatises (www.ssrn.com and http://lawreviewcommons.com/) are recommended. All have a free access. Further free databases are provided later.

Instead of searching full-text databases for law review articles, researchers should consider using law review indexes. These indexes include articles not available on Westlaw or LexisNexis. For abbreviations of common law legal journals and law reviews the Cardiff Index to Legal Abbreviations (www.legalabbrevs.cardiff.ac.uk) is recommended.

Remember: As a legal researcher if you need help getting started, or hit a road-block in your research, you should not be afraid to ask for help. There are many places you can turn to for help, for example: you can ask a librarian for assistance. Many librarians help patrons in person, over the telephone, via e-mail, or even through live online chats.

Students might also consider contacting a professor at their school who teaches or publishes on the research topic. Some professors may be more willing than others to help, but ‘many knowledgeable people like to share information, especially when asked’.

Another option for practicing attorneys is to talk to other attorneys with expertise in the area being researched.

Attorneys who work in firms might talk to more experienced colleagues within that firm.

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Sole practitioners might contact other attorneys in their office building, Attorneys in practice-related organizations in which they are members, or even attorneys who previously acted as opposing counsel.

Free online legal databases:

(www.casecheck.co.uk): this offers free digests of cases from Scotland, England and European Court with links through to judgments where available. (http://www.wipo.int/wipolex/en/index.jsp): this is a one-stop search facility for national laws and treaties on intellectual property (IP) of WIPO, WTO and UN Members. It also features related information which elaborates, analyses and interprets these laws and treaties. (http://www.doaj.org/): Provides access to scientific and scholarly electronic journals that are freely available on the web (http://network.bepress.com/): this is an open access digital commons network for academic journals.

(http://www.doingbusiness.org/law-library): A free, online collection of business laws and regulations with links to official government sources wherever possible. The database provides access to economic and regulatory indicators comparable across different jurisdictions with laws on topics such as banking and credit, bankruptcy, companies, labour, securities, taxation and trade. (http://www.eisil.org): this is a Portal to reliable sources for international law resources (including treaties, international agreements and UN documents) on the free web. (http://eur-lex.europa.eu):

EU information - full text treaties, secondary legislation,

preparatory legislation, cases, parliamentary documents. (http://europa.eu): provides information and access to documents produced by various EU institutions. Select EU law.

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(http://ials.sas.ac.uk/library/flag/flag.htm):

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A web portal to the holdings of foreign,

international and comparative law in UK universities and national libraries. (http://www.loc.gov/lawweb) or google: Global Legal Monitor (GLM): A frequently updated summary of legal developments across the world supplied by the Library of Congress. (http://www.icnl.org/research/library): a searchable database of laws, reports, and other civil society legal resources from countries around the world. (http://www.iiapp.org): this provides an open access to research on investment arbitration. (http://italaw.com): For news and commentary on investment treaties and database of publicly available investment treaty awards. (https://ca.linexsystems.com): Updates and reviews from over 1000 law firms and government organisations throughout the World. (http://www.ilo.org ): International Labour Organization's database of national labour, social security and related human rights legislation. (http://documents.un.org): UN documentation including treaties, reports and resolutions. (http://www.refworld.org): Collection of material collected by the UNHCR (UN Refugee Agency) to aid decisions on refugee status. Via ‘Quick Links’ access (inter alia) collections of national legislation and national and international case decisions (including tribunals and administrative bodies). (http://treaties.un.org): Treaties and international agreements registered or filed and recorded with and published by the Secretariat since 1946. (http://unbisnet.un.org): Catalogue of United Nations(UN) documents and publications indexed by the UN Dag Hammarskjöld Library and the Library of the UN Office at Geneva.

Also included are commercial publications and other non-UN sources held in the collection of the Dag Hammarskjöld Library.

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(http://www.worldlii.org): Free source of case law and legislation from various jurisdictions, international courts and tribunals. It includes a catalogue of free legal web sites organised by jurisdiction and subject.

Addendum The breadth of research that attorneys undertake has grown dramatically. Small firms and solo practitioners are conducting more audience, business, and science research than in the past. A law student who learns to locate experts, find reliable and useful scientific information, or track emerging areas of law is being prepared for what lawyers do in practice.

The Internet and other electronic medium have made teaching legal research far more difficult than it was in the past for several reasons.

First, the sheer volume of easily available information makes locating useful information harder. Second, the concept of a conscious, thoughtful, articulable research process has been disrupted by the ease of typing one or two words into a search engine and being rewarded with pages of results. The Internet ‘makes it ungodly easy now for people who wish to be lazy.’ (Ian Gallacher, 2007)

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ALTERNATIVE DISPUTE RESOLUTION ‘…to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.’ Sun Tzu

Alternative dispute resolution or ‘ADR’ refers to a wide range of dispute resolution mechanisms or techniques.

Parties and their lawyers increasingly seek means to resolve their differences without resorting to litigation, and thus they increasingly turn to alternative mechanisms to attempt to resolve differences.

There are many types of ADR mechanisms in use today. Each has distinctive values and is useful in certain types of disputes. Some of the most common ADR mechanisms can be described as follows: Arbitration Arbitration is a system whereby parties agree to submit their dispute to a third party, who holds an evidentiary hearing and issues a final and binding decision. Parties select the arbitrator and design the hearing procedures themselves. There are many types of arbitration systems because parties can design them however they choose. Some procedures are informal in which parties have an opportunity to present any evidence they wish. Others apply rules of evidence, permit motion practice, and include other judicial procedures. Some permit discovery and some do not.

Some arbitrators are a single decision-maker, while some are a panel of three or even five.

Decisions of an arbitrator can only be appealed to a court on narrow grounds, such as fraud or misconduct by the arbitrator. Errors of fact or law by an arbitrator cannot be appealed.

Arbitration thus gives the parties substantial autonomy and control over the process that will be used to resolve their disputes. This is particularly important in international commercial arbitration because parties do not want to be subject to the jurisdiction of the

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other party’s court system. Each party fears the other party’s ‘home court advantage’.

Arbitration offers a more neutral forum, where each side believes it will have a fair hearing.

One of the biggest impact areas for a successful arbitration result comes through the development of a tight, compelling narrative. The underlying need for expedition and economy necessitates the distillation of the case to the essential elements and the presentation of those elements in an efficient and logical manner. To do this successfully requires a strategic approach that utilizes all of the quintessential elements of effective persuasion and advocacy.

Be prepared and organized…think of the process as one of educating and persuading the arbitrator. The hearing should not be endless repetition of favourable facts; rather it should be an effective presentation of the facts that are necessary for success.

Your narrative must have, ‘fidelity’ with the arbitrator; in other words, the story must ‘ring true’ or make sense to your arbitrator. Does it fit with what they already know or perceive to be the way things work? Additionally, a story should have ‘cohesiveness’. It should hang together well; it should have internal consistency, meaning there should not be contradictions amongst the story elements (e.g., the documentary evidence and the testimony) (Walter, 1989)

Controlling the narrative is a means to controlling the framework of the dispute. Through a cohesive and compelling story you are setting the boundaries for the arbitrator’s decision‐ making process.

The way your arbitrator thinks about your case will be influenced by the language you use to characterize the issues. The goal is to shape the way the arbitrator will choose to think about your case by carefully crafting and using words that accurately, vividly, and judiciously characterize your case.

Appropriate language can enhance a more favourable understanding, retention, recall, and evaluation of your case.

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Inappropriate language, however (e.g., hyperbole or antagonistic language), is the hallmark of desperation and will likely weaken your position.

Having an understanding of what you eventually want to say to the arbitrator will help you ask the right questions, seek out the right documents and facts, and defend against your opponent’s efforts. Although the process of discovery may well modify the narrative you will eventually present, the hope is that the modifications will be slight rather than fundamental. As the old adage goes, the only bad plan is one that cannot be altered.

Having an established narrative and themes should make your efforts more targeted and, therefore, more effective for your client.

Writing your brief is a specific example of where the early narrative and thematic efforts can pay dividends. A coherent narrative makes difficult choices much easier as to what to include, what to emphasize, and what to discard. The brief is your first opportunity to establish your case. Nothing can hurt your credibility more than presenting a brief that is disorganized, redundant, and advances inflated claims.

As a summary, during the case strategy session, the goal is to proceed in a systematic manner toward crafting a case narrative that: a) Creates an overall framework that strategically situates the evidence and testimony. b) Highlights the case strengths while minimizing, but still addressing, the weaknesses. c) Identifies themes that can be employed in opening, testimony, and graphics. d) Explains and/or clarifies processes or concepts with which an arbitrator might be unfamiliar. e) Provides clear links to the legal issues used as part of the arbitrator’s decision. f) Requests an appropriate (or presents an alternative) remedy Witnesses

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“There is nothing like a good witness to bring the contents of a document to life in the mind of an arbitrator.”

Although the vast majority of witness preparation efforts are directed at clarifying the content of the testimony, vocal qualities, and non‐verbal messages are just, if not more, important.

For many witnesses, testifying is unfamiliar territory. Attending to witness preparation by putting them in a realistic setting is critical to helping them develop confidence and competence in testifying. There is no good substitute for role‐playing in this situation. Part of the preparation should include having your witness ready and able to answer questions from the arbitrators. It is essential to invite others to interrupt and ask questions. Your witness must practice alternating between answering your, opposing counsel’s, and the arbitrators’ questions.

The more you can make them comfortable with the rules of the hearing, the more you can make them comfortable understanding how they can firmly, but with civility, stand up to the efforts of opposing counsel. Equally important, the more comfortable they are, the more effective they will be in supporting your case narrative.

Remember: In an arbitration hearing, time is of the essence and the arbitrator does not want his or her time wasted with repetitive or unstructured arguments.

Opening statements In an opening statement establish the narrative foundation of your case in a manner that analytically orients and psychologically motivates the arbitrator or mediator. Your opening must make your audience want to hear more about your case, process the evidence in your favour, and render or negotiate a resolution favourable to your client.

The goal is not to over‐claim, over‐promise, or attempt to inflame the passions. On the contrary, the language of the opening should be firm, reasoned, and reasonable. If you

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began setting the right tone with your brief, your opening presentation gives you a chance to reinforce it and to create the lasting impression of the case.

NOTE You do not want to laboriously and at length re‐state everything that was said in your brief.

Instead, think of the opening as the opportunity to focus the arbitrator’s attention on the parties and the facts in a manner most conducive to your success.

Remember: Your demeanour—the way you gesture, move, make eye contact, control your voice—sends important signals to the arbitrator about your credibility, your confidence and competence, and your overall command of the case and the arbitration process.

To make sure that you are sending the right message through your delivery, there is no better preparation than rehearsing the entire presentation with an audience, integrating technology and graphics, and employing audio‐visual feedback in a structured and facilitated feedback session. Oral communication is a skill that can be practiced and improved.

You have to understand that evidentiary objections serve a different purpose in arbitration than they do in litigation. For example, you can object if the opposing party attempts to introduce hearsay testimony, but expect the arbitrator to let the testimony in “for what it’s worth.” Use objections not to exclude testimony, but to call the arbitrator’s attention to evidentiary weaknesses.

Fifth, understand the concept of credibility and how credibility determinations are made.

Accept that some facts will be “bad” for your case, and instruct your witnesses to do the same. Concede the bad facts and concentrate on the good ones – don’t risk your witnesses’ credibility by allowing them to insist on facts that the arbitrator will find un-believable.

Closing speech should be concise, focused, well‐reasoned and calm. Remember, you are attempting to win your case by satisfying the needs of the arbitrator. Provide clear reasons to prefer your client’s case.

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In an arbitration hearing you must deliver powerful advocacy in a short amount of time.

Every decision that is made, every piece of evidence that is used, every witness that speaks, and every visual that is offered must be done with efficiency.

International Law Governing Arbitral Agreements The dominant treaty for the recognition and enforcement of foreign arbitral awards is ‘The Convention on the Recognition and Enforcement of Foreign Arbitral Awards’ (it is also termed: The New York Convention; the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards; and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards).

The Convention applies to the recognition and enforcement of arbitral awards made in the territory of a foreign state. It applies to non-domestic arbitral awards in the foreign state.

There are other international conventions applying to foreign state enforcement of arbitral awards (eg., UNICITRAL Model Law on International Commercial Arbitration, 1985), however, the New York Convention is the dominant treaty for the recognition and enforcement of foreign arbitral awards.

Constructing the Arbitration Clause Enforceability Firstly, the parties must also ensure that the award granted by the tribunal will be enforceable. Therefore checks should be made that the country where enforcement is likely to be sought is a contracting state to the New York Convention, or other treaty which provides for the enforcement of foreign arbitral awards.

Arbitration Clause to be in Writing The Convention and most arbitration courts require that the arbitration agreement is to be contained in a written document signed by the parties. As such oral arbitration clauses are not effective.

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Extent of Court Intervention It may become necessary for a party, or the parties to approach a court within the territory of the seat of the arbitration for the purposes of obtaining an interlocutory, or interim order. Therefore, the extent to which this is permitted should be specified in the agreement.

However, it should be noted that the rules of most arbitral institutions provide for the circumstances where such a national court may intervene, but these standard provisions may not suit the parties and the drafter is encouraged to examine such rules prior to accepting them as the as the default rules.

Choice of Procedural Rules Generally, the parties will need to decide whether the arbitration procedure will be ‘Ad hoc’, or ‘Institutional’. Where the arbitration is ‘Ad hoc’, the parties themselves decide on the procedure of arbitration proceedings. Where institutional arbitration is chosen, the procedure set by the relevant institution.

However, the parties are free to vary them where the institution is agreeable.

Where the parties have chosen institutional arbitration, the place of arbitration is usually the seat of the institution. However, in ad hoc arbitration, the parties are able to decide that the arbitral proceedings may be conducted wherever they wish.

The parties may choose from a wide selection of rules of procedure, including those of the national jurisdiction. The rules of the arbitral institution can be used either specifically, or by default (depending on the provisions of the agreement for arbitration services), or in amended form by the parties.

Language of the proceedings It is important to specify the language of the proceedings. This is especially important in international settings so as to provide for coherence in the proceedings.

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Specification of the Place and Nature of the Arbitration An arbitration clause should be certain where and how disputes will be resolved.

Generally, the procedural rules of the place of arbitration dictate the procedure of the arbitration and collateral issues. As such, the drafter should ensure that the seat of the arbitration is specific in the arbitration clause as failure to do so, often causes delays in the start of the arbitration process.

Upon specifying the seat, it is crucial to determine what assistance the local courts would be prepared to give to the arbitral tribunal, by way of securing evidence, issuing subpoenas for witnesses if required, granting orders for the inspection of property, and other such matters relevant to the settlement of the dispute.

The drafter should be aware that confidentiality issues should be addressed in the agreement as the procedural rules regarding proceedings generally do not automatically cover this issue.

Parties to be aware of ‘No Appeal’ from Arbitrator’s Decision The drafter should ensure that the parties are aware that the arbitrator's award will be final and binding on them, with a very limited right of appeal or review. However, different national legal systems do have differing views in this regard. Nevertheless, those states that have signed the New York Convention, have very little scope to review international arbitration awards, and are compelled to order a stay of all proceedings contravening the provisions of international arbitration clauses.

Appointment of the Arbitrator The various arbitration institutions provide for the procedures for the appointment of arbitrators. As such, the drafter must be familiar with the appointment procedures these institutions.

The parties should also agree on the number of arbitrators, as certain institutions provide that in the absence of such agreement, the parties will be assumed to have chosen three

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arbitrators and of course, the more arbitrators, generally, the more costly the proceedings are.

Costs of Arbitration The costs of the arbitration are largely dependent on the type of arbitration procedure selected and on the institution chosen. So the drafter should make some price comparisons prior to the selection of an institution.

Scope of Arbitral Clause in respect of the Parties Concerned with the Agreement In agreements where there is likely to be more than one party to a transaction, for example, where sub-contractors are concerned, it will be useful to provide for all parties to the agreement to be the arbitration clause. The drafter should also provide for multiple arbitrations concerning the same cause of action or to the same subject matter, to be able to be consolidated into a single hearing.

Mediation Mediation is a process by which parties utilize a third party, known as a mediator, to help them resolve a dispute. Some mediators meet with parties together and attempt to get them to agree to a settlement. Some mediators meet with the parties separately and ferry information back and forth in an effort to achieve a settlement. The goal of mediation is for the parties to reach a voluntary settlement which is then reduced to writing and becomes an enforceable contract.

Conciliation is a process by which as third party attempts to induce parties to resolve a dispute by improving communications and providing technical assistance. It is generally less formal than mediation.

There are essentially two types of mediation; facilitative and evaluative. Facilitative mediation is by far the most common model used in England and Wales for the resolution of commercial disputes.

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In evaluative mediation at some point the mediator will express a view, (probably simultaneously to all parties) on the strengths and weaknesses of their respective cases. He or she might indicate which arguments might succeed and which might fail. The mediator might even express a view on what might constitute a fair and reasonable settlement. This will not happen in facilitative mediation.

In facilitative mediation a neutral third party, the mediator, assists the parties to settle their disputes. The mediator is the catalyst. The presence of an independent third party is the key distinguishing feature of the process. Facilitative mediation is a process of managed negotiation.

Certainly there is no set formula for mediators but there are certain common threads. The mediator must be entirely neutral and independent. The mediator brings a fresh and trusted mind to what is often an old problem. Trust and integrity are key watch words. His role is to aid communication between the parties, to assist them to overcome emotional blockages, to focus their attention and effort on the problems and moreover their solutions.

Mediators can help each side to understand the other side’s case or even their own case (and its weaknesses, which they and sometimes their advisors have been unable or unwilling to look at). Mediators can suggest new avenues to explore, to identify and work to overcome deadlock, to unlock and release any of the entrenched positions and in some cases the ill feeling that can accumulate in the course of a dispute.

Mediation differs from arbitration because it is nonbinding. An arbitral institution is likely to have rules for mediation as well as rules for arbitration. A mediator will try to make sure each party understands the other’s point of view, will meet with each party privately and listen to their respective viewpoints, stress common interests, and try to help them reach a settlement.

Mediation is private and confidential. Nothing which is said in the course of the mediation can be discussed outside the mediation nor revealed to any third party. This stipulation of confidentiality is generally embodied in the Mediation Agreement which is signed (usually on the day) to regulate the mediation process.

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Facilitative mediation is generally conducted by a series of meetings. Usually the mediation opens with a joint meeting attended by the mediator and all the parties. When that joint meeting is concluded, the parties break up into separate private rooms and the mediator effectively conducts shuttle diplomacy between them.

Mediation can occur at any time in the dispute. If parties get to a point in litigation, or in arbitration, where they want to settle, and need some help, they can get a mediator.

Mediators are also sometimes used in the negotiation stage of a contract, when negotiations have reached an impasse, but both parties actually want the deal to go through. Because mediators try to understand and reconcile the interests of the parties, mediation is sometimes referred to as an interest-based procedure, while arbitration is referred to as a rights-based procedure.

Fact-Finding is a process by which a neutral expert, or group of experts, is asked to resolve a factual dispute. The fact-finder relies upon information provided by the parties as well as information he collects himself. He analyses the facts bearing on the dispute, and issues a fact-finding report. The report is non-binding and used as an aid to settlement negotiations.

Fact-finding is often ordered in disputes that arise in the public sector.

A mediator unlike an arbitrator cannot order the production of documents. So if there are crucial documents that you must have in handling a dispute, do not go to mediation until you have got them. Whether documents ever are crucial of course is a matter of judgement.

Court-ordered arbitration is a form of dispute resolution in which parties are required to present their cases to a neutral, court-appointed arbitrator before they can proceed to trial.

In court-ordered arbitration, the arbitrator hears the evidence and issues a decision, and either side may appeal for a trial de novo.

Ombudsman is an individual hired by an organization to attempt to resolve disputes of staff, clients or other constituents. Sometimes the ombudsman brings the parties to a dispute together for a mediation session; sometimes the ombudsman brings complaints to the attention of high level officials. The ombudsman has authority to investigate complaints and talk to all relevant parties.

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Alternative dispute resolution processes can be seen as existing along a continuum according to how far they move parties away from the legal and judicial system into a world of privatised justice.

Alternatively, one can distinguish the various ADR mechanisms according to the degree of formality they employ in their procedures. Some utilize formal rules of evidence, discovery, motion practice, and the like, while others entirely dispense with procedural formality and encourage participants to simply ‘tell their stories.’ Similarly, some involve decision-makers who are constrained by legalistic notions of precedent and stare decisis, while others permit decisions simply on the facts and equities of each case.

One can also distinguish ADR mechanisms on the basis of whether they culminate in a consensual resolution of a dispute or whether a settlement is imposed. Mediation and other settlement-enhancing processes result, if successful, in a consensual settlement of the dispute.

On the other hand, arbitration and some of the other processes result in a third party decision, comparable to a judgment by a court. (Stone,2004) Conciliation Conciliator listens to the two parties, hears their different positions, and then sets forth a proposed settlement agreement, representing what she believes to be a fair compromise of the dispute. If the proposal does not resolve the dispute, the conciliator may offer another proposal.

Negotiation Great lawyers know how to negotiate. As a lawyer you should carefully consider how to initially approach a negotiation because this approach can have lasting effects throughout the negotiation.

Try to understand these processes in order to avoid unproductive negotiations or to gain an advantage in a particular negotiation.

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Conflict Resolution Accommodate the Parties’ Positions. There are two forms of position accommodation wherein the parties’ initial demands on the issues are accommodated: simple compromise and logrolling. Compromise is meeting halfway on the issues, and logrolling is giving up one issue in exchange for getting what one wants on another more important issue.

Achieve the Parties’ Positions. In position achievement each party gets exactly what is stated in its initial demand. For example, in a dispute over a resource, if the resource is doubled, the parties each get exactly what they want, that is, their initial demands are met.

There are two forms, one driven by an increase in the resource and the other driven by modifying the resource so that it now fits the parties’ needs.

Achieve the Parties’ Underlying Interests.

Interest achievement has two forms, bridging and cost cutting. In both cases, the parties’ underlying interests are met. In the former, a novel alternative arises, whereas in the latter, one (or both) parties’ reasons for resistance are met and overcome.

Hierarchy of interests Complexity in negotiation can be managed via a mental operation called unlinking Sometimes; differences of interest are a bundle of connected demands, goals, aspirations, and values that are seen as inseparable from other demands, goals, aspirations, and values.

Unlinking entails breaking the bundle into smaller parts.

Through unlinking, the smaller parts might then be realigned, or prioritised, and form the basis of trade-offs, or a new alternative might emerge, as seen in the following examples.

A compromise is defined as a middle ground on an obvious dimension connecting the parties’ initial offers.

When a conflict involves differences across a set of issues, and the issues differ in their relative importance to the parties, the difference can be traded for one another. This is possible especially if one of the issues is more important than another issue for one party,

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and the other side has the opposite preference ordering on the issues; thus, as a set, the differences on the issues are complementary. In the trade, each side gets what it wants on its high-priority issue and gives in to the other on its low-priority issue; this gives greater value in the agreement to each side individually—and to them collectively—than each getting something in the middle on the issues or making no deal at all.

Bridge the Interests. Perhaps the most creative form of integrative agreement is that referred to as bridging. In bridging, a new alternative is devised that gives the parties what they want in terms of the interests that underlie their positions.

The important dimension that distinguishes bridging is the focus on the underlying interests or reasons, or concerns, or values that generate demands and positions. If those can be met, the demands and positions are satisfied.

There are several types of bridging formulae, including: 1. Alternation In alternation, the parties take turns, which is especially useful when there is a time constraint.

2. Contingent agreement This entails building unknown futures into the agreement, which is especially useful if the parties differ in their expectations about the future.

3. Cut the Costs.

If one party is resistant to agreement because what the other proposes has costs, and these costs can be identified and reduced, then agreement is likely. The agreement is integrative not due to a change in position or trade-off on issues, but because one party does not suffer so much. Cost cutting is a form of compensation, but it is specific in the sense that the compensation addresses the exact value that formed the basis of resistance.

4. Superordination.

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Sometimes agreement is reached when the differences in interest that gave rise to the conflict are superseded or replaced by other interests.

The use of compensation, as described, is a form of this but usually applied to just one party to a conflict; the compensated party gives up its resistance because the interest served by the compensation replaces the initial interest that drove its resistance to the other’s demand.

In superordination, both parties drop their initial interests and positions in light of changed circumstances or goals, a revised view of the conflict, or an enticing new opportunity.

The most powerful form of superordinate interest is working together to fend off a common enemy. Third parties often know this and use this in the effort to foster cooperation.

Priming-legal negotiation Lawyers routinely begin legal negotiations with a written demand letter and a wealth of multidisciplinary, empirical research exists to assist lawyers as they negotiate on behalf of their clients. The demand letter is one of the most important documents a lawyer writes because it often initiates negotiations, and that various psychological processes involved at the outset of a negotiation can significantly affect the negotiation’s success.

The demand letter provides the lawyer with the opportunity to tell the client’s narrative, persuasively integrating law and fact in a way that is often hindered by procedural roadblocks once a lawsuit is filed.

Initial Biases Studies confirm that first impressions are extremely hard to overcome. Once a party takes an initial position, that party is likely to value evidence that supports that position and devalue evidence that does not. Furthermore, people generally take self-interested positions and assess their positions in a biased way. In addition to the tendency to see facts with a self-interested bias, when confronted with anger or other negative emotions, people tend to escalate their anger.

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Therefore, although a lawyer could expect the recipient of a demand letter to take a selfinterested position at the outset of a negotiation, once the recipient becomes angry and defensive, the likelihood of efficient resolution becomes remote. This is because anger changes the way the brain operates; people become less creative and cooperative, and, instead, become more vindictive.

Similarly, the perception of unfairness, like anger, has a powerful, negative influence on negotiations and can lead a person to give up something of value simply to punish the person who is perceived to be acting unfairly.

Because of these reactions, experts advise negotiators to expect a biased participant and to avoid insults, shame, blame, and other techniques that would cause the other party to erupt in anger, and, rather, to focus the other party on fair outcomes.

Demand letters provide lawyers the opportunity to tell their clients’ stories in an integrated, persuasive narrative, and they are increasingly required by law.

The art of negotiation Preparation Preparation is the single most important element to a successful outcome.

Preparation serves as the principal platform to achieve a successful outcome. Preparation builds strength and knowledge as specific issues are identified. Careful assessment of the issues on the table may help to identify hidden agendas that may lead to an unanticipated outcome.

The ability to set specific goals requires that the objective or purpose be clearly defined and all variables affecting achievement of that purpose be understood.

There are always trade-offs in negotiations. It is essential that you clearly define your limits prior to beginning the process or the outcome may be something less than desired.

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Remember: Never begin a negotiation until you’re prepared Effective Communication Skills Effective communication plays a fundamental role in any interaction and is essential to successful negotiations. Effective communication skills include: the ability to listen and understand the intended message of the sender, clearly expressing your own thoughts and ideas in a way that is easily followed and understood by others, and finally, accurately interpreting the messages expressed through body language.

The ability to clear our minds to actively listen to someone may take a great deal of concentration. At any given moment we are bombarded with interruptions (internal or external) that can limit our ability to truly hear and understand a message being delivered.

Sit up straighter in your chair and make sure that your body language does not signal closed reception (crossed arms/legs).

Also, make direct eye contact with the speaker so that he knows that he has your full attention. And most importantly, think carefully before you respond. Make sure you hear and understand the speaker’s message prior to responding and try to avoid thinking about your next response before the speaker has concluded his remarks.

NOTE If we perceive any danger, or uncertainty in a message being delivered – we may do whatever possible to block out what’s being said.

Never negotiate when you are tired. The message becomes clouded as we attempt to fight off fatigue. If fatigue is interfering with the ability to listen, consider calling for a ‘time-out’ and go get a cup of coffee or take a brisk walk. If all else fails, reschedule the meeting to a later time.

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The ability to understand any message relies, in part, on our ability to actively listen, without distractions, to the message being delivered. Then we can accurately interpret that message in the context in which it was delivered.

Delivering a message that is easily understood and not misinterpreted is equally challenging and requires special attention for a successful outcome.

Techniques to help clarify information Ask questions that can help to identify key issues of the discussion.

Use the information that was acquired during pre-negotiation preparation to formulate questions that can narrow the issues of the discussion.

Make sure to follow-up with questions that will require a more specific answer when responses are too general.

Keep responses short and very specific to the question. Avoid inserting information that may be interesting, but not necessarily specific to the subject.

Body Language Body language is an expression of feelings that are communicated through the eyes, facial expressions, and position of the head, arms, legs and body posture.

Body language plays a critical role in communication. Multiple messages and/or meanings can be sent via body language.

Understanding Basic Body Language can help to accurately interpret most messages.

Emotional Control Emotional control begins by understanding our own personal strengths and weaknesses, then building on those strengths while minimizing weaknesses. The benefit of emotional control through self-understanding is the ability to maintain the emotional distance necessary to be effective.

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Emotional control may necessitate emotional distance to neutralize the situation and avoid further conflict.

Perhaps the most important aspect of exploring and understanding our personal strengths and weaknesses is the ability to recognize what pushes our hot buttons – what issues can upset us and how we can address those issues to assure control when necessary.

‘A time-out’ is an opportunity to stop an action, conversation or emotion and create a distance to allow a recharging of self-confidence or control. A time-out can be created by leaving the room for any reason including a bathroom break, getting a file or obtaining additional information from another source. The ability to recognize when a time-out is necessary is an important skill to cultivate.

In the real world, we win some battles and lose others. It’s important that we learn to deal with the frustration and discouragement associated with the lost battles to become more effective in the battles of tomorrow.

Remember: Not all people are agreeable and easy to deal with. There are difficult people in the world and our ability to recognize and deal with the many personalities we encounter can help us to be more successful in any interactions we may attempt.

Regardless of the circumstances, personal attacks will always result in a negative outcome.

No matter how good it might feel at the time, personal attacks will ultimately produce a lose/lose situation.

Environment Whenever possible – and appropriate, try to create a relaxed environment. This can be accomplished in several ways. For example, instead of sitting behind a desk, move the conversation to a couch, or sitting area. If a sitting area is not available, remove the desk barrier by bringing your chair around to the other side of the desk. This creates a more relaxed environment that reinforces the perception of a ‘level playing field’.

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Taking a walk away from the more formal office setting can, in many cases, accomplish the same results. Additionally, adding a little humour, when appropriate, can help others feel more relaxed and comfortable.

Closing the Deal Final negotiations resulting in achieving the defined objective – or ‘closing the deal’ relies on the negotiator’s ability to recognize that all elements of the goals have been achieved and all that remains is to finalize the process to implement those goals.

A win-win is achieved through honesty and respect from both parties.

It’s important for any successful negotiator to recognise agreement or impasse and bring the meeting to a close.

If an agreement has been reached, it is important that all elements of that agreement be briefly summarized prior to the conclusion of the meeting. If an agreement cannot be reached, it is essential that the outstanding issues be briefly summarized to assure that both parties agree that no further progress is possible.

An important point to remember is that some people cannot comprehend the large picture immediately – so it can help to break down a complicated concept into more manageable pieces– working systematically from ideas that can be readily understood, then building on that knowledge to the more difficult, or complex issues.

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PROFESSIONALISM AND INTEGRITY Winning is not about being eloquent. Winning is not about the eloquent talk over the heads of busy and impatient judges and juries. Winning is not about being logical. Winning is not about good looks or looking good. Many great lawyers (Abraham Lincoln for example comes to mind) would come in last in a beauty contest.

Winning is, rather, about projecting sincerity without vouching for a client’s credibility or the merits of a client’s case. Winning is about delivering on promises without overpromising.

Winning is about zealous representation without being a zealot.

Winning is about the messenger, not just the message and the media. Civility and professionalism, not aggression and over-lawyering, win cases.

Being civil and professional means being satisfied with the practice of law; earning money and respect in our chosen, honourable profession; and not dying young of ulcers and heart attacks. Being civil and professional means imparting trustworthiness and qualifications or, said another way, winning through integrity.

Great Lawyers have mastered the art of persuasion. Persuasion requires professionalism and integrity, not merely good arguments. Winning comes down to persuading the judge that your argument is more compelling than the other party’s.

Lawyers’ presentations and how they conduct themselves are crucial in convincing judges to rule for their clients.

Integrity and professionalism is not only about winning cases. It is also about winning in the long run.

Being seen as professionals and gaining good reputations are essential to successful lawyering.

Great Lawyers know how to disagree without allowing acrimony. The court and colleagues are more likely to listen and accommodate lawyers perceived as credible and well-

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mannered professionals. A lawyer who fights over small, irrelevant points will lose those points anyway, and the judge will recall in the next case the aggravation the lawyer caused.

To win with integrity and professionalism, lawyers must be transparent. They must not mislead or use tricky arguments. They must cooperate with other lawyers, court personnel, and judges. They must also require those under their supervision to behave the same way.

Suggestions to guide lawyers in winning with integrity and professionalism Be civil Lawyers who are civil comply with the profession’s accepted practices. Civility means being polite. Good lawyers do not whine or engage in histrionics and hissy fits. On the contrary, lawyers who aggressively defend their clients’ best interests while being well-mannered and charming are likely to win points with the judge, not lose them. Lawyers who conduct themselves civilly are not rude. They do not engage in reprisals.

Professionals never use vulgar or belittling language. Courtroom antics impress and influence no one. They distract. Ill feelings existing between clients, particularly during litigation, should not affect lawyers in their conduct toward opposing counsel. Civility requires lawyers not to obstruct. Civility requires lawyers not to attack judges or opposing counsel personally or make false accusations about honesty, integrity, or industry. Civility requires lawyers not to disparage their own clients.

Be honest Honesty is not only the best policy; it is the only way to win. Lawyers who cite reversed or overruled principles will lose the court’s respect. Lawyers should always cite the sources they use and use what they cite. The best lawyers do not cheat the system or cut corners.

Lawyers should not falsely hold out the possibility of settlement to adjourn discovery or delay trial. They are prohibited from helping a client engage in unlawful or fraudulent conduct. Lawyers should never try to hide. They win by stating the facts accurately and then having good explanations and evidence to prove their conclusions.

Be fair

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Know the rules: Respect them and play by them. A game can be won only if the winner plays by the rules. The practice of law is no different. Lawyers must use tactics consistent with these rules. Professionals know how best to represent their client within these boundaries of conduct.

Professionals know that if they act fairly, opposing counsel and judges are likely to respond the same way.

Be courteous Treat others like you would like to be treated. Professionals are considerate when interacting with their client, opposing counsel, and court staff. Courtesy means not crosstalking in court. Good lawyers address only the court, and they let others finish speaking before they start speaking. Courtesy includes returning phone calls promptly, answering correspondence quickly, cooperating with opposing counsel on calendar conflicts, and notifying colleagues of changes.

The first request for an extension of time to respond to a pleading should ordinarily be granted as a matter of courtesy. By agreeing to an adjournment, lawyers know it will benefit them when they themselves ask for an adjournment. Courtesies affect how a lawyer is perceived.

Be respectful Respect and you shall be respected. The best lawyers do not demand respect. They earn it by continuously showing consideration for their colleagues and clients. They are never rude.

Engaging in irrelevant or ill-founded conduct exemplifies a lack of respect.

Lawyers should not tell judges that their disingenuous adversaries egregiously mischaracterize the evidence.

Instead of offering negative opinions, they should offer the grounds for their conclusions.

Nor do good lawyers gossip about their colleagues’ personal and professional lives.

Be credible

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Credibility is hard to earn but easy to lose. To be considered credible, a lawyer must be worthy of confidence. The best lawyers never wing it; they are prepared. To avoid underpreparation, the best lawyers do their homework and organize. Poor research wastes the court’s time and harms the client. Failing to find controlling or persuasive cases and statutes roughly on point reflects poorly on the lawyer’s skill as an advocate and jeopardizes the client’s claims.

Being candid with the court about facts adverse to the client’s position also gives credibility to the lawyer’s arguments.

Be consistent Consistency is the key. To be consistent means always acting with integrity, not only when helpful. Consistency demonstrates that lawyers are genuine and not deceitful. Consistent lawyers are interested in improving their skills.

Lawyers’ reputations are linked to the consistency of their actions. It takes one negative to taint the positive. Judges are observers; they will notice if lawyers act professionally only when it helps them, and judges will be less likely to accommodate them.

Be reasonable Great lawyers use good judgment and common sense. They do not attach unfair or extraneous conditions to an opponent’s request for an otherwise legitimate and appropriate extension of time. They do not prolong arguments or make motions designed to harass.

They avoid unnecessary motions or judicial intervention. They try to negotiate in good faith and reach an agreement with the other party when possible and when it is in their client’s interest to do so. They allow time to resolve disputes or disagreements and impose meaningful deadlines in light of the nature and status of the case.

Negotiating reasonably can lead to an agreement that satisfies both sides — an outcome that might elude the parties if the judge decides the matter. Professionals are not pushovers; they stand their ground on large points but they know when to concede small

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points. Conceding when appropriate allows lawyers to concentrate their efforts on important arguments while appearing reasonable and fair.

Be clear and concise Being clear and concise in writing and orally enhances the odds of getting the message across. Vague writing affects lawyers’ effectiveness and credibility.

Great lawyers limit the number of arguments to their strongest: the ones most likely to succeed. But they address their weakest, most vulnerable contentions. Doing so ensures that they are prepared to answer questions from the judge about those weak arguments and demonstrates their honesty. More importantly, this allows them to contradict the other side’s arguments: They know where the opposing counsel’s strong points lie.

Great lawyers also avoid distractions by keeping it simple. They limit adjectives. They avoid foreign or legalistic language. Written and oral persuasion is linked to clarity and concision.

Professionals do not obscure the truth; they explain why their argument is the best. They do not write in a conclusory way but in a convincing manner offering details, not opinions. That way they bring their readers to the edge of the cliff without making their readers resist and push back. They do not vouch for their clients’ credibility by using statements like “I believe,” “I feel,” or “I think”; they know that judges do not want to hear their arguments, not their beliefs. They do not assume that the reader agrees with their point; they make sure that their argument is stated clearly and is easy to understand.

Ensuring that arguments are clear and concise diminishes the chances that the court will err.

Be accurate and precise Great lawyers are specific. Accuracy is crucial to maintaining credibility. Lawyers should avoid biased modifiers. They do not use snippets out of context. When using citations, they should limit themselves to the ones that add weight to an argument rather that those that add bulk and impress only non-lawyers. Legal writing requires precision in citation to support factual and legal propositions in the form of logical argument.

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Understate; never overstate Less is more. Overstatement is unethical while quiet understatement persuades. Lawyers who are excessive about factual statements make their audience skeptical of everything.

Nor should lawyers use qualifiers like “generally” or “usually” to avoid precision. By understating, lawyers naturally come upon the essence of powerful writing: They emphasize content, not style.

Be punctual Punctuality communicates more than timeliness and respect. It is an integrity issue. Lack of punctuality demonstrates a lack of focus and clarity. Professionals value time; they do not waste it. The best lawyers appear on time and honour the deadlines the court gives them. If delayed, notify the court and counsel whenever possible and as soon as possible. Lawyers should also notify opposing counsel and the court or other persons at the earliest time when trials, hearings, depositions, meetings, or conferences must be cancelled or postponed.

Lawyers should also respect the scheduling commitments of opposing counsel, consistent with protecting their client’s interests. Tardiness communicates that the scheduled event is unimportant and demonstrates a lack of respect toward others. Being punctual benefits lawyers because judges will accept the non-default party’s arguments.

Give credit where credit is due Being magnanimous and giving credit where due is a major part of being a great lawyer.

Lawyers must acknowledge colleagues for a job well done. Doing so enhances collegiality among peers. Knowing when to give credit means understanding what needs to be done to win.

Presentation is key: look the part The way you present yourself, whether in person, on the telephone, or in writing, is essential. An unkempt appearance distracts from the arguments and demonstrates that the

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lawyer does not consider the proceeding important. Presentation extends beyond dress.

During a trial, lawyers must be prepared and have a theme and a plan. They should present their arguments to persuade judges, not their clients, who will want them to throw in the kitchen sink. Presentation in writing is also essential. Judges will not decipher or search for arguments. To effect a professional presentation, good lawyers revise written documents numerous times, verifying their arguments, citations, grammar, quotations, and spelling.

Accountability The best lawyers do not blame. Everyone loses cases. Good lawyers accept responsibility for their actions. That demonstrates honesty and humility.

Accountability is also an important duty toward clients. Lawyers must explain what happened in their case and why. Lawyers must return telephone calls and correspondence quickly. After a trial, professionals recognize where they erred and what they need to improve.

Recognizing the areas needing perfecting demonstrates humility and taking work seriously.

Accountability also means not overpromising. When promising something to opposing counsel or judges, professionals will always fulfil their commitments. (Lebovits, 2009)

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EXAMINATIONS This chapter provides practical advice and guidance to law students and how to cope with law examinations.

No matter how straightforward an exam question appears, take time and care to analyse it.

In general, essay questions will take one of two forms; either a direct question or instruction or a quotation followed by a question or an instruction.

One of the reasons why the question based on a quotation may prove more challenging is that it may leave a certain amount unsaid. You have to consider carefully the question before attempting to answer.

Essays There a couple of things that you need to be able to do in order for your essay to be successful. Firstly, you must answer the question. Secondly, you must be able to distinguish between relevant and irrelevant content.

Strategy to essay writing Brainstorming The most effective approach to brainstorming in preparation for an essay question is to split it into two stages: (1) Brainstorm the topic and (2) Filter the points that emerge to ensure that they are relevant to the particular question.

The filtering stage is important because brainstorming sometimes takes you away from the main topic by dint of word association. Therefore, filtering is needed as a second stage of the process to ensure that points that are not relevant to the question are eliminated before the research stage of the essay writing process gets underway.

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Research For further details please consult the research chapter.

Outline Once you have completed some research into the essay topic, you will be able to draw up a draft structure for your essay that will help you when you come to start writing. It is important to remember that this is a draft only and that, when you start to write, your essay might take a different path. However, a very common weakness in essays is that they have meandered away from the main point and so have a weak focus on the main topic.

If you have an outline structure for your essay, if you seem to be moving away from that structure you should take a moment to consider whether this is a necessary result of the way that you have developed your argument (in which case it is fine) or if it is because you have started to wander away from the central topic (in which case you should bring yourself back to a stronger focus straightaway even if this means discarding material that you have written).

Writing the Introduction The introduction is an important part of the essay. It is the first impression that the marker gets of the quality of your work so it stands to reason that you should make sure that this impression is a good one.

Ideally the introduction must: a) Communicate your understanding of the requirements of the question. It must unpick the question by explaining what it is about. b) give an indication of how the question will be tackled. It must give a clear breakdown of what issues will be addressed in the body of the essay.

Therefore, a good introduction has to explain the structure and content of the essay.

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Remember: The introduction must not repeat the question

Since most pieces of coursework have to be written within a specified word limit, it is necessary to develop a concise style of writing that allows you to make all the points you wish to make.

Tips You can reduce the length of a paragraph by: 1) Removing irrelevant material.

For example: when dealing with precedents, include only those facts of a case that are necessary to ensure that it serves its purpose. Try to distinguish between the facts of a case and its material facts: material facts are the ones that matter to the outcome of the case.

2) Removing excessive description.

For example: Do not use multiple examples to illustrate the same point.

3) Rewording the paragraph so that it is more concise.

In some sentences, you can save a lot more words if you just think careful ly about what you want to say and then express it as concisely as possible.

You will be surprised how many words you cut off if set yourself the task of rewording every sentence in a way that saves you one word.

Checking for errors Before submitting the essay, you should have one final check through to ensure that you have avoided making the sorts of errors that can creep into your work. You can do this by reading through the essay on the computer screen but most people find that it is easier to

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spot errors on paper so you might like to print a copy and go through it with a pen in your hand so that you can circle errors when you spot them.

Tips The following points can help you to spot some common problems that occur in an essay.

1) Check spelling 2) Check grammar and readability of the essay. Reading sentences out loud can help to spot mistakes.

3) Ensure that sentences do not start with conjunctions such as ‘and’, ‘but’ or ‘because’.

4) Ensure that sentences do not end with prepositions such as ‘of’, ‘for’ or ‘to’.

5) make sure each paragraph contains a complete idea or argument and that it flows from the preceding paragraph and into the paragraph that follows.

6) make sure each paragraph 'touches base' with the question. This will strengthen the focus of the essay and help to filter out irrelevant material.

7) Check that your introduction explains the content, purpose and structure of the essay 8) Check that your conclusion draws together all the strands of argument from the body of the essay into a direct answer to the question posed by the essay.

It should summarise the findings and where necessary the recommendations of the essay.

9) Remember that the use of contractions/elisions is inappropriate in academic writing.

Eliminate all instances, changing ‘can’t’ to ‘cannot’, ‘hasn’t’ to ‘has not’, won’t to ‘will not’ and so on.

10) Check that there is no confusion between ‘it’s’ (short for ‘it is’ which should be written in full) and ‘its’ (possessive form for objects the object equivalent of ‘his’ for example, ‘the court opened its doors at 10am’.)

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11) Avoid the use of the first person in any form (I, one, we) adopt a more abstract approach to writing, for example: rather than writing ‘I will outline’ write ‘this essay will outline’, rather than ‘one could argue’ write ‘it could be argued’ and rather than ‘we can see a common principle’ write ‘a common principle can be seen’.

12) if your department or lecturer have a preference in relation to gender-neutral language make sure this been adhered to in the essay.

13) Ensure that the essay avoids the use of unnecessary Latin whilst making sure that necessary Latin phrases, such as mens rea and res ipsa loquitur, are used correctly and written in italics.

14) When a word has a legal meaning that differs from its everyday meaning, make sure that the two are not used together as this can cause confusion.

15) make sure the written style is appropriate.

16) Check that references are provided for all quotations as well as legal principles and ideas that are attributable to a particular writer.

17) Ensure that referencing has been done properly and in line with your department’s preference. If you have not been given any guidance, ask for it. Also, don't wait until the last minute to investigate your citation requirements. There’s nothing worse than having to go back through all your research to add in specific page numbers or dates because you forgot to do it the first time.

18) make sure that the style used for references is consistent throughout the essay. Also check that all cross-referencing is accurate.

19) Provide page references (and paragraph references for case law) for all quotations. Also make sure the references are complete. Provide a full bibliography.

20) If you are typing your essay, you can underline or italicise case names, but there's no need for elaborate type faces. Make your writing stand out rather than your design skills.

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Find out what the ‘house style’ (for example the font and spacing) of the department is and ensure that it is adhered to throughout the essay.

21) Ensure that references to Internet sources include the date upon which the website was accessed.

22) Ensure that long quotations are presented in block format.

23) Check that the essay complies with the word limit. If it does not consider paraphrasing long quotations to save words 24) make sure that the essay is well-presented and looks polished.

25) Ensure that case citations are complete and correct with the names of the parties in italics.

26) Check for hanging headings at the bottom of the page and reformat to eliminate these.

(For instance you can use page breaks to reformat) 27) Check for unnecessary capitalisation. Only proper nouns and words that start a sentence should be capitalised.

28) most importantly confirm that the essay makes sense.

Referencing and avoiding plagiarism “Our debt to tradition through reading and conversation is so massive, our protest or private addition so rare and insignificant,—and this commonly on the ground of other reading or hearing,—that, in a large sense, one would say there is no pure originality. All minds quote.

Old and new make the warp and woof of every moment. There is no thread that is not a twist of these two strands. By necessity, by proclivity, and by delight, we all quote.” Ralph Waldo Emerson

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“As if there is much of anything in any human utterance, oral or written, except plagiarism! . . . The kernel, the soul – let us go further and say the substance, the bulk, the actual and valuable material of all human utterances – is plagiarism”. – Mark Twain

Waldo Emerson’s and Mark Twain’s points are valid. However, you might be committing plagiarism if you submit an essay that incorporates someone else’s words or unique ideas without attribution. This is a serious academic offence and can lead to expulsion from law school.

Plagiarism is wrong partly because as a student you will be graded on a work that is not yours and partly because you will not acquire needed skills and knowledge without actually doing the course work.

You should know that each jurisdiction has its own conventions on how to cite legal authorities. For instance, The OSCOLA system reflects a common understanding of how British legal authorities should be cited and is a good place to learn how British and European cases should be referenced.

‘OSCOLA’ refers to the Oxford Standard Citation of Legal Authorities, which is available free of charge on the University of Oxford Faculty of Law website (www.law.ox.ac.uk). It gives detailed instructions on how to cite cases, statutes, books, journals and other legal materials.

The OSCOLA system proposes a citation methodology that conflicts with American usage.

Those whose work includes a large number of American cases may prefer to consult the latest edition of the Bluebook, which is available in many university law libraries, for U.S. sources.

The Harvard style of citation is appropriate if you are conducting a socio-legal or other multi-disciplinary research.

NOTE

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Current British usage avoids all Latin phrases except for ibid, which means ‘in the place of’ and refers to the preceding citation only. You may only use ibid if the subsequent citation is to the same page.

Lawyers in practice are also expected not to plagiarise materials. However, some unattributed uses of sources that would be completely unacceptable in the context of drafting a student note, moot court brief or law school writing assignment, might be completely acceptable in other contexts, such as within a law firm or judicial chambers. For example, when lawyers use form books, they are expected to exercise their professional expertise in selecting appropriate forms, modifying the forms to fit the client’s situation, ensuring that the forms are valid under current law, and advising the client whether the forms will accomplish the desired results.

When your case is a primary source of law, for instance a case, statute or regulation, plagiarism should rarely ever be an issue. Citing to the source lends support to your argument, so why not tell the reader where you found your information. Law depends on authority so make sure to supply the citation to render credibility. A judge reading a brief expects the argument to be based on legal authorities.

Tips Be meticulous in checking that every source is referenced. Try printing a copy of your essay and reading it line-by-line and highlighting every place where a reference is needed to make sure that you do not miss any.

In conclusion, Examination essays must be readable. They ought to be carefully structured in order to cover all of the points in a logical order and without repetition. Above all they must be relevant and answer the question set. Where possible they must follow any invitation to provide a critical and informed analysis of the topic. This can only be done by reference to case law, statutes and legal writings. An authoritative answer is all-important, and this will not be achieved by a series of half-baked and unrelated ideas thrown together without any support from substantive law.

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Problem questions Too many students treat problem questions as though they are a quiz. That is to say they believe that if they spot the correct answer, they will obtain full marks no matter how badly or even inaccurately expressed their answer is. This is certainly not the case.

The method of asking yourself what would be the most appropriate and practical redress open to the party, and then searching for an available legal remedy, is the easiest way of ensuring your answer remains relevant.

Do not spend too much time on unlikely or highly inventive actions. As with legal practice, it is the obvious solutions that are likely to prove the most effective. Relevance is no less vital in answering problem questions than in writing essays. It will be easier to achieve, however, if you stick strictly to the facts of the problem set.

Most problem questions insert specific words to indicate particular legal issues, and additional detail is kept to a minimum. By far the best guide, therefore, is to direct your attention to the facts of the problem as set out. It may be possible to illustrate your knowledge quickly by varying the issue slightly but you must also deal with the question set.

Remember that few problems are likely to be directly in line with previous case law. Often they cover 'grey' areas of law, where right or wrong answers may not be easily available.

Bearing this in mind you should cover both sides of an argument if possible, but be brave enough to reach your own conclusion. In general, however, it is unwise to begin with your conclusion.

The most important point of all in answering problem questions is to cite authority for your propositions. But, you should not try to remember case references, and it is not generally necessary to remember dates of cases.

Most instructors at the undergraduate level (including instructors on law conversion courses) do not require students to do more than indicate the names of cases or statutes in the text of their essays and examinations, particularly in timed examinations. While it's

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preferable to give the full case name, in a timed examination you can get by with one name or the other. If you can't remember the name of a particular case or statute, simply describe it. Of course, if you are working on a weekly essay or a long-term research project you must take the trouble of finding and putting in the proper title or citation.

Statutes may prove less troublesome to cite as authority since many institutions allow these to be taken into the examination room. If so, however, the statutes should be a point of reference only. You can only make use of statutory material in answering problems if you are fully familiar with the legislation in advance of the examination and know where to look and what to look for.

If you are not allowed the facility of statutes in the examination room, it is unnecessary to memorise statutes or even sections, but you will need a close working knowledge of them in order to answer problems. You will not be permitted to annotate your statute book, but you may be allowed to use markers pointing to the relevant statutes.

If you are allowed to take a statute book into the examinations, buy it at the beginning of the year. Take it to lectures and tutorials, and mark or highlight the relevant sections of statutes as you use them. In general terms, the statutes that you will need will be those referred to in class, but do not neglect provisions discussed in reading that you have undertaken.

Reference to statutory or case authority should be concise and give only as much detail as is necessary to support your argument.

Knowing how much detail to present to the examiner is a sign of your ability to deal selectively with a large body of legal material - an immensely important quality in practice.

The same is true for the selection of statutory material. The great danger of having a statute book in the examination is that you may simply want to copy from it, particularly if you feel stuck for something to say. Avoid this temptation. Ask yourself whether it is necessary to quote from the statute rather than merely refer to a section. If it is, do so as briefly as possible.

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If the statute contains a list such as a list of conditions to be met, rather than copying out of the list, ask yourself which of the conditions are relevant to your question, and present only these, perhaps, in your own words. The examiner knows that you have a statute book with you. It is there to assist you in applying statutory provisions to answer questions in the examination. It can be an invaluable aid, but blindly copying out provisions from the book is hardly likely to you gain you marks.

Whether your examination question is of the problem or essay type you are going to need to formulate an argument. The better structured and more logical this is, the higher the marks awarded. It will be easier for the examiner to follow if it is concise and unambiguous.

If you can show that you have rejected irrelevant considerations and stuck to an accurate analysis of legal principle, this will doubtless impress the examiner. If you can go further and exercise a critical analysis of the particular area, citing authority by using case law and statutes to support your argument, and if you can do so in a measured and considered manner, you should obtain a high mark.

Pay attention to your written style. Aim for strong introductory and concluding remarks which make an impact or leave an impression on the examiner. It is unwise, however, to spend too long on this. Time is precious in examinations. Plan ahead which statutes you will rely on and make sure you know your way around the book. In spite of time pressures, avoid slang and make a careful attempt to weed out legal in exactitudes in your writing - e.g., using ‘prosecute’ when you mean ‘sue’.

It is also a good idea to avoid wit or sarcasm. What seems enormously funny to you may not be so humorous to an ill-tempered examiner.

It helps to remember that examiners are only human, and that marking is a dreadful chore.

The only way in which to use this to your advantage is to produce the type of script that makes the examiner sit up and read attentively for the next 15 minutes. Half-baked ramblings or dull repetition of facts or legal rules are unlikely to do the trick, but legible, concise and carefully developed answers throughout the whole script might just make an impression on even the most hardened and cynical marker.

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It is impossible to become a first-rate brief or opinion writer without mastering basic writing skills.

Back to basics: Grammar

We have already dealt with the issue of grammar and good writing but it is worth to repeat the rules of grammar in more detail.

Use the Active Voice.

Effective writing uses both active and passive sentences. The passive voice may sometimes be preferable, such as where the actor is obvious or where the writer wants the actor to be ambiguous.

Overuse of the passive voice can make your writing sound overly formal. In addition, use of the active voice emphasizes the actor, and active sentences are usually shorter.

Write with Verbs.

Do not use nouns, adjectives, adverbs, and clauses to do the work of verbs.

Don't Overuse the Verb ‘To Be.’ The verb ‘to be’ is the most common verb in the English language. ‘To be’ verbs convey definition, status, or description rather than action. Overuse of ‘to be’ can make your writing sound weak.

Edit Wordy Expressions.

A major problem with much writing is wordiness–using several words when one will do. A lawyer can often improve his or her writing considerably just by paring unnecessary words.

Eliminate Unnecessary Repetitions.

Wordiness also occurs because of unnecessary repetitions.

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Eliminate Long Descriptive Phrases.

Another source of wordiness is long descriptive phrases. One can often rewrite long descriptive phrases in one or two words.

Eliminate Wordy Negative Expressions.

Another way to pare wordiness, as well as make your writing sound more direct, is to express the negative in a positive form. Similarly, a writer should try to avoid statements that use not.

Shorten Introductory Phrases.

One can often shorten introductory phrases by replacing a noun and a verb with the ‘ing’ form of the verb.

Emphasis An effective writer emphasizes important ideas and subordinates secondary ones. Methods that a writer can use to emphasize or de-emphasize include placement, sentence structure, and punctuation.

Placement of words or ideas in a sentence affects emphasis. Words at the beginning and end of a sentence receive the most emphasis; words in the middle the least.

Make Lists Clear.

A writer can make a list clearer by using numbers or letters to mark off items. Compare the following sentences.

Avoid Clichés and Legal Jargon.

Clichés subtract from the effect of your writing. Avoid them whenever possible.

Be Specific.

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A thesaurus is full of words with similar meanings. However, if you examine each synonym carefully, you will find that few words mean exactly the same thing; there are usually nuances of meaning between synonyms.

One of the keys to effective writing is to use words that convey the precise meaning you intend. This is especially true for lawyers. The use of one word may be the difference between winning and losing a case.

Combining Sentences A simple sentence consists of a noun and a verb with or without additional modifying words.

While simple sentences are common, your writing will be choppy and uninteresting if you only use short, simple sentences. Moreover, a series of simple sentences lacks flow. One way to create longer sentences is to combine two simple sentences. However, a writer should combine sentences only when they belong together, such as sentences that concern the same idea or when sentence two expands on sentence one.

NOTE One can often combine two simple sentences into one simple sentence, especially when they repeat certain words or ideas.

A writer can also combine two simple sentences into compound sentences, comprising two independent clauses.

The most common way to combine independent clauses is with conjunctions, such as ‘and’ or ‘or’. Always use a comma before the conjunction to avoid a run-on sentence.

One can also combine two independent clauses with a conjunction and leave out the noun in the second clause.

A writer can also combine independent clauses by using punctuation–semicolons and colons. Writers use semicolons more often than colons. A colon produces a more abrupt break and is more dramatic.

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A writer can also combine independent clauses with linking adverbs, such as yet, however, or nevertheless. If the linking adverb comprises four letters or more, use a semicolon after the first clause and a comma after the linking adverb. Otherwise, use a comma between the clauses.

As a writer you should be careful not to create sentences that are too long or that contain unrelated ideas.

Eliminate Redundant Sentences.

Sometimes it is not necessary to combine sentences. A sentence may merely repeat what another sentence says in different words. One should delete the redundant sentence.

Don't Tread Water Some sentences, while not redundant, tell the reader little. A writer should eliminate all sentences that tread water.

Do Not Overuse Particular Words within a Paragraph.

Avoid Abrupt Verb Tense Changes.

Organizing Paragraphs The structure of writing is hierarchical: Writing is organized on several levels–the phrase, sentence, paragraph, subsection, section, chapter, etc. A good writer considers structure on all levels.

The paragraph is the basic unit of composition. A paragraph should not be too long; paragraphing helps readability.

While a paragraph may contain several ideas, it should include only one theme; there must be a justification for grouping sentences together. Each sentence in a paragraph should expand on the basic theme. If a sentence sounds out of place, it probably is.

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A paragraph should begin with a striking topic sentence. The topic sentence sets the paragraph's theme, and the remainder of the paragraph expands on the topic sentence.

Each sentence in the paragraph should relate to the topic sentence.

Creating Coherence and Flow Coherence and flow are important to effective writing. A paragraph may be technically perfect, but it will sound bad if the sentences do not flow together.

There are many ways to create coherence and flow in a paragraph. The most important one is for the writer to think in large blocks– to think in units of several sentences instead of one sentence at a time. It is very helpful to read your writing out loud. If your writing sounds choppy, it reads choppy.

In prose, each sentence should flow from the previous one. Phrases or sentences that belong together should use punctuation that produces brief pauses (commas, semicolons, etc.). Distinct units should be separated by long pauses (paragraph breaks). A writer can connect sentences by subtle repetitions and using connecting words or phrases. The writer should properly place primary and subordinate materials.

Paragraph unity also helps create coherence within paragraphs.

The most common mechanical device to create coherence is connecting (or transitional) words or phrases. Connecting words and phrases include: moreover, furthermore, first, finally, in addition, on the other hand, to the contrary, in particular, for example, for instance, accordingly, consequently, therefore, shortly thereafter, thus, yet, however, next, similarly, likewise, also, in conclusion, obviously, today, thus far, then.

However, avoid overusing these devises as they will make your writing sound mechanical.

A writer can also use repetition of a key word to create coherence.

Punctuation Punctuation refers to symbols that organize and give structure to writing.

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Punctuation lets you change the inflection of your voice and give meaning to your words.

Punctuation helps speed up or slow down language.

Punctuation lets writers emphasize some words and de-emphasize others.

Punctuation tells readers when to feel emotion.

Punctuation tells readers when to pay attention.

Punctuation clarifies.

NOTE The punctuation you use and where you put it will alter how readers will interpret what you write.

Good punctuation makes you feel, hear, and understand language.

Periods (.)

Three punctuation marks end a sentence: periods, question marks, and exclamation points.

Thoughts without periods are lengthy and convoluted.

Use periods at the end of a declarative sentence. A declarative sentence states an argument, fact, or idea. It doesn’t require the reader to take action or answer.

Use periods at the end of commands.

Use periods at the end of a citation before a new sentence.

Use periods, not question marks, after indirect questions.

When a sentence ends in an abbreviation, you use one period, not two.

If the sentence ends in a question mark or an exclamation point, use a period after the abbreviation.

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Don’t use periods for acronyms. To create an acronym, take the first letter from a series of words to form a pronounceable word that stands for something.

Examples: ‘AIDS’ and ‘NATO’.

Because you can pronounce acronyms as words, you don’t need periods.

Use periods for abbreviations.

Abbreviations are different from acronyms; you pronounce each individual letter in an abbreviation. If your readers are familiar with the abbreviation, don’t use periods.

Question marks (?)

Use a question mark at the end of a direct question, or one to which you expect an answer.

Don’t use a question mark for an indirect question or declaration.

Put a question mark at the end of a sentence if a question is embedded in the sentence.

Don’t use a question mark for a polite request.

Don’t use a question mark for a command.

Don’t put a question mark at the end of a sentence that begins with ‘whether’. ‘Whether’ is a statement, not a question.

Put a question mark inside quotation marks if the question is in the original. Put it outside if it’s not in the original.

If the sentence and the quoted material are questions, don’t use two question marks.

When a question ends with a series of brief questions that are follow-up questions to the main question, each follow-up question should begin with a lowercased letter and end with a question mark.

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Rhetorical questions, or questions a writer asks for which the writer doesn’t expect an answer, should end with a question mark. But avoid using question marks unless you’re quoting. Good legal writers answer questions, not ask them.

Exclamation points(!)

Use an exclamation point at the end of a command, emphatic declaration, or interjection.

Put an exclamation point inside the quotation mark if the exclamation point is in the original. Put an exclamation point outside if the exclamation point is not in the original.

Exclamation points may accompany mimetically produced sounds.

NOTE Avoid exclamation points in legal writing. They tell readers that you’re exaggerating or screaming at them. Use exclamation points for informal writing, like birthday wishes to a loved one or the occasional informal e-mail.

Instead of using exclamation points to intensify your writing, use concrete nouns and, even better, vigorous verbs.

Colons (:) Colons press readers forward.

Use a colon after a salutation in formal writing. Use a comma, not a colon, after a salutation when writing to friends.

Separate hours from minutes with a colon.

Separate book titles from subtitles with a colon.

Use a colon to introduce a definition.

Use a colon to replace ‘is’ or ‘are’.

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Use a colon after an independent clause — defined as a clause that has a subject, a verb, and can stand on its own as a sentence — to (1) introduce lists, (2) introduce an illustrative quotation,or (3) show that something will follow.

You don’t need a colon after ‘included’; the preceding clause isn’t an independent clause.

Unless what follows is a quotation, a colon may not follow a dependent clause, defined as a clause that can’t stand on its own as a sentence.

Uppercase the first word after a colon when an independent clause follows the colon.

Don’t capitalize after a colon when a dependent clause follows the colon.

If more than one independent clause follows the colon, begin each independent clause with a capital letter.

Colons always go outside quotation marks.

Spacing: Use two spaces after a colon in typing and one space in publishing.

Semicolons (;)

Don’t confuse colons with semicolons. Colons press readers forward. Semicolons slow readers down.

Use semicolons to connect closely related independent clauses.

Don’t use semicolons — use commas — to connect dependent clauses to independent clauses.

Use semicolons to avoid run-on sentences.

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Use semicolons, not commas, to separate two independent clauses if the second independent clause begins with a conjunctive adverb (‘accordingly’, ‘again’, ‘also’, ‘besides’, ‘consequently’, ‘finally’, ‘for example’, ‘furthermore’, ‘hence’, ‘however’, ‘moreover’, ‘nevertheless’, ‘on the other hand’, ‘otherwise’, ‘rather’, ‘similarly’, ‘then’, ‘therefore’ ‘thus’).

Use a semicolon to separate two independent clauses if the second independent clause has a conjunctive adverb somewhere in the sentence, usually after the subject.

Use semicolons in lists that contain internal commas or an ‘and’ or ‘or’.

It’s acceptable in lists to use two or more semicolons in the same sentence.

Use semicolons to replace commas and coordinating conjunctions (‘and’, ‘but’, ‘for’, ‘nor’ ‘or’, ‘yet’).

The first letter after a semicolon is lowercased, unless the word is a proper noun.

Use a semicolon between string citations.

Put semicolons after and outside parentheses.

When a semicolon follows an abbreviation with periods, it’s acceptable to put a semicolon after a period.

Semicolons always go outside the quotation mark.

Spacing: Put one space after a semicolon.

Parentheses () Parentheses direct readers to additional and slightly different information. They also set off explanations, interruptions, or phrases that obscure the main text.

Parentheses introduce abbreviations and acronyms.

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If the parentheses appear at the end of a sentence, punctuate after the final parenthesis. If the parentheses contain an independent clause, punctuate inside the final parenthesis.

Parentheses de-emphasize. To emphasize, use dashes (—).

NOTE Parentheses are (usually) too informal for legal writing.

Brackets[] In a quotation that contains a factual, spelling, or usage error, use “[sic],” If the context makes it clear that the mistake was in the original, don’t add. Use “[sic]” sparingly. Overusing “[sic]” suggests you’re insulting or embarrassing the original quotation’s author.

Consider using brackets to correct the quotation.

Use brackets in a quotation to show alterations or additions to a letter or letters in a word.

Never add within quotation marks long bracketed text after a quotation.

Brackets go inside parentheses.

Add a space between parentheses and brackets.

Commas (,) Commas are meant to slow down language or replace words.

To create a pause, add a comma Put commas after salutations in informal writing.

Put commas before titles.

Don’t use commas to separate nouns from restrictive terms of identification.

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Don’t put a comma between a month and the year.

Use commas to contrast or emphasize words.

Set off interruptive phrases or transitional expressions with commas. The most common interruptive phrases or transitional expressions are the conjunctive adverbs ‘additionally’, ‘for example’, ‘however’, ‘moreover’, ‘therefore’, and ‘thus’.

Use commas to set off introductory phrases that add nonessential information to a preceding clause. Introductory phrases will begin with words like these: “although,” “according to,” “after,” “despite,” “first,” “if,” “including,” “irrespective of,” “particularly,” “perhaps,” “preferably,” “probably,” “provided that,” “regardless of,” and “usually.”

Use commas to set off tag questions.

Use commas to separate coordinate adjectives. Two tips to figure out whether the adjective is coordinate or non-coordinate: (1) Reverse the order of the adjectives to see whether the sentence makes sense. Or (2) insert “and” between the adjectives to see whether the sentence makes sense. If the adjectives pass test 1, they’re coordinate adjectives and need commas. If the adjectives pass test 2, they’re coordinate adjectives and need commas. If the adjectives pass neither test, the adjectives are non-coordinate and won’t need commas.

Use a comma to separate two parts of a double-comparative.

Put a comma before a coordinating conjunction (“and,” “but,” “for,” “nor,” “or,” “so,” “yet”) that joins two independent clauses. Don’t put a comma before a conjunction if the conjunction joins a dependent clause: a sentence that has no subject, verb, or both can’t stand on its own as a sentence.

Use commas to enclose appositives: nouns or pronouns that rename or explain the nouns or pronouns that follow.

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If a conjunctive adverb (“accordingly,” “again,” “also,” “besides,” “consequently,” “finally,” “for example”) joins two independent clauses, use semicolons or periods, not commas, to set off the clauses.

Separate a series of three or more words or phrases by putting a comma between them.

The last comma in the series — the serial comma — is optional but preferred.

Never put commas after exclamation points or question marks following a quotation.

Don’t use a comma after a “that” before quotation marks when the “that” precedes a quotation.

Don’t use a comma when other material precedes and follows the quotation.

Use a comma to introduce a quotation only (1) when the quotation is an independent clause and (2) when what precedes the quotation is inapposite to the quotation or to replace a “that” or a “whether” before the quotation. If you wouldn’t add a comma if the sentence had no quotation marks, don’t add a comma before the quotation marks just because there are quotation marks.

Use commas to set off parenthetical expressions, or unimportant comments or information.

Put commas after parentheticals, not before them.

Use commas to set off non-restrictive phrases. A phrase is non-restrictive when it isn’t essential to the meaning of a sentence. Non-restrictive phrases are non-defining: They don’t identify which things or people the clause refers to. ‘Which’ often precedes non-restrictive phrases. If you remove a non-restrictive phrase from a sentence, the sentence will retain its meaning.

Restrictive phrases don’t need commas. A phrase is restrictive when it’s essential to the meaning of the sentence. Restrictive phrases are defining: They identify which things or people the clause refers to. ‘That’ often precedes restrictive phrases.

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Never use a comma before a verb.

Don’t use a comma before ‘because’ unless the sentence is long or complex.

Never use a comma after a compound subject.

Use commas to eliminate confusion.

Put commas inside quotation marks.

Hyphens (-) Hyphens divide single words into parts or join separate words into single words. Use hyphens (“-”) to divide words between syllables from one line to the next. Put the hyphen after the last letter on the first line, not at the beginning of the second line.

Don’t put any spaces before or after the hyphen.

Never use a hyphen to divide a one syllable word.

Hyphenate names if the individual uses that style.

Some tips: Hyphenate a compound adjective appearing before a noun.

Don’t hyphenate when the compound adjective appears after the noun.

Don’t use a hyphen to join an adverb ending in “ly” to another word. The modifier “ly” already trips off the tongue.

Use hyphens to write fractions Hyphenate when not hyphenating is visually troubling, such as when the prefix ends with the same letter that begins the word.

Hyphenate when using the words “all,” “ex,” “quasi,” or “self.”

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Quotation marks.

Quotation marks come in three forms: single quotation marks (‘ ’), double quotation marks (“ ”), and triple quotation marks (“‘ ’”).

Use quotation marks for direct quotations, including a speaker’s words.

Don’t use quotation marks until you start the quotation.

Don’t use quotation marks and hyphens together.

Use quotation marks to set off definitions or to explain or express words and phrases.

Use quotation marks to signal a newly invented word or phrase or an old word or phrase used in a new context.

Don’t enclose indirect quotations — what someone says but not in the exact, original language — with quotation marks.

Use quotation marks to note that a word or phrase is inappropriate in context, but do so sparingly.

According to the Association of Legal Writing Directors (ALWD) Citation Manual, use quotation marks for quotations of 49 or fewer words or if the quotation runs fewer than four lines of typed text and is not an epigraph or a quotation of verse or poetry. For blocked quotations — if the quotation has 50 or more words, if it exceeds four lines of typed text, or if the material quoted is a verse or poem — don’t use quotation marks at the beginning or end of the quotation.

Single-paragraph quotations have quotation marks at the beginning and end of the quoted language. Multiple paragraph quotations have quotation marks only at the beginning of each paragraph and at the end of the last paragraph.

Footnote and endnote numbers always go outside quotation marks.

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Finally, Don’t overquote; overquoting substitutes for analysis. Quote accurately; accurate quoting makes readers trust you. And use quotation marks if you’re quoting; quote to be seen as a scholar, not a plagiarist.

NOTE Overusing quotation marks will make you look egotistical or sarcastic. Language loses impact with overused quotation marks. Make readers focus on content, not style, and especially not exaggerated style.

Apostrophes Use apostrophes to show ownership or possession, indicate a contraction, or form plurals.

Use apostrophes to form possessive nouns or pronouns.

In informal writing, use apostrophes to indicate a contraction: “Cannot” becomes “can’t.”

“Do not” becomes “don’t.” “He is” becomes “he’s.” “I am” becomes “I’m.” “It is” or “it has” becomes “it’s” etc.

‘Em’ and ‘en’ dashes An “em” dash (“—”) is as wide as the capital letter “M” or sometimes longer, depending on the printer. In typing, the em dash is represented by two hyphens (“--”). An “en” dash (“–”) is as wide as the capital letter “N.” In print, an en dash is twice as wide as a hyphen (“-”).

Use em dashes to emphasize. Em dashes are more emphatic than en dashes, colons, or parentheses. Parentheses are the least emphatic.

Em dashes set off abrupt changes in thought, interruptions, or supplemental explanations. If the change of thought, explanation, or interruption is in the middle of the sentence, add a closing em dash to signal the end of the change of thought, explanation, or interruption.

What’s enclosed between em dashes is an interpolated clause.

Slashes (/)

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Use slashes for “per.”

Use slashes to divide one line of verse from the next in text; use a space before and after the slash.

Use slashes to separate equally applicable terms. For example, parent/guardian.

Don’t use a slash for “and/or.” Use only “or” if the conjunction is disjunctive: if it separates two or more options.

Don’t write “she/he/” to make your writing gender-neutral.

Ellipses Use ellipses to omit words from a quotation. Use three-dot ellipses (“. . .”), all separated by spaces, to show omissions of punctuation or a word or more in the middle of your sentence.

Use four-dot ellipses (“. . . .”), all separated by spaces, to show omissions at the end of the sentence if (1) the end of the quotation is omitted; (2) the part omitted is not a citation or a footnote; and (3) the remaining portion is an independent clause. Unless all three criteria are satisfied, use a period, not an ellipse.

Keys to clear legal writing 1. Use the active voice; don't overuse the passive voice.

2. Write with verbs.

3. Avoid nominalizations, whenever possible.

4. Avoid overuse of "to be" or "to have."

5. Avoid complex verb constructions.

6. Edit for wordiness.

7. Delete unnecessary repetitions.

8. Scrutinize constructions beginning with "there" or "it" for wordiness.

9. Shorten long descriptive phrases, whenever possible.

10. Express the negative in positive form, whenever possible.

11. Consider emphasis–sentence structure, placement, punctuation, special type.

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12. Clarify lists with numbers or letters.

13. Avoid cliches and legal jargon.

14. Be specific; carefully consider the words you want to use.

15. Use demonstrative adjectives.

16. Avoid qualifiers.

17. Combine short sentences to avoid choppiness.

18. Use a variety of sentence patterns and lengths.

19. Only combine ideas that belong together.

20. Delete redundant sentences.

21. Don't tread water.

22. Avoid overuse of particular words; use a thesaurus.

23. Avoid abrupt changes of verb tense.

24. Carefully organize paragraphs.

25. Check for paragraph unity.

26. All sentences in a paragraph should relate to the paragraph's topic sentence.

27. A paragraph should contain a single theme.

28. Use a variety of paragraph organizations.

29. Create coherence and flow.

30. Create a hierarchy of ideas, phrases, and sentences within the paragraph.

31. Think in large blocks.

32. Consider the paragraph's dynamic flow and goal.

33. Each sentence should flow from the previous one.

34. Consider punctuation's relation to flow. Separate linked ideas with brief punctuation (commas); separate different ideas with longer punctuation (periods and paragraph breaks).

35. Properly place primary and secondary material.

36. Use connecting words and phrases.

37. Use overlapping sentences to create continuity.

38. Repeat key words for coherence.

39. Combine short sentences to create coherence.

40. Use striking topic sentences.

41. Carefully organize the paper on medium- and large-scale levels.

42. Use the law to help organize your paper.

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43. Use IRAC to organize your paper.

44. Clearly articulate subsections and sections.

45. Create closure to help articulate sections and subsections.

46. Consider the hierarchy of sections and subsections.

47. Draft an outline.

48. Organize ideas in a logical order.

49. Use headings and subheadings.

50. Set out the structure of your paper in the introduction.

51. Create continuity between paragraphs, subsections, and sections.

52. Make sure that each paragraph relates to the thesis paragraph.

53. Use transitional sentences to give a paper continuity.

54. Identify your audience.

55. Identify the constraints on the paper (format, length).

56. Edit your paper carefully.

57. Read your paper out load and listen carefully.

58. Check the citations.

59. Carefully proofread your paper.

60. Put yourself in your reader's shoes.

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Final word:

This book has provided a methodology for researching constructing and arguing legal arguments, but no methodology, in this discipline or any other, can ever be more than a reliable rule of thumb.

A methodology can provide highly useful guidance to the initiate and the expert alike, but it is never a substitute for practiced judgment based on real experience. The true master of a craft knows when to deviate from the rules as well as when to follow them, when to cut corners and when to proceed more strictly. The advice contained in this book should be taken in this spirit.

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