information about the coursefaculty.law.miami.edu/mfajer/documents/elementsb19ins…  · web...

22
ELEMENTS B: 2019: INSTRUCTIONS FOR GROUP WRITTEN ASSIGNMENTS 1. Overview (a) Each of you will participate in three group written assignments in teams of two to four students. I will choose your partners for each assignment in a way that assures that you will not work with the same student twice. As soon as we have completed enough of the underlying material for you to begin work on a particular group assignment, I will post the instructions on the course page. (b): The first group assignment requires you to submit a brief for a particular case (assigned according to your panel). The other two group assignments consists of a list of questions or arguments. Each team will be responsible for one “Sub- Assignment,” that includes some (but not all) of the questions/arguments on the list. (c) For each group assignment, I will post a list of “Team Assignments” that will indicate the students assigned to each team and the brief or Sub-Assignment the team must complete. (d) I have given versions of each group assignment to prior classes. Thus,you may come across earlier student work or even copies of my comments and model answers for one or more of the assignments. Because your work on these assignments is pass/fail and designed to let you know how you are doing, I see no benefit for you in looking at versions from prior years until safter you’ve submitted your own work. 2. Role of Coordinator & Logistics of Working Together (a) On the list of Team Assignments, I will designate one member of each team as the “Coordinator.” Every student will be the Coordinator for one of the three written assignments. The Coordinator will be responsible for organizing group meetings, for assembling the team’s work-product into a single final document that follows all instructions, and for submitting the document on time. As noted in class, Coordinators will receive 1

Upload: others

Post on 13-Jul-2020

0 views

Category:

Documents


0 download

TRANSCRIPT

Page 1: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

ELEMENTS B: 2019:

INSTRUCTIONS FOR GROUP WRITTEN ASSIGNMENTS

1. Overview(a) Each of you will participate in three group written assignments in teams of two to four students. I will choose your partners for each assignment in a way that assures that you will not work with the same student twice. As soon as we have completed enough of the underlying material for you to begin work on a particular group assignment, I will post the instructions on the course page. (b): The first group assignment requires you to submit a brief for a particular case (assigned according to your panel). The other two group assignments consists of a list of questions or arguments. Each team will be responsible for one “Sub-Assignment,” that includes some (but not all) of the questions/arguments on the list.

(c) For each group assignment, I will post a list of “Team Assignments” that will indicate the students assigned to each team and the brief or Sub-Assignment the team must complete.

(d) I have given versions of each group assignment to prior classes. Thus,you may come across earlier student work or even copies of my comments and model answers for one or more of the assignments. Because your work on these assignments is pass/fail and designed to let you know how you are doing, I see no benefit for you in looking at versions from prior years until safter you’ve submitted your own work.

2. Role of Coordinator & Logistics of Working Together

(a) On the list of Team Assignments, I will designate one member of each team as the “Coordinator.” Every student will be the Coordinator for one of the three written assignments. The Coordinator will be responsible for organizing group meetings, for assembling the team’s work-product into a single final document that follows all instructions, and for submitting the document on time. As noted in class, Coordinators will receive five points to be added to their exam score less any penalties earned for lateness or formatting errors.(b) All team members: Please be cooperative about setting meeting times and dividing up work. Please be responsible about meeting your commitments to your partners. Please take responsibility for ensuring that your team is doing the substantive work you have been assigned.

(c) Each submission is due on the time and date indicated on the Course Page. Unless the group agrees otherwise, the other team members should get final versions of any sections of the assignment for which they are responsible to the Coordinator at least 36 hours before the assignment is due.

(d) Around the time your submission is due, I will post on the door to my office sign-up times to review your work with you. I will announce in class that the sign-up sheet is up. Your group probably should go look at the list of times together and agree on which you will choose.

1

Page 2: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

3. Formatting & Submission Instructions for Coordinators(a) Code Names: To facilitate anonymous grading, you will use a code name chosen by the coordinator to identify your work-product. Do not put any student’s name (or social security number or C number) anywhere on your written work-product. The code name should appear in a heading at the top of the first page of your submission in the following form:

[Code Name]: [Name of Case] Brief (E.g., Favre Manning Brief)OR

[Code Name]: [Name of Assignment] Sub-Assignment [letter] (E.g., Bieber Weasel Assignment: Sub-Assignment A)

(b) Formatting Your Work-Product: For the heading, use the form described above. Do not include the date, the name of the

class or my name. Do not include a cover sheet. Do include page numbers. Use Double-spaced 12-Point Times New Roman Font.

(c) Submitting Your Work-Product: The Coordinator should submit a single copy of the assignment electronically to my

assistant Marysabel Merino at her e-mail address: [email protected]. In the body of your e-mail, please list your team members and your codename.

Your assignment should be in the form of a Word document attached to your e-mail. To be treated as “on time,” your e-mail must be sent (not necessarily received) by the

time and date indicated. If as Coordinator, you submit an assignment late without suitable excuse, you will receive penalty that will increase the later you send it. If you need to get an extension due to illness or emergency, please contact my assistant rather than speaking directly to me, and do so before the submission is due if at all possible. In this way, we can try to accommodate you without undermining the anonymity of the grading.

The Coordinator should provide the other team members with electronic copies of the final work-product at the time of submission.

4. Special Instructions for Group Briefing Assignment(a) Useful Resources:

Suggested Briefing Instructions Memo

Notes on Briefing in Slides for Classes 3-7

Posted Briefs for Earlier Cases

Self-Quiz & answers for your case

b. Formatting Instructions: Start each section of the brief with the name of that section highlighted in some fashion (bold or italic or underlined) followed by a colon (E.g., “Statement of the Case:” or “Facts:”). Start the relevant information for the section immediately after the colon without starting a new line. Don’t number the sections except for rationales as explained below.

2

Page 3: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

c. Substantive Content: You should generally follow the guidelines for suggested content found in the Briefing Memo on the course page. Including all the listed sections from “Citation” to “Result” (none of the cases in question have concurrences or dissents). You should describe the case you are briefing using past tense. In addition, you should use the following instructions for the indicated sections of the brief:

i) Issue & Holdings: Your issues and holdings should each incorporate both a procedural and a substantive component. Your issue should be a yes/no question with a very narrow substantive component, incorporating most or all arguably relevant specific facts. You should include two different sections for holdings. The first, which you should call Narrow Holding, should simply respond to and mirror your issue. The second, which you should call Broader Holding, should broaden the substantive component of the narrow holding by generalizing and/or omitting some specific facts. You should make sure that the version of the broader holding you articulate remains a plausible reading of what the court said and did.

ii) Rationales: You should create a separate section for each rationale your team identifies, numbering them consecutively, and indicating whether it is doctrinal or policy. E.g.,

Rationale #1 (Doctrinal): …

Rationale #2 (Doctrinal): …

Rationale #3 (Policy): …

Rationale #4 (Policy): … etc.

For each rationale, begin by identifying the premise (relevant authority or policy concer). Then briefly explain how the premise helps support the court’s result or holding. Note there is no fixed or expected number of rationales. Each case is likely to have different amounts of doctrinal and of policy rationales.

5. Special Instructions for Both Group Argument Assignments(a) Overview: Your group argument assignments will provide a list of numbered

“Subjects of Arguments.” I will assign each team one of three sub-assignments, each of which will require you to do some (but not all) of the arguments described in the Subjects of Arguments.

(b) Presenting Your Arguments: Each argument assigned will be a separate section of your work-product. Do not include the instructional language from the Subjects of Arguments. Simply make your arguments. For each, provide a highlighted heading (i.e., in bold or italics) that consists of your codename and the listed number of the argument in question. (E.g., Yankees 1 or Rocky 3.) Note that following these instructions means

Your codename will be in the overall heading then repeated five times.

Your numbering may contain gaps. E.g., if you are doing Sub-Assignment B for the Weasel arguments, your numbers will be 1, 2, 5, 6, 7.

3

Page 4: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

6. Specific Instructions for Weasel Assignment (Due Thursday October 3 @ 9:00 pm)

(a) Weasel Assignment Teams (Coordinators listed in bold type.)

SUB-ASSIGNMENT AAllen, Porter/Koren, Roi /Mativo, Thomas Ariz, Emily /Lacroix, Jacob /Roig, Christian Bloom, Adam /Ferreira, Bianca /Mejia, Maria /Montero Dokser, Abril Brennan, Ethan/Fernandez, Nico/Mayor, Daniel/Taylor, Hannah Englander, Alex /Hudak, John /Myrtidis, Minas /Sadiq, Isabelle Fontenot, Lily /Hernandez, Juliette /Plotkin, Ashley /Watts II, HarrellGoldman, Michael /Karam, Nick/Wasersztein, Mathias/Yachkouri, Victoria Hyland, Will/Martinez, Marcos/Shapiro, Jamie /Stein, Michelle

SUB-ASSIGNMENT BAnselmi , Alejandro /Bajaj, Jesse/Levy, Ally /Medina, Sarah Beam, Charli/Lago, Elanny/Simkovic, ToriBurt, Hanna /Garraway, Christina /Ortega, Jose /Taylor, Justin Cassista, Bryce /Goodman, Hayley /Miller, Mary /Nunez, Jacob Espinosa, Jean /Khan, Asiya/Najmy, Justin /Sandler, Logan Francis, Kadie /Janeiro, Sabrina /Ponce, Odette/Weinberg, AustenHeller, Ethan /Landman, Jacobo/Wolloch, Jonathan Kushner, Jillian/Pino, Gustavo /Tamir, Ziv

SUB-ASSIGNMENT CArmstrong, Clayton /Bland, Jake /Matzke, Ben/Mermell, JordanBerris, David/Cruz, EJ/Lopez, Leandra /Stage, Mason Craft, Gabrielle /Gray, Chris /Picard, Alex /Vazquez, Ashley Dally, Alfredo /Hampson, Sami /Miro, Cristina /Ruiz, Cristy Evans, Connor /Liu, Xiaoqiang/Proctor, Carson /Seiler, Jake Fried, Aaron /Johnson, Katie /Rose, Wyatt /Weiss, Zackary Israel, Blair /Matiauda, Max /Zeitlin, Sean Kwak, Colin /Riley-Brown, Maleah /Zornes, Jordan

4

Page 5: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

(b) Overview: For this assignment, you will make a series of arguments based on State v. Shaw about a hypothetical involving first possession of wild animals. I have provided seven subjects for your arguments, three supporting each party, and one tie-breaker that asks you to briefly discuss whose position is stronger. I divided you into teams of three or four students. Each team will submit a written response for one of three Sub-Assignments, each of which requires you to formulate five of the arguments (two supporting each party and the tie-breaker).

To get the most out of the assignment, I strongly suggest that you try to do all seven arguments even though I will only be able to read and put comments on the five assigned to your team. After I have received your written submissions, I will post comments and best student answers from prior years, so you can start to evaluate your own work. In addition, for further practice and review, you can try on your own to make the best arguments you can for each party in the hypothetical based on Pierson, Liesner, and the Demsetz excerpt.

(c) Hypothetical: Farmers in Ohio have been losing chickens and eggs to wild weasels that have become very numerous in recent years. The state offered a bounty of $12.00 for each weasel a citizen brings to a state game warden. Adam and Blake (with their respective wives) each own a farm adjacent to a state-owned forest where Ohio residents are permitted to hunt or trap weasels.

Adam created many traps in the forest by digging holes 1.5 meters deep. After throwing in a handful of chicken-flavored dog food to attract the weasels, Adam covered each hole with sticks and leaves.

When weasels fall into Adam’s traps, they sometimes are injured and unable to get out. Even if they are unhurt, because of the depth of the traps, the weasels take about two days to dig themselves out and escape. Adam is primarily employed as a surgeon and only has time to check and reset the traps every four or five days, so about half the weasels that fall into his traps manage to escape.

Knowing all this, Blake recently began taking weasels out of Adam’s traps and turning them in to collect the bounty. Adam claims that the weasels that Blake takes from Adam’s traps are Adam’s property.

(d) Subjects of Arguments

(1) Formulate an argument relying on the following passage from Shaw that, at the time Blake took them from the traps, the weasels were Adam’s property:

To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.

(2) Formulate an argument relying on the same passage used in (1) that, at the time Blake took them from the traps, the weasels were not Adam’s property.

(3) Formulate an argument that the facts in the hypothetical are sufficiently like the facts in Shaw that, at the time Blake took them from the traps, the weasels were Adam’s property. Choose between one and three specific factual similarities on which to base your argument.

5

Page 6: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

(4) Formulate an argument that the facts in the hypothetical are sufficiently different from the facts in Shaw that, at the time Blake took them from the traps, the weasels were not Adam’s property. Choose between one and three specific factual differences on which to base your argument.

(5) Formulate an argument that applying the policy favoring rewarding useful labor to the hypothetical supports concluding that, at the time Blake took them from the traps, the weasels were Adam’s property.

(6) Formulate an argument that applying the policy favoring rewarding useful labor to the hypothetical supports concluding that, at the time Blake took them from the traps, the weasels were not Adam’s property.

(7) Briefly discuss which of the two sets of arguments—the odd-numbered arguments supporting Adam or the even-numbered arguments supporting Blake—you think is stronger (and why). If your team disagrees on this issue, briefly describe the different positions team members have taken. (“Two/Three of us believe …. The other student(s) believe(s) …”)

(e) Sub-Assignments

“Sub-Assignment A” = Submit Arguments 1-4 & 7

“Sub-Assignment B” = Submit Arguments 1-2 & 5-7

“Sub-Assignment C” = Submit Arguments 3-7

(f) Specific Instructions & Suggested Procedure

(1) For this assignment, follow the Formatting & Submission Instructions for Coordinators (on page 2 above), Special Instructions for Both Group Argument Assignments (on page 3 above), and the specific instructions provided here.

(2) Use the list in part (a) above to determine your teammates and which sub-assignment you must do. For purposes of the heading on your submission, describe your sub-assignment as it appears in both parts (a) and (e) above. Your team’s work-product will consist of one integrated document containing the five arguments listed in part (e) as constituting your sub-assignment.

(3) This assignment is about applying State v. Shaw to a new situation. To complete the assignment, you should not do any outside research or refer to any other cases or to the Demsetz excerpt. Instead, reread Shaw carefully to ensure that your arguments are consistent with its language and holding. Then carefully read part (g) below for ideas about structuring the different kinds of arguments I have called for.

(4) Because the whole assignment is based on Shaw, do not include citations to the case or to specific page numbers in the course materials. However, use quotation marks to indicate where you are using language taken directly from the case.

6

Page 7: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

(5) Your team may find it helpful to have an initial discussion to formulate the first four arguments and assign drafters for them, then to later discuss the tie-breaker argument after the others are relatively complete. You also may find it helpful to set deadlines for circulating drafts so each of you has a chance to comment on the other students’ work.

(6) When arranging meetings and deadlines for your team, coordinators should be sensitive of three potential sources of conflicts:

(i) Brief submission deadlines for Kryptons & Uraniums;

(ii) L.Comm. deadlines (which often vary among instructors); and

(iii) Religious observance of Rosh Hashanah (which runs from sundown on Sunday September 29 to sundown on Tuesday October 1).

(h) Structuring Your Arguments: Here are some general ideas about how lawyers often structure our arguments and suggestions specific to each of the subjects that comprise the assignment. You should read through these guidelines carefully and deviate from them only if your group is fairly certain that doing so will make a particular argument clearer or more persuasive.(i) A Common Structure for Legal Arguments (Relevant to Arguments 1-6)

(A) Generally: Lawyers often use variations on the following structure when crafting legal arguments (e.g., this structure probably roughly parallels guidelines your L.Comm. instructors have given you for writing legal memos):

You begin by stating a general rule, policy or principle. Sometimes, this can take the form of a description of a case or a group of cases, such as “Where [fact + fact + fact], then [legal result].”

If you are making the argument in a formal written document, you then provide a citation to appropriate authority to support the rule, principle or policy you are employing. Because all of your starting points here come from Shaw, you need not provide citations for this assignment.

Next, you provide information about the situation under discussion that shows why it does or doesn’t fit within the rule, policy or principle.

You then briefly note the conclusion you draw from the application of the rule, policy or principle to the facts of your situation.

Here are three examples arising from our class discussions (note that there are counter-arguments to each), followed by more details about how to use this structure to formulate the first three types of argument required by this assignment.

Example #1: A person can obtain property in an animal ferae naturae by bringing it under control “so that actual possession is practically inevitable.” Liesner. In Shaw, few of the fish that entered into the nets would escape under ordinary circumstances. The net-owners were practically assured that when they went to pull up the nets, they would find fish in them. Because most of the fish that swam into the nets ordinarily ended up in the net-owners’ hands, it seems fair to say that the nets brought the fish under sufficient

7

Page 8: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

control to make their possession by the net-owners practically inevitable. Thus, the fish in the net were the net-owners’ property.

Example #2: Legal rules that are simple to apply are useful because they help prevent uncertainty and quarrels by allowing people to determine their rights easily. See Pierson. The trial court in Shaw held that for a net to give the net-owner property in the fish inside it, the net had to be escape-proof. Because it would be very difficult to prove that a net is escape-proof, net-owners subject to this rule would only know if their net was sufficient after an elaborate investigation. Because the rule is not simple to apply, the policy favoring certainty suggests that a rule that was easier to prove would be preferable.

Example #3: The majority in Pierson stated that the labor of those who use nets or traps to catch animals “and render escape impossible may be justly deemed” to give them property rights. Implicitly, the court contrasted the labor of successful trappers with that of Post, which was ineffective in obtaining actual possession of the fox, and therefore did not create property rights. The net-owners in Shaw labored by setting up nets in public waters. Although this labor did not succeed in preventing the escape of every fish that entered the net, it did succeed in permanently capturing most of them. Because the net-owners’ labor was successful in accomplishing its purpose of capturing some fish, it is more like the labor of the trappers discussed in Pierson than like the unsuccessful labor of Post. To reward this successful labor, the nets should be considered adequate to create property rights for their owners even though some fish do escape.

(B) Applying the Passage from Shaw (Arguments 1 and 2):

i. Begin by directly quoting the passage you are working with.

ii. Next, apply the passage to the hypothetical, recognizing that it contains two requirements or prongs. The pursuer (1) “must bring [the animals] into his power and control” and (2) “so maintain his control as to show that he does not intend to abandon [the animals] again to the world at large.”

Address the two prongs separately.

o To win, Adam must show that both prongs are met.

o To win, Blake must show that at least one of the prongs is not met. Thus, in formulating Argument 2, you may (if you wish) concede that Adam met one of the two prongs.

In applying the passage, explain why the facts of the hypothetical do (or do not) fit the relevant language. Don’t simply list some facts and announce the result.

iii. Conclude with a simple sentence tying your application of the passage back to the ultimate question about property rights. E.g., “Because both prongs of the test are met here, the weasels in the traps were Adam’s property when Blake removed them.”

(C) Comparing the Facts of Shaw (Arguments 3 and 4):

8

Page 9: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

i. Begin with a statement connecting the result in Shaw to the facts you have selected as relevant for that argument: “In Shaw, the court held that fish in nets were the property of the net-owners where [Fact 1] (+ [Fact 2] + [Fact 3])”

ii. Next, provide parallel facts from the hypothetical and explain why the similarities (or differences) from the selected Shaw facts suggest that the result in the hypothetical should be the same (or different).

You must do more than merely note that two facts are similar (or different). You must also explain why the similarity or difference is significant to determining the result.

If you are working with more than one relevant fact comparison, use parallel structure to make clear to the reader which fact from Shaw you are comparing to which fact from the hypothetical.

o You might address each fact comparison individually by listing one relevant fact from the hypothetical and immediate explaining its significance, then moving on to the next fact.

o Alternatively, you might address all the fact comparisons together, first laying out all relevant similarities or differences, then discussing their significance as a group

iii. Conclude with a simple sentence tying your factual comparison(s) back to the ultimate question about property rights. E.g., “Because the facts here are sufficiently different from those in Shaw, the weasels in the traps were not Adam’s property when Blake removed them.”

(D) Applying the Policy Favoring Rewarding Useful Labor (Arguments 5 and 6):

i. Begin with a sentence connecting the policy to what happened in Shaw: “By holding that the fish in the nets at issue in Shaw were the property of the net-owners, the court implicitly applied the policy favoring rewarding useful labor because [explanation of how the result furthers the policy].” If you think it helpful, you are welcome to provide a different explanation for each of your labor arguments.

ii. Next, explain why the policy supports treating (or not treating) the weasels Blake took as Adam’s property. You might consider the extent and or the usefulness to society of the labor undertaken by either or both parties, what alternative or additional labor they might have undertaken, and/or the incentives created for the parties and similar people if you do or don’t award property rights to Adam.

iii. Conclude with a simple sentence tying the policy back to the ultimate question about property rights. E.g., “Thus, to further the policy favoring rewarding useful labor, the weasels that Blake removed from Adam’s traps should [not] be considered Adam’s property.”

(ii) Formulating Tie-Breaker Arguments (Argument 7): The first four arguments in each sub-assignment should be very narrowly focused. In the final argument, you must present one or more reasons that your prior arguments favoring one party are stronger than those you made for the other side. This leaves you more room to talk about different aspects of the relevant

9

Page 10: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

authority as long as you ultimately tie your points back to the merits of your original arguments and don’t drift into more general arguments about who should win the case. For example, if I had asked you to do two arguments applying the language “took reasonable precautions to prevent escape,” you might argue that one of the two arguments seemed stronger because the facts of Shaw suggest that the court believed that “precautions” were “reasonable” if the net-owners were fairly certain that there would be fish in the nets whenever they checked. Some other guidelines for tie-breaker arguments:

Don’t just repeat points from the earlier arguments; say something new and explain (as opposed to simply announcing) why your new point (or points) suggests that one party’s position is stronger.

Strengthen your argument favoring one position by directly responding to the strongest points you made for the other side.

You can argue that one pair of your arguments seem equally strong (and briefly explain why). You can even argue that your two paired sets point in opposite directions (e.g., the fact comparison favors Adam, but labor policy favors Blake), so long as you choose and defend an overall winner

7. Specific Instructions for Sunken Treasure Assignment (forthcoming)

COMMON WRITING CONCERNS 1. Generally

(a) Edit and proofread your submissions. In grading, I will take into account both the clarity of your writing and (to a small extent) the number of mistakes in grammar and usage.

Before finalizing your submission, double-check that your sentences and paragraphs are easy to understand. Actively look for and delete unnecessary words. The likely readers of your legal writing often will be pressed for time. They will appreciate careful editing.

Actively look for typos and other errors; e.g., spellcheckers do not catch misspellings where the mistake creates a different existing word. (E.g., the Easter Distract of George).

(b) Simplify Your Writing: Some of you came to Law School already in the habit of using lengthy uncommon words, legalistic phrases and complex sentence structure. Historically, many other students develop this habit by imitating some of the judicial opinions you read. As a result, much student writing is difficult to understand. A small tip: Most judicial opinions are not written especially clearly. Aim higher (or at least simpler). You are much more likely to impress me with the clarity of your writing than with the sophistication of your vocabulary or the complexity of your sentences.

Unless directly quoting from relevant authority, don’t use an eleven-letter word if a five-letter word will do.

10

Page 11: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

Make sure you understand the language you use. When students use phrases from the readings out of context, they often reveal that they don’t understand what they are saying.

Use short simple sentences. Developing a clear concise writing style will help you on exams, where you have limited time and no opportunity to explain yourself if I can’t follow your reasoning. When grading, I spend only a limited time puzzling over the meaning of obscure sentences before I move on without giving you credit for what might have been a very good idea.

Use active voice where possible. Passive constructions (“It was held that …” “The trial court’s decision was affirmed.”) are less clear and less powerful than active ones. (“The court held that …” “The Superior Court affirmed the trial court’s decision.”) Instead, tell the reader who did something. Inquiring minds want to know!

(c) Be Accurate and Precise

Being “accurate” means your statements should be literally true or clearly supported by the authority you are discussing. For example, your Liesner brief should note that there are two plaintiffs and should make clear that whether the plaintiffs mortally wounded the wolf was still in question on appeal.

Being “precise” means that, if possible, you should not use vague or general terms to describe what the court or the parties did: “The Pierson majority suggested that a person could achieve occupancy without having actual possession in a number of ways.” “The Pierson majority suggested that a person could achieve occupancy without having actual possession by mortal wounding or through the use of traps and nets.”

Use of direct quotes:

o Make sure any language within quote marks accurately reflects what the case says.

o Make sure any direct quote of key language is marked with quotation marks.

o Make sure that if you put quoted language into a longer sentence, that the result is grammatically correct. To make this work, you can break up a longer quote into shorter pieces or paraphrase parts of it.

2. Conventions in Legal Documents

(a) Use past tense to refer to events in cases that already have been decided (“the court held …,” “the court believed …,” “defendant argued …,” etc.)

(b) Refer to a court as “it,” not “he” or “they.” E.g., “The court held for the state because it believed that the trial court’s proposed rule was “too technical.”

(c) Although Microsoft disagrees, many dictionaries say that both “judgment” and “judgement” are correct spellings. However, in legal materials, we typically use “judgment” without the “e.” See, e.g., Fed.R.Civ.Pro. 56.

(d) When a party has made a motion in court, we say the party “moved” (not “motioned”). E.g., “The defendant moved for a directed verdict.”

11

Page 12: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

(e) Terminology for actions of the court:

- A trial court “sustains” or “overrules” objections to evidence, but it “grants” or “denies” motions.

- A court “renders” a judgment; it “directs a verdict” or “grants a motion for directed verdict.”

- Appellate courts normally “affirm” or “reverse” the decisions of the lower courts whose decisions they are reviewing. They “reaffirm” or “overrule” their own prior decisions.

(f) Refer to people by their last name unless two or more people involved share the name. If you need to make a formal reference to a woman, use “Ms.” unless explicitly instructed to use “Miss” or “Mrs.” You don't want to irritate clients at the outset by making assumptions one way or the other about their marital status.

3. Grammar and Usage:

(a) Avoid using “said” and “such” as adjectives. E.g., “Said wolf was then wounded by Wanie and such wound was mortal” I call phrases like this this “bad legalese.” “The” or “this” or “that” almost always work as well or better.

(b) Learn to work with possessives and plurals, separately and together.

i. Possessives use apostrophes (except for possessive pronouns like “its,” “hers” or “theirs”).

ii. Plurals that are not possessive do not use apostrophes.

iii. Plurals that are possessives use apostrophes after the final “s”: “The five attorneys’ multiple submissions helped allay the board members’ concerns.”

iv. Plurals & possessives for words/names ending in “s”:

A. Mr. Jones Mr. Jones’s car

B. Mr. & Mrs. Jones = “The Joneses” The Joneses’ car

(c) Learn the difference between the following (and ask if you are unsure):

i. “its” and “it’s”

ii. “effect” and “affect”

iii. “their” and “there” and “they’re”

iv. “lose” and “loose” (If you lose a lot of weight, you’ll have very loose pants)

12

Page 13: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

INFORMATION ON TERMINOLOGY Terminology I Use Regularly: I give every significant component of each assignment an overall characterization, using some key terminology I have standardized over the years. The two most important terms are

Solid, which means that you understood your task, you’ve showed me you basically know what you are doing, and there are not a lot of sloppy mistakes; and

Uneven, which means there are significant problems, but there is enough useful work so that your submission is minimally acceptable.

Here is the usual range of terms I usually employ, from best to worst:

very nice (very rarely used)very good (rarely used)very solidquite solidquite solid overall solid

pretty solidpretty goodpretty good overalla little unevenpretty uneven

uneven (minimally acceptable) quite unevenvery uneven weakvery weak

Finally, by tradition, I place stickers on some of your papers to recognize good work on individual sections of your submissions and for the submission as a whole. These are basically for your own amusement, but please treat them as part of the anonymous grading process and refrain from mentioning to me that you got (or didn’t get) stickers.

13

Page 14: INFORMATION ABOUT THE COURSEfaculty.law.miami.edu/mfajer/documents/ElementsB19Ins…  · Web viewSometimes, this can take the form of a description of a case or a group of cases,

IM 1