Bahrych Lynn - Legal Writing and Analysis in a Nutshell

WEST ACADEMIC PUBLISHINGS LAW SCHOOL ADVISORY BOARD

JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California, Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

LEGAL WRITING AND ANALYSIS

IN A NUTSHELL

FIFTH EDITION

LYNN BAHRYCH, J.D., P h .D.

Attorney at Law

JEANNE MERINO

Lecturer in Residence
Director, First-Year Legal Research
and Writing
Stanford Law School

BETH M c LELLAN

Lecturer in Residence
Stanford Law School

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

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ISBN: 978-1-63460-281-5

In memory of Professor Marjorie D. Rombauer, Emerita, Founder of the field of Legal Writing Education and

For our families,
Max Thomas Bahrych, Glee C. Bahrych, and Shannon Glee Squires;
Marilyn Merino and Fred Merino and Russ, Rico, Rosie and Annie;
and Fred, Mara, Dan, Will and Maggie Alvarez, and Elinore Kaufman

PREFACE

The first edition of this Nutshell reflected the combined efforts of the late Professor of Law Marjorie D. Rombauer, Emerita, and Legal Writing Associate Lynn Bahrych Squires, Ph.D., now Lynn Bahrych, attorney at law. Published in l982, the first edition grew out of their collaborative efforts teaching legal writing and research at the University of Washington School of Law from l978 until l982.

Professor Marjorie Rombauer was a celebrated founder of the field of Legal Writing in the law school curriculum. She combined the specialized discipline of legal writing with legal research and analysis to create a new approach to teaching basic legal skills to first-year law students. Her pioneering work and popular legal textbooks have made her an icon in the fields of legal research, analysis, and writing. We have followed in her footsteps, building on her legacy to our profession, by adding legal analysis to this edition of the Nutshell.

In addition to Lynn Bahrych, the authors of the current edition are Jeanne Merino and Beth McLellan, legal writing instructors at Stanford Law School. Jeanne Merino is Lecturer in Residence and Director of the First-Year Legal Research and Writing Program. Beth McLellan is Lecturer in Residence. Jeanne and Beth are indebted to all former and current colleagues who have taught Legal Research and Writing and Federal Litigation at Stanford. Each of them so generously shared ideas about legal writing that their insights have become our own. Many thanks also to the participants of the 2015 West Coast Rhetoric workshop hosted by UNLV.

This new edition of Legal Writing and Analysis in a Nutshell offers law students and lawyers a practical step-by-step method of analyzing and writing clearly, precisely, and effectively about the law. The chapters that follow will guide the legal writer, whether a first-year law student or a practicing attorney, to a reliable set of practices that will insure successful written communication.

Lynn Bahrych, J.D., Ph.D.
Jeanne Merino, J.D.
Beth McLellan, J.D.

Stanford, California

October 2016

INTRODUCTION

Lawyers are professional writers. Writing is an essential part of a practicing attorneys daily work. Rather than decreasing the need for writing, the internet and other data transmission innovations have dramatically increased the flow of written communication. New technologies will continue to change how we write, but the law will always require the certainty of the written word.

Today, lawyers must not only write more often, but also more quickly. This new Nutshell offers a method of writing efficiently, without losing clarity, precision, and effectiveness. Our step-by-step method is illustrated in the flow chart in Chapter One. This method is designed to clarify each step you take and to help you make deliberate choices. Each step will be explained in one or more chapters.

This new edition of Legal Writing and Analysis in a Nutshell includes legal analysis for the first time. Times have changed since the first edition of Legal Writing in a Nutshell was published in 1982. We now use email for most communication, as well as texts for informal messaging. The process of writing has changed in response to this new medium. As Marshall McLuhan wrote in 1964, the medium is the message. This is merely to say that the personal and social consequences of any mediumthat is of any extension of ourselvesresult from the new scale that is introduced into our affairs by each extension of ourselves, or by any new technology. Marshall McCluhan, Understanding Media: The Extensions of Man 1 (1964). Analysis always comes firstthat has not changedbut the compact and fast-moving forms of written communication that deliver analysis today are even more tightly bound to the content of their message than in 1964 or 1982.

The Fifth Edition offers legal writers a practical step-by-step method of both analyzing and writing clearly, precisely, and effectively about the law. Although, as we have noted, the means of written communication continually change, the basic elements of effective legal writing have not changed. Whether the legal writer is crafting an email, a letter to a client, or a brief for a trial court, the same fundamental principles apply. Legal writing requires attention to accuracy, attention to the readers needs and expectations, and attention to the craft of writing precisely, concisely, and effectively.

The chapters that follow will guide the legal writer to a reliable set of practices that will insure successful written communication about the law. Chapters One to Ten explain the traditional elements of written composition, from organization of a legal document to individual word choices. The most common forms of legal writing, the research memorandum, client letter, and persuasive brief, are discussed in Chapters Six and Seven. Guidelines for writing emails are included in Chapter Six. Tips for editing and polishing your documents are given in Chapter Ten. You will find sample documents in Appendix A, including a case brief, a research memorandum, and a brief for a trial court. Appendix B provides you with a simple method of analyzing and improving your personal writing style. For readers wishing to improve their understanding of the structure of the English language, diagramming of sentences is also included in Appendix B. A glossary of words commonly misused in legal writing is provided in Appendix C. Finally, Appendix D recommends additional sources that we especially value.