Online Companion: Legal Research, Analysis, and Writing

Chapter 15

CHAPTER 15 SUMMARY

Contrary to popular belief, the bulk of the practice of law involves writing in one form or another. Legal writing includes the preparation of documents such as office legal memorandums, legal correspondence to clients and other individuals, litigation documents that will be filed with a court, and transaction documents prepared for clients’ use, such as contracts.

Legal writing is often complex, requiring in-depth research and detailed analysis. The complexities of an assignment, time constraints, and heavy workloads dictate the necessity of following a writing process when engaging in legal writing. There is no established standard writing process. Each individual should adopt or create a process that works.

In this text, a recommended process is presented that focuses on the three stages of the writing process:

1. Prewriting stage

2. Writing stage

3. Postwriting stage

The prewriting stage is composed of three sections: the assignment, constraints affecting the assignment, and the organization of the assignment. When approaching an assignment, you should first review the assignment to be sure the task is clearly understood. Next, identify the type of writing required and the audience the writing is intended to reach. After reviewing the assignment, then consider any constraints that affect the assignment, such as time, length, and format.

Once these matters are addressed, prepare an outline of the assignment. It is recommended that you prepare an expanded outline and use it when engaging in the research and analysis of the assignment.

An expanded outline consists of a separate notebook page or computer-generated page for each topic and subtopic of the outline. Research and analysis are entered in the expanded outline throughout the prewriting stage as material is gathered and analysis is conducted. The use of this approach results in the capture and organization of ideas and material throughout the prewriting stage. The end result is essentially that a rough draft is developed during the prewriting stage.

The adoption of a prewriting process simplifies and makes easier the writing stage. In the writing stage, the rough draft represented by the expanded outline is converted to the finished product, for example, a legal memorandum. Being overwhelmed by the size of the assignment and putting off starting to write are often major stumbling blocks in the writing stage. The use of an expanded outline helps simplify complex projects. Also, an expanded outline helps overcome the problem of starting because many of the beginning steps in writing, such as organization, are already accomplished.

All drafts must be revised and edited. A revision focuses on ensuring clarity, completeness, and conciseness. Editing focuses on narrower concerns involving accuracy, such as punctuation, grammar, and so on. The number of drafts is not preset but is governed by the goal of producing a quality product. If the steps of the writing process are followed, the goal of producing a well-crafted, quality product will be achieved.

This chapter concludes with a list of suggestions concerning legal research as it relates to the prewriting stage of the writing process, such as to start with the identification of the issue and to be sure to update all research.


CHAPTER 15 ASSIGNMENTS
The following assignments are based on the office memorandum assignments presented at the end of Chapter 17. The assignment memo, statutory law, and case law are reprinted here.

For each assignment:

1. Describe in detail the application of each step of the prewriting stage to the assignment.

2. For the organization step of the prewriting stage, prepare an expanded outline based on the outline presented in the “Use of an Outline” section of the chapter. Based on the information presented in the assignment, fill in the expanded outline. Include in the issue section of the outline a broad statement of the issue and at least one narrow statement of the issue.

ASSIGNMENT 1
The assignment is to prepare an interoffice memorandum for the supervisory attorney. The memo is due in five days and there is a five-page limit.

To: Research Assistant

From: Supervisory Attorney

Re: Dixon v. Cary

Probate of holographic will

We represent Holly Dixon, the widow of Thomas Dixon, in the case of Dixon v. Cary. She wishes to challenge the probate of the holographic will of Thomas Dixon. Mary Cary, the sister of Thomas Dixon and personal representative of his estate, has submitted for probate a holographic will prepared by Mr. Dixon.

The first half of the will is in the handwriting of Mr. Dixon. The second half is typewritten. It was typed by the next door neighbor, Edgar Mae. Mr. Mae states that Mr. Dixon asked him to finish the will because Mr. Dixon was too weak to continue. The will is signed by Mr. Dixon. There are no subscribing witnesses to the will, but it includes a self-proving affidavit that meets the requirements of the statute.
Is the will admissible to probate under Texas law?

Statutory Law—Tex. Prob. Code. Ann. Sec. 59 Requisites of a Will (Vernon 1980):

Every last will and testament . . . shall be in writing . . . , and shall, if not wholly in the handwriting of the testator, be attested by two (2) or more credible witnesses. . . ."

Tex. Prob. Code. Ann. § 60 Exception Pertaining to Holographic Wills (Vernon 1980), provides: “Where the will is written wholly in the handwriting of the testator, the attestation of the subscribing witnesses may be dispensed with. Such a will may be made self-proved at any time during the testator's lifetime by the attachment or annexation thereto of an affidavit by the testator to the effect that the instrument is his last will; that he was at least eighteen years of age when he executed it . . . ; that he was of sound mind; and that he has not revoked such instrument.

Case LawDean v. Dickey, 225 S.W.2d 999 (Civ. App. Tex. 1949) (see Appendix A of the text).

ASSIGNMENT 2
The assignment is to prepare an interoffice memorandum for the supervisory attorney. The memo is due in seven days and there is a six-page limit.

To: Research Assistant

From: Supervisory Attorney

Re: Eldridge v. Eldridge

Modification of child support

We represent Gwen Eldridge in the case of Eldridge v. Eldridge. The Eldridges were divorced in 1992. Mrs. Eldridge was awarded custody of their two minor children. Mr. Eldridge was ordered to make child support payments in the amount of $700 per month. He lost his job in January of 1993 and was unemployed from that date through October of 1993. He then obtained employment as an electrician.

Mr. Eldridge did not make child support payments for the months he was unemployed. In January of 1994, Mrs. Eldridge filed a motion with the court that entered the divorce decree, seeking an order forcing Mr. Eldridge to pay the child support payments due for the months he did not make payments; the amount totaled $7,000. Mr. Eldridge countered with a petition to modify his child support obligation. The petition requested that he be excused from having to pay the obligations that accrued during the ten months he was unemployed. The court ordered Mr. Eldridge to pay one half of the amount due, $3,500, and excused him from paying the remaining $3,500. The court stated that Mr. Eldridge did not have to pay the full amount because he was unemployed during the months the child support accrued. The attorney that represented Mrs. Eldridge in the trial court told her that there is no basis for an appeal of the court order.

Please check the statutory and case law to determine if the trial court acted properly when it excused Mr. Eldridge from paying $3,500 of the back child support.

Statutory Law—Ind. Code § 31-2-11-12
. Modification of delinquent support payment, provides:

(a) Except as provided in subsection (b) . . . , a court may not retroactively modify an obligor's duty to pay a delinquent support payment.

(b) A court with jurisdiction over a support order may modify an obligor's duty to pay a support payment that becomes due:

(1) After notice of a petition to modify the support order has been given . . . to the obligee . . . and

(2) Before a final order concerning the petition for modification is entered.

Case LawCardwell v. Gwaltney, 556 N.E.2d 953 (Ind. App. 1
Dist. 1990) (see Appendix A of the text).

ASSIGNMENT 3
The assignment is to prepare an interoffice memorandum for the supervisory attorney. The memo is due in 10 days and there is an eight-page limit.

To: Research Assistant

From: Supervisory Attorney

Re: Commonwealth v. Jones

Assault by means of a dangerous weapon—lightning

This is a bizarre case to say the least. We have been appointed by the court to represent Sedrick Jones in the case of Commonwealth v. Jones. Mr. Jones is charged with attempted murder, battery, false imprisonment, and assault with a dangerous weapon. Mr. Jones has had a stormy ten-year relationship with Elizabeth Steward. The relationship has been marked by multiple instances of domestic violence. They live in a cottage located on a bluff overlooking the Atlantic Ocean. On the April 5 of this year, after an extended bout of drinking and arguing, Mr. Jones dragged Ms. Steward outside and tied her to the lightning rod attached to the cottage. This took place during a violent electrical storm. When he tied her to the pole he said, "I'll fix you, you're gonna fry." Lightning did not strike the pole. This act is the basis of the assault by means of a dangerous weapon charge. The state claims that the dangerous weapon is lightning.

Please prepare a memo addressing the question of whether there is a sufficient basis to support the assault by means of a dangerous weapons charge.

Statutory Law—G.L. c. 265 § 15A. Assault and Battery with Dangerous Weapon (State of Massachusetts), provides: “(b) Whoever, by means of a dangerous weapon, commits assault and battery upon another shall be punished by imprisonment in the state prison for not more than five years. . . .”

Case Law—Commonwealth v. Shea, 38 Mass. App. Ct. 7, 644 N. W. 2d 244 (1995) (see Appendix A of the text).

CHAPTER 15 LINKS TO INTERNET RESOURCES
Using “legal writing for paralegals” or “legal research memorandum” as a topic, there are various Web sites (thousands) that refer to legal writing. Some cites refer to legal writing textbooks, some focus on legal research and analysis, others focus on legal writing for law school students, some advertise research and writing services, some are Web sites for specific classes taught at schools, some advertise courses and seminars on legal writing, and some sites discuss legal memoranda in specific areas such as environment law. A Chicago-Kent College of Law site, http://search.kentlaw.edu, presents a sample legal memorandum. In the “search box” type “sample memo.” Another site, a Georgetown University Law Library Web site, http://www.ll.georgetown.edu/topics/legal_writing.cfm, provides links to research and writing resources and related materials useful to legal writers.

As with most topics on the Web, the problem is not the lack of sites but too many sites. Probably the best strategy would be to narrow your search to a specific type of legal writing and topic, such as “legal memorandum, public service contracts.”

Power Point Presentations

Expanded Outline

Stages of the Legal Writing Process