PLEG136 - Lecture 6 - Forms of Persuasive Legal Writing
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PLEG136 – Lecture 6 – Forms of Persuasive Legal Writing
PLEG136
Lesson 1 – Basics of Persuasive Legal Writing
Introduction
One of the most significant responsibilities of a legal professional is to effectively advocate on behalf of their clients. Legal professionals often advocate through written documents, so it is important to know how to write persuasively.
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How to Write Persuasively
The purpose of persuasive writing is to convince the audience of a particular position. This is in contrast to objective writing where the purpose is to provide information and predict how a court will rule. When writing persuasively, the legal professional must present their client’s position in a convincing manner that is not too aggressive or defensive. The legal professional should present both the facts and law accurately, but in the light
that is most favorable to their client. In order to maintain credibility, the legal professional should acknowledge counter arguments, but make a point to discredit or minimize them. When writing persuasively, the legal professional should be very thoughtful and strategic with word choice and content. All of the information that the legal professional chooses to include in the document should aim to convince the audience of the client’s position.
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Tone of Persuasive Writing When advocating for a client in a written document, the writer should strive to strike the appropriate tone. The tone of persuasive writing should be professional and respectful, but also convincing and compelling. The writer should convey to the audience that their position is correct by providing sound legal arguments and by logically applying the relevant law to the facts
of the case. Sometimes legal professionals are very passionate about a topic and the tone of their writing can come across to the audience as overly emotional and opinionated. To avoid this, the writer should consistently reference the legal authority to show that the position is supported by law and not based on the writer’s emotions or opinion. Below are examples of both effective and ineffective statements in persuasive writing.
Examples of Effective Statements
According to relevant case law, Mrs. Jones does not owe a duty of care to Mrs. Smith.
The legal authority demonstrates that Mrs. Jones does not owe a duty of care to Mrs. Smith. Examples of Ineffective Statements
I don’t think that Mrs. Jones owes a duty of care to Mrs. Smith.
There is no way that anyone could possibly believe that Mrs. Jones owed a duty of care to Mrs. Smith! Know the Audience As with other types of legal writing, it is important to identify the audience when writing persuasively. Typically, the audience of a persuasive legal document is the court. This means that a judge or other court official (such as a law clerk or the clerk of the court) will read these persuasive documents. Given that court officials have legal knowledge, these documents can be written at a higher level and it is not necessary to explain basic legal terms. The writer should still avoid legal jargon. Even the most experienced judge can be confused or distracted by legal jargon. It is preferable to use plain language, shorter sentences, and active voice. Finally, the legal professional should avoid overly theatrical or dramatic language.
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Structure of Persuasive Writing Persuasive legal writing should be straightforward and relatively easy to comprehend. The audience should not have to work hard to determine the writer’s stance on a topic. To that end, the persuasive legal document should begin with an introduction that sets forth the position in a clear and affirmative statement. The introduction should also include a summary of the legal arguments that provide support for the position. After the introduction, the writer should provide a statement of facts. In a persuasive legal document, it is important to present the facts from the client’s perspective. This means that while the document must include all legally significant facts, it is acceptable to highlight facts that are particularly
useful to the client and to downplay facts could be harmful to the client. In the body of the document, the legal professional should analyze the legal authority and present legal arguments in a logical order, but aim to include the strongest arguments first. Although it is important to acknowledge (and minimize or discredit) counterarguments, it is better to keep this discussion short and include it after the arguments that support the client’s position. Finally, the persuasive legal document should include a conclusion that restates the client’s position and summarizes the legal arguments that were discussed in the body of the document. It is a good practice to use conclusory headings in a persuasive legal document. This means that the headings should be written in a way that encourages the reader to form conclusions that benefit the client. Accordingly, the most effective headings in a persuasive document serve the
following two functions: They are organizational and provide a framework for
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arguments to help the reader make connections between topics; They help persuade the reader of the position. Below are examples of non-conclusory and conclusory headings.
Examples
Non-Conclusory Heading:
Duty of Care
Conclusory Heading
: The Defendant Owed the Plaintiff a Duty of Care
Lesson 1 Completed!
Thank you! You have completed this lesson. Please scroll down to complete a
short, ungraded knowledge check activity.
Check Your Knowledge 1
1.
Which statement best describes the purpose of persuasive legal writing?
a.
To provide information
b.
To advocate for a client’s position
c.
To predict how a court will rule
d.
To provide a summary of a court case
2.
Which is an example of an effective persuasive statement?
a.
According to relevant case law, the defendant breached the contract.
b.
I think that the defendant breached the contract.
c.
No one could possibly believe that the defendant did not breach the contract.
d.
It is my personal opinion that the defendant breached the contract.
3.
Which is an example of an effective heading in a persuasive document?
a.
Breach of Contract
b.
The Defendant Breached the Contract
c. Contract
d. Breach
Lesson 2 – Motions in General
Introduction
Motions are a type of persuasive writing. Specifically, motions are written requests made to the court requesting a ruling or an order. Motions can be
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made before or during a trial. The requirements and the content of motions vary depending on the type of motion and the jurisdiction.
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Basis for a Motion
In general, motions must be in writing and state the exact grounds for the request that is being made. A specific court rule or statute typically serves as the basis for the motion. The legal team must ensure that they have a solid understanding of the reason for the motion so that they can adequately
make the request.
Courts typically have specified requirements relating to motions. Accordingly, it is important for the legal team to research the specific requirements of that jurisdiction and to carefully adhere to those requirements. The requirements are usually very specific and nuanced. The court might require the motion to include particular information and to be formatted and filed in a particular manner. The court also typically mandates
the specific number of days that parties have to respond to the motion. If a motion is filed and it does not meet the specific requirements or state the grounds for the motion, then the court will deny it. Process of Filing a Motion
In general, these are the basic steps to filing a motion (although they may differ depending on the jurisdiction).
1.
The legal team drafts the motion and ensures that they have included all of the required information.
2.
The legal team files the motion with the appropriate court in the manner mandated by the court. 3.
The court will date stamp the motion and provide a date for a hearing. 4.
The legal team serves the motion to the opposing party.
5.
The opposing party will respond to the motion by filing a reply.
6.
The court conducts a hearing and makes a decision on the motion.
7.
The judge signs a written order granting or denying the motion.
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Documents in a Motion
While the exact requirements will vary depending on the jurisdiction, most courts require that a motion consist of a notice of the motion, a memorandum in support of the motion, and a declaration (or affidavit) relating to the motion. A notice of motion is typically a short document about a page long that includes:
A caption with the names of the parties, the name of the court, and the
case number
A summary of the nature of the motion including the court rule or statute that forms the basis for the motion
The date, time, and location of the hearing
The memorandum of law in support of the motion describes the legally significant facts and the relevant issue. It then explains how the court’s granting of the motion would resolve the issue. The memorandum must cite relevant legal authority such as statutes and case law that support the request to grant the motion. This memorandum in support of a motion is a type of persuasive legal writing because it strives to persuade the court to grant the motion. Finally, the motion typically includes a declaration signed by the attorney. A declaration is a written statement that declares that the information in the motion is true. Some courts require an affidavit instead of a declaration. An affidavit is the same as a declaration, except an affidavit is written under oath and a declaration is not. Lesson 2 Completed!
Thank you! You have completed this lesson. Please scroll down to complete a
short, ungraded knowledge check activity.
Check Your Knowledge 2
1.
Which statement best describes the purpose of a motion?
a.
To provide information
b.
To request a court to issue a ruling or order
c.
To predict how a court will rule
d.
To provide a summary of a court case 2.
True
or False. The following documents are typically included in a motion: Notice, Memorandum, Declaration
3.
True
or False. Courts have specified requirements for motions so it is important to check the court rules
.
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Lesson 3 – Types of Motions
Introduction
There are several different types of motions that a party can choose to file. Each type of motion serves a different purpose. Some of the most common types of motions include: motion to compel, motion for summary judgment, motion to dismiss, and motion for a default judgment.
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Motion to Compel
A motion to compel is a request by a party asking the court to order another party to produce certain information. This motion is most commonly filed during the discovery process. If one party fails to produce the discovery that
was requested within a specified period of time (usually 30 days), then the legal team could file a motion to compel the discovery.
Click the following link to view a sample motion to compel:
Sample Motion to Compel
The party from whom the discovery is requested has the opportunity to respond to the motion to compel. The party might argue that they are not required to produce the requested information for a variety of different reasons such as the information is privileged or not relevant. In this situation, the court would likely hold a hearing where both parties can make their arguments and then the court will make its determination.
Motion for Summary Judgment
A motion for summary judgment is a request to the court to make a final ruling on a case before a trial has been held. A court will only grant a motion
for summary judgment if there are no “genuine issues of material fact.” This means that all parties must agree to the facts of the case. If there is no factual dispute and only a legal dispute, then a trial is not necessary. If there
is any disagreement about the facts, then the court must deny the motion for summary judgment and hold a trial.
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Example of Summary Judgment Mary states that Mike ran a red light and caused a car to crash. A traffic camera clearly shows that Mike ran the red and crashed into Mary’s car. Neither party disputes this fact. Mary’s attorney
could file a motion for summary judgment because there are no material facts in dispute. In the 2 minute, 29-second video below titled “What is Summary Judgment?” by USLawEssentials, the presenter illustrates when a motion for summary judgment could be appropriate. While viewing the video, please think about the following questions:
Analyze when a party should consider filing a motion for summary judgment.
Consider how summary judgment could be useful to the parties involved.
Click the following link to watch:
What is Summary Judgment?
As shown in the video, a party should consider filing a motion for summary judgment when it is clear that, if there were a trial, a jury would have no choice but to decide in favor of one of the parties because there is no dispute
as to the facts. Summary judgment can be useful because it can save the time, resources, and other costs associated with a trial. Motion to Dismiss
A motion to dismiss is a request to the court to dismiss the complaint. A party can file a motion to dismiss for a variety of reasons. Below are the most common reasons to file a motion to dismiss:
The plaintiff did not properly serve or file the summons and complaint.
The amount of time that the plaintiff had to bring the lawsuit expired.
There are jurisdictional issues.
The complaint fails to adequately allege all of the elements of a claim.
There is no measurable injury.
Typically, a defendant files a motion to dismiss before filing the answer to the complaint. If the court denies the motion to dismiss, then the defendant must file the answer.
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Motion for Default Judgment
A motion for default judgment is a request for the court to rule in favor of the
plaintiff because the defendant did not respond to the complaint. If a defendant fails to respond to a complaint within a specified period of time, the court might deem the lack of response as the defendant’s admission of the claims. In this situation, the court will rule in favor of the plaintiff.
Lesson 3 Completed!
Thank you! you have completed this lesson. Please scroll down to complete a
short, ungraded knowledge check activity.
Check Your Knowledge 3
1.
Please match the following types of motions with their purpose:
Type of Motion
1.
Motion for Summary Judgment
2.
Motion to Dismiss
3.
Motion for Default Judgment
4.
Motion to Compel
Purpose of Motion
a.
A request for the court to rule in favor of the plaintiff because the
defendant did not respond to the complaint.
b.
A request to the court to dismiss the complaint.
c.
A request to the court to make a final ruling on a case before a trial has been held due to a lack of a factual dispute.
d.
A request by a
party asking the court to order another party to produce certain information.
Answer Key: 1: c, 2: b, 3: a; 4: d
Lesson 4 – Court Briefs Introduction
One of the most important forms of persuasive writing is a court brief. A court brief should be distinguished from a case brief that you learned about in Lecture 4. As a refresher, a case brief is an objective summary of a past court case. A court brief is a formal document that is submitted to a court and that includes a party’s arguments pertaining to the current case. In general, there are two types of court briefs: trial briefs which are submitted
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to the trial court, and appellate briefs which are submitted to the appellate court.
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Trial Briefs
A trial brief is a document that the legal team prepares and submits to the trial court prior to the beginning of the trial. The purpose of a trial brief is to summarize the facts and to set forth the party’s legal arguments. The brief should be persuasive and aim to convince the trial court of the party’s position. The information in the brief should be accurate and truthful, but presented in a way that is advantageous to the party submitting the brief. The Writing Center at Georgetown University Law Center stresses that it is important for briefs “to strike the right balance between persuasive advocacy and credibility.” Trial briefs typically contain the following information: 1.
The names of the parties involved and where they reside
2.
A short summary of the pleadings
3.
A description of the relevant facts in a logical order
4.
The legal issues 5.
A description of specific relevant legal authority (statutes, regulations, court cases)
6.
The party’s analysis and legal arguments
7.
A conclusion
An effective court brief can help sway the judge’s opinion in the party’s favor
and set a positive tone for the rest of the trial. In contrast, an ineffective court brief can cause the judge to disagree with the party’s position and that could set a negative tone for the rest of the trial. Court briefs are typically written for court officials, so they can be written at a higher level since court officials have prior legal knowledge. Court officials are busy so it is a good
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practice to keep court briefs concise and to the point. Court briefs should be professional, accurate, and free from errors. Appellate Briefs
If a party loses a court case, then (in certain circumstances) they may seek a
reversal of the trial court’s decision by submitting an appeal to a higher court. A party cannot appeal the case simply because they are disappointed with the result. They must have adequate legal grounds to appeal. Typically, an appeal will be granted if there was an error in the trial court’s procedure or in the trial judge’s interpretation of the law. An appeal is not a new trial of the case. It solely focuses on whether the trial court made any errors.
If a party chooses to appeal, they must submit an appellate brief to the appellate court. An appellate brief is a written document that contains a description of the reasons that the party is seeking a reversal of the trial court’s decision. The appealing party must use the brief to establish that the
trial court made a significant error in procedure or interpretation of the law. The appealing party must provide sound legal analysis and cite relevant legal authority. Basically, the appellate brief is the appealing party’s opportunity to persuade
the appellate court to grant an appeal. The opposing party has an opportunity to respond by filing a reply brief stating the reasons why the trial
court’s decision should stand. Like trial briefs, legal professionals must ensure that the appellate briefs are persuasive, professional, accurate, and free from errors. Sometimes, the appeals courts will make their decision based solely on the written appellate briefs. Other times, the appellate court will ask to hear oral
arguments before making their decision. After the appellate court reads the appellate briefs and hears any oral arguments, they will issue a written decision. If the appeals court agrees with (or affirms) the lower court's judgment, the case typically ends. If the appeals court reverses the trial court’s decision, then the appellate court will typically send the case back to a lower court for a new trial. Lesson 4 Completed!
Thank you! You have completed this lesson. Please scroll down to complete a
short, ungraded knowledge check activity.
Check Your Knowledge 4
1.
Which of the following best describes a trial court brief?
a.
An objective summary of a past court case
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b.
A document that is submitted to a court and includes a party’s arguments pertaining to a current case
c.
A document that contains a description of the reasons that the party is seeking a reversal of the trial court’s decision
d.
An objective description of how a court would likely rule
2.
Which of the following best describes an appellate court brief?
a.
An objective summary of a past court case
b.
A document that is submitted to a court and includes a party’s arguments pertaining to a current case
c.
A document that contains a description of the reasons that the party is seeking a reversal of the trial court’s decision
d.
An objective description of how a court would likely rule
3.
Which of the following should NOT be included in a trial court brief?
a.
A description of the relevant facts in a logical order
b.
A description of specific relevant legal authority c.
The party’s analysis and legal arguments
d.
A request for another party to provide certain documents pertaining to the trial
Lecture Recap
In this lecture, you learned the basics of persuasive legal writing. You considered the types of legal motions and the issues that must be addressed
when drafting legal motions. You also examined trial briefs and appellate briefs. Next lecture, you will learn the significance of The Bluebook
citations and learn how to properly cite different legal sources.
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References
American Bar Association. How Courts Work. Retrieved from https://www.americanbar.org/groups/public_education/resources/law_related
_education_network/how_courts_work/appeals/
American Bar Association. How Courts Work. Retrieved from https://www.americanbar.org/groups/public_education/resources/law_related
_education_network/how_courts_work/motions/
Clio. Guide to Legal Brief Templates. Retrieved from https://www.clio.com/resources/legal-document-templates/legal-brief-
template/
Find Law. What is a Motion to Dismiss? Retrieved from https://www.findlaw.com/litigation/going-to-court/what-is-a-motion-to-
dismiss.html
Law Office of Jeffrey J. Downey. Sample Motion to Compel. Retrieved from https://www.jeffdowney.com/wp-content/uploads/2017/06/Motion-to-Compel-
Hirsch-Internet-Sample.pdf
The Writing Center at Georgetown University Law Center. Persuasive Writing. Retrieved from https://www.law.georgetown.edu/wp-content/uploads/2019/09/Persuasive-
Writing.pdf
The Writing Center at Georgetown University Law Center. Point Headings. Retrieved from https://www.law.georgetown.edu/wp-content/uploads/2018/11/Updated-
Handout.Pointheadings.pdf
The Writing Center at Georgetown University Law Center. Writing The Statement of the Case in an Appellate Brief. Retrieved from https://www.law.georgetown.edu/wp-content/uploads/2021/04/Handout_4Wri
ting_the_Statement_of_the_Case_in_an_Appellate_Brief.pdf
Sansom, Brian. A Lawyer’s Guide to Persuasive Writing: 5 Rules to Live By. Retrieved from https://writingcooperative.com/a-lawyers-guide-to-
persuasive-writing-5-rules-to-live-by-39c35c6ae409
USLawEssentials. “What is Summary Judgment?” Retrieved from https://youtu.be/hMhIyh2WjjY