Bacalso, Uzziel G.

Advanced Legal Writing

The Meat
The Meat is the third part of the Point Made written by Ross. In
this part, the authors shares twenty (20) techniques as to how to craft
your arguments.
Using Headings
The techniques include:
1. Russian Doll : Nest your headings and subheadings.
In this technique, the author wants elaborated the characteristic
of a Russian nest doll. Once you open each wooden figure, it will show a
smaller version of the same inside. Great writers create the same effect
in their headings. As the various levels get smaller, and more detailed,
they build back toward their larger and broader siblings. Here, you do
not limit yourself to make levels of list of nests. Once you're able to fit
your moving parts together logically, the argument will start to write
itself.
2. Heads I Win, Tails You Lose: Argue in the alternative.
Here, you have to interlock nesting headings and use similar
techniques to structure the paragraph in each section. In fact, making
the paragraph work in a section is much like making a heading to an
argument. The headings are puzzle pieces that form the “picture” that
why you win. And under each of those headings, the paragraph openers
are puzzle pieces that form the “picture” of why the headings is true.
3. Sneak Preview: Include an umbrella paragraph before your
headings and subheadings.
In this technique, you might write an umbrella paragraph that
hovers over the heading to come. Thus when the judge reads the first
heading it's clear how the forum selection clause piece fits into the
larger puzzle. Then do similar after each headings. With an umbrella in
hand, then you're ready to write paragraphs in each section.
The top advocates structure those paragraph in two main ways
such as:
1. Wish I Were There: Start each paragraph by answering a
question you expect the court to have.
2. Sound Off: Start the paragraphs with numbered reasons.
4. Wish I Were There: Start each paragraph by answering a
question you expect the court to have.
If you apply this technique, each paragraph opener will give the
court a reason the heading is right, answer a question on the court's
mind, and flow from the previous paragraph opener and into the next.
5. Sound Off: Start the paragraphs with numbered reasons.
Some sections are monologue than a dialogue. Thus, in this
technique, you need to sound off: we're right and here's why. List the
reasons why your client is right and the defendant is wrong.
Analogizing.
The author discusses techniques for developing opening
statements through case laws and other authority. Your success with
those authorities depends on how much you use your own words and
thoughts as to why those authorities support you client's position.
6. Long In The Tooth: Say "me too"
You can use this technique when you want a decision upheld on
appeal or when you don't want the Supreme Court to review it at all.
Highlight how people have relied on precedent thus, it is also applicable
to your case.
7. Peas in a Pod: Link your party with the party in the cited case.
The author emphasizes the importance of shifting from the old
habit even since law school such as mentioning that a case is "on point"
only to rehash the facts in that case in a endless paragraph stuffed with
citations and quotations.
The best advocates do the opposite, they link the parties, old and
new alike, as soon as they can.
8. Mince Their Words: Merge pithy quoted phrases into a sentence
about your own case.
Mince the words is useful compromise. First you write a sentence
about your own case, and only then intersperse snippets from from the
authorities you cite.
9. One Up: Claim that the case you're citing applies even more to
your own dispute
Here, you suggest that the holding in the case you're citing applies
to your own case even better than it applies to the original.
10. Interception: Claim that a case your opponent cites helps you
alone.
You intercept a holding your opponent cites, not by saying it
applies to you even more but by saying that it applies to you alone.
11. Rebound: "Re-analogize" after the other sides tries to
distinguish
Here, you first cite a case. Then the other side distinguishes it. But
then you get the last word: it's analogous after all. Those cases speaks
for themselves: the lawyers acknowledge the other side's claim ground
for distinguishing their case, but take note that the court's decision
hinged in something else entirely.
Distinguishing
12. Not Here, Not Now: Lead with the key difference between your
opponent's case and your own
One simple but underused technique for distinguishing a case is
the mirror image of Pleas in a pod : home in the point of distinction
immediately before rambling on any facts. Do not distinguish by
recounting the facts but target the main point of distinction. Even if you
have bases of two or more, you can still list them in a single sentence.
13. One Fell Swoop: Distinguish a line of cases all at once.
Here, you distinguish all the cases. Perhaps, you could distinguish
all those cases in one paragraph.
14. Not Too Fast: Show that the case doesn’t apply broadly as your
opponents suggest.
Sometimes, your opponent cites cases that are just wrong. Other
times, you opponent applies it in theory but not in practice. That’s why
the challenge in you as a lawyer is how you scream Not So Fast, pecking
at a case until it becomes more of a pesky fly than a lethal precedent.
Many times. you can simply insist that you opponent takes the
holding too far. Similarly, you can stress that language your opponent
tries to cite does not have persuasive force your opponent suggests.
15. Authority Problems: Suggest that the case deserves little respect.
You can always attack its reasoning and hope for the best. This
approach is perfect when you want to reverse a decision on appeal.
Direct your hostility toward the decision though, not toward the judge
or the court; otherwise your anger may backfire you.
Using Parenthesis
The author reiterates the quote from Breyer about what
constitutes the beat parentheticals such as:
1. Start with a participle-an -ing word relating to something
courts, like "holding"
2. Consist of a single-sentence quitation ( as do the two
parentheticals) or
3. Alternate between the two.
Parenthicals are one of the rare areas in brief writing where
creativity gets you nowhere.
 16. Ping Me: Introduce your parenthicals with parallel participles.
The classic technique is still the best: start with an -ing word that
describes something do ( admitting, reversing, listing, excluding,
affirming, granting, finding..and so on). Then add the reason the court
did what it did.
17. Speak for Yourself: Include a single-sentence quotation.
Another way to use parentheticals is for a single-sentence
quotation that speaks for itself.
18. Hybrid Model : Combine participates and quotations
Here, you can mic the preceding two techniques, quoting select
language in an ing- parenthetical.
Introducing Block Quotations
Block quotes -the long, intended kind-are another story. Rare is
the motion which do not contain at least one block quotation, and
sometimes even dozen of it. This sole technique reflects how the better
advocates exercise such "discretion" when they need to quote at length.
19. Lead Em On: Introduce block quotations by explaining how the
language supports your argument.
The most important thing to remember when block quoting is to
avoid introducing the language with such throw-away lines like " The
court held the following" and the likes.
In this technique, you introduce the quotation instead with
language that ties it ti the client's cause. In other words, the block quite
is just an insurance policy, or it's there to back up your point, not to
make it for you.
Using Footnotes
Footnotes are as popular with judges as block quotations are. In
practice, many great lawyers do use footnotes, just not un the same way
other lawyers do. A highly skilled and experienced advocate, always
have substantive footnotes in his briefs.
 There are three (3) things you should avoid when using footnotes:
1. To stay in the page limit. The small print of footnotes doesn't
fool anyone.
2. To avoid seeing your research go to waste. Avoid using
footnotes that are proven unnecessary.
3. To take a potshot at the other side.
Feel free to use footnotes to list binding or nonbinding authorities,
to preempt like arguments, or to rebut distracting but unimportant side
points.

Interlude : Include citations in footnotes

Most judges still want citations the old-fashioned way-in the text-
and nearly all the top advocates still put them there.
20. Race to the Bottoms: Use footnotes only in moderation to
address related side points and to add support.
Experienced advocates use footnotes in four main situations:
1. To show widespread adoption of a principle
2. To buttress a point in the text
3. To distinguish authorities not deemed worthy of discussing in
the text
4. To preempt a counterargument.