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Legal Rhetoric > Exam > Flashcards

Exam Flashcards

1
Q

LDC

A

Legal Discourse Community

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2
Q

The Communication Triangle

A

(1) Reality (Objective writing)
(2) Reader (Persuasive writing)
(3) Writer (Expressive Writing)
(4) Language (Literature)

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3
Q

Kinds of Writing

A

(1) Either objective or persuasive; rarely creative or expressive
(2) voices: strategist, advocates
(3) audience: inform, counsel; clients, judges, other lawyers

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4
Q

Recursive Process

A

Planning-Drafting-Revising-Final Editing

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5
Q

Common Writing Errors

A

(1) Pronouns
(2) Subject/verb agreement
(3) Comma Splices
(4) semi-colons
(5) Colons
(6) Commas
(7) Its/It’s
(8) Floating “this”
(9) comparing like to like: cases to cases; situations to situations

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6
Q

Planning Strategies

A

(1) What questions should this doc answer
(2) What is my answer to each question (no more than a few words)
(3) Who is my reader?
(4) What is my reader’s relationship to me?
(5) How much does my reader know about the subject and my answer
(6) What is my reader’s attitude about the subject and about my answer?
(7) What does my reader need to know to understand my answer? List in need to know order
(8) Why am I writing this (to inform, to persuade, to accomplish some other end)?
(9) What constraints do I have?

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7
Q

Basic Principles

A

(1) Achieves its designated purpose for its specific audience: For whom is doc intended?; What will that person do with it?
(2) Immediately gives its reader an overall picture of what the doc is about (question and answer): supply context
(3) Easy to follow: paragraphs fit together: topic sentences; subtitles for guidance
(4) Easy to read: shorter sentences; well-structured long sentences

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8
Q

Legal Process

A

Client Problem-Memo-Opinion Letter-Complaint-Answer-Pretrial motions-Judge’s decisions on pretrial motions-Trial-Decision-Appeal-Appellate briefs-Appellate opinions

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9
Q

CREAC

A

Context/Conclusion: Heading A gives the Conclusion for the first sub-Rule
Rule: synthesized rule from relevant cases
Explanation of the Rule: facts, holdings, reasoning from applicable cases
Application of the Case Facts: compare/contrast facts w/ cases
Conclusion: last sentence in the last paragraph of subsection A is the final C in CREAC

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10
Q

Umbrella

A

Introduction

(1) provides basic underlying law (statute)
(2) pulls out elements required for a cause of action
(3) applies case facts to the requisite uncontested elements
(4) shows readers what elements are not in contention
(5) focuses on elements at issue in the order to be discussed
(6) may provide a conclusion to the contested elements

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11
Q

Unclear and too long, the judge has ordered us to rewrite the brief

A

MM: The judge ordered us to rewrite the unclear and lengthy brief.

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12
Q

The judge agreed to admit the evidence with misgivings.

A

MM: With misgivings, the judge agreed to admit the evidence.

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13
Q

New attorneys who attend depositions often gain confidence.

A

MM: New attorneys often gain confidence by attending depositions

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14
Q

4 ways to ID a legal question, and later relevant search terms, when a client generally presents a problem?

A

(1) develop research questions using just the facts of the situation including the conduct, the mental states of the parties
(2) generate search terms in terms of people, places, and things
(3) using legal relationship of parties
(4) type of location
(5) asking abt potential claims and defenses and relief P is seeking

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15
Q

Pre-Search Filtering (2 reasons)

A

(1) the less pre-search filtering= the more sifting you have to do after obtaining info
(2) limits search techniques

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16
Q

5 factors that can affect pre-search filtering

A

(1) Jurisdiction; (2) type of authority; (3) Subject area; (4) date, (5) level of court

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17
Q

3 search techniques to retrieve a doc

A

(1) citation; (2) search by subject; (3) word search

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18
Q

Natural Language v Terms and Connectors

A

terms and connectors: Boolean: literal search; control results more precisely; useful as an initial search
natural language: literal search; no specific relationship among terms; retrieves pre-determined # of docs

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19
Q

Boolean priority

A

OR- numerical and grammatical proximity connectors (/N, /P, /S)- AND- exclusion connectors (AND NOT, BUT NOT)

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20
Q

Post-Search Filtering

A

(1) general document: jurisdiction and type pf authority

(2) Specific content: by subject; search terms w/in doc

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21
Q

3 ways to narrow search

A

(1) adding terms that were not part of initial search; (2) focusing on particular terms that were not part of the initial search; (3) changing relationships b/w words

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22
Q

Is research ever done?

A

no- law constantly changing; recursive process; research done when come full circle

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23
Q

no results or too many?

A

use secondary sources, rethink search terms; understand the problem

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24
Q

secondary sources

A

help w synthesizing large amounts of authority; point you in the right direction

25
Q

snippets (bad)

A

out of context; actually not helpful; inadvertent plagiarism

26
Q

4 main sources of law

A

(1) fed and state constitutions; (2) case law; (3) statutes; (4) regulations and ruling issued by government agencies

27
Q

primary authority

A

authorities that actually constitute law; federal case law- created by entity that has legal power to do so; primary authority may be binding/mandatory or non-binding/persuasive

28
Q

secondary authority

A

authorities that explain or comment on primary- law review article; good way to begin; lead to primary authority; some supplemented like ALR and legal encyclopedias; periodicals not

29
Q

binding primary authority?

A

primary authority that is binding is mandatory in a particular court- IA case will not bind TX case- only persuasice; TC SC binds TX TC; SCOTUS binds everyone

30
Q

legal citations

A

authority to support assertions- persuasive; give credit to author- disclaim credit

31
Q

4 times secondary sources imp.

A

(1) unfamiliarity w law; (2) nonbinding primary authority but don’t know how to narrow jurisdictions; (3) undeveloped area of law; (4) saves time

32
Q

limits of secondary sources

A

(1) not binding authority and generally should not be cited; (2) may not be current- updated less frequently than primary sources; (3) cannot substitute for your own analysis

33
Q

3 types of commonly used secondary sources

A

legal encyclopedia: general overview; treatises: narrower focus and history of the development; Restatement: restate com law rules w comments

34
Q

Codes (official v. unofficial; annotated v. unannotated)

A

official: govt arranges for the publication of its laws; not updated as often and usually do not contain annotations; unofficial: commercial publisher; same subject arrangement as official code; USCA; annotated: contains text of the law and diff types of research references; unannotated: only txt of the law and maybe reference’s to history of statute

35
Q

Reporter

A

collected written opinions published in chronological order in a book; sometimes limited by jurisdiction

36
Q

4 ways to locate cases

A

(1) print or online reporter; (2) commercial services: WestLaw; (3) free internet sources: FindLaw; (4) Google Scholar

37
Q

editorial enhancement

A

include a synopsis of the case summarizing key points of the case; summaries are called headnotes- not written by the court; not primary authority

38
Q

non-precedential opinion

A

kind of “unpublished but bit of a misnomer bc of internet; authoritative value is under debate; still valuable research tools

39
Q

digests

A

research tool that organizes cases by subject instead of chronologically and provides summaries

40
Q

citator

A

help you find if a certain case has been cited elsewhere; help determine case is still good law

41
Q

direct v indirect history

A

direct: refers to all of the opinions issued in conjunction w a single piece of litigation; indirect: refers to an opinion generated from a diff piece of litigation than the original case

42
Q

Thought Process for Legal Research

A

(1) What question do I need to answer?
(2) How can I use the information I already have to focus my research?
(3) What criteria should I use to evaluate what I find?
(4) How can I use what I find to locate more and better information?

43
Q

Determining primary authority as binding or non

A

(1) jurisidiction

2) weight of case (level of court

44
Q

Online Resources

A

commercial online services: accurate and up-to-date; can be expensive; unreliable longevity

45
Q

Print Resources

A

more cost effective; understanding print can be more effective to becoming legal researcher; context=better; legal citations require page numbers

46
Q

Legal Encyclopedias

A

(1) contain articles summarizing the law on almost every legal topic
(2) organized alphabetically by topic
(3) may also reference the West Key Number system
Examples: Am. Jur.; CJS; state-specific encyclopedias

47
Q

American Law Review (ALR)

A

(1) annotations that describe the law on various topics; (2) longer than encyclopedia entries, but narrower focus; (3) articles accompany selected reported case- chronologically; (4) hit or miss; (5) digest or index

48
Q

Treatises

A

Books written on specific legal topics: scope may be broad (torts) or more narrow (sexual discrimination); within the treatise, organize by subtopic

49
Q

Legal Periodicals

A

(1) search for articles using (legal trac; encore (searches Hein and Legal Trac and other databases); Westlaw/Lexis
(2) Find PDF full text

50
Q

Restatement

A

distill and codify com law rules for specific subject; reflect consensus of the legal community; provide commentary on trends; probably most persuasive secondary source- published by ALI; selected topics (Ks, Property, Torts)

51
Q

Research Tips and Strategies

A

(1) begin research w secondary sources can save valuable time and resources; (2) book versions more user-friendly; (3) select most effective source for your issue; (4) state law issue?- include practice materials in search

52
Q

Statutory Authority

A

primary authority; can be mandatory/binding or persuasive; update: check Shepard’s or KeyCite to see if it’s still good law; statutory annotations to find all cases that interpret provisions

53
Q

Published Statutory Law (3 kinds)

A

(1) Legislature enacts a law, and it is published as a SLIP LAW
(2) At end of legislative session, all laws enacted during session are published in chronological order in SESSION LAWS. Federal publication is Statutes at Large
(3) Laws are then organized by SUBJECT MATTER in CODES: FED CODE has 53 subject matter titles

54
Q

American Court System

A

State TC-Intermediate Appellate Courts (39/50)- State SC- SCOTUS
Us District Court (94 trial courts)- US COA (13 Circuits)- SCOTUS

55
Q

Case Reporter System

A

(1) chronologically
(2) organized by jurisdiction: state reporters, regional (state:7) reporters, federal
(3) most reporters have an associated set of digests classifying cases by subject

56
Q

Researching cases

A

(1) online text box is the most inefficient way to search (narrow using jurisdiction, court level, and Boolean)
(2) more effective: find one good case that internally cites other cases
(3) ways to find that case: secondary sources; statutory annotations; key numbers and digests

57
Q

West’s Topical Digest System

A

450 legal topics; subtopics called key numbers; topics assigned numbers for research; each hard copy digest edition covers a specific range of years: check pocket parts for updates

58
Q

Steps

A

(1) understand client’s legal question and formulate into possible search terms
(2) decide where to start research; what is mandatory and persuasive authority
(3) start searching: using pre-search filters
(4) update research using citators

Legal Rhetoric (1 decks)

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