OUTPUT: MEMOS, OPINIONS, ARGUMENTS

Karen McDougallCasefinder

4 LEVELS TO BRIEF WRITING NIRVANA

1. unconscious incompetence 2. conscious incompetence 3. conscious competence 4. unconscious competence

The importance of the brief

• A court appearance may not be necessary:• Rule 6.9 – applications without oral hearing• Court of Appeal Consolidated Practice Note F,

Item 5 – Proceed Without Oral Argument• Court of Appeal – new rule 14.51• Court of Appeal information/instructional

form: “Importance of Factums”

Getting started …What’s your mandate? Ask: Who is your audience? How much time have you been given? (This

can be a good indicator of scope) How detailed are your facts? What is at stake? At what stage is the law suit?

MEMO COMPONENTS

• FACTS• ISSUES• CONCLUSIONS• DISCUSSION AND ANALYSIS

The facts …

“An effective brief writer will boil the facts down to their essential core and explain the relevant facts with precision and economy”.

The issues … Mandate: Setting out the elements

essential to the resolution of the matter.

The issues … an example

Is the security enforceable?

Will the security documents, signed and registered using the debtor’s common law name, be enforceable against the debtor and the debtor’s creditors if the debtor later changes to using his legal name?

The issues … an example

Will personal property security documents granted in favour of the bank (signed and registered in B.C. using he debtor’s common law name, David Black) be enforceable against Mr. Black and his creditors now that he has changed back to using his legal name, David Brown?

The discussion…

Case analysisA. Case synthesis:• Blend the principles from each

case• End result: a holistic “rule”

The discussion…

Case analysis

B. Inductive (Analogical) Reasoning: Create a legal analogy between the cases and your client’s fact situation.C. Deductive Reasoning: Apply your facts to a stated legal principle (like a statute or an accepted common law rule).

The discussion…

Case description:

• Outline the facts of the case (briefly), the decision made and the basis for the decision

• What is the relevance/importance of the case?

• Always include cases for and against your client’s position

The discussion…

• Ratio or obiter?• Note up• Ensure the holding (and not just the

principles applied) are beneficial• Number of cases cited: Less can be

more• Avoid long quotations from cases

The discussion…

Reach conclusions on the state of the law (based on your case analysis)

Apply the law to the facts of your case

Writing logically…

• Use an organic outline

• Use headings to develop logical flow

• Good transitions make for a logical flow

More brief-writing tips…

• Point first prose• Never repeat yourself. If it is

worth saying, say it only once • Short sentences, varying length

Writing for the court …

Judges are:• Practical problem solvers• Short of time• Minimalists• Wary and cautious• Desirous of autonomy and empowerment• Attentive early on, especially to the facts • Quick to be frustrated• Appreciative of simplicity

Persuasion…

Rule 1: Know what you want to say. Be passionate about saying it.

These proceedings relate to an action brought by the plaintiff against the defendant in which she seeks damages for personal injuries sustained in a motor vehicle accident on June 25, 2011.

Persuasion…

This case is about Carlie Lane, a teenager who’s life was radically changed when her Chevy was broad-sided by Frank Slide’s truck.

Persuasion…

Rule 2: Ensure your reader can understand your argument. Rule 3: Use language that engages your reader, resonates with your reader, and brings him/her to the point of saying “yes, that makes sense”.

Plain language

Don’t use legalese unless absolutely necessary. NO -- pursuant toYES -- underNO -- in the event ofYES -- if

Plain language

Don’t use words that your audience wouldn’t use in conversation

Do use active voice (not passive)

Do use gender neutral language

Plain language

CBA plain language information and tips at:http://www.cba.org/cba/practicelink/cs/plainlanguage1.aspx

Plain language

BeforeWhen the process of freeing a vehicle that has been stuck results in ruts or holes, the operator will fill the rut or hole created by such activity before removing the vehicle from the immediate area.

AfterIf you make a hole while freeing a stuck vehicle, you must fill the hole before you drive away.

Plain language

BeforeHigh-quality learning environments are a necessary precondition for facilitation and enhancement of the ongoing learning process. AfterChildren need good schools if they are to learn properly.

PROOF REASD • String together only your first, “topic sentences” in

each paragraph. Understandable, logical flow?

• Create a thesis circle.

• Proof read as if you were reading to an acquaintance. If she could understand it, then your reader will.

• Don’t be afraid to chop. Less is more.