Week2 mid

Five Style Rules for a Brief 1. Avoid alphabet soup. The alphabetical short

forms for the names of the parties, statutes and agencies become meaningless. Use the persuasive force of words.

2. Use the parties’ names. Don’t refer to the parties by their status (e.g., “the defendant”) unless court rules require otherwise.

3. Rarely use block quotations. Try to fi nd pertinent quotations of fewer than 50 words.

4. Use argumentative headings. For example, instead of “The Relevant Provisions of the FFDCA,” state “This Court Should Grant Summary Judgment Because There Is No Private Right of Action Under the Federal Food, Drug and Cosmetic Act.”

5. Keep the brief as short as possible.

Five Style Rules for a Memo 1. Clearly and concisely state the facts in short,

simple sentences. 2. Identify and defi ne the legal issues in the case. 3. Research, select and read the cases and statutory

authority relevant to the facts and legal issues. 4. Apply the law to the facts. 5. Organize your analysis of the law and the facts.

To write a persuasive brief or an effective memo:

• Clearly and succinctly state the issues;

• Proofread the entire paper several times—no errors in grammar, punctuation or spelling; and

• Make sure all citations are accurate and in the correct form.

Legal Writing Basics: Tips for Writing Briefs and Memos

At A Glance

Hermann’s Rules of Style

1. Write short sentences.

2. Place only two or three paragraphs on a typed page.

3. Use the active voice.

4. Always use an action verb rather than the “to be” verb and an adjective.

5. Start each paragraph with a topic sentence.

6. Use headings and sub-headings to break up the brief or memo.

7. Given a choice, use the word “that” instead of the word “which.”

8. Do not start a sentence with the word “However.”

9. Do not use the phrase “In order to.” Instead, use “To.”

10. Read the fi nal work with an eye toward fi nding and correcting each of the nine errors listed above.

Information extracted from How to Write: A Memorandum from a Curmudgeon by Mark Hermann, © 1997, American Bar Association Litigation, Fall, 1997, 24 Litigation 3

At-A-Glance

U.S. Supreme Court appellate briefs on LexisNexis at www.lexis.com Go online and look at some of the U.S. Supreme Court appellate briefs to get an idea about structure, tone and length of a brief.

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Write a more effective appellate brief or memo using the LexisNexis® services

An appellate brief should contain:

Donald J. Willy, Petitioner, v. The Coastal Corporation, et al., Respondents. No. 90-1150

1990 U.S. Briefs 1150 October Term, 1991

July 30, 1991

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit Brief for Petitioner Donald J. Willy

Michael A. Maness, Counsel of Record for Petitioner, 1900 North Loop West, Suite 500, Houston, Texas 77018, (713) 680-9922, (713) 680-0804 (FAX)

Did the district court violate Article III § 2 of the Constitution by awarding attorney’s fees, claimed by defendants who wrongly invoked subject-matter jurisdiction by mistakenly removing the case from a state court, as a sanction for asserted bad-faith litigation by the plaintiff, who correctly resisted the unconstitutional exercise of federal judicial power, and who did not impede, obstruct, or delay resolution of any jurisdictional issue?

Petitioner Donald J. Willy was the plaintiff in the district court and the appellant in the court of appeals. Respondents in this Court are the coastal corporation, Coastal States Management Company, Inc., James R. Paul, George L. Brundrett, Charles F. Joens, William L. Dunker, and E.C. (Bud) Simpson.

(optional depending on length)

Cases: Aetna Life Insurance Co. v. Hawaorth, 300 U.S. 227 (1937) Aldinger v. Howard, 427 U.S. 1 (1976) Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975) American Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951) Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936) Bender v. Williamsport Area School District, 475 U.S. 534 (1986) Blacklock v. Small, 127 U.S. 96 (1888) Ex parte Burr, 9 Wheat. 529 (1824)

The relevant provisions of Article III of the Constitution of the United States, Title 28 of the United States Code, and F.R. Civ. P. 11 are reproduced in the appendix to the petition for certiorari, beginning on page 57.

Donald J. Willy worked as an in-house environmental attorney for the Coastal Corporation in Houston from 1981 until 1984, when he was fi red … None of Willy’s claims arose under or was created by a federal statute, and he did not allege entitlement to any federal remedy … (text omitted due to length)

1. Article III of the Constitution limits the judicial power of the United States to cases and controversies over which Congress has conferred subject-matter jurisdiction … (text omitted due to length)

The district court violated Article III § 2 of the Constitution by awarding attorney’s fees, claimed by defendants who wrongly invoked subject-matter jurisdiction by mistakenly removing the case from a state court, as a sanction for asserted bad-faith litigation by the plaintiff, who correctly resisted the constitutional exercise of federal judicial power, and who did not impede, obstruct, or delay resolution of any jurisdictional issue. . . . (text omitted due to length)

The district court’s sanctions order, and the judgment of the court of appeals affi rming it, are unconstitutional and should be reversed.

Respectfully submitted,

Michael A. Maness, Counsel of Record for Petitioner, 1900 North Loop West, Suite 500, Houston, Texas 77018, (713) 680-9922, (713) 680-0804 (FAX)

July 1991

Cover Page

Questions Presented

List of all Parties

Table of Contents Table of Authorities

Constitutional Provisions

Statement of the Case

Summary of the Argument

Argument

Conclusion

An open memo should contain: Smith v. Jones

Supreme Court, Ames County Abner Price, J.

Date: April 15, 2000 To: Norman White From: Wesley Black Re: Appeal from lower court judgment against our client Jones

Question Presented: You have inquired: Did a mutual mistake about the character of a parcel of land entitle our client to recover his deposit and avoid performance of a fully-integrated purchase contract that did not disclose the mistake on its face?

Facts: Jones contracted with Smith to purchase a parcel of land in the Borough of Lafayette, County of Ames … (text omitted due to length) … There is no evidence that Smith knew of the unique character of this small tract. Jones demanded the return of his deposit and refused to close. Smith brought this action for specifi c performance and Jones claimed the return of his deposit.

Lower Court: Plaintiff Smith moved for summary judgment, relying in his supporting affi davit only on the contract of sale. Smith argued that the contract was fully integrated … (text omitted due to length) … The court granted Smith’s motion. In its opinion, the court reached two conclusions:

1. Evidence as to any correspondence or negotiations between the parties prior to the contract was barred by the parol evidence rule.

2. The mistake between the parties, if any, did not relate to the quality of the land, but only to its value, as to which both parties took the risk.

Cases and Authorities: The parol evidence rule and mutual mistake: UCC § 2-202 (statement of rule) Restatement of Contracts Second § 214, Comment c. Invalidating Cause; Comment d. Remedies, Illustration 7 Farnsworth, Contracts, Third Edition 1999, § 7.4, p. 442 Murray on Contracts, Third Edition 1990, § 85, p. 400 Edwards v. Trinity & Brazos Valley Ry., 118 S.W. 572 (Tex. 1909) Mutual Mistake as to Basic Assumption in Contract: Restatement of Contracts Second § 152, Comment b, Basic Assumption, Illustration 6 Farnsworth, Contracts, Third Edition 1999 § 9.3, pp. 624-630 Murray on Contracts, Third Edition, 1990, § 91D.1., 2., pp. 444-47 Dover Pool & Racquet Club v. Brooking, 322 N.E. 2d 168 (Mass. 1975) Sherwood v. Walker, 33 N.W. 919 (Mich. 1887) Wood v. Boynton, 25 N.W. 42 (Wis. 1885) Smith v. Zimbalist, 38 P.2d 170 (Cal. 1934)

Discussion: 1. Jones is entitled to void the land contract because of the mutual mistake of the parties … (text omitted due to length). A contract is voidable “where a mistake of both parties as to a basic assumption on which the contract was made has a material affect on the agreed exchange of performance …” Restatement Second § 152(1). 2. Parol evidence rule does not bar evidence of mutual mistake by the parties as to a basic assumption that

induced the contract … (text omitted due to length).

Conclusion: 1. The contract between Jones and Smith is voidable by Jones because of the mutual mistake of the parties as

to a basic quality of the land involved; i.e., that it could be mined for methane gas in the same way as the land around it.

2. Evidence as to the mutual mistake is not barred by the parol evidence rule because the mistake is as to a basic assumption on which the contract was made.

3. Summary judgment for Smith should be reversed and a trial ordered to permit Jones to present evidence of the prior correspondence and negotiations between the parties and of the fi ndings and conclusions of the geologist.

Heading or Caption

Identify Yourself and Partner Addressed

Defi ne Issues

Give Procedural History

List Cases and Authorities

Relate the Facts to the Law

State Your Conclusions and Recommendations

State the Facts Requiring Analysis

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