Chapter 4 – Writing Rules Persuasively

Learning Outcome

1. Be able to rephrase an objective rule to make it persuasive.

Citations to New York case law are in New York Law Reports Style Manual form.

Citations to federal case law are in Bluebook form.

When you write a brief to a court you should write and explain your rules persuasively. That means portraying both procedural and substantive legal rules in ways that are helpful to your client’s position. The goal is to foreshadow the client’s argument in the way legal rules are phrased.

The rules should not sound like they do in an objective analysis. Instead, when explaining a rule through key terms, legal writers keep the focus on what does satisfy the rule when arguing that the facts of the case satisfy the rule, and they keep the focus on what does not satisfy the rule when arguing that the facts do not satisfy it. That way, legal writers keep the reader’s focus leaning the same way the rule application will lean.

Similarly, when illustrating a key term, writers focus on precedent, where the rule is satisfied when they argue that the facts of the case satisfy the rule; and they keep the focus on precedent, where the rule is not satisfied when they argue that the facts do not satisfy it. As explained in Chapter 5 (writing rebuttals), you will save case law that favors your adversary for rebuttals, where you will  distinguish it.

Assume you represent someone injured when a driver went through a red light, and you have the statement of a witness that “the light was red.” You want the statement admitted, but the lawyer for the driver moves to have it excluded as hearsay. The case is in federal court based on diversity, and you find that the Federal Rules of Evidence provide an exception to the rule against hearsay when the statement is an excited utterance. The rule stated objectively is “A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused” is not excluded as hearsay. Fed. R. Evid. 803(2). You want the statement admitted, so you would focus on when a statement is admissible as an excited utterance.

Thus, you might state the rule as (Note: references to CITE indicate that the writer would add a citation to authority):

An excited utterance is not excluded by the rule against hearsay. Fed. R. Evid. 803(2). While hearsay is excluded due to its inherent unreliability, the rule against hearsay does not apply to excited utterances because they are made under stress, and thus are likely to be trustworthy. CITE. Thus, statements spontaneously made by a person while still under the stress of excitement from the event or condition are admissible if they “relate to” event or condition. CITE. The statement could be a description, explanation, opinion or inference. CITE.

 

The lawyer representing the driver would want the statement excluded and would focus on when hearsay statements are not admissible as excited utterances.

So, the rule might be (CITE indicates that the writer would add a citation to authority to that space):

Hearsay evidence is generally excluded as unreliable because the declarant is not subject to cross-examination. CITE. While “excited utterances” are not excluded by the rule, the exception applies only when the declarant is under stress and has no time to think about its content, and the statement “relates to” the event or condition at issue. CITE. Absent those conditions even “excited utterances” are considered untrustworthy, and thus excluded as hearsay. Fed. R. Evid. 803(2).

 

Exercise 4-1

Instructions: Try your hand at writing a rule persuasively. Advance through the pages below and complete each exercise.

Exercise 4-2

Question: Does the writer of the following rule want the court to find that the privilege applies or does not apply?

The clergy-communicant privilege may not be invoked to include conversations that are exclusively secular in nature. Cox v. Miller, 296 F.3d 89, 113 (2d. Cir. 2000); People v. Carmona, 82 N.Y.2d 603, 609 (1993). Thus, only communications made with the purpose of seeking “religious counsel, advice, solace, absolution or ministration” are protected. People v. Drelich, 123 A.D.2d 441, 442 (2d Dept. 1986). The Second Circuit Court of Appeals held that even when communications take place in a location where religion plays an important role, communications are not privileged when they are not for the purpose of obtaining spiritual guidance. Cox v. Miller, 296 F.3d at 107.

Exercise 4-3

Instructions: Let’s try restating an objective rule again, persuasively, from both sides. Advance through the pages below and complete each exercise.

Now that you completed this chapter, you should be able to phrase rules in ways that are helpful to your client’s position. In the next chapter you will read about how to rebut your opponent’s arguments.

License

Icon for the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

Legal Writing Handbook for Clinical Students by CALI 2023 is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

Share This Book