Exercises from Legal Writing in Plain English - English | Đại học Văn Lang

Exercises from
ran into a pole. An investigator later found
that part of a rubber gasket from the air filter Legal Writing in
had gotten into the carburetor. Henderson
sued Ford on various theories, including Plain English
defective design. Her expert witness didn't
criticize the design of the gasket, carburetor,
or air filter, but did say that the positioning of by Bryan A. Garner
the parts might have been better. No one
Copyright 2001, Bryan A. Garner
testified that the air-filter housing was
Published by the University of
unreasonably dangerous from the time of Chicago Press
installation. Yet the jury determined that the
(www.press.uchicago.edu)
air-filter housing was defective and that this
defect had caused Henderson's damage.
Question: The expert witness didn't testify Section 1. Have something to
that the design was unreasonably dangerous--
only that it could be improved on. Is this say--and think it through.
testimony sufficient to support a jury finding
that a product's design is unreasonably dangerous? Exercises
Holding: Mere evidence that a design could be
made better--without evidence that the design
Begin the following exercises by looking up
itself was unreasonably dangerous--is
the cases cited. Then write a casenote for
insufficient to impose liability on a
each one--that is, a short case synopsis that manufacturer.
follows a standard form: (1) case name and
Reasoning: A person suing on a design defect
citation; (2) brief facts; (3) question for
must provide some evidence that the design
decision; (4) holding; (5) reasoning. Your
of the product made it unreasonably
finished product should fit on a five-by-seven-
dangerous. Specifically, the evidence must
inch index card (front and back). The
show that a prudent manufacturer who was
exercises are increasingly challenging for
knowledgeable about the risks would not have
either or both of two reasons: first, the
placed the particular product in the stream of
increasing complexity of the legal principles
commerce. Mere speculation that a product
involved; and second, the increasing difficulty
might be improved on does not constitute
of the language used in the opinions. When
evidence of a design defect. A manufacturer is
you're finished, have a friend assess how easy
not required to design the best product
it is to understand what you've written. scientifically possible.
Here's an example of a casenote: Basic
Case: Henderson v. Ford Motor Co., 519
Write a casenote for Serrano-Moran v. Grau- S.W.2d 87 (Tex. 1974).
Gaztambide, 195 F.3d 68 (1st Cir. 1999). If
Facts: While driving in city traffic, Henderson
you belong to a writing group or class, bring a
found that, despite repeated attempts, she
copy of your casenote for each colleague.
couldn't brake. To avoid injuring anyone, she 1 Intermediate Advanced
Write a casenote for Floudiotis v. State, 726
Do the same with a journal article or
A.2d 1196 (Del. 1999). If you belong to a
continuing-legal-education paper. For this one,
writing group or class, bring a copy of your
you might need a large sheet of butcher casenote for each colleague. paper. Advanced
Write a casenote for Atlas Food Systems &
Section 3. Order your material in
Services, Inc. v. Crane National Vendors, Inc.,
99 F.3d 587 (4th Cir. 1996). If you belong to a a logical sequence. Use
writing group or class, bring a copy of your casenote for each colleague. chronology when presenting facts. Keep related Section 2. For maximal material together. efficiency, plan your writing Exercises
projects. Try nonlinear outlining. Basic
Improve the sequence of ideas in the following Exercises
sentence. Start like this: "In March 2000,
Gilbert Spaulding applied to the Workforce Basic
Commission for extended unemployment
benefits." Then use one or two extra
While planning and researching a legal memo, sentences.
fill out a whirlybird. (You're ready to begin
once you know enough about the problem to
* The lower court did not err by affirming the
have an idea or two.) Use unruled paper. Take
Workforce Commission's denial of Spaulding's
your time. Fill as many major and minor
request for extended unemployment benefits,
branches as you can, and feel free to add
since those benefits were not available during
more branches. Then, when the paper starts
the period for which he sought eligibility.
getting full--and only then--create a linear
outline using bullets. Remember that you're
Improve the sequence and phrasing of ideas in
working on the basic unit of organization: once
these sentences, perhaps by breaking them
you have that, you'll organize further into separate sentences:
according to issues and answers.
* The state supreme court reversed the Intermediate
intermediate appellate court's affirmance of a
summary judgment granted to Pilsen
Do the same with a trial or appellate brief.
Corporation, the plaintiff, which had only 2
requested a partial summary judgment on the
preventing Pan-American from canceling the discrete issue of fraud.
bond at issue until final judgment on the
* The issue is whether Davis Energy has declaratory-judgment action.
granted its neighbors an easement to use a
* In Sinclair, the court awarded the niece of
private road that enters a Davis fuel-storage
Sinclair a constructive trust. Sinclair's niece
yard, when for three years Davis has had a
was suing Purdy's estate for one-half interest
guard at the road's entrance but has posted
in property that she claimed her uncle owned
no other notice about private property or
and had promised to bequeath to her in
permission to enter, and for seven years the
exchange for caring for him until his death.
owners of adjacent property have used the
The court observed that the property was
road to reach their own property.
purchased in his sister's name. This was done
* The Plaintiff Los Angeles Dodgers, a
for business purposes and because he and his
corporation with offices and its principal office
sister shared a close relationship. There was
in Los Angeles, California, is the owner of a
also an agreement between the siblings that
professional baseball team that, since 1958,
the sister would be allowed to keep only half
has played baseball in Los Angeles, California,
the property. The court ruled that withholding
and before 1958 played baseball in Brooklyn,
the property from the niece would be a breach
New York, under the name "the Brooklyn
of promise; hence, a constructive trust was
Dodgers," but in that year moved the site of awarded in favor of the niece.
its home games from Brooklyn to Los Angeles.
* Kathcart filed the instant patent application
on April 11, 2000, more than one year after he Intermediate
filed counterpart applications in Greece and
Spain on November 21, 1998. Kathcart initially
Rewrite the following passages to reassemble
filed an application in the U.S. on November
the elements in chronological order. Again,
22, 1997, claiming most of the same
you might need to break one or more
compounds as in the instant application. When
sentences into separate sentences.
he filed abroad, however, in 1998, he
expanded his claims to include certain ester
* This action arose out of a request by Pan-
derivatives of the originally claimed
American to cancel its surety bond posted
compounds. It is the claims to these esters,
with the Land Reclamation Commission to
which Kathcart has made the subject of a
ensure reclamation on a portion of the
subsequent continuation-in-part application,
Prelancia Fuels mine site. The Commission
the application now before the court, that are
filed a petition for declaratory judgment and
the issue here. Both foreign patents issued
application for a temporary restraining order
prior to the instant application in the U.S., the
and preliminary injunction on February 16,
Greek patent on October 2, 1999, and the
1996, to determine whether Pan-American
Spanish patent on January 21, 1985.
could lawfully cancel its surety bond. Pan-
American made its request after legislation Advanced
had been passed that, according to Pan-
American, would increase its liability under the
Find a published case in which the
bonds. The trial judge disagreed with Pan-
presentation of the facts is marred by
American. At the request of the Commission,
disruptions in chronology. Write a short
after a brief evidentiary hearing, a temporary
explanation specifying why the
restraining order and preliminary injunction
unchronological narrative was difficult for you
were granted on February 16, 1996,
to read. Rewrite the factual statement as best 3
you can, omitting irrelevant facts and putting Advanced
in brackets any facts you might want to add
(but weren't given in the case itself). If you
Find a proxy statement or prospectus with
belong to a writing group or class, bring a
long stretches of uninterrupted text. Break up
copy of your before-and-after versions for
the long paragraphs into smaller paragraphs each colleague.
and add headings where appropriate. For a
model of this approach, see Garner, Securities
Disclosure in Plain English SectionSection 41-
43 (1999). If, as a result of this exercise, you
find that the organization is poor, note the
Section 4. Divide the document
organizational deficiencies. If you're a member
of a writing group or class, bring a copy of the
into sections, and divide sections
relevant pages and be prepared to explain
where your headings would go and to discuss
into smaller parts as needed. Use
any organizational problems you uncovered. informative headings for the sections and subsections.
Section 5. Omit needless words. Exercises Basic Exercises
Find a pre-1950 law-review article or treatise Basic
with long stretches of text uninterrupted by headings.
Delete at least four consecutive words in the
Devise appropriate headings. If, as a result of
following sentences, replace those words with
this exercise, you find that the organization is just one word.
poor, note the organizational deficiencies. If
You may rephrase ideas and rearrange
you're a member of a writing group or class,
sentences, but don't change the meaning.
bring a copy of the relevant pages and be
prepared to explain where your headings
* Even assuming that the fog caused injury to
would go and to discuss any organizational
Roelke, Amskills had no duty to prevent that problems you uncovered.
injury because it was idiosyncratic and
Amskills could not have been expected to Intermediate foresee such injury.
* At no time prior to the initial public offering
In a state administrative code, find a
did the underwriters or any officers, directors,
regulation having at least three sections with
or employees have knowledge of any facts
headings that don't adequately describe the
that would suggest that "Palm Harbor" could
sections' contents. Devise better headings. If
not be completed on schedule and in
you're a member of a writing group or class,
accordance with specifications.
be prepared to explain why your edits would
* Beale has wholly failed to allege facts that, if improve the regulation.
true, would establish that competition among
the nation's law schools would be reduced or 4
that the public has been in any way injured,
Court of Claims adheres to the rules set forth
and this failure to allege facts that would
in the Civil Practice Law and Rules (the CPLR).
establish an injury to competition warrants the
Ct. Cl. R. Section 206.1(c). Because the
dismissal of her restraint-of-trade claim.
Uniform Rules do not discuss disclosure of
* The Business Corporation Law does not
expert witnesses, it follows that the Court of
address the ability of a New York corporation
Claims' rules on the subject are governed by
to indemnify individuals who are not its the CPLR. employees.
* There are cases that are factually similar to
* The court examined a number of cases and
the present case, but that are controlled by
stated that there appeared to be only a
older statutes--i.e., the pre-1965 legislative
limited number of instances in which there
scheme. There are no cases that have been
would exist a duty to disclose the illegal
explicitly decided under Section 1511 since
conduct of persons who, through political
the 1965 amendment, so it is unclear what
campaigns, seek election to a public office.
effect the amendment has on cases that are
factually similar to the present case. Intermediate
* Arbitration as a means of settling disputes
was at first viewed by the courts with much
Revise the following sentences to make them
disfavor, but today is being used increasingly
as lean as you can without changing the
as a substitute for litigation for the meaning:
adjudication of disputes arising out of contracts.
* The County sent an inspector who made
* The court rejected the defendant's argument
observations as to the condition of the
that the headlines were not the product of
sidewalk and concluded that it was uneven.
sufficient skill or effort, finding that because
Although a review of the caselaw reflects that
many of the headlines consisted of eight or so
there are no decisions in the Eleventh Circuit
words that imparted information, copying of
concerning this issue, the great weight of
the headlines might at least in some instances
federal authority favors the exclusion of third
constitute copyright infringement.
parties from a Rule 35 independent medical
* To say that one who has contracted to serve examination.
for a number of years at a low salary or at
* There is caselaw for the proposition that use
distasteful work and seeks to better his or her
restrictions are not always strictly enforced
condition by a contract with another party
when a lease is assigned by a tenant in
should be penalized in every case by inability
bankruptcy and the property in question is not
to enforce this second contract seems harsh, part of a shopping center.
and under these or other extenuating
* The court appeared to premise much of its
circumstances, the courts have often deemed
opinion upon the argument that consumers
damages to be sufficient recompense to the
stand at a significant disadvantage in product-
injured employer without also invalidating the
liability actions based on ordinary negligence second contract. principles.
Consequently, strict product liability was Advanced
intended to relieve the plaintiff of the burden
of having to prove actual negligence.
Rewrite the following 193-word paragraph in
* With respect to matters not covered by the
fewer than 130 words without changing the
provisions of the Uniform Rules for the New meaning:
York Court of Claims (the Uniform Rules), the 5
In addition to the two cases cited just above,
both (as mentioned) dealing with the Basic
California State Bar Rules of Conduct, Rule 3-
310 of the California State Bar Rules of
Break each of the following long sentences
Professional Conduct describes circumstances
into at least three separate sentences:
in which an attorney is embroiled in the
representation of adverse interests. Rule 3-
* Appellee Allied Indemnity of New York
310 is concerned primarily with situations in
respectfully suggests that oral argument
which the attorney's duty of loyalty and duty
would be of little benefit because the
of confidentiality to clients are called into
dispositive issue has been recently
question. Therefore, to date, there are no Rule
authoritatively decided by the Texas Supreme
3-310 cases disqualifying a district attorney as
Court in National Union Fire Insurance Co. v.
a result of a prosecution of an individual whom
CBI Industries, Inc., 907 S.W.2d 517 (Tex.
the district attorney used or is used as a
1995), and by this Court in Constitution State
witness in another prosecution. Most cases
Insurance Co. v. Iso-Tex, Inc., 61 F.3d 405 (5th
that involve district-attorney conflicts under
Cir. 1995), because the facts and legal
Rule 3-310 consist of a former attorney-client
arguments are adequately presented in the
relationship between an accused and a district
briefs and record, and because the decisional
attorney. In such cases, the rule serves to
process would not be significantly aided by
protect an accused from a prosecution in oral argument. [91 words]
which a district attorney unfairly benefits from
* Although no Kansas cases were found that
information gained during the course of his or
explicitly hold that Kansas requires a
her representation of the accused. Other Rule
corporation to have a valid business purpose
3-310 cases involve overzealous prosecutions
in order to engage in certain specified
in cases where a district attorney is for one
corporate transactions, either for mergers or
reason or another personally or emotionally
consolidations, or for a sale of assets followed
interested in the prosecution of the accused.
by a dissolution and liquidation, in a 1994 or
Supreme Court of Kansas case involving a
Find a wordy sentence that you can reliably
cash-out merger where the dissenters claimed
cut in half without changing the meaning. Cut
the defendant's board of directors breached
it. If you're a member of a writing group or
its fiduciary duties to the dissenters, the court
class, bring a copy of the before-and-after
cited as one of the trial court's pertinent versions for each colleague.
conclusions of law that it is not necessary for a
corporation to show a valid corporate purpose
for eliminating stockholders. [105 words]
* The court of appeals noted that the
Environmental Protection Agency (EPA) had
already issued the applicant a National Section 6. Keep your average
Pollution Elimination System permit for the
actual discharge of wastewater, which would sentence length to about 20
occur from the outfall pipe, and that the
issuance and conditions of such permits were words.
generally exempt under the Clean Water Act
from compliance with the Environmental
Impact Statement (EIS) requirement, and Exercises
accordingly the court concluded that the 6
Corps had properly excluded the
religious belief by its requirement, or that
environmental implications of the discharges
there is a state interest of sufficient
from the outfall pipe from its analysis and
magnitude to override the interest claiming
instead considered only the construction and
protection under the Free Exercise Clause.
maintenance of the pipeline itself in Long before there was general
determining that the issuance of the permit
acknowledgment of the need for universal
did not constitute a major federal action. [112
formal education, the Religion Clauses had words]
specifically and firmly fixed the right to free
exercise of religious beliefs, and buttressing Intermediate
this fundamental right was an equally firm,
even if less explicit, prohibition against the
Rewrite the following passages to make the
establishment of any religion by government.
average sentence length under 20 words:
The values underlying these two provisions
relating to religion have been zealously
* At best, the lack of precise rules as to the
protected, sometimes even at the expense of
treatment of routine corporate transactions
other interests of admittedly high social
forces investors and others who seek to
importance. The invalidation of financial aid to
understand accounting statements in all of
parochial schools by government grants for a
their complex fullness to wade through pages
salary subsidy for teachers is but one example
of qualifying footnotes, the effect of which is
of the extent to which courts have gone in this
often to express serious doubts about the
regard, notwithstanding that such aid
meaningfulness and accuracy of the figures to
programs were legislatively determined to be
which the accountants are attesting. Equally
in the public interest and the service of sound
bad, while the footnotes, carefully read and
educational policy by states and by Congress.
digested, may enable the sophisticated
[Average sentence length: 51 words]
analyst to arrive at a reasonably accurate
* Some time subsequent thereto defendant,
understanding of the underlying economic
Brian Dailey, picked up a lightly built wood-
reality, the comparison of figures published by
and-canvas lawn chair that was then and
one firm with those of any other is bound to
there located in the back yard of the above
result in seriously misleading distortions.
described premises, moved it sideways a few
Indeed, the figures for any given company
feet and seated himself therein, at which time
may not be comparable from one year to the
he discovered that the plaintiff, Ruth Garratt,
next, for although auditing standards require
was about to sit down at the place where the
that the principles used by a firm must be
lawn chair had formerly been, at which time
"consistently applied" from year to year, the
he hurriedly got up from the chair and
"presumption" of consistency may be
attempted to move it toward Ruth Garratt to
overcome where the enterprise justifies the
aid her in sitting down in the chair,
use of an alternative acceptable accounting
whereupon, due to the defendant's small size
principle on the basis that it is preferable.
and lack of dexterity, he was unable to get the
[Average sentence length: 57 words]
lawn chair under the plaintiff in time to
* It follows that in order for Wisconsin to
prevent her from falling to the ground.
compel school attendance beyond the eighth
[Average sentence length: 126 words]
grade against a claim that such attendance
* Since it is undisputed that the sugar was
interferes with the practice of a legitimate
stolen, and that it was purchased by Johnson,
religious belief, it must appear either that the
the question at issue for jury determination is
State does not deny the free exercise of
the state of Johnson's mind when he 7
purchased it. While the jury is unauthorized to
convict unless it finds that Johnson himself
* Ms. Lenderfield, during the course of her
had guilty knowledge, such knowledge may be
struggle to provide for her children as a single
proved by circumstances here to warrant the
parent, accrued considerable debt to her
conclusion that Johnson, when he purchased family and others.
the sugar, knew it to have been stolen, and
Chesapeake's assertion that it is not a proper
did not in fact honestly believe that the sellers
defendant in this case and, therefore, that
were sugar dealers or were properly
relief cannot be granted is incorrect.
authorized by the Ralston Mill to sell sugar for
* The court, in finding that Officer McGee was
it. In arriving at this conclusion, the jury might
acting more as a school employee than as a
have considered the time and arrangements
police officer in searching Robinson, ruled that
for the purchases, statements of Johnson to
an official's primary role is not law
Gordon showing that he knew that he was enforcement.
taking a risk, the absence of any invoice or
regular billing procedure, the contradictory Intermediate
statements of Johnson after his arrest, and the
unlikelihood of the sellers' having come into
Edit the following sentences to cure the
possession of such large quantities of sugar to separation of related words:
be sold below wholesale price in a legal
manner. [Average sentence length: 58 words]
* Plaintiff's testimony that he had never had a
back injury and had never been treated by a Advanced
doctor for a back ailment before this workplace accident is suspect.
Find a published piece of legal writing in which
* The Trustee, at any time, by an instrument
the average sentence length exceeds 40
in writing executed by the Trustee, with the
words. Rewrite it to make the average under
concurrence of the City Council evidenced by 20.
a resolution, may accept the resignation of or
remove any cotrustee or separate trustee appointed under this section.
* In Barber v. SMH (US), Inc., the Michigan
Court of Appeals held that the plaintiff's
Section 7. Keep the subject, the
reliance on a statement made by the
defendant that "as long as he was profitable
verb, and the object together--
and doing the job for the defendant, he would
be defendant's exclusive representative" as toward the beginning of the
establishing an oral contract for just-cause employment was misplaced. sentence.
* Taxes imposed by any governmental
authority, such as sales, use, excise, gross-
receipts, or other taxes relating to the Exercises
equipment, except for the personal-property
tax, for which Biltex, Inc. is assessed and Basic
liable by applicable law, must be reimbursed by Calburn, Inc.
Edit the following sentences to cure the separation of related words: Advanced 8
charitable cause. This dedication imposes a
Find a published legal example of either
charitable trust for the donor's objective as
subject-verb separation or verb-object
effectively as if the assets had been accepted
separation. (The worse the separation, the
subject to an express limitation providing that
better your example.) Retype the sentence,
the donation was to be held in trust by a
with the citation, and then type your own
trustee solely for the purpose for which it was
corrected version below it. If you're a member
given. It is imperative that the objectives of
of a writing group or class, bring a copy of
individuals who give to charity be strictly
your page for each colleague, and be adhered to. prepared to discuss your work.
* There are situations in which a motion for
rehearing should be granted. Before the
enactment of CPLR Section 5517, it was held
that when such a motion was granted, any
appeals from the prior order would be
Section 8. Prefer the active voice
dismissed. The CPLR was amended to "alter
caselaw holding that an appeal from an order over the passive.
had to be dismissed upon entry in the court
below of a subsequent order." [Citation.] Thus
today, Section 5517(a) states that after a Exercises
notice of appeal from an order has been
served, the original appeal will not be affected Basic
if a motion for rehearing is entertained. The
appeal will be neither mooted nor canceled by
Edit the following sentences to eliminate the
the grant or denial of a motion for rehearing. passive voice:
* Jurisdiction was conferred on the district
court by 28 U.S.C. Section 1331. The
* Testimony was heard from the plaintiff and
complaint was dismissed with prejudice on
from three witnesses on behalf of the
March 31, 1999, and judgment was entered in corporation.
favor of the Cauthorns. A timely notice of
* This is a purely legal question to be
appeal was filed by Perkins on April 7, 1999. determined by the court.
Jurisdiction is conferred on this court by 28
* McCormick's motion for partial summary U.S.C. Section 1291.
judgment on the duty to defend should be
* During the taxable years at issue, the denied.
replacement fuel assemblies had not begun to
* Plaintiff's opposition violates Rule 313 of the
be used by the company for their specifically
California Rules of Court and may be
assigned function, namely, to generate disregarded by the court.
electrical power through nuclear fission. Nor
were the assemblies placed in a state of Intermediate
readiness for their intended use during the
years in which they were acquired. That did
Count the passive-voice constructions in the
not occur until the spring of 2000, when, after
following paragraphs. Decide which ones you
more than a year of careful planning, the
would change to active voice. Change them.
reactor was shut down, various maintenance
tasks were performed, spent fuel assemblies
* The intention of the donor is established at
were removed, the reactor was reconfigured
the moment the funds are dedicated to a
using the new fuel assemblies in conjunction 9
with partially spent assemblies that were not
hearing, to conduct discovery, and standing to
replaced, and low power testing was
appeal the court's approval or disapproval of
performed to ensure that the reconfigured the class-action settlement.
reactor core performed safely in accordance
* Tenant will probably not be able to have the
with specifications. Only after those
lease declared void and unenforceable for
procedures had been successfully completed
vagueness because it contains all the
did the replacement fuel assemblies generate
essential elements of a lease: a description of
salable electric power and, hence, income to the premises, the amount of
taxpayer. Only at that point could the
rent to be paid, the term of the lease, and
replacement fuel assemblies be considered to identifies the parties. have been placed in service.
* The Younger doctrine also applies to a state
civil proceeding that is (1) ongoing, (2) Advanced
implicates important state interests, and (3)
affords an adequate opportunity to raise
Find a published passage--two or three federal claims.
paragraphs--in which more than 50% of the
verbs are in the passive voice. Retype it, Intermediate
providing the citation. Then, beneath the
original, show your rewritten version.
Revise the following sentences to cure the or unparallel phrasing:
In the literature on effective writing, find three
authoritative discussions of the situations in
* The essential elements of a fraud claim
which the passive voice can be preferable to under New York law are that:
the active. Consolidate what those authorities
(1) the defendant made a misrepresentation
say. In how many situations is the passive (2) of a material fact voice better?
(3) that was intended to induce reliance by the plaintiff
(4) which was in fact relied upon by the plaintiff
(5) to the plaintiff's detriment.
Section 9. Use parallel phrasing
* Where there are already allegations of
defects in design, manufacturing, and for parallel ideas.
warnings, a claim that the manufacturer
should have recalled its 1999 products is
redundant, prejudicial, and directed to the Exercises wrong institutional forum.
* Under Georgia law, the elements necessary Basic
for the application of equitable estoppel are
(1) a false representation or concealment of
Revise the following sentences to cure the
facts, (2) it must be within the knowledge of unparallel phrasing:
the party making the one or concealing the
other, (3) the person affected thereby must be
* The court relied heavily on the district
ignorant of the truth, (4) the person seeking to
court's statement that the would-be
influence the conduct of the other must act
intervenors retained the right to appear
intentionally for that purpose, and (5) persons
through counsel, to participate in the fairness 10