Part 6 QuestionsIssues Presented

1
Part 6 Questions/Issues Presented

• Moot Court Brief Writing Workshop
• Fall 2008 Continued from Friday
• Lauren Simpson

2
Exercise

• Use McKethan vs. Addison to formulate issue
  statements for the extreme and outrageous
  conduct element of IIED. You should formulate
  one issue statement for each of the three formats
  discussed today. You represent Petitioner in
  this exercise.
• Once you have completed your issue statements,
  please exchange your work with a partner and
  critique your partners issue statements.

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McKethan v. Addison Issue Statements

• Multiple Sentence (Deep Issue) Ending in
  Question (Garner)Petitioner
• A person is liable if his conduct is so
  outrageous and extreme as to exceed all possible
  bounds of decency, considering the conducts
  context and the parties relationship. After
  Mckethan ended a relationship with Addison,
  Addison harassed her with repeated calls, broke
  into her home, brandished a knife at her,
  threatened to scar and to disfigure her when he
  knew that her career depended on her appearance,
  and scoffed that he might return. Were Addisons
  harassment and threats extreme and outrageous?

4
McKethan v. Addison continued

• Multiple Sentence (Deep Issue) Ending in
  Declarative (Aldisert)Petitioner
• A person is liable if his conduct is so
  outrageous and extreme as to exceed all possible
  bounds of decency, considering the conducts
  context and the parties relationship. After
  Mckethan ended a relationship with Addison,
  Addison harassed her with repeated calls, broke
  into her home, brandished a knife at her,
  threatened to scar and to disfigure her when he
  knew that her career depended on her appearance,
  and scoffed that he might return. Addisons
  harassment and threats were extreme and
  outrageous.

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McKethan v. Addison continued

• Single Sentence (Question)Petitioner
• Is Addison liable for his outrageous and extreme
  conduct when, after Mckethan had ended a
  relationship with him, he harassed her with
  repeated calls, broke into her home, brandished a
  knife at her, threatened to scar and to disfigure
  her when he knew that her career depended on her
  appearance, and scoffed that he might return?

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Part 7 Editing

• Moot Court Brief Writing Workshop
• Fall 2008 Saturday
• Lori Twomey

7
Brief Editing Techniques

• Large Scale Editing
• First Edit Structure and Organization
• Is the brief as a whole laid out in a logical
  fashion?
• Does the brief have visual appeal? Proper
  typesetting, page breaks, and white space.
• Do the headings tell the story?
• Are you consistent throughout entire brief?
• Small Scale (Special Purpose) Editing
• Second Edit Completeness
• Does each argument go through all necessary
  analytical steps? Are there flaws in the
  analysis?
• Have you tied all your arguments back to your
  theme?
• Does every argument tell the court what you want
  them to do (at a minimum in a mini conclusion)?

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Brief Editing Techniques continued

• Third Edit Conciseness
• Read sentence by sentence Is each sentence
  necessary and does the sentence advance the goal
  of the paragraph? Can the sentence be worded
  more simply?
• Read paragraph by paragraph Is each paragraph
  necessary and does it advance the goal of the
  argument section?
• Read section by section Does each section flow
  together? Is there appropriate use of road
  mapping and transitions?
• Forth Edit Correctness in Grammar, Punctuation,
  and Sentence Structure, and Typography (no typos
  please)
• Refer to Lauren Simpsons common errors handout
• Fifth Edit Correctness in Citation
• Placement and form
• Sixth Edit Compliance with the Rules

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Part 8 Summary of the Argument Information
in this section is adapted from Teresa Rambo and
Leanne Pflaum, Legal Writing by Design 422 et
seq. (2001).

• Moot Court Brief Writing Workshop
• Fall 2008 Saturday
• Lauren Simpson

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Summary of the Argument

• Importance
• Purposes
• giving summary of facts, rules, and principle
  conclusions
• giving most convincing reasons in support
• Objectives
• familiarizing court with your clients case
• convincing court of your clients viewpoint
• giving court material needed to rule in your
  clients favor
• requesting clearly relief desired for your client

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Structure

• The summary of the argument . . .
• is one to two pages
• sometimes begins with a summary within a summary
  (depends)
• is divided into sections (usually s) that
  correspond to issues
• follows order of briefing in argument section
• usually contains no citation to authorities or
  record
• follows shortened CReAC formula for each issue
• ends with statement of relief requested

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Exercise McMann

• Read the sample Summary of the Argument and
  answer the following questions
• What is the writers theme?
• How could you improve the existing theme? Or, if
  you dont like the existing theme, what theme
  would you use?
• How can this summary of the argument be improved?

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Part 9 Opinions Below and Statement of The Case

• Moot Court Brief Writing Workshop
• Fall 2008 Saturday
• Lori Twomey

14
Supreme Court Rules vs. Texas Rules

• TRAP Rule 38.1
• (d) Statement of the case. The brief must state
  concisely the nature of the case (e.g., whether
  it is a suit for damages, on a note, or involving
  a murder prosecution), the course of proceedings,
  and the trial court's disposition of the case.
  The statement should be supported by record
  references, should seldom exceed one-half page,
  and should not discuss the facts.
• (f) Statement of facts. The brief must state
  concisely and without argument the facts
  pertinent to the issues or points presented. In a
  civil case, the court will accept as true the
  facts stated unless another party contradicts
  them. The statement must be supported by record
  references.
• Supreme Court Rule 24
• (d) Citations of the official and unofficial
  reports of the opinions and orders entered in the
  case by courts and administrative agencies.
• (g) A concise statement of the case, setting out
  the facts material to the consideration of the
  questions presented, with appropriate references
  to the joint appendix, e. g., App. 12, or to the
  record, e. g., Record 12.

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Opinions Below Example

• OPINIONS BELOW
• The opinion of the United States District Court
  for the Eastern District of Jackson is unreported
  and appears in the record at pages 1-6. The
  opinion of the United States Court of Appeals for
  the Thirteenth Circuit is similarly unreported
  and appears in the record at pages 7-12.

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Statement of the Case (i.e., the facts) Supreme
Court

• Present without argument, but not neutrally
• NO Citations to Authority
• MUST Reference the Record
• Only include facts that
• Are material to the consideration of the
  questions presented (i.e., legally significant
  facts)
• Give context to the appeal Some emotionally
  significant and background facts (use sparingly)
• Deal with both good and bad facts

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Part 10 The Argument Section

• Moot Court Brief Writing Workshop
• Fall 2008 Saturday
• Lori Twomey

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Standard of Review

• Always lay out the standard of review up front
  and in the light most positive to your client.
• If the standard of review really is in your favor
  use it early and often
• Dont include information about the kitchen sink
  when your issue only involves the bathroom.

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Example (may be too much)

• Motions for summary judgment are reviewed de
  novo. A de novo review means the court should
  apply the same summary judgment standard applied
  by the trial court. In a traditional summary
  judgment case, that means the issue on appeal is
  whether the movant met the summary judgment
  burden by establishing that no genuine issue of
  material fact exists and that the movant is
  entitled to judgment as a matter of law. The
  burden of proof is on the movant, and all doubts
  about the existence of a genuine issue of
  material fact are resolved against the movant. A
  defendant who conclusively negates at least one
  essential element of a cause of action is
  entitled to summary judgment on that claim. Once
  the defendant produces sufficient evidence to
  establish the right to summary judgment, the
  burden shifts to the plaintiff to come forward
  with competent controverting evidence raising a
  genuine issue of material fact with regard to the
  element challenged by the defendant. When
  reviewing a summary judgment, the court should
  take as true all evidence favorable to the
  nonmovant, and indulge every reasonable inference
  and resolve any doubts in the nonmovant's favor.
  Evidence that favors the movant's position will
  not be considered unless it is uncontroverted.

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Nine Ways to Improve Your Moot Court Argument

• Include a thesis paragraph
• There should be a main thesis paragraph at the
  very beginning of your argument section that
  relates to your entire issue
• Contents a roadmap, your thesis, any
  controlling law that applies to the entire issue,
  and a statement about what you want the court to
  do
• There should be mini thesis paragraphs at the
  beginning of each argument supporting the issue

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Thesis/Roadmap Paragraphs

• Main thesis paragraph laying out the issue,
  giving a a roadmap of the three major arguments
  supporting your position on the issue, and
  telling the court what you want them to do.
• I. First Major Argument
• Mini-thesis paragraph giving any introductory
  material relevant to the argument as a whole and
  a roadmap foreshadowing A, B, C
• A.
• B. Mini thesis paragraph giving any
  introductory material relevant to B as a whole
  and a roadmap foreshadowing 1 2
• 1.
• 2.
• C.

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Nine Ways to Improve Your Moot Court Argument

• The purpose of each paragraph should be obvious
  within the first 2 sentences of the paragraph
• Compare
• The anonymous informant in White provided the
  suspects first and last name. White, 496 U.S.
  at 327. She provided her apartment complex and
  number and even provided a detailed description
  of her car and her destination. The informant in
  this case provided the following information.
• White does not govern this case because the
  anonymous informant in White provided far more
  detailed information to give the tip a sufficient
  indicia of reliability. The anonymous informant
  in White provided the suspects first and last
  name. White, 496 U.S. at 327. She provided her
  apartment complex and number and even provided a
  detailed description of her car and her
  destination.

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Nine Ways to Improve Your Moot Court Argument

• Connect the dots make your entire argument in
  the brief
• Just because you have given the reader the legal
  rule or the facts to make an argument, you cannot
  expect the reader to discern the argument. You
  must actually make it for him.
• A summary judgment cannot be affirmed on grounds
  not expressly set out in the motion for summary
  judgment or response. Stiles cite.
• Problem This statement of the law does not give
  the reader any reason to process this rule. If
  the reader does not know how you want him to
  apply the rule, he probably will not apply it.

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Nine Ways to Improve Your Moot Court Argument

• Weave together the facts and the law
• Reasonable suspicion may be based on an
  anonymous tip only when the totality of the
  circumstances indicate the requisite quantum of
  suspicion. White, 496 U.S. at 330.
• What should come next?
• The police had little reason to suspect Smith
  because the anonymous caller told only told the
  police that there was a blond woman in a red
  truck who might have a weapon.
• The requisite quantum of suspicion cannot be
  established in this case because the police only
  had a vague description by an anonymous informant
  that a blond woman in a red truck might have a
  weapon.

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Nine Ways to Improve Your Moot Court Argument

• Start any discussion of a case or other authority
  with an explanation of how it helps you.
• Watson does not apply here because the court did
  not address whether the economic loss rule bars
  the recovery of solely economic losses.
• When discussing another case, discuss only facts
  that you specifically relate to your case.
• In a brief, you do not need to give a full
  factual history of other cases.
• When you do discuss the facts of another case,
  explain how each fact relates to your case.
• End each argument section with a mini-conclusion
  containing a call to action (what you want the
  court to do)

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Nine Ways to Improve Your Moot Court Argument

• Remember you are always an advocate if any
  paragraph in your brief is neutral, re-write it.
• Know what rule you want the court to apply and
  how that rule will impact future cases

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Exercise LRW Brief Re-Write

• You will use your LRW appellate brief to
  complete this exercise. Chose one argument from
  that brief, and re-write the corresponding
• Issue Statement
• Headings
• Argument
• Once you have completed the exercise, (1)
  e-mail it to me at tlori_at_central.uh.edu and (2)
  exchange your work with a partner and critique
  your partners work.