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LEGAL WRITING AND DRAFTING

 

 

One of the most important tasks that an attorney, law clerk, paralegal, legal secretary or any one involved with legal matters, have to perform will be legal writing and drafting.  Usually the legal professional is called upon to draft different types of documents such as briefs, memoranda, and motions.  If a person is new to the legal system, it would help him to familiarize himself with the different types of documents which are involved in the practice of law.  It would also be useful to know their uses depending on the stages of litigation or the purpose for which they are required.

 

Some of the most frequently drafted documents are:

 

BRIEFS: It is very important to understand what a brief means and how a well-drafted brief can help in winning a case or even a legal argument.

A brief has two different meanings: (i) It is a written document prepared by counsel to file in a legal proceeding, setting forth the pertinent facts, the applicable law, and an argument supporting the attorney’s position and challenging the opponent’s position; and (ii) It is a summary or abstract of a court decision, usually prepared by a law student to assist in understanding the decision’s significance.  Briefs are written arguments prepared by attorneys for submission to the courts and the concerned parties. (See Sample Brief of Brown v. Board of Education from Christopher G. Wren and Jill Robinson Wren’s The Legal Research Manual: a Game Plan for Legal Research and Analysis at pages 161-162).

It is, therefore, important to remember that briefs are the written arguments and authorities cited by the lawyers for the parties.  It is also a type of “Legal Memorandum” and is usually prepared for submission to external parties unlike an “Internal” Memorandum.  See below for Legal Memorandum.

 

COMPLAINTS: A complaint is a document or a petition which is filed with the court by the aggrieved party (the plaintiff or the party who sues).  The filing of a complaint with the court marks the beginning of a case.  The complaint states the facts  of the case, explains what happened, and what the plaintiff wants done about it, that is, the relief sought such as a monetary award, an injunction, damages, or any other appropriate remedy.

The complaint may contain more than one allegation or legal claim of wrong doing; these legal claims are alleged in separate “Counts” and could be based on the same set of facts. The complaint also must mention the legal basis for the complaint.

“Papers filed with a court clerk by the plaintiff to initiate a lawsuit by setting out facts and legal claims (usually called causes of action).  In some states and in some types of actions, such as divorce, complaints are called petitions and person filing is called the petitioner.  To complete the initial stage of a lawsuit, the plaintiff’s complaint must be served on the defendant, who then has the opportunity to respond by filing an answer.  In practice, few lawyers prepare complaints from scratch.  Instead they use and sometimes modify pre-drafted complaints widely available in form books”.  Attorneys Stephen Elias & Susan Levinkind, Legal Research: How to Find & Understand the Law.

 

CROSS-COMPLAINT: A cross-complaint is a document which is separate from the complaint, kept in a separate cover and designated or titled as a cross-complaint.  Depending on the jurisdiction, the cross-complaint may be a part of the answer given by the defendant, and may, therefore, bear the heading “Answer and Cross-Complaint”.  The Cross-complaint usually states a cause of action against the cross-defendant and is usually filed and served with the Answer to the Complaint.

Sometimes a cross-complaint is called a cross-claim.  It must concern the same events that gave rise to the original lawsuit.  For example, a defendant accused of causing an injury when she failed to stop at a red light might cross-complain against the mechanic who recently repaired her car, claiming that his negligence resulted in the brakes failing and, hence that the accident was his fault.

In some states where the defendant wishes to make a legal claim against the original plaintiff and no third party is claimed to be involved, a counterclaim, and not a cross-complaint, should be used.

 

ANSWER:  After a complaint is filed, the person who is sued, that is, the defendant has to answer in writing to the complaint.  The answer usually contains the defendant’s reasons or excuses for the action taken which has been mentioned in the complaint and may contain counterclaims which the defendant has against the plaintiff.  Besides giving, that affirmative defenses, the defendant may also deny the complaint totally stating that he does not have enough information about the allegations or he may agree in part or disagree in part with some portions of the complaint.

A defendant’s written response to a plaintiff’s initial court filing (called a complaint or a petition).  An answer normally denies some or all facts asserted by the complaint, and sometimes seeks to turn the tables on the plaintiff by making allegations or charges against the plaintiff called counterclaims.

 

MOTIONS:  A motion is a request made to a court asking that it do something in a law suit.  Depending on the various stages of litigation, an attorney is required to file different types of motions.  These motions are filed either in state courts or the federal courts and must comply with the individual state court’s rules or the Federal Rules of Civil Procedure.  The most commonly filed motions in a civil matter are:

Pre-Trial Motions: A pre-trial motion has to be in writing and must state the grounds for the motion in particularity.  Some of the more commonly filed motions are:

1.                 Motion for a More Definite Statement which is usually used where a pleading is so vague or ambiguous that a party could not reasonably respond to it in a required responsive pleading.

2.                 Motion to Strike is a motion made before respondent to a pleading requesting the court to issue an order to strike from the pleadings any redundant, immaterial, impertinent, or scandalous matter.

3.                 Motion to Dismiss (also known as a demurrer) is a pre-trial motion which attacks the whole complaint or some cause of action or count contained in the complaint.  The basis for a Motion to Dismiss/Demurrer is usually that the complaint does not state a cause of action.

4.                 Motion for Judgment on the Pleadings: This motion is usually made after the pleadings are closed but within a time that will not delay the trial of the action.

5.                 Motion for summary Judgment: If there are no genuine issues as to any material fact, this motion is filed and the moving party is entitled to a judgment as a matter of law.  This motion enables a quick and final resolution of a dispute when there is no real necessity for a trial.  This motion is, as a rule, made after the completion of all discoveries.

6.                 Motion in Limine: is a request to the judge to run some aspect of the trial in a certain way, for example, to prevent the defendant from even trying to prove a certain point as it would hopelessly prejudice the jury against the plaintiff.  These motions are usually considered by the judge in a meeting outside the hearing of the jury, usually in the judge’s office.

7.                 Motion to Show Cause or Orders to Show Cause: These are usually prepared regarding contempt, modification, jointer of parties, and so forth.  These motions are commonly filed in matters pertaining to family law.  When these documents are prepared in connection with a family law matter, they have to be prepared with meticulousness and care, as they deal with the needs of the petitioner relating to child support, alimony and the ability of the respondent to pay the same, as well as the disposition or hypothecating of real or personal property of the community property in the community-property states.

 

Post-trial Motions: Motion for New Trial: A party may also file post-trial motions such as “Motion for New Trial” or a “Motion for Judgment N.O.V.” (Not withstanding the verdict) or a “Motion to Set Aside Judgment.” These motions must state grounds for the motion and are usually accompanied by a Memorandum of Law prepared in support of these types of post-trial motions.  A hearing is held on these motions or sometimes a decision is given based on the written documents submitted in the matter.

 

MOTIONS IN A CRIMINAL MATTER:  As in a civil case, so also in a criminal matter, Pre-trial and Post-trial motions are filed.  The most common motions are:

1.                 Motion to Reduce Bail: In case an excessive bail is set, this motion is filed requesting the court to reduce the amount.

 

2.                 Motion to Quash or Set Aside Complaint or Indictment: If there is no “probable cause” to arrest the defendant or, in matters heard by a grand jury if the evidence was not properly presented to the grand jury, a Motion to Quash may be filed in some jurisdictions.  A Motion to Dismiss Indictment must state several possible grounds to dismiss the case such as the court does not have the jurisdiction to try these types of cases, the indictment does not state facts which would constitute an offense, the defendant has been acquitted (convicted, in jeopardy of conviction) of the offense he has been charged with in another court, or the offense charged is the same offense for which the defendant was pardoned by the President of the United State or the indictment was not found within three years next after the alleged offense was committed.  Before filing this motion, the attorney must carefully consider the fact that as this motion mentions the formal defects in the information or indictment, he may be educating the prosecutor unnecessarily.

 

 

3.                 Motion for Change of Venue: This motion can be filed on the court’s own motion but if the attorney feels that the client will not get a “fair and impartial trial” where the alleged crime was committed, he can request the court to change the venue of the trial.

 

4.                 Motion for Discovery under Court Rules of Criminal Procedure: The defendant’s attorney may file this motion so that he is aware and informed of the district attorney’s case and the possible witnesses that will be presented at the trial.

5.                 Motion to Suppress Evidence: The defendant’s  attorney usually files this motion to suppress any evidence which has been obtained through an illegal search and seizure.  It applies to physical evidence, statement made by the defendant when not advised by counsel or through wiretapping, prior convictions, and so forth.  This motion is filed prior to a trial or at the preliminary hearing.

 

6.                 Motion to Sever: If there are two defendants charged with the same crime or who acted jointly in the commission of a crime and the attorney for one of the defendant believes it would be in the best interest of his client if there were separate trials, he would be in the best interest of his client if there were separate trials, he would file this motion.

 

 

7.                 Motion for Appointment of an Expert: If the attorney has an indigent client who cannot afford the fees of an expert witness who is necessary to his client’s defense, he may file this motion to request the court to appoint an expert witness at the expense of the court.

 

PLEADINGS:  are the written statement containing a party’s allegations about each point or issue involved in the lawsuit. A plaint, simple statement of the facts or defenses to a claim is submitted to the court.  In civil actions, the principal pleadings are the complaint which is filed by the aggrieved party (the plaintiff or the party who sues), and the answer, which is filed by the defendant responding to the complaint.

 

RECORDS: are documents from the lower court proceeding, usually reprinted as an appendix to the briefs and often include pleadings, motions, exhibits, trial transcripts, and all judgments and orders entered by the lower court ie. the trial court.  As these documents help the researcher to study the different aspects of the arguments put forward by the attorneys and the decisions which are of importance these documents are very vital to a legal professional.

 

LEGAL MEMORANDA:  As mentioned above, legal memoranda are prepared for external and internal purposes.  When prepared for submission to a court, they are called “briefs” or “Memorandum of Points and Authorities” or “Memorandum of Law”.

A Memorandum is also prepared frequently as an internal document, which is not meant to put forth arguments advancing a particular position, but to summarize the fruits of the legal research for a particular case.  Usually a memorandum will contain a statement of the facts, a statement of the issue or issues, a decision or holding on the issue or issues, a discussion of the law which is applicable to the issues, and a discussion of the reasoning underlying the decision.

 

PETITIONS:  A petition is “A formal written application to a government body requesting that the tribunal exercise its authority to achieve a particular effect; a complaint is an example of one kind of petition.” Christopher G. Wren and Jill Robinson Wren, The Legal Research Manual: A Game Plan for Legal Research and Analysis.

Petitions can be filed for various purpose and are an important type of legal document as they are in the nature of a complaint.

Examples: Bankruptcy Petitions (voluntary or involuntary)

 

WRITS: A writ is a court order requiring the performance of a specified act, or giving authority to have it done. In other words, Writs are orders directed at officials by courts, or at lower courts by higher courts. Examples of Writs are:-

a) Writs of Attachment: This writ is usually filed during the process of collecting a judgment. If there is a judgment against a defendant, the process of securing possession of property in controversy or of creating a security for the debt in controversy before the final judgment of the court on the merits of the case is begun. This process is known as a pre –judgment attachment. The plaintiff applies for an Order and Writ of Attachment stating that the Writ of Attachment is not sought for any other property than that upon which the attachment is based.  In some states, a party can obtain an ex parte hearing for issuance of a Writ of Attachment provided s/he can show that it would cause great and irreparable harm to the plaintiff if the issuance was delayed until the matter could be heard on notice.

b)  Writ of Execution: This Writ itself is usually prepared by the clerk of the court where the judgment was entered upon receipt of an Application for Writ of Execution prepared by the party.  A Writ of Execution commands the Sheriff to attach the property of the defendant ie. The party who is defeated, sell it and satisfy the judgment, out of the proceeds.

c) Writ of Habeas Corpus:  The literal meaning in Latin is “You have the body”.  A prisoner files a petition for writ of habeas corpus in order to challenge the authority of the prison or jail warden to continue to hold him.  If the judge orders a hearing after reading the writ, the prisoner gets to argue that his confinement is illegal. These writs are frequently filed by convicted prisoners who challenge their conviction on the grounds that the trial attorney failed to prepare the defense and was incompetent.  Prisoners sentenced to death also file habeas petitions challenging the constitutionality of the state death penalty law.  Habeas writs are different from and do not replace appeals, which are arguments for reversal of a conviction based on claims that the judge conducted the trial improperly.  Often convicted prisoners file both. Refers to various writs whose object is to bring a person before a court, most commonly directing the release of a person from illegal confinement. This writ is filed in the form of a petition for Writ of Habeas Corpus within ten days after finding of guilt.

d) Writ of Certiorari: Petition for Writ of Certiorari or as it is usually called “Petition for Cert” is a petition requesting the State Supreme Court or the U.S. Supreme Court to consider a case because the party disagrees with the outcome of an appeal in the appellate court.  If the court grants a hearing or issues a Writ of Certiorari to the court that decided the case being appealed, it will consider the case.  If it denies a hearing or “cert”, then it won’t.  It is important to note that Supreme courts grant hearings or certs only in a very small percentage of cases presented to them.  They usually choose cases that present interesting or important questions of law or an issue that two or more lower appellate courts have disagreed on.

The highest court in a state may hear direct appeals designated by the state constitution or statute, and it may exercise discretionary appeal by a writ of certiorari to a lower appellate court.

e) Writ of Mandamus: “Latin for “we command.”  A writ of mandamus is a court order that requires another court, government official, public body, corporation or individual to perform a certain act.  For example, after a hearing, a court might issue a writ of mandamus forcing a public school to admit certain students on the grounds that the school illegally discriminated against them when it denied them admission. Also it can be a petition filed by a defendant requesting the appellate court to review the denial of a Motion by a lower court. A Motion to Dismiss for Failure to State a Claim (also known as a “demurrer” in some states) requests the court to dismiss the case instead of requiring an answer from the defendant.  For the purpose of deciding the motion, the judge assumes that the factual allegations in the complaint are true and then decides whether the law supports the claim for relief.  If the judgment grants the motion but allows the plaintiff a chance to fix the problem (“granted with leave to amend”), the simply rewrites the complaint and the process starts all over again.  If the judge grants the motion without leave to amend, the case is ended unless the plaintiff appeals the decision.  On the other hand, if the judge overrules (denies) the demurrer, the defendant must file an answer.  The defendant can ask the appellate court to review the denial (called asking for a “writ of mandamus”), but this remedy is rarely granted.

This writ is the opposite of an order to cease and desist, or stop doing something which is also called a “writ of mandate”.

f) Writ of Mandate: A party who is dissatisfied by the judgment given by the lower court may appeal the issue to a higher court and requests a review of the decision by the higher court.  In other words, the person is seeking help from a higher court.  In some states, when a person seeks help from a higher court, it is termed an appeal, while in others it is termed a request for a “writ of mandate” or “writ of prohibition”.

 

Appeals: “A written request to a higher court to modify or reverse the judgment of a trial court or intermediate-level appellate court.  Normally, an appellate court accepts as true all the facts that the trial judge or jury found to be true, and decides only whether the judge made mistakes in understanding and applying the law.  If the appellate court decides that a mistake was made that changed the outcome, it will direct the lower court to conduct a new trial, but often the mistakes are deemed ‘harmless’ and the judgment is left alone.  Some mistakes, such as a miscalculation of money damages, are corrected by the appellate court without sending the case back to the trial court.  An appeal begins when the loser at trial or in an intermediate-level appellate court, files a notice of appeal, which must be done within strict time limits (often 30 days from the date of judgment).  The loser (called the appellant) and the winner (called the appellee) submit written arguments (called briefs) and often make oral arguments explaining why the lower court’s decision should be upheld or overturned.” Attorneys Stephen Elias & Susan Levinkind, Legal Research: How to Find & Understand the Law.

“Litigation usually begins in a trial court.  In the federal system, the trial courts are the U.S.District Courts, or the county courts in many states or the U.S.Tax Court or state family courts and probate courts.  In the trial court, issues of fact (such as which of two cars entered an intersection first) are decided by the fact finder, either the judge or a jury.  The basis of an appeal is usually a disagreement with the trial court’s determination of the facts.  These findings are binding on the parties and cannot be appealed.  Issues of law (such as whether a witness’s statement is admissible a trial) are decided by the judge, and a party who disagrees with these rulings can appeal them to a higher court.”  Morris L.Cohen & Kent C.Olson, Legal Research in a Nutshell, 8th Edition.

Appeals from the decisions of trial courts are generally taken to an intermediate appellant court (the U.S.Courts of Appeals and similar state tribunals).

It is important to remember that the court of last resort in each jurisdiction (called the Supreme Court in the federal system and in most states) usually review cases from the intermediate appellate courts, but may take appeals directly from trial courts.

In an appeal, “briefs” (ie. typewritten statements of the parties’ views of the facts and law-see above for detailed explanation of a brief) are submitted to the appellate court.  The Appellate Court also has a copy of the entire written “record” of the trial court.  In addition to considering the briefs and the trial court record, the appellate court usually hears oral arguments from the attorneys on each side.

 

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