It’s impossible to write your first memo, brief, or other legal document without fully understanding the final product. You need to visualize the destination in order to know when you’ve arrived. A sample document can be a big help. Virtually all legal writing textbooks contain samples, and some professors provide additional ones. Of course, you can find others online. A sample can be a lifeline if it’s used wisely, but each sample must be approached with caution. Here is some advice for using samples constructively.
Do understand the source.
Where did the sample come from? If it’s in a legal writing textbook, it has been written to demonstrate the approach favored by the book’s author. It may even have marginal notes identifying certain features, such as headings, thesis sentences, use of analogies, or discussion of counterarguments. Because your legal writing program or professor selected this textbook, you can be confident that the sample is consistent with general expectations in your course (unless your professor states otherwise).
What if the sample was written by a student at your school? If your professor provides such a sample, be sure you understand what she considered to be its strengths and weaknesses. If the student-written sample includes comments from the professor, pay close attention to these. If you’ve gotten a sample directly from a student, proceed with caution unless you know that it received a high grade from your professor.
If you’ve found a sample on the Internet, approach it very cautiously. Quality can be difficult to assess, especially if you’re a 1L. It’s preferable to rely on samples provided by your professor.
Do follow the large-scale structure.
If your professor provided a sample, either in the textbook or student-written, it’s likely that the sample adequately demonstrates the basic structure expected. On a large scale, the sample should include all required components, such as Table of Authorities. It should also follow your professor’s preferred organizational structure, such as CREAC.
Do follow the small-scale structure.
Dive into the details of each section. How long is the question presented? How did it incorporate key facts? How detailed is the Brief Answer? How thorough is the explanation of each rule? How did the writer analogize between precedent and the facts of the assignment?
Do consider proportionality between sections.
It can be challenging to achieve an appropriate balance between the sections of your memo or brief, especially when you’re working within a page limit. Consider the relative lengths of the Brief Answer, Facts and Discussion. A good sample will be appropriately proportioned.
Do notice the citations.
Your sample should feature accurate Bluebooking, but more importantly, it should demonstrate expected use and placement of citations. Do you need a cite after every sentence in your discussion of a case? Is your professor a fan of string cites? Are footnotes encouraged or discouraged?
Don’t assume it’s perfect.
No sample – in fact, no piece of writing – is perfect. No sample is beyond criticism. Understand that your sample has strengths and weaknesses. Some professors provide both “good” and “bad” samples to develop students’ critical skills. Your professor may lead a dissection of the sample in class. If not, you should independently assess the sample and, if you have questions, meet with your professor to discuss your opinion of the sample.
Don’t follow it too precisely.
The sample is a general roadmap. You are in control, driving down the road. You will follow the rules of the road, like traffic signals and right of way, but you will not drive at precisely the same speed or in precisely the same tracks as the car in front of you. The sample discusses a different problem than the one you’ve been assigned, so you will necessarily vary from it.
Some students cling so tightly to a sample that they lose their common sense. The first year I taught legal writing, I provided a sample memo that was structured around a rule with three elements. I then gave an assignment based on a negligence claim, which I expected to be organized around the elements of negligence: duty, breach, causation and damages. One student wrote about three elements of negligence, simply ignoring the fourth. Why? “Because the sample had a three-part test.” That’s an example of following the sample too closely. Other examples include inappropriately replicating the exact number of sentences in the Brief Answer, or meaninglessly citing exactly the same number of cases.
The most serious way you can follow too closely is to copy language directly from a sample. That’s plagiarism. Don’t ever do that. It will violate your school’s honor code and could lead to serious sanctions. Your professor is very familiar with the sample and will notice if you’ve copied language from it.
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Other helpful Legal Writing posts:
- Embrace The Difference of Legal Writing
- 5 Tips for a Great Legal Writing Assignment
- Legal Writing Tip: Imagine You Are Talking To Your Grandma
- Podcast Episode 11: Legal Writing 101
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