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 Copyright © 2020 Ben L. Fernandez

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 CONTENTS

Copyright
Preface
Introduction
Part I: Objective Writing
1. Sources of Law
2. Legal Research
3. Briefing Cases
4. Applying Cases and Analogical Reasoning
5. Analyzing Statutes and Marshaling Facts
6. Citation
7. IRAC
8. Objective Legal Memoranda
9. Other Examples of Legal Writing
10. Improving Your Writing
Part II: Persuasive Writing
11. Credibility
12. Bias
13. Ethical Rules for Advocacy
14. Civil and Appellate Procedure
15. Requirements for Civil Motions and Standards for Appeals
16. Persuasive Writing

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17. Memoranda in Support of Motions
18. Motion Session
19. Appellate Briefs
20. Oral Argument
Apppendix
CASE BRIEFING EXERCISE
Clampitt v. Spencer
Eppler v. Tarmac
SAMPLE CASE BRIEFS
Clampitt v. Spencer Brief
Eppler v. Tarmac Brief
CASE ANALOGY EXERCISE
Malczewski v. Florida
SAMPLE CASE ANALOGY
IRAC EXERCISE
Young v. Kirsch
State Farm v. Mosharaf
Southland v. Thousand Oaks
SAMPLE IRAC
LEGAL MEMORANDUM EXERCISE
SAMPLE LEGAL MEMORANDUM
About The Author

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 PREFACE
Law schools have been teaching legal writing for a long time; and a lot of
books on the subject have already been written. So why would anyone
write another book on legal writing? I did it because I've been teaching
legal writing (and contract drafting) for twelve years (after having practiced
law for over twenty years), and I've found the way this subject is typically
presented is often not very effective. Too many law students finish their
first year having a passing familiarity with a great many topics, but a
lacking competence with the most basic skills they need to practice law
after graduation. I think the primary reason that happens is because
students are flooded with too much to read and too much information to
absorb. They are assigned multiple texts and 4 credits worth of information
for a 2 credit course. As a result, they don't have enough opportunity to
practice the most important skills they need to learn.

This book presents the subject of legal writing in a different way. It

contains a much more concise discussion of each of the topics typically
covered in first and second semester courses. Each chapter emphasizes the
basics and leaves out the minutiae. Also the topics in this book are
discussed one at a time, in logical order, with each chapter building on the
discussion in the preceding chapter.

A more concise presentation gives you more time to practice. That is

important because you learn these skills by practicing them. You can't just
read about how to write a legal memo and then write one. You need to
practice writing one yourself, and you need to do that more than just once.
The same is true for legal research, citation and all the other skills
associated with a legal writing course. You need to practice them to

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become competent. So the book you use should not force you to spend
most of your time reading. It should give you the opportunity to do what
you need to do to learn these skills.

A discussion that focuses on the basics ensures that you do not spend too
much time learning things that are less important. In a first semester course
the skill you really need to develop is legal analysis (i.e. how to analyze
cases and statutes and apply the rules they contain to a set of facts). A legal
memo that has is comprised of all the customary parts and has no
typographical errors and perfect citations, but contains an analysis that is
either too superficial or otherwise flawed, is of no use to anyone. Legal
analysis is the most important skill to learn from the first part of this book.
You should get as much as you can out of this subject, but the most
effective way to do that is by prioritizing the most important topics and then
building on that foundation.

Taking these topics one step at a time also gives you the chance to master
each skill before proceeding to the next step. There is a logical order to the
topics presented in a legal writing course. In my opinion, those topics
should be organized so that the discussion of each topic builds on the
presentation before it.

I will start by introducing the chapters of the book and giving you some
general advice about how to do well in law school.

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 INTRODUCTION
The first two chapters of this book are on the sources of law and legal
research because you have to know what the sources of law are to know
where to look to research a legal issue; and you need to be familiar with
both those topics to find the statutes and cases you need to analyze in the
next few chapters.

The components of a case brief are discussed next, and then the book
explains how to apply a case to a fact pattern using the components of a
brief. The next chapter is on how to determine a statutory rule, and then the
book explains how to marshal the facts to the elements of a rule using a
statutory rule as an example.

The next topic is legal citation which is how you reference the cases
and statutes you worked on in the previous chapters. After that I discuss
how to organize your analysis of each legal issue with "IRAC" and, finally,
how to organize your discussion of the issues into the sections of a legal
memorandum. At the end of the first part of this book I also briefly cover
client communications and provide some suggestions for improving your
writing.

The second half of this book contains the topics covered in a second
semester course on legal writing. It covers the legal and ethical rules
applicable to litigation, drafting a memorandum in support of a trial court
motion, drafting of an appellate brief and oral advocacy. Like the first half,
the presentation of each topic is brief, highlighting the basics and building
on what was presented in the previous section. The most important skill to

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learn from the second part of this book is persuasion, and the most effective
thing you can do to learn that that skill is to practice as much as you can.

To be successful in law school, you need to do things differently than

you have done them in the past. For one thing, you have to be more
disciplined and diligent than you may have been as an undergraduate.
There is a lot more competition in law school. Everyone is a good student,
so just being a good student makes you average. If you want to score
higher, you have to up your game. The further you go in education, the
harder you have to work if you want to be the leader of the pack.You will
probably find that the reading assignments in many of your substantive
courses are lengthy. To digest all the reading material you need to change
the way you study for school. First, you need to prioritize your reading.
Some things you are assigned to read are more important than others. For
example, in a common law textbook, the cases are more important than the
commentary. So you need to read the cases more carefully.

Second, you need to read purposefully. You don't read a case like you
would read a novel, sitting back in an easy chair or lying in bed and
passively taking it all in. You should be sitting up with pen or pencil in
hand, looking for the rule applicable to the issue you are studying or
researching. The case will usually involve an application of that rule to a
set of facts; and sometimes the court will explain why they applied the law
the way they did. Those are the things you should be looking for.

Third, when you find the rule and the application of the rules to the
facts, slow down and read that information more carefully than you
otherwise would. Pay attention to the specific language of the rule and the
facts of the case. Think about why the court decided the way they did,
even if they didn't give an explanation. And consider how they might
decide the case differently if the facts were different.

Fourth, take as many notes as you can. If you don't want to use pen
and paper, then type your notes into a laptop. It doesn't matter so much
how you do it but rather that you go through the process of putting what
you learned into your own words, and into the context of the other things

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you are learning in the course. In law school you will have to digest way
too much information to rely on your memory when it is time for exams.
You have to take a lot of notes to do well.

And fifth, as the course progresses, gradually synthesize the different

concepts you have learned, and further distill your notes into a detailed
outline of what was covered. You should have notes from the materials you
read, and you should also have notes from the classes you attended. If you
are sitting in class just passively listening like you are watching a TV show,
you won't learn as much as you need to do well. You will do much better if
you go through the process of taking those notes and then distilling them
down into an outline to prepare for exams.

There are shortcuts you can

take but there is always a cost for
going that route. You won’t learn as
much if you don’t take the time to
brief the cases. And you will
always be behind the students who
did what was necessary to learn the
material. Instead of always looking
for corners you can cut, take the ball
and run as far as you can. Do that and I bet you will be surprised at how
much you can accomplish.

With that introduction, let’s take the first step by learning what the
sources of law are.

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PART I: OBJECTIVE WRITING

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1. SOURCES OF LAW

L aw school is not about learning what all the laws are. The Unites
States has far too many laws for anyone to learn. For example,
according to one recently published estimate, there are about 4,500
federal criminal statutes alone in the United States Code. Mass
Incarceration: The Whole Pie 2020, Wendy Sawyer & Peter Wagner
(Prison Policy Initiative March 24, 2020). Plus each of the fifty states also
has its own criminal statutes, and that’s where most of the criminal statutes

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are located. So the 4,500 federal criminal laws are really just the tip of the
iceberg.

Not surprisingly, no one has ever been able to count all of the laws in
the United States, let alone learn what they all are. The job of a law student
then is not to learn what all thes laws are. It is to learn what all the sources
of law are, how to find laws on a particular topic, how to apply the law to a
set of facts and analyze legal problems, and how to write about the result.
To begin the process, let’s get an overview of all the sources.

There are basically four sources of law in the United States: (1) local
town bylaws and city ordinances, (2) state statutes, regulations and cases,
(3) federal statutes, regulations and cases, and (4) international treaties,
compacts and agreements. What you need to know about those sources is
where to find them, and how to apply the rules they contain to the facts of
your case. You need to have the big picture in your head so that when you
do legal research you will be able to develop a comprehensive strategy that
ensures you are able to find all the rules that apply.

A. Local Ordinances and Bylaws

Local law is the first source of law we will discuss. Local law
consists of city ordinances or town bylaws. In Gainesville, Florida, for
example, they are called the Code of Ordinances for the City of
Gainesville. Topics covered include economic development, alcoholic
beverages, animal control, cemeteries, fire prevention, health and sanitation,
building codes, nuisances, parks and recreation, police, traffic, utilities and
the land development code (the zoning code).

Real estate lawyers spend a lot of time looking at local law because
the city ordinance or town bylaw is usually where the zoning code is found.
The zoning code contains the dimensional and use requirements for house
lots. Dimensional requirements include minimum lot size, front rear and
side yard requirements and other similar matters. And use requirements are
often shown on a zoning map where, among other things, residential
districts are separated from commercial areas.

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 It is important to understand, however, that local law is usually
trumped by state law, which is discussed next. So if there is a conflict
between a local law requirement and a state law requirement, then the state
law requirement governs. The reason is because of the authority given to
localities in the state constitution. And the discussion of that topic is far
beyond the scope of this book. For the purposes of a law school course on
legal writing you should just be aware that local law is the lowest priority of
all the four sources of law.

For that and other reasons, law school students usually aren't taught
about local law, and it isn't on the bar exam either. In fact, you likely will
not have the need to deal with any local laws until you start practicing; and,
depending on the type of practice you have, you may never have to deal
with local law. But you still need to be aware of it, since it is one of the
four potential sources of law applicable to a legal issue.

B. State Statutes, Regulations and Cases

State law is the second source of law. Every state has its own
constitution, and the constitution is the source of all the state’s laws,
including statutes enacted by the legislature and regulations promulgated by
administrative agencies, cases of all the state courts in the state's judicial
system, and executive orders issued by the state's executive branch.

Law students are also not typically taught the law of any one
particular state. The courses offered in law school usually include examples
of various state statutes and cases, but it is not until law students study for
the bar exam that they begin to learn the laws of the state they intend to
practice in.

In Florida the state statutes are divided into “titles” and “chapters” on
various topics, including, the rules for the legislative, judicial and executive
branches, the rules for civil practice and evidence, statutes of limitation,
elections, municipalities, public lands, ports and harbors, motor vehicles,
public health, social welfare, labor, regulation of professions and
occupations, regulations of trade and commerce, agriculture, insurance,

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banking, real and personal property, estates and trusts, domestic relations,
civil rights, torts and crimes.

Florida regulations are published in the Florida Administrative Code,

and they are organized by the administrative department that issues them,
including the Administration Commission, Board of Governors,
Commission on Ethics, Department of Agriculture and Consumer Services,
Department of Banking and Finance, Department of Business and
Professional Regulation, Department of Children and Families, Department
of Corrections, Department of Education, Department of Environmental
Protection, Department of Health, Department of Highway Safety and
Motor Vehicles, Department of Law Enforcement, Department of

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Professional Regulation, Department of the Lottery, Fish and Wildlife
Conservation Commission. Florida State Fair Authority, Joint
Administrative Procedures Committee, Marine Fisheries Commission,
Public Service Commission, Regional Planning Councils, State Board of
Administration and Water Management Districts.

Whenever you are analyzing a statutory issue remember to also check

to see if there are any regulations on point. Often the statute sets forth the
general rule, and the details of the rule are in the regulations. The
legislature enacts the statute, then empowers an administrative agency to
promulgate regulations under the statute. It doesn't always work that way,
but when it does, you need to review the regulations in addition to the
statute to determine how the statutory rule applies in any given situation.

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 In addition to state statutes and regulations, case decisions by state
courts are also law. The reason is because the American legal system
follows a principle called “stare decisis,” which is Latin for “to stand by
things decided.” What that means is that lower courts must follow prior
precedents in higher court decisions. For example, if a higher state court
decides to recognize the tort of negligent infliction of emotional distress,
then that becomes the law of the state for all the lower courts, and all the
lower courts must also recognize that tort. In that circumstance the
precedent is called "binding."

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 Binding precedent consists of case decisions from an appellate court
higher in authority than the court hearing the matter. In most states, there
are two levels of appellate courts. The highest appellate court is usually
called the supreme court. Under the supreme court are typically multiple
additional courts of appeal. And at the bottom of the hierarchy are the trial
courts. (Sometimes there are regional trial courts and then additional local
trial courts below that level.) So published decisions of the supreme court
are binding on the courts of appeal, and decisions of the supreme court and
the courts of appeal are binding on the trial courts. That means the
appellate courts must follow supreme court precedents, and trial courts must
follow the decisions of the supreme court and the appellate courts.

However, the decision of one appellate court is not binding on other

appellate courts on the same level in the federal or state hierarchy. So, if
your case is pending before an appellate court, instead of a trial court, then
decisions of the other appellate courts on the same level (not the supreme
court) are merely "persuasive." That means the appellate court you are
before doesn’t have to follow the decisions of the other appellate courts at
the same level. You can still use other appellate court cases to try to
persuade the court to rule one way or another. But if the court doesn't agree
with the decisions in those cases, it is free to disregard them. And if there
are disputes among the appellate courts as to an issue, then it is up to the
supreme court to resolve the issue one way or another.

In addition, the higher court has to be in the same jurisdiction for a

decision to be binding. So if you have a case before a state court in Florida,
then decisions from the Florida appellate courts are binding, not decisions
from any other state appellate courts. Also, the decision has to involve the
same type of issue. So it is decisions on Florida state law that are binding
in that situation, not decisions on the law of other states.

In Florida there is one Supreme Court, five District Courts of

Appeal, twenty Circuit Courts (the regional trial courts) and sixty-seven
County Courts (the local trial courts). Opinions of the trial courts,
including the County Courts and Circuit Courts are usually not published.
So reported cases in Florida consist primarily of decisions by the Florida

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Supreme Court and the District Courts of Appeal. The reporter for those
cases is called “Florida Cases.” They are also published in a regional
reporter called the “Southern Reporter.”

In law school students spend most of their first year studying tort
law, contract law and property law. All of that law is contained in state
court cases, and is called "common law." Because common law is state law,
the principles of tort law, contract law and property law vary from state to
state. Again, students don't learn the common law of any one state in law
school. Students are taught common law by reading examples of cases in
different states. After law school, when students study for the bar exam,
they learn the common law of the state they are seeking to practice in.

There are also state executive orders, which are really not “law,” but
which are nonetheless mandatory rules citizens of the state are required to
follow. Unlike statutes, regulations and case decisions, executive orders are
usually not codified or published. However, you can access them through
the executive office or on line. For example, the state executive orders for
Florida are available on line at the Florida government website.

C. Federal Statutes, Regulations and Cases

The third source of law is federal law. At the federal level, there is
the U.S. Constitution, which is the source of federal law, as well as federal
statutes and regulations, federal court cases, and executive orders. Federal
statutes are codified in the United States Code. Each volume of the code is
called a “title,” and each title deals with a different topic. Here is a list of
the titles of the United States Code:

Title 1—General Provisions

Title 2—The Congress
Title 3—The President
Title 4—Flag And Seal, Seat Of Government, And The States
Title 5—Government Organization And Employees; and
Appendix
Title 6—Domestic Security

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Title 7—Agriculture
Title 8—Aliens And Nationality
Title 9—Arbitration
Title 10—Armed Forces
Title 11—Bankruptcy; and Appendix
Title 12—Banks And Banking
Title 13—Census
Title 14—Coast Guard
Title 15—Commerce And Trade
Title 16—Conservation
Title 17—Copyrights
Title 18—Crimes And Criminal Procedure; and Appendix
Title 19—Customs Duties
Title 20—Education
Title 21—Food And Drugs
Title 22—Foreign Relations And Intercourse
Title 23—Highways
Title 24—Hospitals And Asylums
Title 25—Indians
Title 26—Internal Revenue Code
Title 27—Intoxicating Liquors
Title 28—Judiciary And Judicial Procedure; and Appendix
Title 29—Labor
Title 30—Mineral Lands And Mining
Title 31—Money And Finance
Title 32—National Guard
Title 33—Navigation And Navigable Waters
Title 34—Crime Control And Law Enforcement
Title 35—Patents
Title 36—Patriotic And National Observances, Ceremonies,
And Organizations
Title 37—Pay And Allowances Of The Uniformed Services
Title 38—Veterans' Benefits
Title 39—Postal Service
Title 40—Public Buildings, Property, And Works
Title 41—Public Contracts

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 Title 42—The Public Health And Welfare
Title 43—Public Lands
Title 44—Public Printing And Documents
Title 45—Railroads
Title 46—Shipping
Title 47—Telecommunications
Title 48—Territories And Insular Possessions
Title 49—Transportation
Title 50—War And National Defense; and Appendix
Title 51—National And Commercial Space Programs
Title 52—Voting And Elections
Title 53—[Reserved]
Title 54—National Park Service And Related Programs

Federal regulations are published in the Code of Federal

Regulations. Like federal statues, federal regulations are organized by title.
Here is a list of the titles (topics) included in the Code of Federal
Regulations:
Title 1 - General Provisions
Title 2 - Grants and Agreements

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Title 3 - The President
Title 4 - Accounts
Title 5 - Administrative Personnel
Title 6 - Domestic Security
Title 7 - Agriculture
Title 8 - Aliens and Nationality
Title 9 - Animals and Animal Products
Title 10 - Energy
Title 11 - Federal Elections
Title 12 - Banks and Banking
Title 13 - Business Credit and Assistance
Title 14 - Aeronautics and Space
Title 15 - Commerce and Foreign Trade
Title 16 - Commercial Practices
Title 17 - Commodity and Securities Exchanges
Title 18 - Conservation of Power and Water Resources
Title 19 - Customs Duties
Title 20 - Employees' Benefits
Title 21 - Food and Drugs
Title 22 - Foreign Relations
Title 23 - Highways
Title 24 - Housing and Urban Development
Title 25 - Indians
Title 26 - Internal Revenue
Title 27 - Alcohol, Tobacco Products and Firearms
Title 28 - Judicial Administration
Title 29 - Labor
Title 30 - Mineral Resources
Title 31 - Money and Finance: Treasury
Title 32 - National Defense
Title 33 - Navigation and Navigable Waters
Title 34 - Education
Title 36 - Parks, Forests, and Public Property
Title 37 - Patents, Trademarks, and Copyrights
Title 38 - Pensions, Bonuses, and Veterans' Relief
Title 39 - Postal Service

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 Title 40 - Protection of Environment
Title 41 - Public Contracts and Property Management
Title 42 - Public Health
Title 43 - Public Lands: Interior
Title 44 - Emergency Management and Assistance
Title 45 - Public Welfare
Title 46 - Shipping
Title 47 - Telecommunication
Title 48 - Federal Acquisition Regulations System
Title 49 - Transportation
Title 50 - Wildlife and Fisheries

Federal law trumps state law in the same way that state law trumps
local law. In the case of federal law, the reason is because of the supremacy
clause of the U.S. Constitution. The supremacy clause states that the
federal constitution, federal laws made pursuant to it, and treaties made
under its authority, constitute the "supreme law of the land", and thus take
priority over any conflicting state laws. So if you find a federal law and a
state law on the same topic, and the two laws are in conflict, the federal law
takes precedence over the state law.

Like state cases, federal cases are also considered law because of the
principle of stare decisis. Opinions of the federal court of last resort, the

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U.S. Supreme Court, are published in three places: “U.S. Reports,”
“Supreme Court Reports,” and “Supreme Court Reports, Lawyers’
Edition.” The official reporter is U.S. Reports; Supreme Court Reports is
published by West and includes something called “case headnotes,” a
research tool I’ll explain later.

Decisions of the federal appellate courts, called the U.S. Circuit

Courts, are published in a publication called the “Federal Reporter.” Unlike
state trial court cases, opinions of the federal trial courts are also published.
The trial courts are called U.S. District Courts, and decisions of those courts
are published in a reporter called the “Federal Supplement.” Notably, the
decisions in the Federal Supplement are persuasive not binding.

There is obviously only one U.S. Supreme Court, but there are
thirteen U.S. Courts of Appeal (there are twelve circuits plus the federal
circuit), and there are ninety-four U.S. District Courts (i.e. trial courts).

There are also federal executive orders, which, like state executive
orders, are really not “law.” However, unlike state executive orders, federal
executive orders are published in a publication called the “Federal
Register,” and they are also available at the Register’s website.

D. International Treaties, Compacts and Agreements

Last but not least are international treaties, compacts and

agreements. Obviously, an in depth discussion of international law would
be far beyond the scope of this book. For our purposes, you should just be
aware of the existence of these materials and their potential applicability to
cross border transactions. If a client ever hires you to work on a case
involving trade, transactions or other conduct extending beyond the U.S.
border, then that is a situation where you will have to get up to speed on
international law.

International laws can be found at the website for the U.S. Office of
Treaty Affairs (OTA). The OTA compiles and publishes treaties and

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international agreements to which the United States is a party in the Treaties
and International Acts Series (TIAS), which is only available to the public
on line. Also, HeinOnline has a library of U.S. Treaties and Agreements.

Those are the sources of law in the American legal system. It is

important to have that information in your head because there are often
laws on multiple levels applicable to a legal issue. For example, suppose
you were trying to determine what laws apply to the bottling and sale of
beer by a local microbrewery. You would start with local laws applicable
wherever the operation is because they would likely have licensing and
other requirements that have to be met. You would then look at state and
federal laws on labeling and other bottling requirements. You may find, for
example, that the basics are required by federal law, and state law adds
some additional requirements of its own. And you would make sure to
check any regulations promulgated under the federal and state statutes. If
your client was planning to sell the beer over the border in Mexico, you
would also research any international laws applicable to trade with Mexico.
In that situation, you need to know to look in all four places. So it is
important to have the big picture.

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 It is also important to know who publishes the paper version of those
sources. One reason for that is because you refer to the sources by referring
to the books they are published in. For example, if you are referring to a
federal case, you must indicate whether it is published in the Federal
Reporter or the Federal Supplement. You can’t just give someone the
internet address or “URL.” You may have read the case on line, not in
print, but when you refer to it in a memo, or a brief, you will have to state
the name of the book it is published in, as well as the volume and page
number. Even if you do everything on line, you still have to refer to the
books. I’ll explain this more in the chapter on citation.

Lawyers don’t need to know what all the laws are. Lawyers need to
know what laws are out there and where to look for them. There are
basically four (4) sources: local, state, federal, and international. Within
state and federal laws there are three (3) subcategories: statutes and
regulations, cases, and executive orders. And there are three (3) different
types of courts issuing decisions: supreme courts, appeals courts, and trial
courts. Here is a brief chart of showing all the different sources of law in
the American legal system:

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 Knowing what all the sources of law are is the first step on the long
road to being able to practice law well. Knowing how to find specific laws
within those sources (i.e. legal research) is the second. And that is the
subject of the next chapter.

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2. LEGAL RESEARCH

Y ou may be surprised to learn that many of the skills you need to

do legal research well are skills you already have. Just like every
textbook you have ever read, compilations of statutes, regulations
and cases each have their own table of contents in the beginning, and an
index at the end. You know pretty much any information that appears in
print is also available in digital form on the internet or on a CD-ROM or a
flash drive. And you already have experience searching for information
stored that way by using a search engine on a computer.

I remember a long, long time ago, when I first started using the
internet, I thought searching the web was just like doing legal research on

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the computer. Lawyers were using Westlaw and Lexis before consumers
started using the World Wide Web. For you the experience will likely be
the other way around. You will likely find doing legal research with a
computer is just like searching for information on the internet. The process
is not exactly the same but the skills you need are very similar to the ones
you already have.

The two big differences between internet searching and legal

research are first that you have to identify the source you want to search
before you start doing legal research. And there are two types of sources:
primary sources (e.g., statutes, regulations, cases) and secondary sources
(e.g., treatises, encyclopedia, textbooks). Second, you can construct more
sophisticated search queries when you use a legal research website. Among
other things, there are Boolean terms and connectors you can use to tell the
search engine more precisely what you are looking for, including the
following:

/s In same sentence
+s In same sentence and in same order
/p In same paragraph
+p In same paragraph and in same order
/[n] Within n (1-255) terms of
+[n] Within n (1-255) terms of and in same order
% But not
[SPACE] OR connector
& AND connector
! Root expander suffix for variant endings
* Universal single character(s)
(cannot start term)
# Prefix to turn off plurals and equivalents

I'll discuss how to research primary sources first (e.g., statutes,

regulations and cases), then I'll turn to secondary sources (treatises,
restatements, encyclopedia).

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 A. Primary Sources

(i) Statutes and Regulations

There are three options for researching statutes and regulations:

browse the table of contents for the publication you are using, look up your
topic in the index and do a word or phrase search using a search engine on a
website. The first two options are available in print and on-line; the third
option is only available on-line or when the source is in digital form. If you
choose to do the research on line, there are paid services you can use, like
Westlaw, Lexis and Bloomberg Law. And there are also free services, like
the U.S. Government Publishing Office website “GovInfo.”

So, for example, if you were looking for the federal law prohibiting
employers from discriminating against employees on the basis of age, you
might start by looking in the table of contents for the United States Code,
either on line or in print. Here is an excerpt of what you would find:

TITLE 20 - EDUCATION
TITLE 21 - FOOD AND DRUGS

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 TITLE 22 - FOREIGN RELATIONS AND INTER
COURSE
TITLE 23 - HIGHWAYS
TITLE 24 - HOSPITALS AND ASYLUMS
TITLE 25 - INDIANS
TITLE 26 - INTERNAL REVENUE CODE
TITLE 27 - INTOXICATING LIQUORS
TITLE 28 - JUDICIARY AND JUDICIAL PROCED
URE
TITLE 28a - JUDICIAL PERSONNEL FINANCIAL
DISCLOSURE REQUIREMENTS
TITLE 29 - LABOR
TITLE 30 - MINERAL LANDS AND MINING
TITLE 31 - MONEY AND FINANCE
TITLE 32 - NATIONAL GUARD
TITLE 33 - NAVIGATION AND NAVIGABLE
WATERS
TITLE 34 - CRIME CONTROL AND LAW EN
FORCEMENT
TITLE 35 - PATENTS
TITLE 36 - PATRIOTIC AND NATIONAL OBSERVANCES,
CEREMONIES, AND ORGANIZATIONS
TITLE 37 - PAY AND ALLOWANCES OF THE UNIFORMED
SERVICES
TITLE 38 - VETERANS’ BENEFITS
TITLE 39 - POSTAL SERVICE
TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND
WORKS

Title 29, which contains federal labor laws, seems the most likely to
contain what you are looking for. If you then browsed through the table of
contents for Title 29, you would find this:

CHAPTER 10—DISCLOSURE OF WELFARE AND PENSION

PLANS (§ 301)

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 CHAPTER 11—LABOR-MANAGEMENT REPORTING AND
DISCLOSURE PROCEDURE (§§ 401 – 531)
CHAPTER 12—DEPARTMENT OF LABOR (§§ 551
– 568)
CHAPTER 13—EXEMPLARY REHABILITATION
CERTIFICATES (§§ 601 – 607)
CHAPTER 14—AGE DISCRIMINATION IN EM
CHAPTER 14-AGE DISCRIMINATION IN
EMPLOYMENT (§§ 621 – 634)
CHAPTER 15—OCCUPATIONAL SAFETY AND HEALTH (§§
651 – 678)
CHAPTER 16—VOCATIONAL REHABILITATION AND
OTHER REHABILITATION SERVICES (§§ 701 – 797)
CHAPTER 17—COMPREHENSIVE EMPLOYMENT AND
TRAINING PROGRAMS (§§ 801 – 991)
CHAPTER 18—EMPLOYEE RETIREMENT INCOME
SECURITY PROGRAM (§§ 1001 – 1461)
CHAPTER 19—JOB TRAINING PARTNERSHIP (§§
1501 – 1792)
CHAPTER 20—MIGRANT AND SEASONAL AGRICULTURAL
WORKER PROTECTION (§§ 1801 – 1872)

Chapter 14 is on age discrimination in employment, so you would

then look at subsections 621 through 634 in Chapter 14. Here is an excerpt
of what you would find next.

§ 621. Congressional statement of findings and

purpose
§ 622. Education and research program;
recommendation to Congress
§ 623. Prohibition of age discrimination
§ 624. Study by Secretary of Labor; reports to President and
Congress; scope of study; implementation of study; transmittal date
of reports
§ 625. Administration

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 § 626. Recordkeeping, investigation, and enforce
ment
§ 627. Notices to be posted
§ 628. Rules and regulations; exemptions
§ 629. Criminal penalties

Section 623 appears to be what you are looking for. That section
provides, in pertinent part, as follows:

(a) Employer practices. It shall be unlawful for an

employer—
(1) to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way
which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s age; or
(3) to reduce the wage rate of any employee in order to
comply with this chapter.

In the alternative, if you had started by looking in the index for the
Code under “discrimination” (again, either on-line or in print), you would
have found, among other things, this reference:

Discovery
Discovery Science and Engineering Innovation
Institutes
Discretionary Fund
Discrimination
Discs (Corporations)
Domestic International Sales Corporations
Disease Prevention and Health Promotion Office
Diseases

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 Disfigurement
Mayhem
Dishes

Searching under discrimination, would have then taken you to this:

Civil Rights
Abortion, Education: 20 USCA § 1688
Actions and Proceedings
Adoption: 42 USCA § 1996b
Advancement of Women and Minorities in Science, Engineering,
and Technology Development Commission: 42 USCA § 1885a NT
Age
Aged Persons
Agricultural and Mechanical Colleges: 7 USCA
§ 323
Agricultural Products, Unfair Trade Practices:
7 USCA § 2303
Agriculture, Socially Disadvantaged Farmers and Ranchers,
Disclosure: 7 USCA § 2279-1
Agriculture Department, Loans: 7 USCA § 2279d

And then, looking under “age,” would have led you to this:

Compensation and Salaries: 29 USCA § 626, 29

USCA § 633a
Congress, Officers and Employees, Actions and Proceedings: 2
USCA § 1311
Domestic Violence, Federal Aid: 42 USCA § 10406
Health Insurance: 42 USCA § 18116
Labor and Employment: 29 USCA § 621 et seq.
Federal Aid: 42 USCA § 6101 et seq.
President of the United States, Executive Office, Officers and
Employees
3 USCA § 454, 3 USCA § 411

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 You could have also found the prohibition against age discrimination
in employment by doing a word search on one of the paid databases, like
Westlaw, Lexis or Bloomberg Law. If you just searched generally under
“age discrimination” in Westlaw your search would have yielded far too
many results. But if you started by narrowing your search to just the U.S.
Code database, you would have located the prohibition at 29 U.S.C. §
623(a). Using a paid database is always the most expensive option, but in
this case, doing a word search would have been the quickest method for
finding what you are looking for.

(ii) Cases

Researching cases is different than researching statutes and

regulations. A West publication called the "Digest" contains a very detailed
and lengthy outline of all the topics discussed in the cases, as well as an
index of all those topics. (There are separate digests for federal cases and
the cases in each state.) Each topic in the Digest has a number assigned to
it, which Westlaw calls a "Key Number." (Lexis and Bloomberg Law have
their own digests and a little different ways of organizing the information
they contain, but the method they use is basically the same). Also, the list
of topics in the Digest is annotated with multiple cases and a highlight of
the discussion of the topic in each case called a “headnote.” So you can get
a quick idea of what is in each case (and whether the case is something you
want to read further) by reading the headnote.

The Digest is not a table of contents and the index is not an index to
the cases (it is an index to the table of contents), but it can still be useful to
think of the Digest as containing the table of contents and index for the
cases in a particular jurisdiction. With statutory research the table of
contents, the index and the statutes are all in the same publication. With
case research the table of contents and the index (the Digest) are in one
publication and the cases are in a different publication. Also, with statutory
research the table of contents and the index refer you to the rules. With
case research the Digest refers you to the cases, and the rules are in the
cases.

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 So, as another example, suppose you were looking for cases
involving claims against a landlord or a tenant for tortious interference with
contractual relations. You might start with the table of contents for the
Digest (on line or in print), and go to the section that covers torts:

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 373 TENANCY IN COMMON
374 TENDER
375 TERRITORIES
377E THREATS, STALKING, AND HARASSMENT
378 TIME
379 TORTS
380 TOWAGE
381 TOWNS
382T TRADEMARKS
384 TREASON
386 TRESPASS

Under torts, you would find, among other things, a section on

tortious interference:

III. TORTIOUS INTERFERENCE, k200-k324

(A) IN GENERAL, k200-k209
(B) BUSINESS OR CONTRACTUAL RELATIONS,
k210-k288
(C) WILLS, INHERITANCES, TRUSTS AND GIFTS,
k289-k299
(D) OBSTRUCTION OF OR INTERFERENCE WITH LEGAL
REMEDIES; SPOLIATION, k300-k324

The section on Business or Contractual Relations would then

include this:

(B) BUSINESS OR CONTRACTUAL RELATIONS,

k210-k288
1. IN GENERAL, k210-k239
2. PARTICULAR CASES, k240-k249
3. ACTIONS IN GENERAL, k250-k255
4. EVIDENCE, k256-k269
5. QUESTIONS OF LAW OR FACT, k270-k279
6. INSTRUCTIONS, k280-k286

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 7. VERDICT AND FINDINGS, k287-k288

And, under Particular Cases, you would find this:

2. PARTICULAR CASES, k240-k249

Key Number Symbol 240 In general
Key Number Symbol 241 Business relations or economic
advantage, in general
Key Number Symbol 242 Contracts in general
Key Number Symbol 243 Landlord and tenant
Key Number Symbol 244 Insurance in general
Key Number Symbol 245 Physicians and health
care; health insurance
Key Number Symbol 246 Attorneys

The result: cases involving claims against a landlord or a tenant for

tortious interference with contractual relations are collected in the Digest
under Key Number 379k243. (You could have also found the applicable
key symbol by using the index, but the index is apparently only available in
print, not on line.)

An alternative to using the Digest is doing a word search on Westlaw,

Lexis, Bloomberg Law, which are all paid sites, or Google Scholar, which is
free.

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 If you searched Westlaw under “landlord tenant tortious interference
contractual relations,” your search will likely retrieve too many results.
Among other things, the search engine will produce landlord tenant cases
that have nothing to do with tortious interference, and tortious interference
cases that don’t involve a landlord or a tenant.

If you revised your search on Westlaw to something like this:

“landlord tenant /p tortious /s interference /s contractual /s relations,” you
would get much closer to the desired result, including cases that mention
the words tortious, interference, contractual and relations in the same
sentence, and either landlord or tenant in the same paragraph as those
sentences. But why would you do that when the publisher already sorted
and filed the cases you are looking for under Key Number 379k243?

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Computer searching can be very effective, but in this situation, I would use
the Digest. Or, better yet, search both ways!

Once you have found what you are looking for you need to make
sure the applicable statute or regulation is the version that was in effect
when the facts at issue occurred. If you are relying on a case, you also need
to make sure it has not since been overruled by some higher authority. In
other words, it is still good law. That process used to be called
“shepardizing,” using a service called “shepards.” Today, it is more often
done on computer using Westlaw, Lexis or Bloomberg Law. For example,
if you reading a case in Westlaw, you will see on the top of the screen what
other cases have cited the case you are reading, and whether there has been
any negative treatment.

B. Secondary Sources

When you are first starting out, and you are unfamiliar with an area
of law, it usually doesn't make sense to go directly to a primary source. In
that situation, you need to get an overview of the topic, and make yourself
familiar with the terminology and the issues, before you can start looking
through specific statutes and cases. And the best way to do that is by
starting with a secondary source. A secondary source is a summary,
discussion or commentary of the law by some expert in the field. You use a
secondary source to do legal research the same way you use primary
sources. Look in the table of contents or the index, or do word or phrase
search using a search engine.

Examples of popular secondary sources used by practitioners

include treatises, like Corbin on Contracts and Prosser and Keaton on
Torts. A treatise is a book or, more likely, a series of books containing all
the legal principles relating to a particular area of law. Restatements are
secondary sources that "restate" the legal rules that constitute the common
law in a particular area. There are restatements of tort law, property law
and contract law written by the American Law Institute. Another useful
secondary source is a legal encyclopedia, like Corpus Juris Secundum and
American Jurisprudence (affectionately known by law students as “CJS”

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and “AmJur”). Legal encyclopedias cover multiple topics and usually span
many volumes of text. CJS and AmJur are national in scope. There are also
similar state specific resources, like Florida Jurisprudence. Try a secondary
source first to get the lay of the land, and then your searches in primary
sources like cases and statutes will likely be more efficient.

Of course, secondary sources are persuasive not binding, so it is

primary sources you will ultimately want to rely on in your memoranda
(and even primary sources are not always binding). The main purpose of
secondary sources is to educate lawyers on a specific topic, and help
lawyers research specific issues relating to that topic. When you are
dealing with an unfamiliar topic, a secondary source will help you get up to
speed and more efficiently research the specific issues involved in your
case.

C. Paper Research v. Computer Research

When you are thinking about the mechanisms that are out there for
doing legal research, don’t fall into the trap of dividing the topic into “paper
research” and “computer research.” The options aren’t to turn on a
computer or open a book. The options are to do a word or phrase search,
search using a table of contents, or look up a topic in an index. When you
do a word search, it is a computer that is compiling the search results for
you. When you us a table of contents or an index (which you could do in
paper or on a computer), the search results are compiled by a human being
who has actually read the source material. And that extra person’s help is
often a plus.

If you research with something like the Digest – whether on a

computer or in a book - you will also have the advantage of being able to
see the topic in context. If you look up a slip and fall case, you will see that
is part of the subject of premises liability, which is under tort law. Also, for
each topic, there are headnotes of cases that have been read and quoted or
paraphrased by a human being.

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 The index of a case Digest has similar advantages. An index also
tells you what topics are included in a series of books or databases, but it is
organized alphabetically instead of by topic. And there are usually cross-
references to related or similar subjects. Again, the topics are filed and
sorted by people not computers. A person can discern the meaning of
language, not just identify a literal match. So you are less likely to retrieve
irrelevant and useless information using table of contents or an index
instead of doing a word search.

You may be more comfortable doing legal research by doing word

or phrase searches. For most of the non-legal searching you do on line,
search engines like Google and Yahoo work great. Also, if you are doing
legal research, and you are looking for a “needle in a haystack,” there is
nothing better than to do a word or phrase search on Westlaw or Lexis. But
you need to be able to use all three methods of searching. If you don’t,
someone who does will always have an advantage over you. In an
adversarial system like the legal system, that is really not what you are
going for.

I once had an auto theft case that involved a juvenile. What was odd
about the case was that, after the juvenile stole the car and drove around in
it, he returned it to the place where he found it. Initially, I thought the fact
that he returned the car would be relevant to intent, and I started looking for
intent cases on Westlaw but I found nothing. Then I used the digest and
looked under the different types of auto theft cases it had listed, and I found
cases organized under a topic labeled “joyriding.” It turns out that is the
term for this type of crime. And Westlaw had all the cases I was looking
for sorted and kept in one place. Once I found the applicable Key Number,
it was easy to find something on point. But it was the digest that saved me,
not a word search.

Another time I was researching the issue of whether the presence of

second hand smoke in an apartment could support a claim for breach of the
implied warranty of habitability. I looked in the digest first and found lots
of warranty of habitability cases, but nothing that specifically involved
second hand smoke. Then I did a word search on Westlaw using “smoke”

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or “smoking” and “warranty of habitability” as a search terms, and all the
state reporters for the entire country as a database and bingo! I found what
I was looking for. The digest didn’t help me, but Westlaw saved the day.

Whether you do the work using a computer or pages in a book is not

what matters. Legal research is not divided into computer research and
paper research, it is divided into primary sources and secondary sources,
each of which can be researched doing a word or phrase search, or using a
table of contents or index. That means there are always at least 9 places to
look when you are researching a legal issue. There are cases that can be
researched using (1) the table of contents, (2) the index or (3) a search
engine; there are statutes and regulations that can be researched using
researched using (4) the table of contents, (5) the index or (6) a search
engine; and there are secondary sources that can also be researched using
(7) the table of contents, (8) the index or (9) a search engine. What works
best depends on the circumstances.

Now that you know how to find cases, we can discuss how to brief
them and then how to apply the legal rules they contain.

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3. BRIEFING CASES

I f all you have in your class notes is “black letter law,” you are unlikely
to do well on your final exams. You need the information in case
briefs to apply the legal principles you learn in each law school class.
That is why law students have been briefing cases since Christopher
Columbus Langdell first invented the casebook method of legal education.
The Proliferation of Case Method Teaching in American Law Schools: Mr.
Langdell's Emblematic "Abomination," 1890-1915, Bruce A. Kimball,
History of Education Quarterly Vol. 46, No. 2 (Summer, 2006), pp. 192-
247.

Case briefs vary in style and format. (Actually, you don’t really
brief a case; you brief an issue. If the case has multiple issues, and you
want to analyze all of them, it is usually best to brief the issues separately.)
A typical brief will at least contain the name of the case, the relevant facts,
the issue before the court, the rule applicable to that issue, the holding and
the court’s reasoning or rationale. Often, the procedural history and
ultimate disposition are also included. Those are also the things you should
be looking for when you read a case, whether you write them down or not.
In other words, when you are reading a case, you should be actively looking
for the relevant facts, the issue, the rule, the holding, and any rationale.

I’ll use the Massachusetts case of Commonwealth v. Sexton to

demonstrate how to write a case brief. This is an example of a case you
might read in a criminal law textbook in a chapter on assault and battery
with a dangerous weapon. You might also find this case in a case digest or
a secondary source on criminal law if you were researching the elements of

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assault and battery with a dangerous weapon. Either way, you would read
this case purposefully to determine, among other things, how the rule is
applied to the specific facts of the case, as well as all the other elements of a
case brief.

The case starts off with the caption identifying the court, the parties
and the date:

Supreme Judicial Court of Massachusetts, Hampden.

COMMONWEALTH v. Everett SEXTON.

Decided: June 05, 1997

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and

FRIED, JJ. Marcia B. Julian, Assistant District Attorney, for the
Commonwealth. Timothy M. Farris, Springfield, for defendant.

The name of the court that decided the case is stated first. The
Supreme Judicial Court is the court of last resort – the highest appeals court
– in the Commonwealth of Massachusetts. The parties are the
Commonwealth of Massachusetts and Everett Sexton (it’s a criminal case).
The case was decided on June 5, 1997. The names of the judges who heard
the case and the attorneys who argued it are also stated. To brief this case,
at least start off with the case name, like this:

Com. v. Sexton

In this case, the court has included a brief introduction before the
opinion. The introduction would be helpful if you were doing legal
research. You could tell by reading it if this is the type of case you are
looking for. But I wouldn’t include it in the case brief since you will be
reading the rest of the case anyway.

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 The defendant, Everett Sexton, was convicted on a joint venture
theory of assault and battery by means of a dangerous weapon and willful
and malicious destruction of property. On appeal, the Appeals Court
affirmed his conviction of willful and malicious destruction of property,
but reversed his conviction of assault and battery by means of a dangerous
weapon on the ground that concrete pavement, the instrumentality at
issue, is not a dangerous weapon. Commonwealth v. Sexton, 41 Mass.
App. Ct. 676, 678-680, 672 N.E.2d 991 (1996). We granted the
Commonwealth's application for further appellate review and affirm the
conviction by the Superior Court.

After the introduction the court states the facts of the case. As you
will see, most of these facts are not relevant to the issue the court is
deciding.

On the evening of August 28, 1992, Jeffrey Czyzewski and a

female companion went to a bar in Holyoke. At the bar, Czyzewski
played a game of pool with the wife of Donald Sexton. Czyzewski
briefly left the pool table. On his return, he accused Sexton's wife of
cheating by moving the pool balls during his absence. Ending the game,
Czyzewski left the pool table and was thereafter approached three
separate times by an agitated Donald Sexton, who demanded an apology.
Czyzewski testified that after the second request, the defendant, Everett
Sexton, the brother of Donald Sexton, approached Czyzewski and said
that he would stand by his brother if anything happened. On the third
occasion, Donald Sexton smashed a beer bottle on the bar, but was
restrained before he could threaten Czyzewski further. Following this
incident, the defendant, his brother, and his brother's wife left the bar.
Shortly thereafter, Czyzewski and his companion went out to the
parking lot and got into their car. Immediately a van pulled up alongside
them and the defendant, his brother, and a third man got out. The
defendant and his brother kicked in the window on the passenger side
where Czyzewski was sitting. The defendant reached through the

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shattered window to grab Czyzewski, attempting to pull him through the
window. At that moment, Czyzewski's companion was able to start the
car and drove out of the parking lot. As they pulled out, the Sextons said,
“Let's go get him,” and returned to the van to follow Czyzewski.
Because their car was about to run out of gas, Czyzewski and his
companion were forced to return to the parking lot, with the van following
behind. Czyzewski left the vehicle and Donald Sexton, the defendant,
and their companion left their van. The defendant and his brother
immediately approached Czyzewski; they began to push and shove him.
The defendant restrained Czyzewski by lifting Czyzewski's jacket over
his head and the brothers threw Czyzewski to the ground. On the ground,
Donald Sexton banged Czyzewski's head against the pavement a number
of times while the defendant repeatedly kicked him. The beating was
interrupted by the bar owner and another man. The Sexton brothers left
before the police arrived.

To brief this case, you would outline the facts, not copy them; and
you would eliminate unnecessary or irrelevant facts. Here is an example:

Facts: This case involves a fight that occurred in a

parking lot outside a bar in Holyoke, Massachusetts.
Sexton and his brother pushed and shoved Czyzewski.
They lifted Czyzewski's jacket over his head and threw
him to the ground. On the ground, the brother banged
Czyzewski's head against the pavement a number of
times while Sexton repeatedly kicked him.

After the facts, the court describes the procedural history and the
rationale for the lower court’s decision.

The Appeals Court held that the defendant possessed the requisite
intent and knowledge to be guilty of assault and battery by means of a
dangerous weapon on a joint venture theory, but reversed this conviction
on the ground that “concrete pavement” is not a dangerous weapon under

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G.L. c. 265, § 15A. Commonwealth v. Sexton, supra at 678-679, 672
N.E.2d 991. At trial, the judge had instructed the jury that “concrete
pavement” could be considered a dangerous weapon if the jury found that
it was “used in such a way that [it was] capable of causing death or
serious[ ] bodily injury to a person.” While the Appeals Court agreed
that “ordinarily the determination whether an object that is not dangerous
per se is a dangerous weapon under § 15A is a question of fact for the
jury,” Commonwealth v. Sexton, 41 Mass. App. Ct. 676, 679, 672 N.E.2d
991 (1996), citing Commonwealth v. Appleby, 380 Mass. 296, 305, 402
N.E.2d 1051 (1980); Commonwealth v. Marrero, 19 Mass. App. Ct. 921,
922, 471 N.E.2d 1356 (1984), concrete pavement did not fit the statutory
definition and thus “[did] not qualify as a dangerous weapon[ ] under
§ 15A as a matter of law.” Id., citing Commonwealth v. Shea, 38 Mass.
App. Ct. 7, 15, 644 N.E.2d 244 (1995) (ocean); Commonwealth v. Davis,
10 Mass. App. Ct. 190, 193, 406 N.E.2d 417 (1980) (human teeth). The
Appeals Court reached this holding by reading Commonwealth v. Shea,
supra, to conclude that a dangerous weapon “is an object or
instrumentality that the batterer is able to wield to inflict serious injury or
death upon another.” Commonwealth v. Sexton, supra. Because the
pavement was not an item with which the defendant “could arm himself,”
but was instead “simply part of the surroundings in which the defendant
found himself while perpetrating an assault,” id., the Appeals Court
rejected the Commonwealth's argument that, in the circumstances, the
pavement met the statutory requirements because it was “used in a
manner that was capable of producing serious bodily harm.”
The Appeals Court also supported its decision by noting that “it is
a well settled principle of statutory construction that criminal statutes are
to be strictly construed.” Commonwealth v. Sexton, supra at 679, 672
N.E.2d 991, citing Commonwealth v. Campbell, 415 Mass. 697, 699, 616
N.E.2d 430 (1993). In construing G.L. c. 265, § 15A, we note that the
phrase “dangerous weapon” is not defined. Instead, we have consistently
looked to our precedent in applying this label. We find nothing in our
case law which precludes our holding today, see Commonwealth v.
Statham, 38 Mass. App. Ct. 582, 584, 650 N.E.2d 358 (1995) (case law
interpretation controls in absence of statutory definition), nor do we think

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it contravenes the intent of the Legislature, which chose to invoke greater
penalties for assaults which threatened serious injury because an actor
chose to employ a dangerous weapon.

Then the court states the issue and begins its analysis by
summarizing prior opinions on this topic.

This case presents an issue of first impression, in that we have not

previously addressed whether stationary objects can be considered
dangerous weapons in Massachusetts. The statute, G.L. c. 265, § 15A,
does not define the term “dangerous weapon,” but we have stated
previously that there are things which are dangerous per se and those
which are dangerous as used. Commonwealth v. Appleby, 380 Mass. 296,
303, 402 N.E.2d 1051 (1980). We have defined the former class as
“instrumentalit[ies] designed and constructed to produce death or great
bodily harm.” Id. In the latter class are things which become dangerous
weapons because they are “used in a dangerous fashion.” Id. at 304, 402
N.E.2d 1051. In such cases it is generally “a question for the fact finder
whether the instrument was so used in a particular case.” Id.
Commonwealth v. Farrell, 322 Mass. 606, 614-615, 78 N.E.2d 697
(1948). See Commonwealth v. Davis, supra at 193, 406 N.E.2d 417 (fact
finder looks to the “circumstances surrounding the crime [including], the
nature, size and shape of the object, and the manner in which it is handled
or controlled”). In evaluating different situations, the determination has
invariably turned on “use,” and our courts have repeatedly held that
ordinarily innocuous items can be considered dangerous weapons when
used in an improper and dangerous manner. See Commonwealth v. Scott,
408 Mass. 811, 822-823, 564 N.E.2d 370 (1990) (gag); Commonwealth v.
Barrett, 386 Mass. 649, 655-656, 436 N.E.2d 1219 (1982) (aerosol spray
can); Commonwealth v. Appleby, supra at 304-305, 402 N.E.2d 1051
(riding crop); Commonwealth v. Tarrant, 367 Mass. 411, 418, 326 N.E.2d
710 (1975) (German shepherd dog); Commonwealth v. Farrell, supra at
615, 78 N.E.2d 697 (lighted cigarettes); Commonwealth v. Mercado, 24
Mass. App. Ct. 391, 395, 509 N.E.2d 300 (1987) (baseball bat);
Commonwealth v. LeBlanc, 3 Mass. App. Ct. 780, 780, 334 N.E.2d 647

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(1975) (automobile door swung knocking police officer down). Our
courts have also noted, with approval, decisions in other jurisdictions
which have found otherwise innocent items to fit this classification when
used in a way which endangers another's safety. Commonwealth v.
Appleby, supra at 304, 402 N.E.2d 1051. Commonwealth v. Davis, supra
at 192-193, 406 N.E.2d 417. See United States v. Loman, 551 F.2d 164,
169 (7th Cir.), cert. denied, 433 U.S. 912, 97 S.Ct. 2982, 53 L.Ed.2d 1097
(1977) (walking stick); United States v. Johnson, 324 F.2d 264, 266 (4th
Cir.1963) (chair brought down upon victim's head); People v. White, 212
Cal.App.2d 464, 465, 28 Cal. Rptr. 67 (1963) (a rock); Bennett v. State,
237 Md. 212, 216, 205 A.2d 393 (1964) (microphone cord wrapped
around victim's neck); People v. Buford, 69 Mich. App. 27, 30, 244
N.W.2d 351 (1976) (dictum) (automobile, broomstick, flashlight and
lighter fluid may all be dangerous weapons as used).

To continue with the case brief, you would then state the issue, like
this:

Issue: Whether concrete pavement can be considered a

dangerous weapon.

You will notice my statement of the issue is more specific than the
court’s statement of the issue. I referred to the “concrete pavement” while
the court just referred to “stationary objects.” The issue usually involves
the application of a legal principle to specific facts. Whether the court
states the specific facts or not, you should state the issue as an application
of law to specific facts in your case briefs.

It would be nice if all courts wrote case opinions in a uniform way,

and each of them specifically identified the relevant facts, the issue, the rule
applicable to that issue, the holding and the reasoning for the decision. But
it doesn’t work that way. Case opinions may be used to educate law
students, but judges do not write case opinions for that purpose. So you
will often find the wording of the case needs to be translated for your case
briefs. In addition, the court doesn’t always explain its reasoning, so it is

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not unusual for you to have to extrapolate from what is there to determine
what the reasoning must have been.

Next the court states its decision and, in this case, the court also
explains the reasoning for its decision.

We do not agree with the Appeals Court that, to be a dangerous

weapon, the defendant must be able to wield the item at issue, nor do we
think it relevant that the pavement was present as part of the environment
in which the defendant chose to participate in this assault. Prior to the
Appeals Court's decision in Commonwealth v. Shea, supra, the only
explicit restriction on our use-based categorization of dangerous weapons
held that human teeth and other parts of the human body were not
dangerous weapons because they are not “instrumentalities apart from the
defendant's person.” Commonwealth v. Davis, supra at 193, 406 N.E.2d
417. In Shea, a case in which the defendant pushed two women from his
boat and sped off, leaving them five miles off shore, the Appeals Court
found that, while “the ocean can be and often is dangerous, it cannot be
regarded in its natural state as a weapon within the meaning of § 15A,”
because “in its natural state [it] cannot be possessed or controlled.”
Commonwealth v. Shea, supra at 15-16, 644 N.E.2d 244. We believe
that this is too narrow a reading of the instrumentality and use language
we have employed when we have defined dangerous weapons as “an
instrument or instrumentality which, because of the manner in which it is
used, or attempted to be used, endangers the life or inflicts great bodily
harm.” Commonwealth v. Farrell, supra at 615, 78 N.E.2d 697. While
one might not be able to possess the ocean or exercise authority over it in
a traditional sense, Commonwealth v. Shea, supra at 16, 644 N.E.2d 244,
one could certainly use it to inflict great harm, such as by holding
another's head underwater.1
Likewise, it is obvious that one could employ concrete pavement,
as the defendant and his brother did here, to cause serious bodily harm to
another by banging the victim's head against the hard surface. As the
Commonwealth points out, there would be no problem in convicting a
defendant of assault and battery by means of a dangerous weapon if he

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used a broken slab of concrete to bludgeon his victim. We see no reason
to hold that such a conviction cannot stand merely because the
instrumentality in question is a fixed thing at the time of its dangerous
use.
A number of other jurisdictions which have considered this
question have also held that an object's stationary character does not
prevent its use as a dangerous weapon. United States v. Murphy, 35 F.3d
143, 147 (4th Cir.1994), cert. denied, 513 U.S. 1135, 115 S.Ct. 954, 130
L.Ed.2d 897 (1995) (steel cell bars); State v. Brinson, 337 N.C. 764, 766,
448 S.E.2d 822 (1994) (cell bars and floor); People v. O'Hagan, 176
A.D.2d 179, 179, 574 N.Y.S.2d 198 (1991) (cell bars); People v. Coe, 165
A.D.2d 721, 722, 564 N.Y.S.2d 255 (1990) (plate glass window); State v.
Reed, 101 Or. App. 277, 279-280, 790 P.2d 551 (1990) (sidewalk);
People v. Galvin, 65 N.Y.2d 761, 762-763, 492 N.Y.S.2d 25, 481 N.E.2d
565 (1985) (same).2 As North Carolina recognized, an item's dangerous
propensities “often depend [ ] entirely on its use,” State v. Brinson, supra
at 769, 448 S.E.2d 822, and not its mobility, for “[w]hether the pitcher
hits the stone or the stone hits the pitcher, it will be bad for the pitcher.”
State v. Reed, supra at 280, 790 P.2d 551, quoting Cervantes, Don
Quixote, Part II, ch. 43 (1615). We hold that one who intentionally uses
concrete pavement as a means of inflicting serious harm can be found
guilty of assault and battery by means of a dangerous weapon.

Sometimes you have to tease the holding, rule and reasoning from the
court’s opinion, as they are not often separately stated. In this case,
however, the holding is stated at the end of the previous paragraph. To state
it in a case brief, you would just paraphrase the language to track the
language of the issue, like this:

Holding: Concrete pavement can be considered a

dangerous weapon.

As for the rule, the court refers to the rule in a number of places, and
then clearly states it by quoting from the case of Com.v. Farrell.

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 Rule: A dangerous weapon is “an instrument or
instrumentality which, because of the manner in which
it is used, or attempted to be used, endangers the life
or inflicts great bodily harm.”

Once you have stated the facts, the issue, the holding and the rule,
you would then paraphrase the court’s reasoning. Here is how I did it for
this case:

Reasoning: The defendant does not have to be able to

“wield” an item for it to be a dangerous weapon; and
it is irrelevant whether the instrumentality is part of
the environment. If the defendant used a broken slab
of concrete to bludgeon his victim, the slab would be a
dangerous weapon. The result should not be different
“merely because the instrumentality in question is a
fixed thing at the time of its dangerous use.”

In the rest of the case the court dispenses with a second issue that is
not relevant to the topic for this brief. (Even though they are called “case
briefs” they are really briefs of a specific issue dealt with in a case, so the
parts of the case that deal with other issues need not be included.)

Finally, we agree with the Appeals Court that the jury were
presented with sufficient evidence to find that the defendant possessed the
requisite intent and knowledge to be guilty of assault and battery by
means of a dangerous weapon under a joint venture theory. From the
defendant's statements and actions it is apparent that he possessed the
intent to engage in an assault and battery with his brother. While he may
not initially have had knowledge that his brother intended to use the
pavement to effectuate the attack, as the Appeals Court noted, “there is no
need to prove an anticipatory compact between the parties to establish
joint venture,” Commonwealth v. Sexton, supra at 678, 672 N.E.2d 991,
citing Commonwealth v. Fidler, 23 Mass. App. Ct. 506, 513, 503 N.E.2d
1302 (1987), if, “at the climactic moment the parties consciously acted

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together in carrying out the criminal endeavor.” Commonwealth v.
Young, 35 Mass. App. Ct. 427, 435, 621 N.E.2d 1180 (1993). The
defendant continuously kicked and punched Czyzewski while his brother
repeatedly slammed Czyzewski's head into the pavement. At no time
during this conflict did the defendant seek to withdraw.

At the end of the case is the ultimate disposition, and the “footnotes”
for the text of the opinion (they are really “endnotes” but the publishers
usually call them “footnotes.”).

The conviction of assault and battery by means of a dangerous

weapon is affirmed.
So ordered.
FOOTNOTES
1. While we take issue with some of the reasoning in Shea, we do not
necessarily disagree with the result the court reached in that case. In
Shea, the danger posed by the ocean was not a result of the defendant
bringing his victims into contact with that body of water, but rather the
circumstances which followed when he deserted them, five miles from
shore. We contrast this to a situation in which a defendant might drop his
victim into a vat of acid, in which the mere contact with the substance
would directly pose the risk of serious bodily harm.
2. While other jurisdictions have taken a contrary position, we do not
find them sufficiently apposite. In Edwards v. United States, 583 A.2d
661, 663-664 (D.C.1990), in determining whether bathroom fixtures
could be considered dangerous weapons, the court was applying a statute
which addressed crimes committed by a person “armed with or having
readily available any pistol or other firearm ․ or other dangerous or deadly
weapon,” which went on to enumerate the types of specific
instrumentalities the statute contemplated, carrying with its violation a
possible life sentence. Although the Supreme Court of Louisiana
rejected concrete as a dangerous weapon, it did so in the context of a
defendant striking his victim and “caus[ing] him to fall upon the concrete
and sustain injuries,” State v. Legendre, 362 So.2d 570, 571 (La.1978), a

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scenario quite different from the purposeful and deliberate use of the
pavement as a means of beating another which we must examine.
Likewise, a Missouri appellate court found it “untenable to suggest that
the dangerous instrument or deadly weapon components” of its statute
were implicated in a case where the defendant beat a woman against a
door casing and plumbing fixtures, but only considered whether the
defendant's fists met this definition, never addressing the defendant's use
of stationary objects he employed. State v. Johnson, 770 S.W.2d 263, 269
(Mo.Ct.App.1989). Only State v. Houck, 652 So.2d 359, 360 (Fla.1995)
(pavement and other passive objects not considered weapons as matter of
law), directly contradicts our holding.

Here is what a finished case brief would look like:

Com. v. Sexton

Facts: This case involves a fight that occurred in a

parking lot outside a bar in Holyoke, Massachusetts.
Sexton and his brother pushed and shoved Czyzewski.
They lifted Czyzewski's jacket over his head and threw
him to the ground. On the ground, the brother banged
Czyzewski's head against the pavement a number of
times while Sexton repeatedly kicked him.

Issue: Whether concrete pavement can be considered a

dangerous weapon.

Holding: Concrete pavement can be considered a

dangerous weapon.

Rule: A dangerous weapon is “an instrument or

instrumentality which, because of the manner in which
it is used, or attempted to be used, endangers the life
or inflicts great bodily harm.”

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 Reasoning: The defendant does not have to be able to
“wield” an item for it to be a dangerous weapon; and
it is irrelevant whether the instrumentality is part of
the environment. If the defendant used a broken slab
of concrete to bludgeon his victim, the slab would be a
dangerous weapon. The result should not be different
“merely because the instrumentality in question is a
fixed thing at the time of its dangerous use.”

Case brief formats vary in the level of detail they include. As I said
in the beginning, you could also include the original procedural history and
ultimate disposition. If there is a dissenting opinion, you could summarize
that as well. The most detailed case brief is likely the best, but taking that
time to brief every case you read with a very high level of detail is not an
option for many law students.

What some law students end up doing to save time is “margin

briefing.” For example, instead of figuring out what facts are relevant and
writing them down, the student will just circle the fact section in the
opinion and write “facts” in the margin. That works o.k. for some sections
of the brief, and it definitely saves time. The problem is, again, the
elements of a brief are often not specifically stated in an opinion; and you
won’t learn them if you don’t take the time to figure out what they are. So
you won’t learn as much by briefing that way.

Once you have briefed all the cases, the semester is over and you are
studying for an exam, you may want to distill the briefs even further to
annotate your outline of what the course covered. In that situation, make
sure you include, at a minimum, answers to the following three questions.
What happened? What did the court decide? And why did the court decide
the case that way? For example, if I were doing an outline of my criminal
law course to study for the final exam, I would probably annotate my
outline with case cites and brief summaries of what I learned from each
case. In that situation, my summary of Com. v. Sexton might just be
something like this:

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 The defendant banged the victim's head into stationary
concrete. The court held the defendant committed assault
and battery with a dangerous weapon. Hitting someone
over the head with a piece of concrete would have
satisfied the elements of the crime; this was basically the
same thing, except the other way around. Com. v. Sexton

I know that’s really brief, but that does capture the essence of what
was decided in that case. A more detailed brief would be better but I found
I could only cram so much information into my head for a final exam. If
the course only covered a few cases, then I would have done a more
detailed summary. But a semester course in criminal law usually covers a
lot of cases. My criminal law exam was closed book, so I had to commit to
memory what I learned from each case. Plus criminal law wasn't the only
course I took that semester. You may be able to do more, but I found I
needed something more concise than a case brief to study for final exams.

When you start practicing law you will likely want to adopt an even
more precise approach to reading cases. When I am doing research now, I
initially skip the case headnotes, skim through the background information,
the procedural history, and any discussion of prior cases. What I am
looking for is how the court applied the rule to the specific facts of the case.
That is at the precedent at the core of every case. I find that first and then
decide whether the case is appropriate for whatever analysis I am doing. If
it is then go back to see if there are other things in the opinion I can use or
need to review to fully understand the decision.

In law school, the situation is different. You need to learn the

process more than the rules; and your professor has already determined the
cases you are asked to read are relevant and useful for understanding
whatever subject you are being taught. So it would be mistake to just take
notes on the “black letter law” in each case. You need to also understand
the reasoning, and you need to be able to determine which facts are relevant
and which are not. If you don't accomplish that you won't be able to apply

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the rule to an exam question or a research issue. That is why law students
don’t just read cases, they brief them. When it is time for finals you can
further distill the information in your brief but that doesn't mean you should
skip the process of briefing cases as you read them.

Having learned how to do a case brief, we have what we need to

apply the cases to a legal issue, either by analogizing or distinguishing the
relevant facts.

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4. APPLYING CASES AND
ANALOGICAL REASONING

W hen you are sitting in your torts class, or your property class,
or your contracts class, listening to your professor talk about
case decisions, you may wonder, as I did when I was in law
school, why the professor doesn’t just tell you what the rules are (i.e. what
is the “black letter law”), like they do in supplements (in my day they were
called “horn books”). Hundreds of years ago, when Christopher Columbus
Langdell founded the Harvard Law School, he decided it would be best not
to do that, but rather to train lawyers using the case book method.

If your tort professor just told you liability in a tort case depends on
whether the party exercised “reasonable care,” you wouldn’t be able to do
very much with that information. The legal rule is purposely vague. As a
result, you can’t apply it without looking at some examples. To put it
another way, you need to read the cases – and pay particular attention to the
facts of the cases - to fully understand what the rule is.

If you have a reported case that says a specific type of conduct is

unreasonable, and your case involves conduct that is similar, you analyze
your case by drawing analogies to the reported case to support the inference
that the judge in your case should come to the same result as the judge in
the reported case. And in order to make those analogies, you need to know
what all the characteristics of the reported case are, including, among other
things, the facts, the holding and the rationale. A case brief is an outline of

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those characteristics. A case brief is an outline of the information you need
to do a case analogy.

A. Analogizing a Case to a Fact Pattern

To demonstrate how to do a case analogy, I’ll start with an example

of a tort case. Suppose you have a client named Margaret Bradbury. Ms.
Bradbury rents an apartment at “Ocean Park at Ponte Vedra,” an apartment
complex in Jacksonville Beach, Florida. She was injured recently when she
fell in her shower, and she wants to sue her landlord for damages.

Ms. Bradbury tells you that she was taking a shower in her
apartment, like she did every morning. Her back was sore as a result of
some gardening she had done the day before. When she got out of the
shower she needed a little support. There is a rail next to the shower door
she had been using as a towel rack. As she exited, she grabbed the rail for
support, and it ripped right out of the wall and caused her to fall. She
couldn’t tell by looking at it but the rail was apparently not securely
attached to the wall. As a result of the fall, Ms. Bradbury suffered personal
injuries, including a badly sprained ankle and wrist. She has medical
expenses and lost wages, and she blames the landlord for what she feels
was an unsafe condition in her apartment.

Now suppose you do some research and find a case that seems
analogous to your case. The case says that a landlord has a duty to
“reasonably inspect the premises before allowing the tenant to take
possession, and to make the repairs necessary to transfer a reasonably safe
dwelling unit to the tenant.” The case is Fitzgerald v. Cestari. Read
through the case to analyze Ocean Park’s liability for transferring the unit to
Ms. Bradbury with the allegedly unsafe rail in her shower; and brief the
case as you read it. Also, assume for the purposes of this example that there
is no violation of the building code in Ms. Bradbury’s case.

569 So. 2d 1258 (1990)

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 Terry FITZGERALD, Etc., Petitioner,
v.
Jan CESTARI, et Ux., Respondents.
No. 75538.
Supreme Court of Florida.
November 8, 1990.
Kenneth R. Drake of Touby, Smith, Demahy & Drake, Miami, for
petitioner.
Richard A. Sherman and Rosemary B. Wilder of the Law Offices
of Richard A. Sherman, P.A., Fort Lauderdale, for respondents.
EHRLICH, Justice.
We have for review Fitzgerald v. Cestari, 553 So. 2d 708 (Fla. 4th
DCA 1989), because of apparent conflict with the decisions of several
district courts of appeal. We have jurisdiction, article V, section (3)(b)(3),
Florida Constitution, and approve the decision below.
Petitioner, Terry Fitzgerald, filed suit against the Cestaris seeking
damages for injuries suffered by her seven-year-old daughter, Brandi,
when Brandi ran through a sliding glass door in a single family dwelling
owned by the Cestaris and leased by the Cavanaughs. The accident *1259
occurred while Brandi was visiting the Cavanaughs. The complaint
alleges that the sliding glass door which was in the rear of the house and
which previously had been opened was closed while Brandi was playing
in the front yard. Brandi ran through the house, en route to her
grandparents' house which was behind the house occupied by the
Cavanaughs, colliding with the door. The glass door was not made of
safety glass and had no decals or other markings on it. Count I of the
amended complaint alleged that the Cestaris breached their duty of care to
keep the premises in a reasonably safe condition and to give timely notice
of latent or concealed perils, by failing to place decals or other markings
on the sliding glass door, and by failing to inspect and repair the sliding
glass door because it was not composed of safety glass, as required by the
Southern Standard Building Code. Count II alleged that Brandi was a

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member of the class which was to be protected by the Southern Standard
Building Code and, therefore, the Cestaris' failure to maintain their
premises in conformity with the code constituted negligence per se.
The Cestaris filed a motion for summary judgment, asserting that
the lack of safety glass was a latent defect that was not discoverable by
them through normal inspection and that, under the doctrine of Slavin v.
Kay, 108 So. 2d 462 (Fla. 1958), it was the negligence of the original
builder of the premises, who installed the doors, that was the proximate
cause of the injuries. In an affidavit filed in support of the motion for
summary judgment, Jan Cestari asserted that the glass in the door was the
original glass installed in the home when he purchased it; that he and his
family were unaware of the type of glass that comprised the door; and that
the type of glass in the door was not readily discoverable by his
inspection.
The trial court granted summary judgment, finding that as a matter
of law the Cestaris had no duty to investigate and determine the type of
glass used in the doors and that the Cestaris had no duty to place decals or
other markings on the door. A transcript of the deposition of Norman
Spangler,[1] a sliding glass door expert, was filed in conjunction with
Fitzgerald's motion for rehearing which was denied. Mr. Spangler testified
that there are several types of safety glass, including tempered glass,
laminated glass and wired glass which could be used in sliding glass
doors. However, the only type of safety glass he had seen used in such
doors was tempered glass. He testified that one cannot tell if a sliding
glass door is tempered or untempered by the look of the glass. This can be
determined by looking for markings in the corners of the glass. According
to Mr. Spangler, tempered glass typically is imprinted with the
manufacturer's name, the thickness of the glass and the fact that the glass
is tempered. Mr. Spangler testified that to his knowledge, nonsafety glass
has no markings at all. He further testified that a person not in the sliding
glass door business would have to call a glass shop to learn that if there
are no markings on the glass in a sliding glass door it is not tempered for
safety.

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 On appeal, the Fourth District Court of Appeal affirmed. The court
reasoned that, as a matter of law, the defect in the sliding glass door was a
latent defect of which the Cestaris had no knowledge and which
reasonable inspection would not have disclosed to them. The court held
that under the Slavin doctrine it is the original builder who should be held
accountable for the injury. 553 So. 2d at 709. The district court also
rejected Fitzgerald's argument that a line of Florida cases, including
Peppermint Twist, Inc. v. Wright, 169 So. 2d 330 (Fla. 3d DCA 1964) and
Canner v. Blank, 152 So. 2d 193 (Fla. 3d DCA 1963), establish that cases
involving sliding glass doors present factual questions for the jury. The
district court concluded that those cases were not applicable because in
those cases the unresolved issues being submitted to the jury involved the
contributory negligence of the injured minor plaintiff and contributory
negligence is not an issue in this case. Id.
*1260 As a starting point in our analysis, it is important to note
that there are two distinct claims presented in this case: 1) that the
Cestaris were negligent for failing to ascertain that the door was not made
of safety glass and for failing to conform their premises to the Southern
Standard Building Code which requires safety glass be used in sliding
glass doors; and 2) that the Cestaris were negligent for failing to place
decals or other markings on the door.[2] We agree that, on this record,
summary judgment was properly entered on both of these claims.
Although it is not apparent from the decision below, the Cestaris
were lessors of the subject premises rather than owners in possession.
Each of the decisions which appear to conflict with the decision below
involved a defendant who had possession and control of the premises at
the time of the accident.[3] As we noted in Mansur v. Eubanks, 401 So.
2d 1328, 1329 (Fla. 1981), traditionally a landlord was not liable for
injuries resulting from the condition of the leased premises. See
Restatement (Second) of Torts § 356 (1965); and W. Keeton, Prosser and
Keeton on the Law of Torts § 63 (5th ed. 1984). However, in Mansur, this
Court extended a landlord's liability, holding that

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 the owner of a residential dwelling unit, who leases it to a
tenant for residential purposes, has a duty to reasonably inspect
the premises before allowing the tenant to take possession, and to
make the repairs necessary to transfer a reasonably safe dwelling
unit to the tenant unless defects are waived by the tenant...
After the tenant takes possession, the landlord has a
continuing duty to exercise reasonable care to repair dangerous
defective conditions upon notice of their existence by the tenant,
unless waived by the tenant.
Mansur, 401 So.2d at 1329-30.

First, we agree with the district court that under this Court's
decision in Slavin, the Cestaris are relieved from liability for failing to
ascertain that the sliding glass door was not made of safety glass as
required by the applicable building code. It is undisputed that the
dangerous condition, in this case a lack of safety glass, was not
discoverable through a reasonable inspection by the owners. Cf. Lubell v.
Roman Spa, Inc., 362 So. 2d 922 (Fla. 1978). According to the deposition
testimony of Mr. Spangler, while there are markings on tempered glass,
which could be identified by one familiar with such markings, there are
no markings on untempered glass. This testimony supports Jan Cestari's
contention that the type of glass in the doors was not readily discoverable
by his inspection. It is, therefore, undisputed that a reasonable inspection
of the doors by the Cestaris would not have put them on notice of the
dangerous condition. Cf. Becker v. IRM Corp., 38 Cal. 3d 454, 213 Cal.
Rptr. 213, 698 P.2d 116 (1985) (summary judgment improper where glass
causing injury was marked "untempered," because trier of fact could find
reasonable inspection by landlord would have included visual inspection
which disclosed the danger). As noted above, a lessor of a residential
dwelling unit has a duty to reasonably inspect the premises before
allowing the lessee to take possession. However, our decision in Mansur
does not place a duty on a landlord to inquire of experts concerning the
type of glass in sliding glass doors on the premises.
Likewise, while the Cestaris had a duty to reasonably inspect the
premises for dangerous conditions and to transfer the premises in a

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reasonably safe condition, we *1261 agree with the trial court's ruling
that, as a matter of law, they had no duty to place decals or other markings
on the sliding glass door. An ordinary sliding glass door is not the type of
"dangerous condition" which a landlord is in a better position than the
tenant to guard against.[4] The presence of a sliding glass door on the
leased premises was clearly apparent to the lessees who, upon taking
possession, controlled the manner in which it was used. Whether a sliding
glass door creates a hidden dangerous condition giving rise to a duty to
warn generally depends upon the surrounding circumstances, i.e., location
of the door, age of the injured party, lighting conditions, pattern of an
open door, and activities on the premises. See, e.g., Giordano v. Mariano,
112 N.J. Super. 311, 271 A.2d 20 (1970); Shannon v. Butler Homes, Inc.,
102 Ariz. 312, 428 P.2d 990 (1967). It therefore follows that the duty to
warn Brandi of the hidden danger the closed door may have presented
rested solely upon the lessees, who were in control of the premises. See
Bovis v. 7-Eleven, Inc., 505 So. 2d 661 (Fla. 5th DCA 1987) (lessees of
premises have duty to warn third parties of dangerous conditions on
premises because such duty rests on right to control premises rather than
on legal ownership of the dangerous area).
Accordingly, the decision of the district court affirming the entry of
summary judgment in favor of the respondents is approved.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, BARKETT,
GRIMES and KOGAN, JJ., concur.
NOTES
[1] It appears this testimony was proffered at the hearing on the
motion for summary judgment.
[2] Although Fitzgerald urges liability for failure to comply with
section 83.51(1)(a), Florida Statutes (1983), which requires a landlord to
maintain leased premises in compliance with the requirements of the
applicable building code, this claim was not raised in the amended
complaint or urged to the trial court and therefore will not be addressed by
this Court.

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 [3] See Hannabass v. Florida Home Insurance Co., 412 So. 2d 376
(Fla. 2nd DCA 1981); Peppermint Twist, Inc. v. Wright, 169 So. 2d 330
(Fla. 3rd DCA 1964); Canner v. Blank, 152 So. 2d 193 (Fla. 3rd DCA
1963); McCain v. Bankers Life & Casualty Co., 110 So. 2d 718 (Fla. 3rd
DCA), cert. denied, 114 So. 2d 3 (Fla. 1959).
[4] This claim must be analyzed as if the glass door were in
compliance with the building code because it has already been determined
that the Cestaris could not have discovered the lack of safety glass
through a reasonable inspection. Further, it is alleged that it was the lack
of decals not the lack of safety glass which caused the accident. The lack
of safety glass merely affected the nature and extent of the injury.

Now use the information in your case brief to analyze the issue by
doing a case analogy. Start by explaining Fitzgerald: tell the reader what
happened, what the court decided and why. Here is an example,

In Fitzgerald v. Cestari, 569 So.2d 1258 (Fla. 1990), a tenant’s

visitor, Terry Fitzgerald, filed suit against the owners of the property the
tenant rented, the Cestaris, seeking damages for injuries suffered by the
visitor’s seven-year-old daughter, when the daughter ran through a sliding
glass door in the property. The daughter was playing in the front yard and
ran through the house, colliding with the door. “The door was not made of
safety glass and had no decals or other markings on it.”
Based on these facts, the court held that the Cestaris did not fail to
“reasonably inspect the premises” by not ascertaining that the sliding
glass door was not made of safety glass. The dangerous condition, the
lack of safety glass, was not discoverable through a “reasonable
inspection” by the owners. According to the deposition testimony of an
expert witness, “while there are markings on tempered glass, which could
be identified by one familiar with such markings, there are no markings
on untempered glass.” Therefore, there was no breach of any duty to
inspect the premises and deliver the unit in safe condition.

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 After you have explained the case precedent, apply the case to the
fact pattern. Start by explaining what happened to Ms. Bradbury and
comparing the fact pattern to the facts of Fitzgerald, then apply the
reasoning of the reported case to the fact pattern, and come to a conclusion.
If the facts are analogous and the reasoning applies, the conclusion should
be the same as well.

Our case involves a claim by a tenant against a property owner for

personal injuries suffered by the tenant during her occupancy of the unit.
Our client, Margaret Bradbury, rented an apartment at “Ocean Park at
Ponte Vedra,” an apartment complex in Jacksonville Beach. Bradbury
was injured exiting the shower in her apartment. Apparently, there was a
rail on the wall next to the shower door. When Bradbury exited the
shower she used the rail as support, and it ripped out of the wall. As a
result, Bradbury fell and suffered personal injuries.
Bradbury’s case is analogous to the Fitzgerald case. In both cases
the plaintiff was injured because of an allegedly defective condition in an
apartment owned by the defendant. Like the owner in Fitzgerald, Ocean
Park had a duty to reasonably inspect the premises before allowing
Bradbury to take possession. However, the insufficiently affixed rail in
Bradbury’s case, like the untempered glass door in Fitzgerald, is not
something that would have been discoverable through a “reasonable
inspection” by the owner; it is not something Ocean Park would have
discovered in an inspection of the unit. The Cestaris would not have been
able to determine the glass door was untempered by looking at it. And
Ocean Park would not have been able to determine the rail in Ms.
Bradbury’s shower was not sufficiently affixed to the wall by looking at it
either. Therefore, a court will likely find that Ocean Park did not breach
any duty to reasonably inspect the apartment and deliver it in safe
condition.

That is an example of how you analogize a case to a fact pattern.

Don’t just state the rule and apply it to the facts. You need to explain the
case first by describing the facts in particular. Then you apply the case by

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comparing the facts to the fact pattern. If they are analogous then the rule
of the case should apply to the fact pattern the same way it applied to the
facts of the reported case. The Bradbury case should come out the same
way the Fitzgerald case did. In other words, Ocean Park will likely not be
found negligent.

B. Distinguishing a Case From a Fact Pattern

Now let’s look at another example, this one to demonstrate how to

distinguish a case from a fact pattern. Suppose you have another client
named Bill Haley. Mr. Haley lives on the famous Bourbon Street in New
Orleans. He loves it there because of all the local restaurants. And his
favorite place to eat is the Swine Depot, a local restaurant well known for
its delicious pork ribs.

Last week Mr. Haley was eating a pulled pork sandwich at the
Depot and had a bad experience. He took a bite of the sandwich and started
coughing, like he had swallowed something that he couldn’t digest. He
could still breathe but his condition worsened, and he was taken to the
emergency room. A doctor there performed an operation and removed a
piece of pig bone that was lodged in Haley’s throat. The bone was ¾ of an
inch long. Mr. Haley blames the restaurant for not removing it from the
sandwich and now wants you to file a lawsuit on his behalf.

After the complaint was filed you took the deposition of Billy Bob,
the chef at the Depot. His testimony was that a pulled pork sandwich is
made by pulling cooked pork into small strips by hand. He says “a piece of
bone such as the piece ingested by Haley normally would be discovered and
removed during his preparation of the meat.” When asked why it was not,
Chef Billy Bob could offer no explanation.

You then go to law library at the local courthouse to do some

research. You could do it on your computer but it is a nice day and you
enjoy getting out of the office. Anyway, as a result of your research, you
find the Louisiana case of Porteous v. St. Ann’s Cafe & Deli, which appears
to deal with the issue at hand. According to Porteus, a chef has a duty “to

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act as a reasonably prudent man skilled in the culinary art” in preparing
food, including removing injurious substances. Here is the case (I deleted
the dissenting opinion to keep it relatively short):

713 So.2d 454 (1998)

Donald C. PORTEOUS, Jr.
v.
ST. ANN'S CAFE & DELI and Lafayette Insurance Company.
No. 97-C-0837.
Supreme Court of Louisiana.
May 29, 1998.
Geoffrey H. Longenecker, Madisonville, for Applicant.
Alexander Adam Lambert, John Thomas Holmes, Metairie, for
Respondent.
*455 CALOGERO, Chief Justice.[*]
On January 22, 1995, Donald C. Porteous, Jr. was dining at St.
Ann's Cafe & Deli. While eating the second half of an oyster poboy, he bit
down onto a small, grey, and roughly round substance, which apparently
was a pearl. When plaintiff bit onto the pearl, he broke a tooth and
cracked it all the way down the shaft. The plaintiff reported the incident to
a waiter. The waiter wrote an incident report and took possession of the
remainder of the sandwich and the pearl. Two days later, plaintiff went to
his dentist and thereafter underwent dental treatment, which included a
root canal and placement of a crown atop the broken tooth. The plaintiff
then sued St. Ann's Cafe & Deli and Lafayette Insurance Company,
alleging that the defendant was negligent because of the lack of adequate
food inspection procedures, which resulted in the presence of an injurious
substance and his sustaining injury to his tooth.
In determining whether the defendant was liable for the plaintiff's
injuries, the trial court applied the "foreign-natural" test. That test was
adopted from the common law. Louisiana courts of appeal have used this
common law test to determine the liability of a restaurant when a

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customer is injured by a harmful substance in the restaurant's food.
Melady v. Wendy's of New Orleans, Inc., 95-913 (La. App. 5th Cir.
4/16/96); 673 So.2d 1094; Johnson v. South Pacific Canning Co., 580
So.2d 556 (La. App. 5th Cir. 1991); Riviere v. J.C. Penney Comp., 478
So.2d 965 (La. App. 5th Cir.1985); Title v. Pontchartrain Hotel, 449 So.2d
677 (La. App. 4th Cir.1984); Loyacano v. Continental Ins., 283 So.2d 302
(La. App. 4th Cir.1973); Musso v. Picadilly Cafeterias, Inc., 178 So.2d
421 (La. App. 1st Cir.1965). Under the foreign natural test, if the injurious
substance is foreign to the food, then the restaurant is strictly liable. If the
injurious substance is natural to the food, there is no strict liability.
Rather, liability is imposed only if the restaurant was negligent in failing
to discover and remove the harmful natural substance from the food.
After applying the foreign-natural test, the trial court held that
although the injurious pearl was natural to the oyster, the restaurant was
negligent, and therefore liable, because of the lack of adequate procedures
to ensure that injurious substances, such as a pearl in the oyster, were not
served on the po-boys. The plaintiff was then awarded damages plus costs
and interest.
The court of appeal recited the facts found by the trial court and
declared that the "trial court's determination of credibility and findings of
fact will not be disturbed on appeal so long as they are reasonable in light
of the record as a whole." The court of appeal concluded that the trial
court's finding that the restaurant negligently failed to institute procedures
to intercept harmful objects in the oysters was a reasonable finding and
would not be disturbed on appeal. Thus, the trial court was affirmed in the
court of appeal. Porteous v. St. Ann's Cafe & Deli No. 96-CA-2692 (La.
App. 4th Cir. 3/5/97) (unpublished opinion).
We granted certiorari to determine if the law and the facts were
properly applied in this restaurant-harmful food product case, a precise
matter which has not been addressed in recent decades by this Court. For
the reasons that follow, we find that the lower courts erred in applying the
common law foreign-natural test. Rather, the proper analysis to determine
the defendant's liability is to be found in Louisiana's substantive law as
found in the Louisiana Civil Code in the articles relating to liability and

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damages for offenses and quasi offenses—the traditional duty risk tort
analysis.[1] With the entire record now in hand, we hold that, under the
*456 traditional duty risk tort analysis, the plaintiff has failed to prove
that the defendant breached its duty to act as would a reasonably prudent
restaurateur in selecting, preparing and cooking food, including removal
of injurious substances. We therefore reverse the judgments of the lower
courts.[2]
DISCUSSION
In the recent decades, this Court has not spoken on this issue and
the Louisiana Courts of Appeal have borrowed the foreign natural test
from the common law. We decline to adopt that test.[3]
The Civil Code is the chief repository of the substantive law of
Louisiana, and as previously indicated, the theory of recovery available to
an injured plaintiff to determine the liability of a restaurant in a case of
this sort is the determination of negligence with the traditional duty risk
tort analysis. See La. Civ. Code Ann. arts. 2315, 2316.
TORT CLAIM
Articles 2315 and 2316 are the codal bases for a claim in tort.
Article 2315 states that "[e]very act whatever of man that causes damage
to another obliges him by whose fault it happened to repair it." Article
2316 provides that "[e]very person is responsible for the damage he
occasions not merely by his act, but by his negligence, his *457
imprudence, or his want of skill." To determine whether a defendant is
negligent, the case usually requires proof of five separate elements: (1)
duty; (2) breach of duty; (3) cause-in-fact; (4) scope of liability or scope
of protection; and (5) damages. Roberts v. Benoit, 605 So.2d 1032, 1051
(La.1991) (on rehearing) (citing Fowler v. Roberts, 556 So.2d 1, 4
(La.1989) (on original hearing)). Relative to these five elements, the case
at hand turns on two of the elements—the issue of the defendant's duty
and the defendant's breach of duty—discussion regarding which follows.
Duty of the Defendant
A defendant's duty to conform his conduct to a specific standard
may be express or implied, either statutorily or jurisprudentially.

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Faucheaux v. Terrebonne Consolidated Government, 615 So. 2d 289, 292
(La.1993). In Louisiana, there is no statute which expressly addresses a
commercial restaurant's duty to serve food free of injurious substances.[4]
There is, nonetheless, no doubt that there is and should be such a duty. We
determine that the duty is the following: A food provider, in selecting,
preparing and cooking food, including the removal of injurious
substances, has a duty to act as would a reasonably prudent man skilled in
the culinary art in the selection and preparation of food.[5]
Breach of Duty
Plaintiff alleges that the defendant restaurant breached its duty by
acting unreasonably in the selection, preparation and cooking of the food
because the restaurant lacked adequate inspection procedures to detect
and remove injurious substances from the food served to its customers.
The defendant, on the other hand, asserts that it did not breach its duty
because it acted reasonably in the selection and preparation of the food
product at issue.
In determining whether a restaurant breached its duty by failing to
act reasonably in the selection, preparation and cooking of the food that
contained a substance which caused injury, the court should consider,
among other things, whether the injurious substance was natural to the
food served and whether the customer would reasonably expect to find
such a substance in the particular type of food served.[6]
In the present case, the plaintiff was injured when he bit onto a
pearl while eating an oyster po-boy in the defendant restaurant. A pearl in
an oyster is not entirely rare, but is, indeed, a naturally occurring
phenomenon. So long as oysters are harvested and eaten, there will
occasionally, though perhaps infrequently, be pearls found in oysters.
Furthermore, when eating oysters, a customer should be aware of—and
alert to the possibility—that a pearl may be found within the oyster.
Additionally, at trial, the restaurant manager, Ms. Marvez, testified
that an accident like this had never occurred before in her restaurant. Ms.
Marvez further stated that the restaurant buys its oysters pre-shucked, pre-
washed, and pre-packed from a reputable seafood company. When Ms.
Marvez was asked about the restaurant's procedures to ensure that there

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were no foreign objects in the oysters, she replied that "the cook has to
*458 physically hold the oyster and bread it and at that time they could
feel if there's anything in there. If it's something large or if it's something
—now if it's embedded in the oyster, no, we don't dissect the oyster...."
She also stated that the cooks have to grab the oysters to bread them, and
if they were to find an object, they would remove it. She did not recall any
time when she was told that a cook found an object in an oyster.
Moreover, although the cooks do not wash the oysters before they are
battered, the cooks do visually inspect the oysters and touch them before
applying the batter.
In light of the above-described testimony, we determine that the
defendant did not act unreasonably in selecting, preparing and cooking the
food. There was nothing more the defendant restaurant could reasonably
have done to eliminate the small possibility that a customer might find a
pearl in an oyster and be injured thereby.[7] The law should not impose
upon restaurants the responsibility of dissecting every oyster in order to
determine whether there is a pearl formed or forming inside each one. We
determine, therefore, under the traditional duty risk tort analysis, that the
defendant restaurant did not breach its duty to this plaintiff and, thus, is
not liable for the plaintiff's injury.
DECREE
For the foregoing reasons, the judgments of the district court and
the court of appeal in favor of plaintiff are reversed. Judgment is rendered
in favor of the defendants, dismissing plaintiff's suit with prejudice and at
his cost.
DISTRICT COURT AND COURT OF APPEAL JUDGMENTS
REVERSED; JUDGMENT RENDERED FOR DEFENDANT; SUIT
DISMISSED WITH PREJUDICE AT PLAINTIFF'S COST.
[1] Two other areas of substantive law that arguably could apply in
this case were the sales and obligation articles on breach of contract and
the sales articles on redhibition. See LeBlanc v. La. Coca Cola Bottling
Co., 221 La. 919, 60 So.2d 873 (1952); Doyle v. Fuerst & Kraemer, 129
La. 838, 56 So. 906 (1911); Demars v. Natchitoches Coca-Cola Bottling
Co., 353 So.2d 433 (La. App. 3rd Cir.1977); Givens v. Baton Rouge

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Coca-Cola Bottling Co., 182 So.2d 532 (La. App. 1st Cir. 1966); McAvin
v. Morrison Cafeteria Co. of La, 85 So.2d 63 (La. App. Orl.1956); Ogden
v. Rosedale Inn, 189 So. 162 (La. App.Orl.1939). This Court, however,
finds that the duty risk tort analysis in Louisiana negligence law is the
proper analysis for this type of case.
[2] Under this Court's standards for granting writs (See Rule X,
Section 1 of the Louisiana Supreme Court Rules), the Court does not
normally grant simply to review the facts of a case. In this case, we
granted the writ because in the jurisprudence of this Court, the legal issue
here was an unresolved one. (See Rule X, Section 1(a)(2) of the Louisiana
Supreme Court Rules.) After granting certiorari, this Court has the
authority to decide any and all issues in the case. La. Const. art. 5, § 5(C).
[3] The following is a more detailed explanation of the two
common law tests to which reference was made earlier in this opinion, the
foreign natural test and the reasonable expectation test, which have been
utilized by state courts to determine the restaurant's liability, when a
plaintiff sustains injuries because of an injurious substance in food he is
served in a restaurant. Under either test, courts have no difficulty holding
a defendant strictly liable for injuries sustained because of "foreign"
injurious substances (such as glass or insects). See LeBlanc v. Louisiana
Coca Cola Bottling Co., 221 La. 919, 60 So. 2d 873 (1952). But, if the
injurious substance is "natural" to the food product, such as bones or
shells, courts, depending on whether they follow the foreign-natural test
or the reasonable expectation test, are divided as to whether liability
should be imposed. See Langiulli v. Bumble Bee Seafood, Inc., 159
Misc.2d 450, 604 N.Y.S.2d 1020 (N.Y.Sup.1993); Jackson v. Nestle-
Beich, Inc., 147 Ill.2d 408, 168 Ill. Dec. 147, 589 N.E.2d 547 (1992);
Musso v. Picadilly Cafeterias, Inc., 178 So.2d 421 (La. App. 1st
Cir.1965).
Under the foreign-natural test, the outset determination is whether
the injurious substance is "foreign" or "natural" to the food. As this test
evolved nationally, the cases held that if an injurious substance is natural
to the food, the plaintiff is denied recovery in all events. Goodwin v.
Country Club, 323 Ill.App. 1, 54 N.E.2d 612 (1944); Brown v. Nebiker,

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229 Iowa 1223, 296 N.W. 366 (1941); Mix v. Ingersoll Candy Co., 6 Cal.
2d 674, 59 P.2d 144 (1936), overruled by Mexicali Rose v. Superior
Court, 1 Cal. 4th 617, 4 Cal.Rptr.2d 145, 822 P.2d 1292 (1992). But if the
injurious substance is foreign, the restaurant is strictly liable. Louisiana
Courts of Appeal chose to follow the foreign-natural test to determine the
liability of restaurants, but embellished a bit on the strict common law
foreign-natural test, in permitting the plaintiff to recover notwithstanding
the fact that the injurious substance is natural to the food if the restaurant
is negligent in its failing to discover and remove the injurious natural
substance. Melady v. Wendy's of New Orleans, Inc., 95-913 (La. App. 5th
Cir. 4/16/96); 673 So.2d 1094; Johnson v. South Pacific Canning Co., 580
So.2d 556 (La. App. 5th Cir.1991); Title v. Pontchartrain Hotel, 449 So.2d
677 (La. App. 4th Cir.1984); Loyacano v. Continental Ins., 283 So.2d 302
(La. App. 4th Cir. 1973); Musso v. Picadilly Cafeterias, Inc., 178 So.2d
421 (La. App. 1st Cir.1965).
In time, the foreign-natural test was widely criticized and rejected
by many states in favor of the reasonable expectation test. Under the
reasonable expectation test, the query to determine liability is whether a
reasonable consumer would anticipate, guard against, or expect to find the
injurious substance in the type of food dish served. O'Dell v. DeJean's
Packing Co., Inc., 585 P.2d 399 (Okl.Ct.App.1978); Jim Dandy Fast
Foods, Inc. v. Miriam Carpenter, 535 S.W.2d 786 (Tex.Civ.App.1976);
Matthews v. Campbell Soup Co., 380 F. Supp. 1061 (S.D.Tex.1974);
Wood v. Waldorf System, Inc., 79 R.I. 1, 83 A.2d 90 (1951); Zabner v.
Howard Johnson's Inc., 201 So. 2d 824 (Fla.Dist.Ct.App.1967). Whether
the injurious substance is natural or foreign is irrelevant. Rather, liability
will be imposed on the restaurant if the customer had a reasonable
expectation that the injurious substance would not be found in the food
product. On the other hand, if it can be shown that the customer should
reasonably have expected the injurious substance in his food, that
customer is barred from recovery.
[4] There are, however, two revised statutes that set forth the
limitation of liability for damages that result from donated food. See La.
Rev. Stat. Ann. §§ 9:2799, 9:2799.3.

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 [5] The duty set out by this Court, in the case at hand, is similar to
the language used in Musso v. Picadilly Cafeterias, Inc., 178 So.2d 421
(La. App. 1st Cir.1965), to determine whether the restaurant was negligent
in permitting the injurious natural substance to remain in the food. The
Musso court stated,
We believe the degree of care incumbent upon the restaurant
operator in selecting, preparing and cooking food for customers,
including the removal of substances natural to the ingredients or
finished product, such as bones from fish or meat and stones or
seeds from vegetables or fruit, is the same as that which a
reasonably prudent man skilled in the culinary art, would exercise
in the selection and preparation of food for his own table.
Musso, 178 So.2d at 427.
[6] These are the determinative factors in the foreign-natural test
and the reasonable expectation test, but are only factors to be considered
by the court when using the duty risk analysis in negligence law.
[7] In Title v. Pontchartrain Hotel, 449 So.2d 677 (La. App. 4th
Cir.1984), the Louisiana Fourth Circuit Court of Appeal was also faced
with the issue of whether the defendant was liable for the plaintiff's
injuries that resulted from the plaintiff biting onto a fried oyster
containing a pearl. The Title court stated that from the evidence at trial
(such as visual inspection and individually breading), "there [was not]
anything further the defendant's oyster fryers could reasonably do to
eliminate the very slim possibility of a pearl remaining imbedded in the
oyster. Intense scrutiny and through palpitation of every oyster to be
served is simply not feasible in any restaurant situation." Title, 449 So.2d
at 680.

In this situation the reported case is distinguishable from the fact

pattern, so the rule should not apply. To distinguish Porteous from Mr.
Haley’s case, use a similar organization. Start by explaining Porteous, like
this:

In Porteous v. St. Ann’s Cafe & Deli, 713 So. 2d 454 (La. 1998),
the plaintiff, Porteous, was dining at a deli and eating an “oyster po-boy”

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when he bit down onto a pearl in the sandwich. He broke a tooth and
“cracked it all the way down the shaft.” After the incident, Porteous
underwent dental treatment, including a root canal and crown. He then
sued the deli, alleging that it was negligent “because of the lack of
adequate food inspection procedures, which resulted in the presence of an
injurious substance and his sustaining injury to his tooth.” At trial, the
deli’s manager testified that the cook has to “grab the oysters to bread
them, and if they were to find an object, they would remove it.” But the
cook does not “dissect the oyster” as part of the preparation process.
Based on this evidence, the court held that the restaurant did not
breach its duty to Porteous. The deli was not liable because “[t]here was
nothing more [they] could reasonably have done . . .” to make sure there
were no pearls in the oysters they served. A pearl in an oyster is not
entirely rare,” the court added, but it is “a naturally occurring
phenomenon.” Furthermore, the court stated that customers eating oysters
“should be aware of—and alert to the possibility—that a pearl may be
found within the oyster.” Therefore, there was no breach of the duty to act
as a “reasonably prudent” chef in preparing the oysters.

Then apply the case precedent by comparing the fact pattern to the
facts of the case, apply the reasoning of the reported case to the fact pattern,
and, since the facts are distinguishable, come to the opposite conclusion.

Our client, Bill Haley, was also injured by an “injurious substance”

in food he was eating, but the similarities end there. Haley was eating a
pulled pork sandwich at the Swine Depot. He took a bite of the sandwich
and started coughing. His condition worsened, and he was taken to the
emergency room. A doctor there performed an operation and removed a
piece of pig bone that was lodged in Haley’s throat. The bone was ¾ of
an inch long, which is substantially larger than a pearl. Also, Chef Billy
Bob, the chef at the Depot, testified in a deposition that, unlike an oyster
sandwich, a pulled pork sandwich is made by pulling pork apart into thin
strips by hand. Unlike the manager in Porteous, Chef Billy Bob further
testified that “a piece of bone such as the piece ingested by Haley

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normally would be discovered and removed during his preparation of the
meat.”
The Porteous case is distinguishable from Haley’s case. Although
a piece of bone in pulled pork may be “a naturally occurring
phenomenon” a customer eating pork would not reasonably expect to find
a bone in a pulled pork sandwich because of the way it is prepared.
Unlike breaded oysters, which are not “dissected,” pulled pork is pork that
is literally pulled apart by hand. Because the pork is pulled into thin
strands, one would expect a chef to find and remove any bones in the
meat; and a customer eating a pulled pork sandwich would not reasonably
expect to find a bone in the sandwich. For all of these reasons, Chef Billy
Bob likely breached his duty to act as a “reasonably prudent” chef in the
preparation of pulled pork.

Analogizing and distinguishing a reported case to or from a fact

pattern is at the core of legal analysis. If you apply a vague rule (e.g. in a
case involving liability arising out of a parties failure to exercise
“reasonable” care) to a fact pattern without analogizing or distinguishing a
case example, your professor will likely tell you the analysis is superficial.
Get this right and you will be well on your way to creating well drafted
legal memoranda.

Law school is not just about learning “black letter law.” You have to
get your hands dirty. You have to get into the facts of the cases to analyze
an issue. What is different about lawyering is it often involves analogical
reasoning. And you can’t do that type of reasoning without comparing
facts.

Applying statutory rules is a little different but also often comes down
to analogizing and distinguishing cases.

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5. ANALYZING STATUTES
AND MARSHALING FACTS

S tatutes contain legal rules, without any factual context. For that
reason you might think analyzing legal issues governed by statute
(i.e. simply inserting the relevant facts into the statutory formula to
determine the answer to a legal question) is simpler than analyzing cases by
analogizing and distinguishing fact patterns. That is true to some extent.
Some statutes are very simple to read and apply.

For example, a statute stating the maximum speed on a highway does

not require analogical reasoning to apply. If the speed limit is 60 mph and
the defendant was going 70 mph then the defendant violated the statute.
You don't need to to go to law school to apply a rule that is as simple as
that.

However, lawyers are not typically hired to work with simple

statutory rules. And the statutes lawyers are hired to interpret are often not
only complex but the language they use is also purposefully vague. As a
result it often is necessary to study the cases interpreting the statute to fully
understand the rule. In that situation you will also need to analogize or
distinguish cases to apply the rule to a specific set of facts.

To this point we have been discussing very simple case rules

containing just one element. When I say statutory rules are often more
complex, I mean they often contain multiple elements joined in various
different ways (e.g. the rule may be conjunctive, disjunctive or conditional)

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and, again, the elements often incorporate vague terms like "reasonable,"
"good faith," and "diligent". As a result, analyzing a statute is usually not
so simple. In fact, it is often a challenge just to determine what the rule is.
A. Determining a Statutory Rule

When you read a statute you should be looking for the statutory rule
or formula. In other words, what are the elements of the statute and how
are they connected (e.g., with “and” or “or” or “if” and “then,” etc.). For
example, suppose you looked up the definition of discrimination in the
federal Americans with Disabilities Act (ADA), as we did in the chapter on
legal research. Using the index, you would then find the following “general
rule”:

(a) General rule

No covered entity shall discriminate against a qualified individual on the
basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.
(b) Construction
As used in subsection (a) of this section, the term “discriminate against a
qualified individual on the basis of disability” includes—
(1) limiting, segregating, or classifying a job applicant or employee in
a way that adversely affects the opportunities or status of such
applicant or employee because of the disability of such applicant or
employee;
(2) participating in a contractual or other arrangement or relationship
that has the effect of subjecting a covered entity's qualified applicant or
employee with a disability to the discrimination prohibited by this
subchapter (such relationship includes a relationship with an
employment or referral agency, labor union, an organization providing
fringe benefits to an employee of the covered entity, or an organization
providing training and apprenticeship programs);
(3) utilizing standards, criteria, or methods of administration—

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 (A) that have the effect of discrimination on the basis of disability;
or
(B) that perpetuate the discrimination of others who are subject to
common administrative control;
(4) excluding or otherwise denying equal jobs or benefits to a qualified
individual because of the known disability of an individual with whom
the qualified individual is known to have a relationship or association;
(5)
(A) not making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee, unless such covered
entity can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such covered
entity; or
(B) denying employment opportunities to a job applicant or
employee who is an otherwise qualified individual with a
disability, if such denial is based on the need of such covered entity
to make reasonable accommodation to the physical or mental
impairments of the employee or applicant;
(6) using qualification standards, employment tests or other selection
criteria that screen out or tend to screen out an individual with a
disability or a class of individuals with disabilities unless the standard,
test or other selection criteria, as used by the covered entity, is shown
to be job-related for the position in question and is consistent with
business necessity; and
(7) failing to select and administer tests concerning employment in the
most effective manner to ensure that, when such test is administered to
a job applicant or employee who has a disability that impairs sensory,
manual, or speaking skills, such test results accurately reflect the skills,
aptitude, or whatever other factor of such applicant or employee that
such test purports to measure, rather than reflecting the impaired
sensory, manual, or speaking skills of such employee or applicant

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 (except where such skills are the factors that the test purports to
measure).

42 U.S.C. § 12112.

Likely, not all of that information applies to your situation. So the

first step in determining a statutory rule is to ferret out the language that is
relevant to the issue you are dealing with. If it is an employer’s failure to
make a “reasonable accommodation” for a disabled employee, then you can
narrow the language down to this:

Discrimination is “not making reasonable accommodations to the known

physical or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an undue hardship on
the operation of the business of such covered entity”

42 U.S.C. § 12112(b)(5)(a).

Step two is very important not to overlook; and that is to find the
definitions of any terminology used in the statutory language. If you check
the definitions section of the ADA, you will find these relevant terms
defined:

The term “qualified individual” means an individual who, with or without

reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.

42 U.S.C. § 12111(8).

The term “reasonable accommodation” may include—“job restructuring,

part-time or modified work schedules, reassignment to a vacant position .
. . and other similar accommodations for individuals with disabilities.”

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42 U.S.C. § 12111(9).

The term “undue hardship” means “an action requiring significant

difficulty or expense, when considered in light of the . . . the nature and
cost of the accommodation needed . . . [and] the overall financial
resources of the . . . covered entity . . . .”

42 U.S.C. § 12111(10).

Once you have these definitions, you need to incorporate them into
the statutory language and separate out the elements of the statute, paying
particular attention to how the elements are joined together (e.g. noting any
connectors used). In other words, you have to determine the statutory
formula. For example, this statute is a condition with a single element
subject to an exception:

1. If the employee is a “qualified individual” (“an individual who,

with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or
desires,” 42 U.S.C. § 12111(8)),
2. Then the employer must provide for the employee a “reasonable
accommodation” (“job restructuring, part-time or modified work
schedules, reassignment to a vacant position . . . and other similar
accommodations for individuals with disabilities,” 42 U.S.C. §
12111(9)),
3. Unless the accommodation would impose an “undue hardship” (“an
action requiring significant difficulty or expense, when considered in light
of the . . . the nature and cost of the accommodation needed . . . [and] the
overall financial resources of the . . . covered entity . . . ,” 42 U.S.C. §
12111(10)).

If there are cross-references to other parts of the statute in the

section you are analyzing, then you need to incorporate them as well. Also,

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you should always check to see if there are regulations promulgated under
the statute. If there are, check the regulations for additional definitions and
other relevant provisions. It turns out the regulations under the ADA
include an additional, more detailed definitions of essential functions,
reasonable accommodation and undue hardship.”

(1) In general. The term essential functions means the fundamental job
duties of the employment position the individual with a disability holds or
desires. The term “essential functions” does not include the marginal
functions of the position.
(2) A job function may be considered essential for any of several reasons,
including but not limited to the following:
(i) The function may be essential because the reason the position
exists is to perform that function;
(ii) The function may be essential because of the limited number of
employees available among whom the performance of that job
function can be distributed;
Evidence of whether a particular function is essential includes, but is
not limited to:
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;

29 C.F.R. § 1630.2(n).

(1) The term reasonable accommodation means:

(i) Modifications or adjustments to a job application process that
enable a qualified applicant with a disability to be considered for the
position such qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or to the
manner or circumstances under which the position held or desired is
customarily performed, that enable an individual with a disability who
is qualified to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a covered entity's
employee with a disability to enjoy equal benefits and privileges of

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 employment as are enjoyed by its other similarly situated employees
without disabilities.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible to
and usable by individuals with disabilities; and
(ii) Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications of
equipment or devices; appropriate adjustment or modifications of
examinations, training materials, or policies; the provision of qualified
readers or interpreters; and other similar accommodations for
individuals with disabilities.

29 C.F.R. § 1630.2(0).

(1) In general. Undue hardship means, with respect to the provision of an

accommodation, significant difficulty or expense incurred by a covered
entity, when considered in light of the factors set forth in paragraph (p)(2)
of this section.
(2) Factors to be considered. In determining whether an accommodation
would impose an undue hardship on a covered entity, factors to be
considered include:
(i) The nature and net cost of the accommodation needed under this
part, taking into consideration the availability of tax credits and
deductions, and/or outside funding;
(ii) The overall financial resources of the facility or facilities involved
in the provision of the reasonable accommodation, the number of
persons employed at such facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the covered entity, the overall
size of the business of the covered entity with respect to the number of
its employees, and the number, type and location of its facilities;
(iv) The type of operation or operations of the covered entity, including
the composition, structure and functions of the workforce of such
entity, and the geographic separateness and administrative or fiscal
relationship of the facility or facilities in question to the covered entity;
and

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 (v) The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to conduct
business.

29 C.F.R. § 1630.2(p).

Thus a complete description of the statutory formula for

discrimination under the ADA would look like this:

1. If the employee is a “qualified individual” (“an individual who,

with or without reasonable accommodation, can perform the essential
functions of the employ ment position that such individual holds or
desires,” 42 U.S.C. § 12111(8)),
A job function may be considered essential for any of several
reasons, including but not limited to the following:
(i) The function may be essential because the reason the position
exists is to perform that function;
(ii) The function may be essential because of the limited number
of employees available among whom the performance of that job
function can be distributed;
Evidence of whether a particular function is essential includes, but
is not limited to:
(iii) The amount of time spent on the job performing the
function;
(iv) The consequences of not requiring the incumbent to
perform the function; 29 C.F.R. § 1630.2(n).
2. Then the employer must provide for the employee a “reasonable
accommodation” (“job restructuring, part-time or modified work
schedules, reassignment to a vacant position . . . and other similar
accommodations for individuals with disabilities,” 42 U.S.C. §
12111(9)),
(1) The term reasonable accommodation means:
(i) Modifications or adjustments to a job application
process that enable a qualified applicant with a disability to be

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 considered for the position such qualified applicant desires; or
(ii) Modifications or adjustments to the work
environment, or to the manner or circumstances under which the
position held or desired is customarily performed, that enable an
individual with a disability who is qualified to perform the essential
functions of that position; or
(iii) Modifications or adjustments that enable a covered
entity's employee with a disability to enjoy equal benefits and
privileges of employment as are enjoyed by its other similarly situated
employees without disabilities.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily
accessible to and usable by individuals with disabilities; and
(ii) Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications of
equipment or devices; appropriate adjustment or modifications of
examinations, training materials, or policies; the provision of qualified
readers or interpreters; and other similar accommodations for
individuals with disabilities. 29 C.F.R. § 1630.2(0).
3. Unless the accommodation would impose an “undue hardship” (“an
action requiring significant difficulty or expense, when considered in light
of the . . . the nature and cost of the accommodation needed . . . [and] the
overall financial resources of the . . . covered entity . . . ,” 42 U.S.C. §
12111(10)).
(1) In general. Undue hardship means, with respect to the provision
of an accommodation, significant difficulty or expense incurred by a
covered entity, when considered in light of the factors set forth in
paragraph (p)(2) of this section.
(2) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on a covered entity,
factors to be considered include:
(i) The nature and net cost of the accommodation needed
under this part, taking into consideration the availability of tax credits
and deductions, and/or outside funding;

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 (ii) The overall financial resources of the facility or
facilities involved in the provision of the reasonable accommodation,
the number of persons employed at such facility, and the effect on
expenses and resources;
(iii) The overall financial resources of the covered entity,
the overall size of the business of the covered entity with respect to
the number of its employees, and the number, type and location of its
facilities;
(iv) The type of operation or operations of the covered
entity, including the composition, structure and functions of the
workforce of such entity, and the geographic separateness and
administrative or fiscal relationship of the facility or facilities in
question to the covered entity; and
(v) The impact of the accommodation upon the operation
of the facility, including the impact on the ability of other employees
to perform their duties and the impact on the facility's ability to
conduct business. 29 C.F.R. § 1630.2(p).

I have mnemonic to help you remember everything you need to do

when you are analyzing a statute. The mnemonic is “Every Cool Dude Can
Rock,” which stands for Elements, Connectors, Definitions, Cross-
References and Regulations. When you are analyzing a statute, start by
determining the Elements of the statute, pay careful attention to how they
are Connected (with and, or, etc.), check for Definitions and Cross-
references. If you find them, incorporate the language. And then check for
any Regulations promulgated under the statute. Remember to do all five of
those things whenever you are analyzing a statute.

B. Marshaling Facts

Once you have correctly stated the rule, you can marshal the relevant
facts from the fact pattern to begin the process of determining whether the
rule is met. For example, if your case involves an employee who is a
professor at a university; and the professor teaches two classes per year and

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writes a law review article every summer, then those facts would be
relevant to the issue of what are the “essential functions of the employment
position.” If the professor suffers from Covid-19 and is contagious but does
not have symptoms; and the professor requests that he be permitted to work
from home, then those facts would be relevant to the issue of what would be
a “reasonable accommodation” for the employee’s disability. If the
university is a small institution that generates about $15,000,000 per year in
revenues from tuition, and it would cost $10,000 to purchase the computer
equipment the professor needs to work from home, then that information
would be relevant to the issue of “undue hardship.” (On the other hand, if it
would cost nothing to accommodate the employee, then there might be no
question there is no “undue hardship.” In other words, that issue would be
a “given,” and there would be no need to analyze it.). Here is a chart
showing how you would marshal these facts to the various elements of this
statutory rule.

Statutory Element Relevant Facts

Qualified Individual / Essential Job The employee is a professor at a

Functions university who teaches two classes
per year and writes a law review
article every summer.

Reasonable Accommodation The professor suffers from Covid-

19 and is contagious but does not
have symptoms; and the professor
requests that he be permitted to
work from home.

Undue Hardship The university is a small

institution that generates about
$15,000,000 per year in revenues
from tuition, and it would cost
$10,000 to purchase the computer
equipment the professor needs to
work from home.

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 Marshaling the facts is the first step. The second step is determining
whether the relevant facts are sufficient to meet each of the elements of the
statute. For example, is it a “reasonable accommodation” to permit a
professor who suffers from Covid 19 to work from home? To answer that
question, you will need to do some research, find cases on point, and
determine whether the cases are analogous or distinguishable. Working
from home may be reasonable for an employee who has one type of job but
not an employee who does something different. So you may need to
analogize or distinguish multiple cases as part of your analysis. Here is an
example of how that might look:

This will analyze the issue of whether working at home would be a

reasonable accommodation under the Americans with Disabilities Act for
a university professor who has Covid 19. A “reasonable accommodation”
under the ADA includes the following:

Modifications or adjustments to the work environment, or to

the manner or circumstances under which the position held or
desired is customarily performed, that enable an individual with a
disability who is qualified to perform the essential functions of that
position is a modification or adjustment to the employment
29 C.F.R. § 1630.2(o)(1)(ii). This “may include but is not limited to . . .
part-time or modified work schedules . . . acquisition or modifications of
equipment or devices . . ..and other similar accommodations . . . .” §
1630.2(o)(2)(ii). Although working from home is not mentioned, it is
clear that the list of accommodations in the regulation is not exhaustive.
Id.
Courts interpreting the ADA in this jurisdiction have stated that
working from home is “rarely” a reasonable accommodation, but none of
the cases have involved circumstances like those presented here. E.g.,
Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538, 544-45 (7th Cir. 1995)
(paralyzed program assistant not permitted to work from home); Rauen v.

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U.S. Tobacco Mfg., 319 F.3d 891, 896 (7th Cir. 2003)(secretary with
rectal cancer not permitted to work from home). Although I find no cases
allowing an employee to work from home, I also find no legitimate reason
that would not be a reasonable accommodation for the professor in this
case.
The decisions in Vande Zande and Rauen are based primarily on
the type of work involved, although the plaintiff’s disability is also
relevant. Vande Zande was employed as a program assistant where her
responsibilities included “preparing public information materials,
planning meetings, interpreting regulations, typing, mailing, filing, and
copying. In short, her tasks were of a clerical, secretarial, and
administrative-assistant character.” Vande Zande, 44 F.3d at 544. She was
“paralyzed from the waist down as a result of a tumor of the spinal cord.
Her paralysis [made] her prone to develop pressure ulcers, treatment of
which often require[d] that she stay at home for several weeks.” Id. at
543.
Rauen was a software engineer whose primary duties were
“monitoring contractors' work . . . answering contractors' questions as
they arise, and ensuring that the contractors' work does not interfere with
the manufacturing process.” Rauen, 319 F.3d at 893. She suffered from
rectal cancer, and had to have a portion of her small intestine removed.
Id. As a result, she took two liters of IV fluids daily and had to use the
bathroom up to fourteen times a day. Id. She had to wear an ostomy
appliance that needed to be emptied frequently. Id. Also, her condition
caused overwhelming fatigue, forcing her to lie down and rest often, and
increasing her chances of falling asleep behind the wheel traveling to and
from work. Id. And her doctor recommended that she work from a home
office. Id.
Both Vande Zande and Rauen were denied the accommodation of
working from home, despite their disabilities, because they had jobs that
required them to be in the office.

Most jobs in organizations public or private involve team

work under supervision rather than solitary unsupervised work, and

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 team work under supervision generally cannot be performed at
home without a substantial reduction in the quality of the
employee's performance. This will no doubt change as
communications technology advances, but is the situation today.
Generally, therefore, an employer is not required to accommodate a
disability by allowing the disabled worker to work, by himself,
without supervision, at home.
Vande Zande, 44 F.3d at 544-45.
However, Vande Zande was decided twenty-five years ago, before
anyone started using the internet, let alone on-line conferencing, e-mail,
chat rooms and listservs. Rauen was decided eight years later in 2003, but
that was still before people started using programs like Skype, Zoom and
Uberconference. Today, a professor can easily communicate with his
students and peers using an on line service. Virtually all professors are
already supplied with the computer equipment necessary to do so. In fact,
on line college courses are offered at many universities.
More importantly, the job of being a professor is very different
than the job of being a program assistant or a software engineer. Vande
Zande primarily assisted others and worked as part of a team. Vande
Zande, 44 F.3d at 544. A university professor primarily works alone.
Rauen had to deal with “problems requiring immediate resolution” that
would arise “on the spur of the moment.” Rauen, 319 F.3d at 897. The
same is not true of a university professor. Students need to be able to
contact a professor by phone or by e-mail, but immediate responses are
not required. Professors must also provide students with office hours but
they can easily be held on line. Also, administrative and committee
meetings can be attended remotely. In addition, both Vande Zande and
Rauen had jobs that required the supervision of others. However, the
work of a professor is mostly unsupervised. Clearly Vande Zande and
Rauen are outdated and distinguishable. A court today would likely rule
that working at home would be a reasonable accommodation for a
university professor who has Covid 19.

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 Analogizing and distinguishing a reported case to or from a fact
pattern is part of case analysis, and it is part of statutory analysis too. There
is no escaping analogical reasoning in law; that is why there were so many
analogies on the LSAT. The ability to work with analogies, as well as
complex statutory rules, are core skills every lawyer needs to have (and
every law student needs to practice).
Before we get into the organization of legal analyses, we need to
discuss citation. As you analogize or distinguish a case, or marshal the
facts and the elements of a statute, you need to tell the reader where your
information is coming from. You need to cite to the original sources, and
there are specific rules for how to do that. So the next step is to learn those
rules.

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6. CITATION

M ost first year law student are taught legal citation using the over
five hundred page “Blue Book” that is published by the editors
of the law journals at Harvard University, Yale University,
Columbia University and the University of Pennsylvania. I doubt anyone
covers the whole book. Still, my impression is that many professors teach
far more than most students will ever need to know. As a result, many
students graduate their first year of law school having some idea of how to
cite a lot of different sources, but they still make obvious mistakes doing the
most basic citations lawyers use all the time. In my opinion it would make
more sense for you to practice basic citation, than attempt to master the
minutiae of the Blue Book.

The time that law students and lawyers spend mastering and
applying the manifold rules of the Bluebook is time taken away from
other lawyerly activities, mainly from thinking about what they are
writing. It is so hard to get the citation forms right that the writer or
editor who has done so is apt to feel that he has acquitted himself of
a difficult task and should be allowed to rest his brain. Less
attention can be given writing and rewriting because so much is
devoted to forms most of which don't matter worth a straw to the
reader. Instead of learning the Uniform Commercial Code the
student learns the Uniform Citation Code, which is almost as long,
and far more arbitrary. It is all part of the surprising juvenescence
of the legal profession; students study the laws laid down by other
students, and teachers teach the law laid down by their just-
graduated students, the judges' law clerks.

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Richard A. Posner, "Goodbye to the Bluebook," 53 University of Chicago
Law Review 1343, 1348-1349 (1986). (Richard A. Posner was a United
States Circuit Judge of the United States Court of Appeals for the Seventh
Circuit from 1981 until 2017. He is now a Senior Lecturer at the University
of Chicago Law School.)

The idea that the Blue Book represents a uniform standard for
citation is also misleading. The truth is there are a lot of different reference
books for legal citation. And citation practice varies from the U.S. Supreme
Court to the other federal courts, from the federal courts to the state courts,
and from one state court to another state court.

For those reasons, this book will just cover the basic rules of how to
cite cases and statutes. Those are the things you absolutely need to get right
every time. These forms are also common to almost every citation
reference available. If you decide to go further, at least you will have a
solid foundation to build on. At least you will have mastered what is most
important.

A. How to Cite Cases

To cite a case, start with the name. State the last name of the
plaintiff (the first plaintiff, if there is more than one). If the plaintiff is an
entity, state the full name but abbreviate generic terms, like “Corp.” (The
Blue Book has a long list of terms that must be abbreviated when they
appear in case names. Blue Book, Table 6. That is an example of the type
of minutiae I am not covering in this handbook.) Write “v.” not “vrs.” or
“vs.”. Then state the last name of the first defendant. If the defendant is an
entity, state the full name. Italicize the entire case name and insert a comma
after the name (You can always underline instead of italicize. But if you do
underline a case name, remember not to underline the comma at the end.),
like this:

Jones v. Fillmore,

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 Then state where the case is located. In other words, state the name
of the book the case is published in. The books cases are published in are
called case reporters. Even if you found the case on line, and read it on
line, you still have to cite to the publisher of the reporter. And you also
have to cite the page numbers in the paper version of the reporter. You
don’t cite cases using the “URL” for the website you found them in.

Put the volume number for the case reporter, then abbreviate the
name of the case reporter. The Supreme Court Reporters are U.S. Reports
(U.S.), Lawyer’s Edition (L. Ed.) and the Supreme Court Reporter (S. Ct.).
U.S. Reports is the official reporter. The Federal Court of Appeals
reporter is the Federal Reporter (F., F.2d or F.3d); and the Federal District
Court (Trial Court) reporter is the Federal Supplement (F. Supp. or F. Supp.
2d.). Do not space between single letters or letters and ordinals (e.g., F.2d).
Memorize those reporters and their abbreviations, as well as the state
reporters and abbreviations for the state where you are going to practice.

For example, Florida Supreme Court cases are cited to the state
reporter Florida Cases (Fla). or the regional Southern Reporter (So. or So.
2d.). Cases of the Florida District Courts of Appeal are also cited to the
Southern Reporter.

Put the page number for the first page of the case. Insert a comma,
then put the number for the page cited (this is called a “pin cite” or “jump
cite”). If the pin cite is for multiple pages use commas to separate them
(don't use "&" or "and") or a dash "-" for a range of pages (and retain the
last two digits but remove prior numbers of the last page).

Jones v. Fillmore, 112 F. Supp. 345, 350-53

If you are doing your research on line, you will find the name of the
case reporter, as well as the volume number and page number for the case,
at the beginning of the case, either just before or just after the names of the
parties. To find the page the specific language appears on, look for
numbers in the opinion preceded by an asterisk. So if you read this: “Smith

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committed the crime *540 of assault and battery,” that means the first part
of the sentence is on page 539 in the print version of the reporter, and the
second part of the sentence is on page 540. Everything that follows the
sentence is also on page 540, all the way up to the place in the opinion
where you see “*541.”

After you are done referring to the case reporter, identify the court
that decided the case and the date. Start with an open parenthesis. For
federal cases, abbreviate the circuit or district, as appropriate (e.g., 11th Cir.
or M.D. Fla.). No abbreviation is needed if the reporter is for the federal
Supreme Court only.

For state cases, abbreviate the name of the state court, unless the
reporter only contains decisions for that court. For example, in Florida, if
you are citing the Supreme Court in the Florida Cases reporter, you don’t
need to indicate the court in parenthesis. But if you are citing the Supreme
Court in the regional reporter, use the abbreviation “Fla.” in parenthesis,
before the date, to identify the Supreme Court. If you are citing the District
Court in the regional reporter, use the abbreviation “Fla. ___ DCA” in
parenthesis before the date, to identify the District Court (fill in the blank
by identifying the district number: 1st, 2d, 3d, 4th, 5th, etc. (superscript
should not be used)). Put the year the case was decided. Then close
parenthesis, and finish with a period, so the end result, for a federal case,
looks like this:

Jones v. Fillmore, 112 F. Supp. 345, 350-53 (D. Mass. 1993).

If you cite the case and page again, use a short form. If there is no
intervening cite, use Id. If you are underlining, instead of italicizing,
remember to underline the period, like this:

Id.

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If you cite the case again but the page is different, add the new page, like
this: “Id. at 351.” If there is an intervening cite, and you cite the case again,
do it like this: Jones, 112 F. Supp. at 351.

B. How to Cite Statutes

To cite a statute, start with the title number for the code or regulation
(the name of the statute is usually omitted). Then abbreviate the name of
the un-annotated code or regulation. The United States Code is U.S.C., and
the Code of Federal Regulations is C.F.R. Memorize the names of the
federal statutes and regulations.

Put a section symbol, or two if citing multiple sections. Then the

number of the section and letters for any subsection (with each letter in
parenthesis), and finish with a period, like this:

12 U.S.C. §122(a).

The Blue Book also requires that the year of the code edition as it
appears on the spine of the print volume or the title page be added in
parenthesis after the cite. Blue Book, Rule B12. But that rule is not
followed by the U.S. Supreme Court and many other courts.

In Florida the practice is a little different. Florida state statutes are

abbreviated Fla. Stat. and regulations are Fla. Admin. Code. But in Florida
the section goes before the name of the code, not after. So instead of “Fla.
Stat. §48”, the correct form would be “§48, Fla. Stat.” Also, when citing a
Florida statute, the year of the code is usually included in parenthesis after
the cite, so the full cite would be “§48, Fla. Stat. (1975).”

If you cite the statute again, use a short form. If there is no

intervening cite, use Id. If you cite the statute again, but the section is
different, do it like this: Id. §122(b). or §122(b) (i.e. omit "at"). If there is an

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intervening cite, and you cite the statute again, restate the section number or
restate the full cite, like this: §122(a) or 12 U.S.C. §122(a).

C. Quotations, Signals and Parentheticals

To quote the language from a case or a statute, follow these four

simple rules.

(1) If the quote is in the text, use quotation marks. (2)

To do a block quote, either because the quote is long or for
emphasis, single space the text, then indent and single space
the body of the quote, leaving out any quotation marks. Left
justify the citation for the quote; and then continue on with
the text. (3) To alter text, use brackets [ ]. (4) To omit
words in text, use an ellipsis . . . (and add a fourth period if
the ellipsis is at the end of a sentence).

And don't forget to put the citation in the right place (leave a space between
the quote and the citation, and left justify the citation so it is part of the
paragraph not the bock quote).

If you are not either quoting or paraphrasing language in a case, you

should place a signal between your statement and the citation for the case.
For example, “See” means the authority supports the proposition either
implicitly or in the form of dicta. “Cf.” means the authority supports the
proposition by analogy. And “E.g.” means the authority is one of many that
state the proposition. If you are using any of those signals, remember not
to put a comma after the signal.

It is also often helpful to include an explanatory parenthetical after a

citation. Here are two examples: See County of Riverside v. McLaugh-lin,
500 U.S. 44 (1991) (civil suit challenging timing of probable-cause
hearing); see 18 U.S.C. 3742 (authorizing appeals from final sentences in
certain circumstances). A citation with a signal in front and a parenthetical
in the rear gives the reader a lot of information in a concise format.

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 That is, in my opinion, all the citation you really need to know. If
you encounter anything else, you will obviously have to look up the correct
form. But those are the forms you encounter all the time. Get one of those
wrong, and people will notice the mistake. Consistently get these right, and
you’ll do fine!

D. Reference Materials

When you do encounter something other than the basic forms I have
described, you will need a good reference book. Fortunately, there are a
number of them available on line. And they are all free.

The Indigo Book is an excellent citation manual that was compiled

by a team of students at the New York University School of Law, working
under the direction of Professor Christopher Jon Sprigman. It is available
to on line for free.

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 If you want something shorter than the Indigo Book you may be
interested in the 90 page Maroonbook a/k/a The University of Chicago
Manual of Legal Citation, which is published by the law review at the
University of Chicago. The Maroonbook is also well done, and it is also
available on line for free.

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 Another excellent resource that is that is much longer is the 500
page Introduction to Basic Legal Citation by Cornell Law School Professor
Peter Martin. Prof. Martin’s text is every bit as comprehensive as the Blue
Book; and it is available on line for free.

And if you want something even more authoritative the U.S.

Supreme Court Style Guide is yet another excellent resource that is
available on line for free. The Style Guide contains the style preferences of
the Supreme Court, used by its Reporter of Decisions when preparing the
Court's official opinions.

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 If you practice in Florida, you should have a copy of the Uniform
Citation System for Florida legal documents in Rule 9.800 of the Florida
Rules of Appellate Procedure plus the Blue Book and the Florida Style
Manual for Florida-specific sources, particularly those generated by the
Florida Legislature. The Style Manual is published by the Florida State
University Law Review and is available on line for free.

Additional examples of state specific citation resources include the

Writing Manual published by the Supreme Court of Ohio and the Style
Manual written by the Supreme Court of Illinois. If there is no similar
manual for your state, you can familiarize yourself with state citation
practice (e.g. how state statutes and regulations, state courts and court
reporters are commonly abbreviated) by simply reviewing some recent
court opinions.

With all those fine resources available at no cost, why would anyone
force students to buy the Blue Book? Harvard, Yale, Columbia and the

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University of Pennsylvania are the wealthiest universities in the country.
See U.S. Department of Education, National Center for Education Statistics.
(2019). Digest of Education Statistics, 2017 (NCES 2018-094), Table
333.90. As of the date of this book, Harvard alone had an endowment of
almost $40 billion. Yet the Blue Book is also the only citation reference on
this list that you have to pay for.

I admit the Blue Book is an excellent resource for law review

articles. So, if you want to join the law review at your school, you should
probably spend the money. Also, if you want to be a law professor after
you graduate, it would not be a bad idea to try and master as much of the
Blue Book as you can. Most law professors write law review articles, so
you will need to know the rules for citing articles. (Professors who teach
skills classes, like me, and professors who actually practice law in student
clinics are exceptions to that rule.)

But if your primary interest is in passing the bar, getting a good job,
and practicing law well, then just make sure you get the basics of citation
down pat. Be aware the rules vary depending upon the context. Have some
good reference materials available; and use them the same way you would
use a good dictionary. When you encounter something with which you are
unfamiliar, open the book and look it up.

Now we can finally talk about how to organize your analysis of a

legal issue, and how to write a legal research memorandum.

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7. IRAC

T he philosopher Socrates is credited with developing the basic

organization for deductive reasoning. He called it a “syllogism.”
Likely you already know about his famous example:

1. All men are mortal. (This the premise.)

2. Socrates is a man. (This is the second premise.)
3. Therefore, Socrates is mortal. (This is the
conclusion.)

If you added the issue to the beginning of this form, you would start
with “The issue is whether Socrates is mortal.” If you then thought of “All
men are mortal” as the rule, “Socrates is a man,” as an application of the
rule to Socrates, and “Therefore, Socrates is mortal,” as the conclusion, you
would have created what law students call “IRAC,” the basic form for legal
reasoning, deductive or analogical.

To organize your analysis of a legal issue, whether you are stating it

orally or in writing, start by stating what the issue is, and then state the legal
rule that applies to that issue. Next apply that rule to the relevant facts, and
then come to a conclusion. That is the most basic structure for analyzing a
legal issue. Here is an example of an analysis of a simple issue using the
IRAC organization:

Issue The issue in this case is whether Supermarket Corp. was

responsible for maintaining the premises in reasonably safe

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 condition.

Rule A basic tenet of premises liability in tort law is those who

own or control property have a duty to maintain it in safe
condition. E.g., Oliveri v. Massachusetts Bay Transp.
Authority, 363 Mass. 165, 167 (1973).

Application Supermarket Corp. was the owner of the property where

the accident occurred, and was also in control of the store
on the property.

Conclusion Therefore Supermarket Corp. was responsible for

maintaining the premises in reasonably safe condition.

Of course lawyers do not often get paid to analyze issues that are that
simple. Usually the rule involves some legal concept that needs to be
explained before it can be applied. Also, many of the rules lawyers deal
with are purposefully vague, and some must be derived from multiple case
opinions. In each of those situations the IRAC model must be expanded
upon to accommodate a more complex situation.

A. Use “IREAC” when it is Necessary to Explain the Meaning of

a Rule

If the meaning of a rule is not clear and needs to be explained, you

would use a modified version of IRAC called IREAC (Issue, Rule,
Explanation, Application and Conclusion) as the structure of your
organization. In other words, you would explain the rule before you apply
it. If the rule is a common law rule from a case decision, you would explain
the rule by citing the case as an example, and then saying what happened in
the case, how the court decided the issue and why the court decided the way
it did. Here is an example:

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 Issue The issue in this case is whether the contract
between Client and Contractor is enforceable.

Rule A basic principle of contract law is that a contract,

to be enforceable, must be supported by adequate
consideration. E.g., Office Pavilion S. Fla., Inc. v.
ASAL Products, Inc., 849 So.2d 367, 370 (Fla. 4th
DCA 2003). An exchange of promises may
constitute such consideration, but not if one of the
promises is illusory. Id.

Explanation In Office Pavilion one of the parties agreed to

sell to the other party “any chairs it chooses to order
at the price set forth in the price list.” Id. The court
held that agreeing to buy as many items as a person
“choses to order” is illusory. Id. An agreement like
that is not supported by sufficient consideration
because accepting it involves no promised
performance. Id.

Application The contract between Client and contractor is

also illusory, since the Client only agreed to hire the
Contractor on the days and times the Client decided
were appropriate. That is not sufficient consideration
to make an agreement binding. Accepting that
involves no promised performance.

Conclusion Therefore the contract between Client and

Contractor is not enforceable.

In the previous example I stated the issue in a general way,

explained and applied a more specific rule applicable to the facts, and then

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stated the conclusion in the same general way as the I stated the issue.
When you analyze a legal issue, you usually want to start with a broad
statement of the issue, then get into the specific rule that is involved in
analyzing the broader issue, explain the rule and apply it to the facts, then
finish with a broad statement of the conclusion (i.e. a statement that mirrors
the original issue).

If the explanation of the rule is simple enough, you can make your
analysis more concise by putting your explanation in parenthesis after the
case cite. Here is a revision of the previous example organized this way.

Issue The issue in this case is whether the contract

between Client and Contractor is enforceable.

Rule A basic principle of contract law is that a contract,

to be enforceable, must be supported by adequate
consideration. E.g., Office Pavilion S. Fla., Inc. v.
ASAL Products, Inc., 849 So.2d 367, 370 (Fla. 4th
DCA 2003) (agreement to buy “any chairs [a party]
choses to order” held illusory and not supported by
sufficient consideration).

Application The contract between Client and contractor is

illusory, since the Client only agreed to hire the
Contractor on the days and times the Client decided
were appropriate. That is not sufficient consideration
to make an agreement binding.

Conclusion Therefore the contract between Client and

Contractor is not enforceable.

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 B. Use “Ferrari Has Really Cool Race Cars” when it is Necessary
to Analogize or Distinguish a Case

The third type of rule is a rule that is purposefully vague. A vague

rule must be explained by giving an example of how it is interpreted in a
specific context, and it must be applied by comparing that context to the
situation involved in a fact pattern. That is the most difficult type of rule to
analyze.

An example would be the tort rule that people are responsible to pay
for the damages they cause as a result of their failure to exercise
“reasonable” care. When you analyze vague rule like that, you not only
need to explain the rule by explaining what happened in a case involving
the rule, what the court decided and why. You also need to apply the rule
differently. You don’t just insert the relevant facts of the fact pattern.
Instead you compare the facts of the fact pattern to the facts of the case,
state whether the facts are analogous or distinguishable. Then either apply
the reasoning or say it doesn’t apply, and come to the same conclusion as
the case, if the facts are analogous, or a different conclusion, if they are
distinguishable.

To help organize the analysis of an issue in that situation, remember

the mnemonic “Ferrari Has Really Cool Race Cars,” which stands for
Facts, Holding, Reasoning, Comparison, Reasoning and Conclusion.
Explain the rule by stating the Facts of a representative case, the Holding of
the case and the Reasoning of the court’s decision. Then apply the rule by
Comparing the facts of the case to the facts of the fact pattern, applying the
Reasoning of the case to the fact pattern and coming to a Conclusion.

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 Here is an example of an analysis of a vague rule using this formula:

Issue The issue in this case is whether evidence of dirty brown wax
beans and black strawberries on the floor of a supermarket is enough to
show the property owner breached the owner’s duty to keep the premises
in reasonably safe condition.

Rule When business visitor slips and falls on foreign substance “he may
prove the negligence of the defendant by proof that . . . the foreign
substance was present on the defendant's premises for such a length of
time that the defendant should have known about it.” E.g., Oliveri v.
Massachusetts Bay Transp. Authority, 363 Mass. 165, 167 (1973); Anjou
v. Boston Elevated Ry. Co., 208 Mass. 273, 274 (1911).

Explanation: Facts (Ferrari) For example, in Anjou the plaintiff

slipped and fell on a banana peel. Id. at 273. According to a witness who
had examined it, the banana peel “’felt dry, gritty, as if there were dirt
upon it,’ as if ‘trampled over a good deal;’ it was ‘flattened down, and
black in color,’ and ‘every bit of it was black, there wasn't a particle of
yellow.” Id. at 274.

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Explanation: Holding (Has) Based on that evidence, the court
held that “[t]he inference might have been drawn from the appearance and
condition of the banana peel that it had been upon the platform a
considerable period of time, in such position that it would have been seen
and removed by the employees of the defendant if they had been
reasonably careful in performing their duty.” Id.

Explanation:Reasoning (Really) A banana peel is perishable. It

decays over time and turns black. Therefore, if a banana peel looks black
and gritty, it is reasonable to infer it’s been sitting for a while.

Application: Comparison (Cool) This case is analogous. The

customers in both cases slipped and fell on perishable substances. Wax
beans and strawberries, like bananas, are perishable. After the passage of
time, beans turn brown and strawberries turn black, just like bananas turn
black when they decay.
Application: Reasoning (Race) For the same reason it is reasonable
to infer a black banana peel has been on the floor for a substantial length
of time, it is also reasonable to infer dirty brown beans and black
strawberries have been on the floor for a long time.

Application: Conclusion (Cars) Based on the evidence, the store

owner in this case should have known of unsafe condition and either
cleaned it up or warned customers of its existence.

Conclusion Evidence of dirty brown wax beans and black strawberries

on the floor of a supermarket is enough to show the property owner
breached the owner’s duty to keep the premises in reasonably safe
condition.

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 Of course, if you were writing any of these examples in a legal
memo you would delete the underlined headings. You don’t actually label
your sections “Issue,” “Rule,” “Application,” and “Conclusion” in a memo.
And you definitely would delete any references to Ferrari having really cool
race cars. So your end result would look like this:

The issue in this case is whether evidence of dirty brown wax

beans and black strawberries on the floor of a supermarket is enough
to show the property owner breached the owner’s duty to keep the
premises in reasonably safe condition. When business visitor slips
and falls on foreign substance “he may prove the negligence of the
defendant by proof that . . . the foreign substance was present on the
defendant's premises for such a length of time that the defendant
should have known about it.” E.g., Oliveri v. Massachusetts Bay
Transp. Authority, 363 Mass. 165, 167 (1973); Anjou v. Boston
Elevated Ry. Co., 208 Mass. 273, 274(1911).
For example, in Anjou the plaintiff slipped and fell on a
banana peel. Id. at 273. According to a witness who had examined it,
the banana peel “’felt dry, gritty, as if there were dirt upon it,’ as if
‘trampled over a good deal;’ it was ‘flattened down, and black in
color,’ and ‘every bit of it was black, there wasn't a particle of
yellow.” Id. at 274. Based on that evidence, the court held that “[t]he
inference might have been drawn from the appearance and condition
of the banana peel that it had been upon the platform a considerable
period of time, in such position that it would have been seen and
removed by the employees of the defendant if they had been
reasonably careful in performing their duty.” Id. A banana peel is
perishable. It decays over time and turns black. Therefore, if a
banana peel looks black and gritty, it is reasonable to infer it’s been
sitting for a while.
This case is analogous. The customers in both cases slipped
and fell on perishable substances. Wax beans and strawberries, like
bananas, are perishable. After the passage of time, beans turn brown
and strawberries turn black, just like bananas turn black when they
decay. For the same reason it is reasonable to infer a black banana

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peel has been on the floor for a substantial length of time, it is also
reasonable to infer dirty brown beans and black strawberries have
been on the floor for a long time. Based on the evidence, the store
owner in this case should have known of unsafe condition and either
cleaned it up or warned customers of its existence. Evidence of dirty
brown wax beans and black strawberries on the floor of a
supermarket is enough to show the property owner breached the
owner’s duty to keep the premises in reasonably safe condition.

Note that the “conclusion” at the end of the “Ferrari has really cool
race cars” organization is meant to be more a more specific conclusion to
the more specific rule explained and applied. The conclusion at the end of
IRAC or IREAC (the “C” in IRAC or IREAC) should be broader, like the
broader statement of the issue in the beginning of IRAC (the “I” in IRAC or
IREAC).

C. Synthesizing a Rule From Multiple Cases

Sometimes the entire rule for an issue is included in a single case;

but other times a complete statement of the rule must be derived from
multiple case examples. In other words, you sometimes have to look at two
or more cases interpreting pieces of the rule, and then put the pieces
together to figure out what the whole rule is. The process of doing that is
called “synthesizing a rule” from multiple cases.

Here is an example of synthesizing a rule for the application of

equitable estoppel to the defense of the statute of limitations. The cases are
General Stencils, Inc. v. Chiappa, Zumpano v. Quinn and Kotlyarsky v. N.Y.
Post. Read through the summary of each case to determine the holding, then
combine the three holdings to construct a complete statement of the rule.

Zumpano v. Quinn, 6 N.Y.3d 666 (2006).

The plaintiffs in Zumpano sued the defendant priests for sexual

abuse that occurred when the plaintiffs were children. The defendants

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raised the statute of limitations as a defense, and the plaintiffs countered by
claiming the defendants were equitably estopped from raising the defense
because the defendants were aware of the abuse and remained silent about
it. The plaintiffs further alleged that, “for over 40 years, defendants did not
report abuse by priests to law enforcement officials; reassigned offending
priests without disclosure of their offenses; and, when victims complained,
made private payments to them so that the charges would not be
publicized.”

Based on these facts, the court held that the doctrine of equitable
estoppel did not apply. Although the defendants conduct “might be morally
questionable in any defendant, let alone a religious institution,” it did not
constitute fraudulent concealment. “A wrongdoer is not legally obliged to
make a public confession, or to alert people who may have claims against it,
to get the benefit of a statute of limitations.” Because there was no
fraudulent concealment, the defendants were not equitably estopped from
raising the statute of limitations as a defense to the sexual abuse claims.

General Stencils, Inc. v. Chiappa,

18 N.Y.2d 125 (N.Y. 1966).

In General Stencils, the plaintiff filed an action against a former

employee claiming the individual converted over $30,000 out of petty cash
funds while in plaintiff’s employ as head bookkeeper. The defendant raised
the statute of limitations as a defense. In response, the plaintiff further
alleged that the defendant fraudulently concealed her defalcations and, as a
result, the plaintiff did not become aware of them until well after the
defendant’s employment ended.

The court agreed stating that equitable estoppel applied because “it
is the defendant's affirmative wrongdoing -- a carefully concealed crime
here -- which produced the long delay between the accrual of the cause of
action and the institution of the legal proceeding.” However, the court also
stated that the assertion of that defense would not be barred if “it was solely

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due to the negligence of plaintiff and the acquiescence of its corporate
officers that it was unable to discover the conversion until several years had
elapsed.”

Kotlyarsky v. N.Y. Post, 757 N.Y.S.2d 703 (2003).

Kotylarsky involved a claim for libel based on an article written by

an employee of the defendant. The article reported that the plaintiff was
under a federal indictment charging him with conspiracy and money
laundering. The plaintiff requested a retraction, after advising defendant
that the contents of the article were false, and that his reputation had been
damaged. At a meeting between the two parties the plaintiff brought court
documents from his criminal case, attempting to prove the falsity of the
statements in the article. During the course of the meeting, it was either
expressly or impliedly promised that a retraction would be published. Nine
months later the plaintiff wrote a letter to the defendant requesting a copy of
the retraction. The defendant responded that she had left messages with
plaintiff’s attorney about a possible article, but she did not receive a
response, so the requested retraction article was withdrawn. The plaintiff
sued and the defendant raised the statute of limitations as a defense. The
plaintiff responded by claiming the defendant should be equitably estopped
from raising that defense because any delay was the result of his own lack
of diligence in failing to timely following up with the plaintiff and failing to
respond to her calls.

The court agreed stating that a plaintiff seeking to invoke the

doctrines of equitable estoppel or equitable tolling is required to
demonstrate “that the failure to timely commence the lawsuit is not
attributable to a lack of diligence on his or her part.” Because plaintiff
waited approximately nine months before writing a letter requesting a copy
of the newspaper in which the retraction had been printed, due diligence
was not shown, and plaintiff failed to allege sufficient facts to warrant the
tolling or estoppel of the limitation period.

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 If you synthesize the holdings of General Stencils, Inc. v. Chiappa,
Zumpano v. Quinn and Kotlyarsky v. N.Y. Post, you will end up with a
complete statement of the rule for equitable estoppel of the statute of
limitations that is something like this:

The doctrine of equitable estoppel applies to toll the statute of

limitations if the defendant’s wrongdoing caused the delay in filing
the case, including if the defendant covered up the claim, General
Stencils, Inc. v. Chiappa, 18 N.Y.2d 125 (N.Y. 1966), but not if the
defendant simply failed to disclose it, Zumpano v. Quinn, 6 N.Y.3d
666 (2006), or if the delay was attributable to a lack of diligence on
plaintiff’s part. Kotlyarsky v. N.Y. Post, Kotlyarsky v. N.Y. Post, 757
N.Y.S.2d 703 (2003).

You would then apply the synthesized rule the same way you would
apply any other rule. If the rule is clear, marshal the facts and come to a
conclusion. If the rule needs an explanation, add the facts of one or all of
the cases to explain it. If the rule is vague, apply it by analogizing or
distinguishing the case that is closest factually to the situation involved in
the fact pattern. For example, you would use General Stencils, Inc. v.
Chiappa, if your case involves something like a cover-up, Zumpano v.
Quinn, if the facts describe something similar to a failure to disclose, or
Kotlyarsky v. N.Y. Post, if the delay is attributable to something that could
be characterized as a lack of diligence on plaintiff’s part.

D. Explaining and Applying a Rule with Multiple Cases

Up to this point I have been using legal analysis examples that

involve the application of just one case to a fact pattern. However, in
practice, it is usually necessary to use multiple cases not just to state the
rule completely, but also to explain what the rule means and then apply it.

When you are dealing with multiple cases, strict adherence to "Ferrari
Has Really Cool Race Cars" is usually inappropriate. Instead it is often

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more effective to explain the rule by citing cases that give examples of how
the rule is applied, and stating the holding for each case in parenthesis after
the cite. Or it may be appropriate to state the holdings for multiple cases,
including a case cite after each holding, and stating the reasoning for the
holding (or relevant factual informaton) in parenthesis after each case cite.

For example, under Illinois law the rule for "constructive eviction
requires that the landlord have done something of a grave and permanent
character with the intention of depriving the tenant of the enjoyment of the
premises." E.g., St. Louis North Joint Venture v. P & L Enterprises, 116
F.3d 262 (7th Cir. 1997); Metropolitan Life Ins. Co. v. Nauss, 226 Ill. App.
3d 1014 (4th Dist. 1992); Applegate v. Inland Real Estate Corp., 109 Ill.
App. 3d 986 (2nd Dist. 1982). An explanation of the rule using those three
cases might look something like this:

A constructive eviction requires that the landlord have done

some “wrongful act” of a “grave and permanent character” with the
intention of depriving the tenant of enjoyment of the premises.
Applegate v. Inland Real Estate Corp., 109 Ill. App. 3d 986 (2nd Dist.
1982). A permanent condition that causes a health hazard, like
cockroach infestation that could not be remedied, could support a
claim for constructive conviction. Id. But temporary inconveniences,
like issues with parking and access resulting from renovations to the
property, would not support such a claim. St. Louis North Joint
Venture v. P & L Enterprises, 116 F.3d 262 (7th Cir. 1997). Also, if the
landlord takes steps to rectify the situation in response to the tenant’s
complaints, there would likely not be any basis for a finding that the
landlord intentionally deprived the tenant of the use of the premises.
Metropolitan Life Ins. Co. v. Nauss, 226 Ill. App. 3d 1014 (4th Dist.
1992)(landlord attempted to mitigate the effects of construction by
having the work done only at night).

When you are dealing with a rule that takes multiple cases to describe
or explain, there may be one case that is closest to the fact pattern. If there
is, you could use that case to apply the rule. Otherwise, the application of

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the rule to the fact pattern will likely also involve multiple cases. In other
words, you will have to compare portions of multiple cases to portions of
the fact pattern; you will not be able to just explain and apply a single case.
Here is an example of an application of the constructive eviction rule stated
above that involves multiple cases:

The tenant in this case claims he was constructively evicted

because of loud music from a neighboring apartment occupied by a
student who would be leaving in three months. Since a landlord’s
action to remedy the situation is evidence the landlord did not
intentionally deprive the tenant of his enjoyment of the property, the
tenant may argue that his landlord’s repeated refusal to do anything
to rectify the problem is evidence his landlord did have such intent.
Regardless, loud music would likely be considered a temporary
inconvenience, and would not be sufficiently “grave” to support a
claim for constructive eviction. Although a condition that poses a
danger to the tenant’s health would serious enough to support a claim
for constructive eviction, a mere inconvenience like loud music would
not support such a claim. Therefore, a court would likely find that
the tenant in this case was not constructively evicted.

As you can see, I started my explanation by stating the rule, citing a

case (Applegate) and then providing examples of the application of the rule
by just stating the holdings for Applegate and another case (St. Louis North
Joint Venture). Then I included an additional aspect of the rule (steps the
landlord takes to rectify the situation), cited another case (Metropolitan
Life) and explained that aspect of the rule by including the relevant facts in
parenthesis after the cite for the case.

In addition to using alternate structures to explain a rule, it may also

be appropriate to modify the IREAC structure to better suit the
circumstances. For example, rather than explain all the cases in one
paragraph and then apply them in the next, it may make more sense to

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explain and apply one case, and then explain and apply the next case(s) (i.e.
use IREAEAC), if doing that makes the analysis clearer.

The rule may be clear or it may need to be explained, and you may
need to do an analogy to apply it. The rule may be derived from multiple
cases, not just one case; and it may take multiple cases to explain and apply
it. Regardless of the situation, some variation of IRAC will work to
organize your analysis.

Up until this point, I have been talking about what is often called
“small scale organization,” which is the use of various structures to
organize your paragraphs as you analyze a specific issue. The last step in
this process is “large scale organization,” which is the organization of
multiple issues into a legal memorandum. And that is the topic for the next
chapter.

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8. OBJECTIVE LEGAL
MEMORANDA

U nlike everything we have to discussed to this point, a legal

memorandum is a finished product you give to someone else to
read. A memorandum is something someone else may rely on in
making a legal decision. It may just be the person you gave it to who reads
it. Or that person may give it to someone else. It may even be something
that gets circulated around a law firm and read by people you don’t even
know. Because of that, it is very important that a legal memorandum stand
on its own two feet. You aren’t going to be able to explain and clarify what
you said to everyone who reads it. So the writing has to be clear. You need
to state the facts your opinions are based on, and it is often appropriate to
state what the source of those facts was. Also, the scope of what you were
asked to write about must be set forth. And your conclusions must be
appropriately limited and qualified.

A legal memorandum is also the end product of everything we have

discussed thus far. To draft one well, you need to know how they are
typically organized. The structure I will discuss consists of five sections:
the issue presented, brief answer, facts, discussion and conclusion. Like
everything else, there is more than one way to do it; but that is the most
common format. I’ll explain each section separately, give you some advice
and some pointers, and then provide an example of a memorandum that was
drafted using this organization.

A. Organization of a Legal Memorandum

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 Legal memoranda typically start with a heading, like this:

MEMORANDUM
To: ________________
From: ________________
Date: _________ __, ____
Subject: Client / Matter

After the heading is the text of the memo (the issue presented, brief
answer, facts, discussion and conclusion). I’ll organize my discussion of
each of those elements the same way I would organize them in a legal
memo. Also, for purposes of this discussion, I will use the example of
analyzing an issue governed by a statutory rule.

I. Issue Presented

State the issue as whether a specific legal principle will be applied to

particular facts in one way or another. Make sure you are following the
instructions in the assignment. Don’t just state a legal conclusion; the issue
is how the law will be applied to specific facts. Use two or three sentences,
if necessary, but be concise.

II. Brief Answer

Answer the issue in a word (i.e. "Yes." or "No.") or a sentence. And

then briefly explain the legal and factual basis for your conclusion in three
to five sentences or more, but, again, be concise. Use "likely" or
"probably" to qualify your answer, since it is impossible to predict with
certainty what a court will do. If there are multiple reasons for your
position, just state a few of the more important reasons and leave the rest
for the discussion. Also, make sure what is stated here is consistent with
what is presented in the discussion (i.e. you don’t have one conclusion in
the brief answer, and then come to a different conclusion in the discussion).

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III. Facts

It is usually appropriate to start by indicating what the source of the

facts is. If your memo is based on what the client told you (or what the
senior partner in the firm told you the client told her), you should indicate
that at the beginning of the facts section. If you are getting the facts from
discovery responses in litigation, then cite to the applicable deposition
transcript or answers to interrogatories or other pleading containing that
information. That way the reader can look up the specific statements you
are referring to, if he desires to do that.

Also, you usually don’t want to just copy the facts from the fact
pattern. Paraphrase and summarize background facts; and state relevant
facts in detail, quoting oral or written statements where appropriate. Use
short, clear sentences, and make sure your verb tenses are consistent (I’d
recommend describing the facts in the past tense). Tell a story in
chronological order, or adopt some other organization for the information
you are presenting. Also, make sure your descriptions of the facts are
accurate; double check to make sure you haven't misstated any facts.

IV. Discussion

Start the discussion by stating the issue you have been asked to
analyze. If the issue has to do with the interpretation of a statute, put the
language of the statute in quotations or do a block quote.

Remember to use the block quote form for long quotations or for
quotations you want to emphasize. Indent and single space the
quoted language; and use brackets for alterations and ellipses for
omitted words or phrases.

Also, make sure you put the citation in the right place (there should be a
black space above the citation and it should be left justified and double
spaced so it is part of the original paragraph not the block quote).

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 If your analysis is based on a statute, then separate out the elements
of the statute, and use the structure of the statute as the structure for your
memo. If the statute has two elements, and the second element has two
additional sub-elements, then your memo should have two sections, and the
second section should have two additional sub-sections. If one of the issues
is a “given” (i.e. there is no dispute as to how the rule applies to that issue),
then obviously you don’t have to analyze it. You can just dispense with it
in the introduction. But otherwise organize the memo around the
organization of the statutory rule.

A. State the First Issue in Your First Subheading

Since you have already stated the first issue in your first subheading,
you don’t have to repeat the issue in the text. Start off by stating the rule
applicable to the issue. If the rule is stated in a lot of cases, resist the
temptation to pad the memo with a long chain cite. Instead just use those
cases that are close factually to the fact pattern. Then cite the cases using
the appropriate forms. Add a signal if appropriate and include a
parenthetical highlighting the key facts or a relevant legal principle.

Now that you have stated the issue and the rule, the next step is to
marshal the relevant facts, or explain the rule first, then apply the facts, or
explain the rule and do a case analogy. If you are explaining a case, don't
be superficial with the facts; go into sufficient depth so the reader can
understand what happened. But don’t spend time reciting irrelevant facts
either; just focus in on the information relevant to the issue. Then state the
holding and any rationale or reasoning for the court's decision. If you are
not quoting the court directly, make sure you are accurately paraphrasing
what the court said or decided. And don’t forget to include pin cites after
each sentence (don’t just put one cite at the end of the paragraph), so the
reader can see where you got your information from.

If need to compare a case to the fact pattern, start with a good topic
sentence, like saying whether you think the case is analogous or
distinguishable. Then restate the facts relevant to the first issue in the
discussion section. You will have already stated the facts in the fact section,

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but you still need to restate the relevant facts in the discussion section.
And, again, make sure your description of the facts is accurate. Compare
the facts of the two cases (e.g. using “like” and “as”) to support the position
your case is either analogous or distinguishable. Make sure you are not
comparing “apples to oranges.” Your reasoning has to be consistent with
the court’s rationale for the case. And finish by stating your conclusion,
even if you think it's obvious.

B. State the Second Sub Issue in Your

Second Subheading
Organize the second sub issue the same way you organized the text
under the first sub issue. Use IRAC, IREAC and Ferrari has really cool
race cars, as applicable. Here is an outline that includes all three:

1. Start with a broad statement of Issue in the heading or text

2. Then the applicable Rule, cite case(s), use signals,
parentheticals
3. Explain the rule with the case that is closest factually to the
fact pattern
a. State the case Facts, include pin cites
b. State the case Holding, include pin cites
c. Explain the case Rationale, include pin cites
4. Apply the rule, state whether the case is analogous or
distinguishable, if you are comparing the case to a fact
pattern
a. Compare the Facts of the fact pattern to the
facts of the case
b. Apply the Rationale of the case
c. Come to a specific Conclusion
5. Finish with a broad statement of the Conclusion

You don’t always have to address a counterargument. But if there is

an obvious one, you should deal with it in your memo. Start by stating
what the argument is and how it would be supported. A counterargument
may be based on a different case that seems to support a different

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conclusion, or it may be based on different interpretation of the same case
or a different interpretation of the applicable facts. Regardless, if you are
going to address a counterargument, you need to effectively refute the
argument and reiterate your conclusion. You can’t have it both ways; you
need to take a position one way or the other and be consistent throughout
the memo.

C. State the Third Sub Issue in Your Third

Subheading

Make sure you are not running out of gas when you write the final
sections of your memo. Among other things, the last sections may be the
most important, so you may need to go into more depth and detail than the
other sections. Assuming you have been taking notes, you already have
written down everything you need to know to organize the third section. If
you haven’t been taking notes, go back and write down what I said under
the first two subheadings, and then organize the third sub issue the same
way you organized the first two.

Also, before you pass the memo in make sure to proofread it for
spelling and grammatical errors. Make sure every sentence begins with a
capital letter and ends with a period, and every citation sentence ends with a
period. Double check citations using an appropriate reference book to
make sure they are in the proper form. Also, check the font and paragraph
format for each page. I prefer Century or Times New Roman size twelve
font; I wouldn’t use Courier because it makes it look like you used a
typewriter to write the memo. But you should use whatever font your
teacher or you’re the person you are working for prefers. The tabs for each
paragraph and section should line up under each other. There should be one
inch margins all around, each page should be numbered, and the text should
be double spaced (there is no need to quadruple space between sections).
Again, those are just my recommendations. If you are doing the memo for
a law professor, or law firm partner, then do it however she wants it done.

V. Conclusion

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 Reiterate the brief answer, qualifying it in the same way using
“likely” or “probably.” Even less information is needed at this point, since
the reader has now read your discussion. Don't introduce new issues and
information in the conclusion. Just restate the answer as succinctly as
possible.

B. Sample Legal Memorandum

Here is an example of a short legal memo drafted using these

guidelines. This memo involves a Pennsylvania criminal statute for the
crime of stalking, which contains a rule with multiple elements.

MEMORANDUM

To: Senior Partner

From: Junior Associate
Date: September 18, 2019
Subject: Edwards / Stalking Charge
_________________________________________________

I.Issue Presented

Whether our client, Philip Edwards (Edwards) committed the

crime of stalking his ex-girlfriend, Mary Rodriguez (Rodriguez), after
she terminated a romantic relationship with him, by threatening her,
following her home from work, and vandalizing her car.

II.Brief Answer

Yes. Edwards likely committed the crime of stalking by

threatening Rodriguez, following her home from work, and
vandalizing her car.

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 III.Statement of Facts

According to a lengthy report submitted by Scranton police on

December 1, 2019, Rodriguez terminated a romantic relationship with
her boyfriend, Edwards, in June of 2018.

Unhappy with this arrangement, Edwards tried to rekindle the

relationship. On one occasion, he brought Rodriguez flowers in a glass
vase, which she rejected. He then flew into a rage, smashed the vase
on her front step and told her “if I can’t have you, no one else can
either. I’ll make sure of that one way or another.”

In August of 2018, Edwards also began calling Rodriguez and

delivering love letters to her. Rodriguez mother told Edwards he was
upsetting Rodriguez. When he heard that he smiled and said “maybe
if I keep going she will eventually come to her senses.” And he
continued calling her and sending her letters.

In October Edwards behavior escalated further. On two

occasions, he followed Rodriguez home from work. On another
occasion, Rodriquez came home late one evening to find him asleep on
her doorstep. He was drunk and apparently had been lying there for a
long time.

Then, in the early morning hours of November 15, 2019

Edwards rang Rodriguez's doorbell. Rodriguez called the police, who
arrived to discover that Edwards had keyed “Mary Loves Philip” on
the bumper of Rodriguez's car. Edwards was arrested and confessed to
the police that he rang the doorbell and vandalized the car. He was
charged with committing the crime of stalking.

IV. Discussion

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 You have asked me to analyze the issue of whether Edwards
committed the crime of stalking his ex-girlfriend, Rodriguez.

In Pennsylvania, the offense of stalking is defined as follows:

(a) Offense defined. A person commits the crime of

stalking when the person . . .

(1) engages in a course of conduct or repeatedly commits

acts toward another person, including following the person
without proper authority, under circumstances which demonstrate
either an intent to place such other person in reasonable fear of
bodily injury or to cause substantial emotional distress to such
other person . . . .
18 Pa. Cons. Stat. Ann. § 2709.1(a)(1).

Pennsylvania’s stalking statute was enacted to protect victims

by providing early intervention since stalking was seen as a precursor
to violence. Commonwealth v. Urrutia, 653 A.2d 706, 708 (Pa. Super.
Ct. 1995). The crime has two elements, the first is “course of conduct”
and the second is intent. 18 Pa. Cons. Stat. Ann. § 2709.1(a)(1). The
required intent is either intent to place another in fear of bodily injury
or intent to cause substantial emotional distress to another. Id.

In this case there is no question Edwards engaged in a course of

conduct by, among other things, following Rodriguez home from work
on two occasions. The only issue is whether his actions demonstrated
intent to place her in fear of bodily injury or to cause her substantial
emotional distress. Among other things, Edwards claims he still loves
Rodriguez and his intent was only to somehow rekindle their
relationship.

A. Whether Edwards’ Conduct Demonstrated

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 Intent to Cause Rodriquez Fear of Bodily Injury.

Intent to instill fear of bodily injury is demonstrated by

threatening a person, berating someone, acting violently or actually
assaulting the person. See, e.g., Commonwealth v. Urrutia, 653 A.2d
706 (Pa. Super. Ct. 1995) (ex-boyfriend exhibited violent behavior and
threatened to kill victim); Commonwealth v. Johnson, 768 A.2d 1177
(Pa. Super. Ct. 2001) (ex-boyfriend threatened and physically assaulted
victim, yelled and made obscene gestures); Commonwealth v. Davis,
737 A.2d 792 (Pa. Super. Ct. 1999) (former husband threatened to
break victim’s legs, and tried to hit victim with car). Notably, it is
irrelevant whether actual or attempted bodily injury is actually caused
or whether the defendant offers “innocuous explanations” for what he
did. Commonwealth v. Miller, 689 A.2d 238, 240 (Pa. Super. Ct. 1997).

Like the ex-lovers in Urrutia, Johnson and Davis, Edwards

threatened his victim by telling her “if I can’t have you, no one else can
either. I’ll make sure of that one way or another.” He may claim he
was still in love and meant no harm but his innocuous explanations for
what he did are irrelevant. The threat is enough to show intent to
instill fear of bodily injury. In addition, Edwards acted violently by
flying into a rage and smashing a flower vase on Rodriguez door step.
Based on the precedent in Urrutia, Johnson and Davis, Edwards
behavior likely demonstrated his intent to put Rodriguez in imminent
fear of bodily injury.

C. Whether Edwards’ Conduct Demonstrated

Intent to Cause Rodriguez Emotional Distress.
Intent to cause substantial emotional distress is shown by
repeatedly harassing a person, and continuing that conduct after being
made aware that it was causing the person emotional distress. See,
e.g., Commonwealth v. Roefaro, 691 A.2d 472 (Pa. Super. Ct. 1997)
(defendant ‘s unabated romantic advances caused victim to move out
of state, and he continued his actions after she returned);

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Commonwealth v. Schierscher, 668 A.2d 164 (Pa. Super. Ct. 1995)
(defendant harassed victim by repeatedly calling her office and
distributing materials disparaging her even after being told what has
was doing was making the victim ill).

Like the defendants in Roefaro and Schierscher, Edwards

repeatedly harassed his victim by calling her and sending her letters.
More importantly, his conduct continued even after it was made clear
to him that his actions were causing her distress. Rodriguez mother
told Edwards he was upsetting Rodriguez, but that didn’t influence
him to stop; it had the opposite effect. He smiled and said “maybe if I
keep going she will eventually come to her senses,” and he kept going.
That incident is enough to demonstrate intent to cause emotional
distress. Again, it is irrelevant whether Rodriguez claims his ultimate
motives were benign. Continuing to engage in contact after you are
made aware of its effect demonstrates intent to cause that effect.
Based on Roefaro and Schierscher, Edwards behavior also
demonstrated intent to cause emotional distress.

V. Conclusion.

For all of the above reasons, Edwards likely committed the

crime of stalking Rodriguez.

Like IRAC, the rules for organizing an office memo are not written in
stone. If a modified version of this structure would work better for the
issues you are analyzing, then modify the structure accordingly.

The principles that apply to legal memoranda are also applicable to

other types of legal writing, like client letters and exam answers. Those
additional examples of legal writing are discussed in the next chapter.

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9. OTHER EXAMPLES OF
LEGAL WRITING

T he basic principles outlined in this book also apply to the letters

you write to clients when you are practicing and the answers you
write for professors when you are in law school. The primary
reason you have to alter the form for clients is because of the audience.
You wouldn’t communicate with a client the same way you would
communicate with another lawyer. The primary reason you have to alter
the form for law school is because of the circumstances. You don’t have an
unlimited amount of time when you write an exam answer. And you are
usually required to take the exam without consulting the books you read.

A. Client Letters

Client letters need to be drafted a little differently than other types of

legal writing. Basically, what you need to do is translate the substance to
make it understandable by someone who didn’t go to law school. Instead of
saying the court “held,” say the court “decided.” Instead of saying the
decision was “reversed,” just say who won. Make sure your conclusions
are appropriately qualified. Never say the client’s case will or will not be
successful. Instead say the client is likely or unlikely to succeed. And also
delete case cites and other references intended for lawyers, not laypeople.

Here is an example of a client letter:

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 CONFIDENTIAL
ATTORNEY CLIENT PRIVILEGE
April 24, 2020
Steve and Mary Jones
101 University Avenue
Gainesville, FL
Re: Habitability Claim
Dear Mr. and Mrs. Jones:
You have asked me to research and analyze the issue of
whether the presence of plant extract aromas in your apartment
makes the space so unlivable that you would legally be permitted to
move out. Unfortunately, a Massachusetts court will likely decide
that the presence of plant extract aromas in your apartment does not
render the apartment uninhabitable.
When we met you stated that you have been living in a fourth
floor apartment in an old building in Boston for the past year. You
have a daughter, Jane, who has allergies. One month ago, three law
school students moved into the apartment just below. The students
are using aromatherapy to help deal with the stress and pressure of
law school. They have diffusers located throughout their apartment.
The diffusers emit strong aromas from various plant extracts and
oils. The fumes from the diffusers are seeping into your apartment,
and causing Jane to have difficulty breathing. She wheezes while she
is sleeping because of the odors; and her doctor has advised you that
the constant presence of the fumes is a danger to Jane’s health.
You also stated that you spoke to the students about the
aromas seeping into your apartment and explained Jane’s problem
with allergies but the students refused to stop using the diffusers. You
then went to the landlord to complain, However, the landlord said he
could not stop the students from doing aromatherapy because the

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students’ lease did not contain any provision that would prohibit
them from using aroma diffusers in the apartment. Also, the plant
aromas were infiltrating your apartment because the building was
heated with steam heat. There were gaps around the pipes that
carried the steam up through the building. The gaps were needed to
accommodate the expansion of the pipes when they get hot. The
fumes traveled up through the gaps around the pipes and into your
apartment. The landlord said he would have to install a new heating
system for the entire building to eliminate the gaps and make each
apartment more air tight.
Based on my research, a condition that the state sanitary code
prohibits because it “may endanger or impair the health, or safety
and well-being of a person or persons occupying the premises” makes
an apartment legally uninhabitable. For example, in the case of Elliott
v. Chaouche, a tenant with a three year old child claimed that the
apartment the tenant occupied was not livable because it contained
lead paint in violation of the sanitary code. The code states that lead
paint is a condition which “may endanger or materially impair the
health or safety, and well-being of an occupant.’ As a result, the
Court decided that the lead paint made the apartment uninhabitable.
Regrettably, I think your situation is different. Among other
things, there is no violation of any sanitary code or the building code
in your case. It may be illegal to have lead paint in a residential
apartment, but there is nothing illegal about using aromatherapy
diffusers in an apartment. In fact, the aromas they produced are
claimed to have health benefits. And the gaps around the pipes in
your apartment are also not in violation of any statute or regulation.
Therefore, the reasoning of the Elliott case probably would not apply.
The presence of plant extract fumes in your apartment likely does not
make it uninhabitable.
In another case, Lynch v. James, a tenant with an infant child
claimed her apartment was uninhabitable because it did not have
“window stops or guards” on the windows. Because that protection
was absent, the child fell from their third floor apartment window

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and sustained serious injuries. However, the court disagreed with the
tenant’s position, observing that there was nothing in the sanitary
code requiring the use of window stops. The court decided that, since
the use of stops was “optional with the tenant,” the apartment was
not uninhabitable without them.
In my judgment, your case is similar to the Lynch case. Again,
there is no statutory prohibition against doing aromatherapy in
residential apartments; and there is no regulatory requirement that a
building be free of gaps in the walls and ceilings. As your landlord
stated, “the infiltration of fumes is to be expected in older
apartments.” Because there is no code violation, our position that the
apartment is uninhabitable is unlikely to succeed.
A Massachusetts court will likely decide that the presence of
plant extract fumes in your apartment does not make your apartment
so unlivable that you would legally be permitted to move out.
Sincerely,

Ben L. Fernandez

Since a client letter is, by definition, a privileged communication, it

is good idea to mark it as such. If you have a “Confidential” stamp, at least
put a stamp on the letter. Better yet, put a statement to that effect in the
header or footer so it appears on every page. One of your ethical duties is
to take reasonable steps to protect the confidentiality of client
communications. That is why I wrote “Confidential: Attorney Client
Privilege” at the top of this letter.

If your client is reasonably sophisticated (and interested), you could

also send him copies of the case opinions you refer to (or offer to do that).
But for most clients a letter like this has more than enough depth. The
bottom line here is that a court is unlikely to find a breach of the implied
warranty of habitability where no violation of the sanitary code exists. In
this case there is no violation, so the client is unlikely to succeed. And just

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that bottom line may be all the client wants to know. So use your good
judgment to vary the level of depth and detail, depending upon what you
think would be most beneficial for the client’s needs.
B. Exam Answers

The best advice I can give you for how to write an exam answer is
to find out what your professor wants. Different professors are looking for
different things from you in an exam answer. So find out as much as you
can about what the professor wants. Ask for past exams and sample
answers. Ask if the professor has a grading checklist she is willing to
share. Find out who booked the class last year, take that guy out for lunch,
and pick his brain as much as he will let you!

Usually, writing an exam answer in law school is primarily about

issue spotting. So the first order of business is to spot the issues. If you
know the material, that will not be as difficult as you think. Figure out what
the issues are, and then separately address each issue in your answer.

Second is reciting the rule for each issue, which you hopefully
remember from the cases you read for class. Even better if you can
remember the name of the case and refer to the case by name in the exam
answer. If the rule has multiple elements, address each element separately.

The third aspect of answering a law school exam is probably what

most separates an “A” exam from a “B” exam, and that is being able to
analogize or distinguish the facts in the exam question to or from the facts
of the case you read in class, and come to a conclusion. Again, legal
reasoning is primarily analogical reasoning. If you just say the issue is
proximate cause and, in your opinion, the requirement is not met based on
the facts in the prompt, your answer will likely be too superficial. In other
words, you saw the issue but you really didn’t analyze it.

To organize your answer, use IRAC, or some variation of IRAC, and

the Ferrari has really cool race cars mnemonic, as applicable. Apply the
principles you learned in this book. Allocate your time and go into as much

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depth as you can. Don’t just state the issue, rule and conclusion. Apply the
rule by analogizing and distinguishing facts. That is at the core of legal
reasoning, and it is one of the primary things you are expected to learn your
first year of law school.

After the exam is over, resist the temptation to discuss the answers
with your peers. For one thing, there usually is no right answer to a law
school exam question, if it is well put together. What I mean is that you can
legitimately answer one way or another. What is important is that you saw
the issue, applied the rule and came to a conclusion. Often there is more
than one way to do that correctly, so don’t get all upset if your classmate
came to a completely different conclusion than the one you came to.

The advice I got when I was in law school was that if you thought the
exam was difficult and you aren’t sure how you did, you probably did well.
If you thought the exam was easy and you aced it, you probably bombed.
So let those people who are boasting that they aced the exam have their
time in the sun. They may be singing a different tune when grades come
out. As long as you did your best, learned as much as you could and tried
to demonstrate that on the exam, give yourself a break. Don’t worry about
how you did; let it go and turn your attention to whatever you have to do
next.

The last thing I want to do is give you some general advice about
writing well. This isn’t a book on grammar so I’ll keep it short and sweet,
and recommend some reading if you need more. Then I’ll let you go on
your way.

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10. IMPROVING YOUR
WRITING

I f you could be a fly on the wall in a teacher’s lounge for legal writing
professors you would likely overhear some complaining about the
quality of student writing. In my opinion, the primary reason for that
is because it is virtually impossible to write well about something you don’t
completely understand. And that is exactly what law school requires you to
do. You are just starting to read cases and understand legal reasoning
during your first year of law school. And that is when you are also required
to learn how to write legal memoranda.

In addition to that not all law students did a lot of writing as

undergraduates. Take me for example. I studied chemistry as an
undergraduate. I don’t think I did any writing at all in my chemistry
classes. Those weren’t the only courses I had to take to get a degree from
the College of Arts and Sciences. But still, I didn’t have to do much writing
as an undergraduate. Law school was completely different than my
undergraduate experience. Not only were there mountains of things to read,
but I had to do a do a lot of writing as well.

Plus legal writing is different than any type of writing you may have
studied as an undergraduate. You can be an English major who did very
well in college and still have a lot of trouble with legal writing. There are
no points for creativity and imagination in legal writing. The style is very
structured. You have to think and write in a very organized way. You have
to pay very close attention to the language you read in cases and the

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language you use to write about them. And it is very important that your
writing is clear.

If you have trouble doing all that, there is no need be discouraged.

Welcome to the club! A lot of law students have trouble with legal writing.
In fact, some of the students with the best grades in other classes don’t do
well in their legal writing course. Writing is a skill. Learning to do it well
is completely different than learning substantive legal principles in classes
like torts, contracts and property.

Probably the most important thing to learn for legal writing is clarity
and organization. To make your analysis of legal problems clear, your
writing has to be very well organized. That is why law students learn IRAC
and the sections of a legal memo. To make your writing even more
effective, you may want to add subheadings to the sections we covered
here. Also, start your paragraphs with good topic sentences and finish with
good transitions to whatever is discussed next.

The second most important thing is concision. You need to practice

writing concisely. When you are explaining a complex concept, the
sentences you use should be short, simple and straightforward, or you will
make it even harder to understand than it already is. If your writing is
wordy and awkward, it will be impossible to understand what you are
saying.

And the third most important thing is accuracy. You can’t get the
facts wrong. You can’t say a case says something the case doesn’t actually
say. You can’t have typos in your case cites. You have to get those things
exactly correct. You have to learn pay close attention to the statutes and
cases you read; and you have to pay close attention to what you write about
them. “Close enough” is not enough for legal writing.

As luck would have it the rules of grammar and punctuation are

designed to accomplish those same goals. So if your grammar isn’t that
great or if you aren’t always sure how to correctly punctuate a sentence, you
are going to have trouble writing clearly. Misplacing a modifier or making

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an indefinite pronoun reference will make your writing ambiguous. Put a
comma in the wrong place and you may inadvertently change the meaning
of what you have written.

There are computer programs out there that can help you, including
Core Grammar for Lawyers, which many law schools offer to their law
students. If that is not within reach there are also grammar programs for
consumers available on line, including one called Grammarly that you may
find helpful.

When I was in law school I read a copy of Strunk & White’s The
Elements of Style, which is probably one of the most well-known books on
grammar. I especially liked that book because it was short, concise and
easy to digest, like the books I write for law students.

Two of my peers at the University of Florida have also written a

similar book especially for lawyers called Grammar, Punctuation, and
Style: A Quick Guide for Lawyers and Other Writers, Cupples and Temple-
Smith (West Academic Publishing July 9, 2013). That is probably the best
book I could recommend for a law student looking for additional writing
support.

No matter what your background is you shouldn’t expect to write like

a legal expert the first time you try writing a research memo. Don’t get
flustered or defensive when your writing professor gives you a lot of
feedback on your work. He is just trying to help you; and you have a lot to
learn. So try to absorb as much feedback as you can.

Never feel like anything you create is written in stone. You can
always do better. Never feel like you know everything there is to know.
You can always learn more.

Stay motivated and practice as much as you can.

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PART II: PERSUASIVE
WRITING

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11. CREDIBILITY

P ersuasive legal documents are drafted the way that they are for
three reasons. The first reason is because they apply the same
customs and practices we discussed in the first ten chapters of this
book, including starting a memo or brief with a description of the applicable
facts, then discussing the applicable law, and finishing with a conclusion, as
well as structuring the analyses of specific issues using CREAC (stating the
conclusion first, then the rule, explaining the rule and applying it to the
facts, and coming to a conclusion). If you haven't mastered those skills yet,
you will have to continue to work on them as you learn persuasive drafting.

The second reason is because persuasive legal documents are subject

to the rules of civil and appellate procedure, including the requirements for
granting the relief requested and the requirements for the form and
substance of the documents. In addition, the conduct of attorneys in
litigation is governed by the ethical rules for the jurisdiction in which they
are practicing.

And the third reason persuasive documents are written the way they
are is because they try to compensate for or take advantage of the way
people think. To persuade someone to do something you have to consider
how that person thinks about you, your client and the information you are
providing. Among other things, you have to consider the effects of
credibility and bias. I'll discuss credibility in this chapter and bias in the
next.

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 The reason credibility is important is because judges have to rely to
varying degrees on the information they receive from counsel, and
credibility is a way of determining the reliability of that information. If you
argue a motion and the judge rules in your favor from the bench, then he is
doing that relying on what you told him. If you lack credibility and he
questions the reliability of what you said, it is more likely your motion will
be denied. If he takes the matter under advisement and issues a ruling later,
he may also take the time and effort required to do his own independent
investigation of the law. But, if you lack credibility, he isn't likely to do that
either.

Normally a person would rely on your identity to determine your

credibility. They would know who you are and what your reputation is.
But especially when you are just starting out, the judge will likely not
know who you are. Instead, she will make inferences about you based on
the way you present yourself in person and in writing. I bet you already
know well how to make a good impression in person. I don't think I've ever
seen a student show up for a job interview who wasn't properly dressed and
conducting herself in a professional manner. To ensure your writing is
credible, you need to make sure your memos and briefs are just as
presentable.

Credible persuasive writing is writing that is done well. A well

written document should earn the court's respect; a poorly written document
will likely not be taken seriously. If you cite a case that has been overruled
or heavily criticized, your credibility will be harmed. If you consistently
cite cases incorrectly, you will look like you don't know what you are doing.
So research and citation are important skills for an advocate to master.

Incorrectly structuring a legal argument using CREAC, comparing

apples to oranges in a case analogy, or misinterpreting a statutory formula,
will also hurt your credibility as an advocate. Legal reasoning is at the
heart of persuasive writing. If your reasoning is invalid, your credibility
will be lost, and it will likely become impossible to convince the judge of
your position. If you don't understand relevance and can't marshal the facts

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to the elements of a statutory formula, you will likely suffer the same
consequences.

The same thing is true of every other aspect of writing a memo or

brief. If your document does not conform properly to the rules of
procedure, or even if it just has a lot of typos, numbering mistakes or
formatting errors, all those things will also hurt your credibility as an
advocate. You wouldn't show up to an oral argument with your shirt
hanging out of your pants. You need to make sure your writing is polished
for the same reason.

Because credibility so important and credibility in writing is

achieved by writing well, it is a good idea to start the topic of persuasive
writing by reviewing what you learned about writing objective research
memoranda. Take some time to review the basic principles of legal writing
in the first half of this book, including the chapters on legal research,
applying cases, analyzing statutes and basic legal citation. To draft a
persuasive document well you have to have first master the basics of
research, analysis, CREAC and citation.

In addition to writing well, credibility in writing is also established

by writing persuasively. When you draft a memo or brief, you need to write
with conviction, like you believe in what you are saying and you think it is
important. You need to take every opportunity you have to persuade the
judge of your position. When you state the issue, state it persuasively. As
you make each point, make your statements in a way that makes clear the
merit of your argument. When you explain and apply cases, do it
convincingly. And state your conclusions persuasively as well. If you
don't do that, your credibility as an advocate will suffer.

For example, you would never write in a brief something like "My
client's position is that the motion should be allowed." You are not there to
pass along your client's request. You might qualify your statement that
way if you are writing a research memo for a law firm. But when you are
drafting a memo or brief for a judge, you are not just analyzing a problem
and reporting on the answer. Your job is to convince the judge he must

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grant the relief your client requests. If you do that sounding like you don't
believe in your own case, no judge is going to be willing to waste time
listening to your argument.

In addition to writing persuasively, you also need to write

purposefully. You need to think about what you are doing, come up with a
strategy for persuading the judge to see things your way, and then pursue
that strategy in your writing. You can't just blindly apply everything you
read here. I will show you a lot of techniques for persuasively stating facts
and arguing law. But that does not mean you should use all those
techniques all the time. If you overdo it, that will also affect your
credibility. So you need to consider the context and how your statements
are being received. If what you are doing isn't working, change course. In
the end credibility is more important than continuing to follow a rule or
some advice that isn't working.

Credibility is not only relevant to the impression made by you and

your writing, it is also relevant to the audience you are addressing. Trying
to persuade a judge who is biased against you or your client for whatever
reason is an extremely difficult thing to do. The reason is because the bias
of your audience can have a profound negative effect on your credibility
and your client's credibility. So it is also important to think about bias when
you advocate on behalf of someone else. And that is the subject we will
discuss in the next chapter.

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12. BIAS

E veryone has biases, some they are aware of, and some they are not.
Some biases are harmless. Others can get in the way of your
ability to do your job. And that is particularly true of biases that
relate to a person's race, ethnicity, gender, religion or sexual orientation. As
an attorney you need to be aware of your own biases because they can
hamper your ability to communicate with clients who are different than you,
and whose experiences are different than your own. And you also you need
to be aware of the biases of your audience, including the judges you are
trying to persuade.

You may not think of yourself as biased. Most people don't. But
most of us nonetheless have many biases that are unconscious or "implicit".

Implicit bias is formed and trapped in the subconscious by

years of teachings, experiences, and other environmental and social
influences. It exists beneath the surface. Our implicit biases function
as an unfortunate default position for the brain in times of
controversy, conflict, and disagreement.

***
The troubling thing about implicit bias is that it is insidious,
hiding in the recesses of the brain. Implicit bias can be so dormant
that we are offended by the very suggestion that it exists within us.
Whether in times of harmony or conflict, when we are confronted
about our obvious biases, we are quick to deny with the common

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 response that "I have friends" who are members of the group at
issue.

***
Most people are sincerely confident that they do not fall into
the category of bigot. At the same time, too many really good people
are unaware that they are captive to their subconscious biases, even
to a point that it renders them incapable of making meaningful and
effective contributions to the dialogue, too often at the most critical
moments.

Vincent F. Cornelius, Understanding Implicit Bias, 104 ILL. B.J. 10 (2016).

To eliminate implicit bias you must first recognize that it exists and
take conscientious measures to surmount it. Julia L. Ernst, Eliminating
Implicit Bias, 67 GAVEL 16 (2020). Talking about bias helps, as does
“maintaining an open posture, making eye contact, and speaking fluidly."
Michael B. Hyman, Reining in Implicit Bias, 105 ILL. B.J. 26 (2017).
Also, "exposing ourselves to individuals who, and situations that, do not
align with our subconscious associations” helps us to “construct new mental
associations to override those in our subconscious.” Sarah Q. Simmons,
Litigators Beware: Implicit Bias, 59 ADVOCATE 35 (2016).

When you harbor misconceptions about people you may

unintentionally make statements to them that they experience as aggressive,
invalidating or otherwise offensive. Those types of statements are called
“microaggressions,” meaning they are “common place daily verbal,
behavioral, or environmental indignities, whether intentional or
unintentional, that communicate hostile, derogatory, or negative racial
. . . slights and insults toward people of color.” Derald Wing Sue,
Microaggressions in Everyday Life: Race, Gender and Sexual Orientation
(2010). Examples of microaggressions include statements like “I don't
think of you as Black,” “You don't look Jewish” and “Where are you from?
No, where are you really from?” Catharine Wells, Microaggressions: What
They Are and Why They Matter, 24 TEX. Hisp. J. L. & POL'y 61 (2017).

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 Being aware of these micromessages and paying more attention to your
own messaging is also part of overcoming implicit bias. Bernice B. Donald
& Sarah E. Redfield, Arcing toward Justice: Strategies to Disrupt Implicit
Bias and Limit Its Negative Impact, 35 CRIM. Just. 55 (2020).

Additional examples of microagressions that are unique to the

LGBT community include “(1) the use of heterosexist terminology, (2) the
endorsement of heteronormative or gender-conforming culture / behaviors,
(3) the assumption of universal LGBT experience, (4) exoticization, (5)
discomfort/disapproval of LGBT experience, (6) denial of societal
heterosexism / transphobia, and (7) assumption of sexual pathology /
abnormality.” Ronald Wheeler, About Microaggressions, 108 LAW LIBR.
J. 321 (2016), citing Kevin L. Nadal et al., Sexual Orientation
Microaggressions: Processes and Coping Mechanisms for Lesbian, Gay,
and Bisexual Individuals, 5 J. LGBT ISSUES COUNSELING 21, 30-32
(2011).

To eliminate microaggressions you need to understand that we all

live in different worlds. If you have dealt with racism in your life you tend
to see it everywhere. If you have never had that experience, then you tend
to think it doesn't exist. Recognize those differences and think about how
what you are saying might be perceived by someone whose experiences are
different than your own. If you don't do that you may unintentionally make
statements that reveal your own bias and offend your audience.

That is one reason why many find it uncomfortable to talk about

topics like racism, sexism and heterosexism. Rather than confronting their
own misconceptions, and acknowledging the differing experiences of
others, what a lot of people do is simply choose not to talk about these
topics. People don't want to talk about race or gender because they are
afraid they will say something wrong. They are afraid they will
inadvertently reveal their own biases.

Avoiding the problem may be an effective plan for some people.

But that is not a good strategy for a student training to be an advocate for
others. You need to deal with implicit bias and microaggressions relating to

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race, ethnicity, gender, religion and sexual preference because they can
impede your ability to communicate with your client, empathize with their
claims and effectively persuade judges to grant them the relief they request.

On top of that, if you are going to practice law you can't be afraid of
having difficult conversations with people. Interviewing a criminal
defendant charged with child molestation is uncomfortable. Asking a
husband to describe the car accident that killed his wife is difficult. If you
need to confront a liar in open court, you can't be timid and shy away from
calling that person out. You have to go on the attack. And when another
attorney launches an attack on your client, you have to go on the defense.
You have to open your mouth. You can't just avoid talking about the issue.

In addition to dealing with your own biases, you may also need to
deal with the biases of others, including a judge you are trying to persuade
or an attorney on the other side of your case. We would like to think
prejudice has no place in a courtroom but judges have implicit biases too.
Rachlinski, Jeffrey J.; Johnson, Sheri; Wistrich, Andrew J.; and Guthrie,
Chris, "Does Unconscious Racial Bias Affect Trial Judges?" Cornell Law
Faculty Publications. Paper 786 (2009). Prosecuting attorneys possess
biases and may even use them against your client. Praatika Prasad, Implicit
Racial Biases in Prosecutorial Summations: Proposing an Integrated
Response, 86 FordhamL. Rev. 667 (2018). In fact, some take the view that
the presence of bias in the legal profession is pervasive. Emma Bienias, et
al., Implicit Bias in the Legal Profession, Intellectual Property Owners
Association (2017).

If you represent a client in oral argument and the color of your skin,
your facial features, your accent or the way you dress reveals your race,
ethnicity, gender, religion or sexual preference, and you are speaking to
judge who is prejudiced or harbors misconceptions about you based on
stereotypes he adheres to, then that judge’s biases may have a negative
impact on your credibility. The same thing is true for your client. You may
not have had to deal with prejudice in your life, but you may represent
clients who have.

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 To overcome bias in judges first realize the person you are
interacting with may not be aware of their own biases, and may not have
intended to be aggressive, insulting or patronizing. So give the person who
made the statements the benefit of the doubt. Infer whatever she said was
not conscious or intentional. And then address the issue in a calm, non-
confrontational way. Try not to get emotional or argumentative. If you do
that things will likely just escalate. So don't go on the offensive and launch
an attack; and resist personalizing the issue. Just address it and move on.

In addition to calling attention to the issue, look for common

ground. People are biased against others who are not like them, but they
are also biased in favor of others who are like them. That is called "affinity
bias." Stella Tsai & Debra Rosen, Know Thyself: Affinity Bias in the Legal
Profession, 20 Woman Advoc. 23 (2015). The differences can have a
negative effect on credibility, but commonality can offset that effect. So
one way you can overcome bias is by appealing to common values and
interests.

A great example of a trial lawyer dealing with bias and overcoming

it by appealing to a commonality is Clarence Darrow's argument to the
judge in the Loeb and Leopold case. Darrow was probably the greatest
American advocate who has ever lived. And his argument to the judge in
that case was successful. The bias he was dealing with was classism (his
clients came from a wealthy family) and he overcame it by calling it out
and then appealing to the judge's Christian values (mercy, overcoming
hatred with love, etc.).

Affinity bias is not the only bias you can use to your advantage.
People are also affected by "anchoring bias." They tend to rely mostly on
the first piece of information they learn when they make decisions; that
initial piece of information tends to have the most impact on the decision
they end up making. Bernice B. Donald & Sarah Redfield, Arcing toward
Justice: Can Understanding Implicit Bias Help Change the Path of
Criminal Justice, 34 CRIM. Just. 18, 25 (2019). A good advocate will take
advantage of that unconscious bias by always stating her strongest

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arguments first in a memo or brief. And that is one of the persuasive
techniques we will be discussing in the following chapters.

As we discuss the rules of ethics and procedure in the following

chapters, keep the issues of credibility and bias in the back of your mind.
Because persuasive writing is done in the context of litigation, you always
need to make sure you are following the rules. Because the process
involves human beings, you need to deal with the issues of credibility and
bias as well.

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13. ETHICAL RULES FOR
ADVOCACY

W hen you write persuasively and argue a motion or appeal

before a court, your conduct and the form and substance of
what you write are subject to the rules of ethics and the rules
of civil and appellate procedure. In this chapter we will take a brief look at
the relevant ethical rules. Those are the requirements that attorneys provide
competent and diligent representation, not assert frivolous claims or
defenses, act with candor toward the tribunal, and treat the opposing party
and counsel fairly.

The first rule is that a lawyer must provide competent representation.

A lawyer must provide competent representation to a client.

Competent representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the
representation.

Model R. Prof. Conduct 4.1. Note that knowledge and skill are not the only
components of competence. Thoroughness and preparation are also
required. In the context of litigation, that means fully investigating the facts
of your case and thoroughly researching the applicable law. Here is the
explanation in the comments to the rule:

Competent handling of a particular matter includes inquiry

into and analysis of the factual and legal elements of the problem,

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 and use of methods and procedures meeting the standards of
competent practitioners. It also includes adequate preparation.
The required attention and preparation are determined in part by
what is at stake; major litigation and complex transactions
ordinarily require more extensive treatment than matters of lesser
complexity and consequence. The lawyer should consult with the
client about the degree of thoroughness and the level of preparation
required as well as the estimated costs involved under the
circumstances.

Model R. Prof. Conduct 4.1 (comments) (emphasis added).

To provide competent representation to a client in connection with

civil litigation or an appeal, you must first learn the rules that govern those
processes. You can't just look at a memo or brief someone else drafted and
try to figure out how to do it from there. Documents submitted in litigation
are drafted the way they are because the rules require them to be done that
way. That is one of the many respects in which persuasive writing is
different than the objective writing we discussed in chapter eight. To
achieve competence in drafting a memo or brief, you must first learn the
rules of civil and appellate procedure.

The second rule requires that lawyers act with reasonable diligence:
A lawyer shall act with reasonable diligence and
promptness in representing a client.

Model R. Prof. Conduct 1.3. The comments make clear that diligence
requires a lawyer to, among other things, act with "zeal in advocacy upon
the client's behalf."

[1] A lawyer should pursue a matter on behalf of a client

despite opposition, obstruction or personal inconvenience to the
lawyer, and take whatever lawful and ethical measures are required
to vindicate a client's cause or endeavor. A lawyer must also act
with commitment and dedication to the interests of the client and
with zeal in advocacy upon the client's behalf. A lawyer is not

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 bound, however, to press for every advantage that might be realized
for a client. For example, a lawyer may have authority to exercise
professional discretion in determining the means by which a matter
should be pursued. See Rule 1.2. The lawyer's duty to act with
reasonable diligence does not require the use of offensive tactics or
preclude the treating of all persons involved in the legal process
with courtesy and respect.

Model R. Prof. Conduct 1.3 (comments) (emphasis added).

Representing a client with zeal means doing it with enthusiasm and

passion. And that zeal must be reflected in your writing. Your job is to do
whatever is necessary to achieve the client's goals. You need to take every
opportunity in your memos and briefs to persuade the judge of your
position. You need to describe the facts persuasively and state your legal
argument persuasively as well. In addition to the rules of procedure you
must also learn how to write persuasively, so that you will be able to
represent your client with competence and diligence (zeal).

There are three more ethical rules you need to be aware of. The first
prohibits counsel from making frivolous claims, and is similar to what is in
Fed. R. Civ. P. 11(b)(by signing a pleading the attorney certifies that it is not
being presented for an improper purpose, the legal claims are supported by
law, and the factual statements are supported by the evidence). Here is
relevant part of the rule:

A lawyer shall not bring or defend a proceeding, or assert or

controvert an issue therein, unless there is a basis in law and fact
for doing so that is not frivolous, which includes a good faith
argument for an extension, modification or reversal of existing law.

Model R. Prof. Conduct 3.1. There must be a basis in law (or a good faith
argument for an extension, modification or reversal of existing law) for the
requests you make. And it is no excuse that you didn't take the time to
thoroughly investigate the facts or research the applicable legal issues.

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 The second rule prohibits a lawyer submitting false information to the
court.

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail

to correct a false statement of material fact or law previously made
to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the

controlling jurisdiction known to the lawyer to be directly adverse to
the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false.

Model R. Prof. Conduct 3.3. Sections (1) and (3) of the rule are no
surprise. You can't lie to the court! That should probably go without
saying. But section (2) is a little counter-intuitive. You wouldn't think it is
inconsistent with your obligations to your own client to disclose adverse
authority. You would think that is the job of opposing counsel and not
something you need be concerned with. Here is what little explanation is
given in the comments to the rule:

A lawyer is not required to make a disinterested exposition of

the law, but must recognize the existence of pertinent legal
authorities. Furthermore, as stated in paragraph (a)(2), an
advocate has a duty to disclose directly adverse authority in the
controlling jurisdiction that has not been disclosed by the opposing
party. The underlying concept is that legal argument is a discussion
seeking to determine the legal premises properly applicable to the
case.

Model R. Prof. Conduct 3.3 (comment 4). The way you typically meet this
requirement in a memo or brief is by addressing an obvious
counterargument. If there is adverse authority, you don't just disclose it.
You need to refute it as well. You should expect opposing counsel to find

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the same thing you did and use it against you. So you need to anticipate
that and address in your own submissions whatever counterarguments there
are.
The third rule states, in pertinent part, that you also cannot obstruct
the other party's access to information:
A lawyer shall not:

(a) unlawfully obstruct another party's access to evidence or

unlawfully alter, destroy or conceal a document or other material
having potential evidentiary value. A lawyer shall not counsel or
assist another person to do any such act;

Model R. Prof. Conduct 3.4. This rule is really more relevant to discovery.
Here is the explanation in the comments:

[1] The procedure of the adversary system contemplates that

the evidence in a case is to be marshaled competitively by the
contending parties. Fair competition in the adversary system is
secured by prohibitions against destruction or concealment of
evidence, improperly influencing witnesses, obstructive tactics in
discovery procedure, and the like.

[2] Documents and other items of evidence are often essential

to establish a claim or defense. Subject to evidentiary privileges, the
right of an opposing party, including the government, to obtain
evidence through discovery or subpoena is an important procedural
right. The exercise of that right can be frustrated if relevant material
is altered, concealed or destroyed. Applicable law in many
jurisdictions makes it an offense to destroy material for purpose of
impairing its availability in a pending proceeding or one whose
commencement can be foreseen. Falsifying evidence is also
generally a criminal offense.

Model R. Prof. Conduct 3.4 (comments 1 & 2). So you can't shred
documents! That should probably go without saying too. You can de-

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emphasize and downplay information in a memo or brief. But you can't go
further than that and actually conceal the facts or destroy the documents.

That is a quick overview of the relevant ethical rules. In the next

chapter I will outline the rules applicable to civil litigation and appeals,
including the requirements for the form and substance of the persuasive
memos and briefs we will be drafting.

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14. CIVIL AND APPELLATE
PROCEDURE

T he two primary examples of persuasive writing lawyers produce

are a memorandum in support of a dispositive motion in civil
litigation and a brief in support of an appeal. To understand how
to draft both types of documents you first have to understand the context in
which they are created. You have to become familiar with the rules that
govern civil and appellate procedure. I'll use the federal rules of civil and
appellate procedure as examples for the discussion of these topics. Every
state has its own rules for civil and appellate procedure, but they tend to be
very similar to the federal rules.

A. Civil Procedure

The first step in beginning a lawsuit is filing a complaint with the

clerk's office of the court. Fed. R. Civ. P. 3. There are specific rules for the
structure and content of a complaint, as well as other documents filed in
litigation. The complaint must start with a caption containing the court’s
name, the names of the parties, a file number, and a designation (title). Fed.
R. Civ. P. 10. The body of the complaint must include a short and plain
statement of the grounds for the court’s jurisdiction, a short and plain
statement of the claim showing that the pleader is entitled to relief, and a
demand for the relief sought. Fed. R. Civ. P. 8(a). The attorney of record
must also sign at the end of the document and state the attorney's name,
address, e-mail address, and telephone number. Fed. R. Civ. P. 11(a).

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 The second step is to serve the defendant with a summons and a copy
of the complaint. Fed. R. Civ. P. 4(c). The defendant then has 21 days to
file an answer. Fed. R. Civ. P. 12(a)(1)(A)(i). In the answer, the defendant
must state in short and plain terms its defenses to each claim asserted
against it; and admit or deny the allegations asserted against it by the
plaintiff. Fed. R. Civ. P. 8(b).

The defendant then may file a counterclaim against the plaintiff, if

required or appropriate. Fed. R. Civ. P. 13(a)&(b). If there are multiple
defendants, they may file cross claims against each other. Fed. R. Civ. P 13
(g). Also, under certain circumstances a defendant may join a third party to
the litigation and assert a claim against that third party. Fed. R. Civ. P. 14.

If a pleading fails to state a claim upon which relief can be granted,

the party responding to the claim may bring a motion to dismiss. Fed. R.
Civ. P. 12(b)(6). Like all other documents filed in litigation, a motion must
start with a caption containing the court’s name, the names of the parties, a
file number, and a designation (title). Fed. R. Civ. P. 10. The body of the
motion must state with particularity the grounds for seeking the order, and
state the relief sought. Fed. R. Civ. P. 7(b). And the end of the motion must
contain the signature of the attorney of record, as well as the attorney's
name, address, e-mail address, and telephone number. Fed. R. Civ. P. 11(a).

After the pleading stage each party is required to make certain

mandatory disclosures of information and documents to the other party.
Fed. R. Civ. P. 26(a). In addition, each party may send the other party up to
25 written questions (interrogatories). Fed. R. Civ. P. 33(a). A party may
formally request that the other party produce documents. Fed. R. Civ. P.
34(a). Also, each party may take a deposition upon oral examination of the
other party. Fed. R. Civ. P. 30(a).

If there are no genuine disputes as to any material fact and one party
is entitled to judgment as a matter of law, that party may file a motion for
summary judgment. Fed. R. Civ. P. 56. The same requirements that apply
to a motion to dismiss also apply to a motion for summary judgment (the
document must start with a caption, state the grounds for the motion and the

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relief sought, and end with a signature block for the attorney of record). In
addition, affidavits submitted in support of motion for summary judgment,
must be made "on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent
to testify on the matters stated." Fed. R. Civ. P. (c)(4). In any opposition to
the motion, the party asserting that a fact cannot be or is genuinely disputed
must support that assertion by citing to discovery responses or showing that
the other party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).

Litigation is concluded with a trial on the merits and the entry of

judgment in favor of one party or the other. The procedures and practices
associated with civil trials are beyond the scope of this book, as are the
rules of evidence. However, the drafting of an appeal brief is another
example of persuasive writing discussed here, so you will also need to
become familiar with the appellate process.

B. Appellate Procedure

An appeal is begun by filing a notice of appeal with the appellate

court. Fed. R. App. P. 3(a). There are strict timelines for doing that:
typically you have 30 days from the date the final judgment was entered.
Fed. R. App. P. 4(a)(1).

After the notice is filed, the appellant (the party filing the appeal) has
14 days to order a copy of the trial transcript. Fed. R. App. P. 10(b). And
the appellant must also do whatever else is necessary to enable the clerk
to assemble and forward the record for the appeal. Fed. R. App. P. 11(a).

Once the record is filed the appellant has 40 days to serve and file an
appeal brief. Fed. R. Civ. P. 31(a). I will go through the very detailed rules
for the form and content of appeal briefs in chapter nineteen. After the
appellant files a brief, the appellee (the party against whom the appeal was
taken) has 30 days to file their appeal brief. Id.

The next step is often for the attorneys to "participate in one or more
conferences to address any matter that may aid in disposing of the

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proceedings, including simplifying the issues and discussing settlement."
Fed. R. App. P. 33.

The process then culminates with oral argument, which consists of

both attorneys orally presenting their case to a panel of judges, and
responding to whatever questions the judges may have. Fed. R. App. P.
34(a). Oral argument is discussed in more detail in chapter twenty. After
the argument, the court renders its judgment and the appeal is concluded.
Fed. R. App. P. 36.

These are the contexts within which a memorandum in support of a

dispositive motion in civil litigation and a brief in support of an appeal are
submitted. Unlike when you write an office memorandum, when you write
a memo or brief in litigation you have to make sure your document
conforms with the rules of procedure.

Now that we have discussed the general rules for civil and appellate
procedure, we can turn to the specific requirements for granting the relief
you request (e.g. the requirements for a motion to dismiss or a motion for
summary judgment and the standards of review for an appeal). When you
draft a persuasive document you have to apply those requirements and
standards in addition to the substantive rule you learned to apply when you
write an objective research memo.

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15. REQUIREMENTS FOR
CIVIL MOTIONS AND
STANDARDS FOR APPEALS

W hen you write for litigation you have to apply the requirements
for granting the relief you are requesting in addition to the
substantive rule you learned to apply in the first ten chapters
of this book. The requirements for granting relief will be discuss in this
chapter. To more clearly differentiate among the three sets of rules that
apply to persuasive documents, I have drafted a chart with an example of
what those rules would be if you were drafting a motion to dismiss in a tort
case:

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 When you write an objective memo analyzing a legal issue you apply
the substantive rule to a set of facts, and organize your analysis using
CREAC. When you write a persuasive memo or brief, you apply the
requirements for granting the relief you request at the same time, and you
do it within the CREAC structure. You do that by stating the requirements
for granting the relief you request before you begin analyzing the
substantive rule, and then reflecting those requirements and demonstrating
they are satisfied within your application of the substantive rule.

For example, if you were drafting a memo in support of a motion to

dismiss, you might start by stating the requirement that a complaint contain
a “short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a). In other words, a complaint must contain
sufficient factual allegations to “state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft
v. Iqbal, 556 U.S. 662 (2009). That is the requirement for granting the
relief you request.

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 If you were drafting an objective memo, you might start your
CREAC by stating "The plaintiff is unlikely to succeed because the
defendant did not owe him a duty of care." But if you are drafting a
persuasive memo you would instead start by saying "the plaintiff fails to
state a claim upon which relief can be granted because the plaintiff doesn't
even allege that the defendant owed him a duty of care." That would be the
"C" in CREAC.

You would then state the common law rule that a cause of action for a
tort consists of the four elements: duty, breach, causation and damages; and
you would explain the rule with a analogous case. Ideally, you would cite a
case where the court dismissed a complaint for failing to allege each of
those four elements. That would be the "R" and "E" in CREAC.

And then you would apply the substantive rule. If you were drafting
an objective memo, you would apply the rule to your description of the
facts. In a memo in support of a motion to dismiss, you would apply the
rule to the allegations of the complaint. And instead of concluding that the
plaintiff is unlikely to succeed, you would conclude that the plaintiff fails to
state a plausible claim for relief. Therefore, the complaint should be
dismissed.

As another example, if you were writing a memo in support of a

motion for summary judgment, you would start by stating the requirement
that a motion for summary judgment must be granted if there are no
genuine issues of material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56. To decide the motion the court must
view the facts in the light most favorable to the non-moving party. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Facts are material if they "might
affect the outcome of the suit under the governing law" and disputes are
genuine "if they the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242 (1986), Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). That is the
requirement for granting the relief you request.

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 You would then do your CREAC reflecting that requirement and
demonstrating it is satisfied within your application of the substantive rule.
If the case involved a car accident at a traffic light, you might start by
saying the defendant is entitled to judgment as a matter of law because he
had the right of way. You would then state the rule that the driver who has a
green light has the right of way. You would apply the rule to the facts by
saying there is no genuine dispute the light was green when the accident
happened (and cite to the deposition transcripts of both parties admitting the
defendant had a green light). Then you would conclude by saying the
defendant's motion for summary judgment should be allowed.

If you are drafting an appeal brief, the rule establishing the

requirements for reviewing a lower court decision is called the standard of
review. When an appellate court reviews a trial court decision they give the
trial court varying levels of deference. Questions of law are typically
reviewed de novo, meaning the appellate court need not defer to the trial
court at all; questions of fact are reviewable for clear error, meaning they
will be accepted unless clearly erroneous; and matters of discretion will be
upheld unless it is shown that the trial court abused its discretion. Pierce v.
Underwood, 487 U.S. 552 (1988). So if you are asking the appellate court
to overturn factual findings made by a trial court, you should be arguing
that they are clearly erroneous. If your argument is that a discretionary
decision by a judge should be reversed, then you should be arguing that the
judge abused his discretion in making that decision. In other words, you
should frame your issue to correspond to the conclusion you want the
appellate court to come to.

If there was a trial on the merits, then you would source the facts for
your appeal brief from the trial transcript. But if you are appealing the
decision to allow a motion to dismiss or a motion for summary judgment,
then you would source the facts from the same place they were sourced in
the motion. In the latter cases, if you are asking the appellate court to
review questions of law decided by the trial court, your brief will look a lot
like your original memo. In those situations, you are essentially asking for
a do over of what happened in the trial court. You make the same
arguments in basically the same way but before a new panel of judges.

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 I've given you an overview of the process and the requirements for
granting a motion or deciding an appeal in your client's favor. When we
discuss memos and briefs I'll go into more detail as to what the specific
requirements are (there are more of them, especially for appeal briefs). But
first I'll give you a brief introduction to persuasive writing, including
describing facts persuasively and arguing law persuasively.

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16. PERSUASIVE WRITING

P ersuasive writing is not about determining how a court will likely

apply the law to a set of facts. Persuasive writing is about
convincing a court to apply the law one way or another. Persuasive
writing is describing facts from your client's perspective, and presenting the
law in a way that best supports your request for relief.

A. Describing Facts Persuasively

When you write your memo or brief you need to describe the facts
in the light most favorable to your client. One way to do that is to describe
facts that benefit your client in more detail, and state unfavorable facts as
concisely as possible. As an example, if you represented the defendant in a
personal injury case you might describe what happened like this:

The plaintiff slipped and fell through a glass door at the

entrance to Bob's Pizza Emporium, and, as a result, she had a
laceration on her face.

Describing the plaintiff's injuries in a summary, conclusory way has the

effect of deemphasizing what happened to her.

If you represented the plaintiff in the same case you would want to
do the opposite. You would want to emphasize the injury by going into
detail when you describe what happened to your client, like this:

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 The plaintiff slipped and fell through a glass door at the
entrance to Bob's Pizza Emporium, and, as a result, she had an
incision across her forehead that was four inches long and more
than one-half an inch deep.

Describing the laceration in detail makes in clear how serious the plaintiff's
injury was. And that information better supports the plaintiff's claim for
damages.

In describing the facts you would also want to personalize your

client and depersonalize the other side. If you represent the plaintiff, you
might change the facts to this:

Mrs. Jones slipped and fell through a glass door at the

entrance to the defendant's place of business, and, as a result,
she had an incision across her forehead that was four inches
long and more than one-half of an inch deep.

If you represent the defendant, you might instead refer to your client as
"Bob's" or "Bob's Pizza" and Mrs. Jones as the "customer" or the
"complainant."

To make your description even more effective you might also make
the description a little more graphic and visual.

Mrs. Jones slipped and fell through a glass door at the

entrance to the defendant's place of business, and, as a result, a
piece of glass sliced through the skin on her face and left her
with a gash across her forehead and blood soaking the front of
her white blouse. The gash was four inches long and more than
one-half of an inch deep.

Saying the glass "sliced through the skin on her face" helps the reader
understand how painful that must have been. And the image of the plaintiff
with a "gash across her forehead and blood soaking the front of her white
blouse" effectively demonstrates the seriousness of the injury.

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 To demonstrate more of these techniques, let's switch to a different
example. Suppose the police officer in a police brutality case described an
incident in his police report like this:

When the police officer attempted to arrest the

perpetrator he resisted and had to be subdued.

If you represented the victim in the case, you would obviously want
to describe the incident in more detail, and you might also use repetition to
emphasize the brutality the victim endured, like this:

The police officer pushed the victim to the ground, and

then punched him in the face. The victim tried to protect
himself but the officer punched him again. Even after the
victim was in handcuffs, the officer continued to punch him and
pushed his head into the ground with his knee. In total, the
officer punched the victim five (5) times.

That example also uses alliteration (repeating the same sound over and over
again for emphasis) to emphasize the officer's violent actions.

If you represented the victim you might also develop a theme for the
case or a characterization of what happened that is easy to relate to. Here is
an example of how you might do that:

This was a classic incident of police brutality. The

defendant pushed the victim to the ground, and then punched
him in the face. The victim tried to protect himself but the
rogue cop punched him again. Even after the victim was in
handcuffs, the defendant continued to brutalize him by
punching him and pushing his head into the ground. In
furtherance of this illegal use of force, the defendant punched
the victim five (5) times.

In that example I labeled the police conduct as "brutality" and further

defined it as the "illegal use of force," because those are the conclusions I

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want the audience to come to.

If you represented the police officer in the same case you would
want to deemphasize what the officer did and, instead, put the focus on the
justification:

Because the perpetrator was becoming agitated, raised his

voice and started moving towards the officer, the officer pushed
the perpetrator away and he fell to the ground. The perpetrator
resisted the officer's efforts to subdue him and an altercation
ensued. The officer was able to put the perpetrator in handcuffs
but he continued to resist and the altercation continued.

From the officer's perspective this is a case of resisting arrest. If you

represented the officer you would want the reader to conclude that the
officer was reacting appropriately to the perpetrator's actions. So you
would shift the focus to what the perpetrator did, not how the officer
reacted.

Another thing you might do, if you represented the officer, would be
to describe the absence of facts that aren't part of the fact pattern, if the
absence of those facts puts the client in a more favorable light. Here is a
revised example to explain what I mean:

Because the perpetrator was becoming agitated, raised his

voice and started moving towards the officer, the officer pushed
the perpetrator away and he fell to the ground. The officer had
a firearm but he did not use it. The officer also had a taser and
a club, but he did not use either of those things either. The
perpetrator resisted the officer's efforts to subdue him and an
altercation ensued. The officer was able to put the perpetrator
in handcuffs but he continued to resist and the altercation
continued.

By making clear the officer could have elevated the situation but chose not
to, you highlight the reasonableness of the officer's actions.

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 Finally, you could also use passive voice to take the reader's
attention away from the officer when describing what happened, like this:

Because the perpetrator was becoming agitated, raised his

voice and started moving towards the officer, he was pushed
away and he fell to the ground. The officer had a firearm but he
did not use it. The officer also had a taser and a club, but he did
not use that equipment either. The perpetrator resisted the
officer's efforts to subdue him and an altercation ensued. The
perpetrator was put in handcuffs but he continued to resist and
the altercation continued.

Passive voice removes the officer from the description and even more
effectively puts the focus on the perpetrator.

B. Arguing Law Persuasively

The most important thing to remember when arguing law

persuasively is to support your arguments with primary, binding authority,
and make sure your reasoning for why that authority applies is unassailable.
It is not enough for you to say what the defendant did was negligent or
unreasonable; you need to give the judge a case that supports that
conclusion, and then explain why it is analogous. Credibility is important;
without it the judge is unlikely to take very seriously whatever you have to
say. The facts are important too; you always want to tell the story of what
happened from your client's perspective. But ultimately what moves judges
is binding authority. The other side will try to distinguish it; and you will
need a better argument for why it is controlling. If you can convince the
trial court judge that the appellate court above him would give you
whatever you are asking for, then the trial court judge will grant your
request. If you can't, then your request will likely be denied.

In addition to supporting your positions with binding authority, also

remember to put your strongest arguments first. If there is a weakness to
your position, put it in the middle of your discussion, and try to finish by
reiterating your strongest point. Here are two versions of the same case,

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each organized to state the applicable parties position in the strongest
manner.

Version 1 (plaintiff's argument)

This is a breach of contract case. The defendant agreed to

purchase a piece of industrial equipment for ten thousand
dollars but never paid for the item. He breached his obligations
to the plaintiff without justification, and this lawsuit was
commenced. Now the defendant's legal team tries to defend
what he did by raising the technicality that delivery of the
equipment was one day late, therefore the defendant was
supposedly relieved of his obligation to do what he agreed to do.
However a one day delay was not a material breach and did not
justify non-payment. The defendant didn't follow through
because he changed his mind, not because delivery was late.
There is no legal justification for what the defendant did. He
has no excuse for breaching the agreement he signed. As a
result the plaintiff's request for relief should be granted.

Version 2 (defendant's argument)

The plaintiff in this case is trying to enforce a contract he

himself breached. The plaintiff agreed to deliver a piece of
industrial equipment on a specific date. The defendant signed
the agreement because he needed to use the equipment the day
after the date of delivery for a time sensitive project. When the
delivery didn't happen the project fell through and the
defendant no longer had any need for the equipment. Instead of
taking responsibility for the breach, the plaintiff filed this
lawsuit and now claims late delivery is not a material breach
because the agreement did not have a "time is of the essence"
provision. However, the absence that language does not give
plaintiff the right to deliver goods whenever he wants. The
plaintiff knew full well what the defendant's intended use of the
equipment was. He cannot breach the provisions of an

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 agreement and then insist that the other side still do what they
agreed to do. The agreement is not enforceable because of the
plaintiff's own failure. As a result the plaintiff's request for
relief should be denied.

As you can see, these two versions of the same case state what happened
persuasively, first from the perspective of the plaintiff, and then from the
perspective of the defendant. And the primary technique each party uses to
better state their position is to put their strongest argument at the beginning
of the paragraph. The weakness in each party's position is disclosed and
dealt with in the middle of the paragraph. And then each version finishes
with a reiteration of the party's strongest argument.

Use this same technique when citing cases supporting your position.
List statutes before cases. List binding authority before persuasive
authority. List cases that are closest factually before cases that are only
marginally applicable. When you are citing multiple authorities for your
arguments, list the strongest authority first.

Also, vary the level of detail when you describe authority in your
writing. If you have a case that is right on point, get into the specifics of
that case and explain why it applies. If you have to distinguish a case that
supports the other side's position, do it as briefly as possible. Never dwell
on a case you have to distinguish or a counterargument you have to refute.

When you analyze a legal issue, state your conclusion first. Use CRAC
or CREAC not IRAC or IREAC. State the point you want to make, then the
rule, the explanation and application, and the conclusion. Instead of saying
the conclusion twice, first state the specific point you are trying to make;
then end with the conclusion you want the court to come to (or the relief
you want the court to grant).

For example, if you are writing a memo in support of a motion to

dismiss, you might start by making the point that "The plaintiff failed to
allege in the complaint that he exhausted his administrative remedy." Then
state the rule, explain it and apply it. And then you might end by
concluding "The complaint fails to state a claim upon which relief can be

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granted." Alternatively, you might have stated the point this way: "The
complaint fails to state a claim because the plaintiff did not even allege he
exhausted his administrative remedy." If you did you might conclude with
"The motion to dismiss should be allowed."

When you state the rule, emphasize that aspect of the rule that supports
the conclusion you want to come to. If you represent the defendant, as
above, you might describe the rule like this: "The law does not permit a
party to commence a civil action unless he first exhausts his administrative
remedy." But if you represent the plaintiff you might describe the same rule
like this: "A party may commence a civil action without first exhausting an
administrative remedy if it would be pointless and futile to do so."

When you explain the rule and apply it, emphasize the facts that
support your position. If you are arguing the case is analogous, focus the
reader's attention on the analogous facts. If you are arguing the case is
distinguishable, then emphasize the distinguishable facts. If there are facts
that don't support your analogy, state concisely why they are irrelevant.
And then reiterate your original point in your conclusion.

Add persuasive headings to give the reader a roadmap for the points you
are trying to make. In fact, consider making the "C" in CREAC your
heading and then start your paragraph with the rule. For example, if there
are three points you want to make, then divide your argument into three
sections, and begin each section with a heading stating your point for that
section. In a slip and fall case the first heading might be "The Plaintiff was
Tresspassing when the Accident Occurred." The second might be "Even if
the Plaintiff was owed a Duty of Care, the Defendant did not Breach that
Duty." And the third might be "The Plaintiff also has no Damages." Once
you have made those three points, state the applicable rule, explain it, apply
it and conclude in the paragraphs under each heading.

Finally, emphasize language in a statute or case by quoting it in your

memo or brief. If what the court said is right on point, then a quoting the
language will be more effective than paraphrasing it. If the quote doesn't fit
into your explanation of the case, include it in parenthesis after the citation.
If there are other aspects of the case that are helpful to your argument, but

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raising them doesn't work with the explanation you are writing, do the same
thing. Put that information in parenthesis after the case cite.

There are two sides to every story. When you write persuasively you
are either telling one story or the other. And you are telling the story on
behalf of and from the perspective of one party or the other. Regardless of
who you represent, your job is to state your position as strongly as you can.
You want the judge to interpret the law in a manner that benefits your
client; and you want the judge to see the facts in the light most favorable to
your client. Those are the objectives of persuasive writing. Now let's
finally turn to the specifics of drafting a memorandum in support of a
motion and drafting an appeal brief.

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17. MEMORANDA IN
SUPPORT OF MOTIONS

A memorandum in support of a motion is written for a judge in

litigation to persuade the judge to take some action in the case. A
motion is a request that the judge take the desired action. The
memorandum states the grounds for the motion, including a legal argument
why the motion should be allowed. The organization of a memorandum is
similar to what we discussed in Chapter 8. There is usually an introduction,
a statement of facts, an argument and a conclusion. I’ll use the example of
a memorandum in support of a motion to dismiss filed in federal court to
explain how each section differs in this context. State practice is usually
less formal but follows basically the same rules.

Like all documents filed in litigation, a memorandum in support of a

motion starts with a caption containing the name of the court, the name of
the first party on each side, the file number and the title. Fed. R. Civ. P. R.
10. That information is customarily formatted to look something like this:

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

Jane Doe,
Plaintiff,
v. Case No: _________

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ABC Corp. and XYZ Corp.,
Defendants.
_________________________/
MEMORANDUM IN SUPPORT OF
DEFENDANT XYZ CORP.’S MOTION TO DISMISS

The next step is to write an introductory statement citing the

applicable procedural rule and identifying the parties and the
memorandum. Use this section to create defined terms for the parties; and
try to personalize your client and/or depersonalize the other side.

Pursuant to Fed. R. Civ. P. 12(b), the defendant, XYZ Corp.

(Shareholder) submits this Memorandum in Support of its Motion to

Dismiss Count II of the Complaint filed by the plaintiff, Jane Doe

(Employee) against ABC Corp. (Employer).

Next you would write a brief introduction. The introduction should

tell the court what type of case this is (e.g. a tort case, a breach of contract
case, a statutory violation, etc.), and briefly state the factual basis for the
plaintiff’s claim (who sued who for what). Then identify the type of motion
being filed; and state briefly why the motion should be allowed. If you
have more than one argument for an issue, state the strongest argument in
the introduction.

INTRODUCTION

This is an employment discrimination case. The Employee

claims that Employer fired her because of her disability in violation

of the Americans with Disabilities Act (the “ADA”). The Employee

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named the Employer in her charge before the Equal Employment

Opportunity Commission (the “EEOC”), but she did not name the

Shareholder, which owns all the stock of the Employer. However, the

ADA only authorizes the Employee to bring a civil action “against the

respondent named in the [EEOC] charge,” 42 U.S.C. § 2000e-5(f)(1).

Therefore, this Court should dismiss the claim against Shareholder in

Count II of the Complaint.

The next section in a trial memorandum is the statement of facts,

and it is different than the statement of facts in a research memorandum. In
a trial memorandum, you should put the facts in the light most favorable to
your client. Don’t be objective; be persuasive. Tell the story of what
happened from your client's perspective and in a way that best supports
your client's position.

At the end of each sentence in your fact statement you also need to
put citations to the record. If you are supporting a motion to dismiss, then
you would cite to the specific allegations of the complaint. If you are filing
a motion for summary judgment, then you would cite to affidavits, answers
to interrogatories and deposition transcripts. Also, if you need to present
documents and other information to the court’s attention, then you would do
so by filing an affidavit authenticating the documents or stating the
information, and cite the affidavit in your memorandum. Here is a short
example of a fact statement.

II. STATEMENT OF FACTS

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 The Employee did not name the Shareholder in her EEOC

charge. The Employee claimed she suffered from “Chronic

Fatigue and Immune Deficiency Syndrome (CFIDS)” and the

Employer discriminated “against [her] because of [her] disability

by not allowing [her] to work at home.” Complaint, Exh. B. She

did not even mention the Shareholder, or complain about any

activity Shareholder was involved in, anywhere in the charge. Id.

Out of the thirty (30) allegations in the Complaint, there are

only three (3) conclusory statements that involve Shareholder. The

Employee alleges Shareholder and the Employer “share a unity of

ownership and interests such that they are not, in fact, two

separate corporate entities.” Complaint, Par. 5. She claims

“[Shareholder], as the parent corporation and sole shareholder of

[the Employer], should have been aware of the EEOC Charge…;”

and she also asserts Shareholder “knew or should have known

about [the Employer’s] unlawful employment practices and failed

to take action to prohibit such unlawful practices.” Complaint,

Par. 11 & 29. Even if these allegations were entitled to an

assumption of truth, the Complaint would still fail to state a claim

against Shareholder because the Employee failed to name

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 Shareholder as a respondent, and failed to make any of these

allegations, when she brought her claim to the EEOC.

After you have introduced the case and stated the factual background,
the next step is to make your argument for why the motion should be
allowed. This section should start by stating the requirement for granting
the relief you are requesting. Here is an example of a brief statement of the
requirement for a motion to dismiss.

III. ARGUMENT

A party may move to dismiss a complaint if it "fails to state a

claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In

analyzing a motion to dismiss, the court construes the complaint “in

the light most favorable to the nonmoving party, accept[ing] well-

pleaded facts as true, and draw[ing] all inferences in her favor.”

Reger Development, LLC v. National City Bank, 592 F.3d 759, 763

(7th Cir. 2010). However, “the tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Ashcroft v.

Iqbal, 556 U.S. 662, ___ (2009) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007)), see also, Bissessur v. Indiana University Bd. Of

Trustees, 581 F.3d 599 (7th Cir. 2009).

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 In keeping with these principles a court considering a
motion to dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled
to the assumption of truth. While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, ___ (2009). All three (3) of the

allegations against Shareholder are mere conclusory statements; none

of them are entitled to an assumption of truth and, even if they were,

they would still fail to state a claim against Shareholder.

Once you have stated the requirement for relief, you should then turn
to the substantive rule, applied to the facts of the case, and the conclusion
that your motion should be allowed. In a persuasive document you will
organize your arguments using CREAC. In other words, state the
conclusion first (or the point you are trying to make), then state the rule,
explain it and come to a conclusion reiterating your initial point. Also,
weave the standard of review into your argument as much as practicable.
And don’t hesitate to add equitable support for your position as well (i.e.
reasons why the judge should sympathize with your client).

When you make your arguments for each of the issues in the case,
you usually have at least three options. One, if there is an analogous case
that supports your position, draw an analogy between that case and the
facts, apply the reasoning of the case, and argue your case should be
decided the same way. That is usually your best option.

Two, if there are no cases on point, just state the rule and marshal the
relevant facts to each element of the rule to support your position. In other

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words, structure your analysis with CRAC instead of CREAC, since you
don't have a case example to explain the rule.

Three, if the only case on point goes against your position, then use
CREAC but distinguish the facts of the case, explain why the reasoning
does not apply, and argue the court should come to the opposite conclusion
in your case. In other words, at least address the other side's argument that
your motion should be denied.

Here is an example of an argument section for the motion to dismiss.

A. The Claim Against Shareholder Should be Dismissed Because

Shareholder Was Not Named as a Respondent in the EEOC Charge

ADA claims, like other discrimination claims, must be brought

before the EEOC before a civil action may be filed in federal court.
42 U.S.C. § 2000e-5(b). And even then a civil action may only be

brought “against the respondent named in the [EEOC] charge.” 42

U.S.C. § 2000e-5(f)(1), see e.g., LeBeau v. Libbey-Owens-Ford Co.,

484 F.2d 798, 799 (7th Cir. 1973)(“Ordinarily, a party not named in
an EEOC charge may not be sued under Title VII [of the Civil Rights

Act].”).

The claims against Shareholder should be dismissed because

Shareholder was not named as a respondent in the EEOC charge. A
parent company not named in an EEOC charge cannot later be

joined in a civil action against its subsidiary. E.g., Schnellbaecher v.

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Baskin Clothing Co., 887 F.2d 124 (7th Cir. 1989)(affirming dismissal
of parent company not named in EEOC charge); Olsen v. Marshall &

Ilsley Corp., 267 F.3d 597 (7th Cir. 2001)(affirming grant of summary
judgment dismissing parent company not named in EEOC charge).

In Schnellbaecher, employees of a clothing company brought a

discrimination claim against their employer; in the EEOC charge,

they alleged the employer had not promoted them to more lucrative
sales positions because they were women. Schnellbaecher, 887 F.2d at

125. The employees named the employer as a respondent in the

charge, and then filed a civil action against the employer and its

parent company. Id. The parent company moved to dismiss the

charges against it; and the employees opposed the motion, claiming

that, even though the parent was not named as a respondent, it still
had notice of the charge because the parent company and the

employer were represented by the same attorneys. Id. at 126.

However, the court rejected that argument, finding that the parent

company only had notice of the claims against the employer; it did
not have notice of any claim against it. Id. at 127. Therefore, the

claims against the parent company were properly dismissed. Id.

The Employee’s allegations in this matter present an even

stronger case for dismissal than the allegations in Schnellbaecher.

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The Employee’s claim that Shareholder, “as the parent corporation
and sole shareholder of [Employer], should have been aware of the

EEOC Charge,” Complaint, Par. 11, is conclusory and not entitled to

an assumption of truth. Unlike the employees in Schnellbaecher, the

Employee here does not allege any factual basis for the conclusion
that Shareholder had notice. She does not state, for example, that

there was any overlap in the attorneys or any other agents who
represented the Employer and Shareholder. As a result, there is no

basis for concluding the Shareholder knew about the EEOC charge.

In addition, the EEOC charge in this case, like the EEOC

charge in Schnellbaecher, complains of discrimination by the

Employer; it does not complain about any conduct or activity by

Shareholder. As a result, even if the Employee alleged facts

supporting the conclusion that Shareholder knew about the charge,

the allegations of the charge would still not be sufficient to put

Shareholder on notice of a claim against it. For the same reason that

the Shareholder’s motion to dismiss in Schnellbaecher was allowed,

the motion to dismiss in this case should also be granted.

It would be neither fair nor just to require the Shareholder to

defend against these charges without notice of the agency proceedings

below, and without any opportunity to defend itself in those

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proceedings. The Employee was not employed by the Shareholder;

she was employed by the Employer. And her claim, if she has one, is
against the Employer, not the Shareholder. She cannot add a new

claim against a new party at this late stage. As a result, the claim
against Shareholder should be dismissed.

When you organize your argument be sure to state your strongest

points first. If your argument is composed of multiple sections, use
headings as the roadmap for your argument, and state a point in each
heading. You may argue in the alternative, as I did in this example. Also,
when you list cases or statutes in support of your arguments, state binding
primary sources first and list cases that are factually similar to your case
first. Include lower court cases, out of state precedents and secondary
sources, if any, last. Finally, make sure you refute any obvious
counterarguments in your memo, like this:

B. Shareholder did not Otherwise have Notice or an Opportunity

to Conciliate

The Employee may argue that this case is analogous to the only
case in this circuit involving circumstances where an unnamed

affiliated organization that “has been provided with adequate notice

of the charge . . . and . . . has been given the opportunity to

participate in conciliation proceedings aimed at voluntary compliance

. . .” may be joined in a civil action against its subsidiary. Eggleston v.

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Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890,

905 (7th Cir.1981). However, that case is distinguishable.

In Eggleston, five persons brought an EEOC charge against a

plumbers union, claiming discrimination in the administration of the

apprenticeship program for plumbers. Id. at 893. After the EEOC

case, they filed a civil action against the union, and also added a claim

against the committee that administered the apprenticeship

program. Id. The committee was comprised of ten people, five of
whom were also were also officers in the union. Id. at 906. Because

of the overlap in personnel, and the claim in the EEOC charge that
the program the committee administered was discriminatory, the

appeals court found the committee “knew or should have known of

the EEOC charge and that their conduct would be subject to EEOC

inquiry;” and there was nothing preventing the committee “from

attempting to resolve the alleged discrimination in an amicable

manner.” Id. at 906-907. Therefore, the trial court’s decision allowing

the committee’s motion to dismiss was reversed, and the committee

was reinstated as a defendant to the plaintiffs’ claim. Id. at 907.

Eggleston clearly is not applicable to these facts. Again, there

is no allegation that the same people who worked for the Employer
also worked for Shareholder. And there is no claim in the Employee’s

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EEOC charge that would have put Shareholder on notice that their
conduct would be subject to EEOC inquiry. The Employee only

claimed in the charge that the Employer terminated her because of

her disability; she didn’t allege in the charge that Shareholder had
anything to do with the decision to end her employment. Unlike the

situation in Eggleston, there is no basis here for finding that

Shareholder had notice of any charge against it. In addition, the

Employee does not allege there was “nothing preventing”

Shareholder from resolving the Employer’s case. In other words, the

Employee does not claim Shareholder could have taken action to

settle her claim. Therefore, there is also no basis for finding that

Shareholder had any opportunity to participate in conciliation

proceedings. The exception in Eggleston does not apply; the

complaint fails to state a claim against Shareholder and should be

dismissed.

Now all you have left to do is state a short conclusion to your

memo. At this point, the judge is familiar with your arguments so there is
no need to repeat them. Just finish by saying the motion should be allowed,
like this:

IV. CONCLUSION

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 For all the above reasons, co-defendant, Shareholder’s Motion
to Dismiss should be allowed.

After the conclusion add your signature as the attorney of record,

plus your address, e-mail address and telephone number. Fed. R. Civ. P. R.
11(a). A certificate of service is not required if the memorandum is filed
with the court’s electronic filing system. Fed. R. Civ. P. 5(1)(B).
Otherwise, the procedure is to include a certificate at the end of the memo.
Here is a final example:

Shareholder Corp.,
By its attorney,

________________
Name, bar no.
Street address
City, State, Zip Code
(xxx) xxx-xxxx
[email protected]

Certificate of Service
I certify that on this __ day of ________, 20__, I served this
Memorandum in Support of Defendant Shareholder’s Motion to
Dismiss upon all parties by mailing a copy of same to:
Name, bar no.
Street address
City, State, Zip Code
____________________
Name

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 There may be additional requirements for motions and memoranda
in the local rules for the court in which those materials are submitted. For
example, the Local Rules for the Northern District of Florida require that
counsel confer in a good faith effort to resolve the issues before filing a
motion that would not determine the outcome of a case or a claim, and then
add an additional certificate at the end of the motion that the conference
requirement has been met. N.D. Fla. Loc. R. 7.1(B). Motions must be
submitted in 14 point type, double spaced, with one inch margins. N.D.
Fla. Loc. R. 5.1(C). There is an 8,000 word limit for memoranda, and
counsel must certify that the memo complies with the limit. N.D. Fla. Loc.
R. 7.1(f). Also, counsel must include their bar number in the signature
block at the end of the memo. N.D. Fla. Loc. R. 5.1(D). So always
remember to check the local court rules in addition to the rules of civil
procedure.
If you are drafting a memorandum in opposition to a motion, the
process is the same with two notable exceptions. First, in your statement of
facts, you should highlight the facts that are favorable to your client and
were not included in the memorandum in support of the motion submitted
by the other side. Tell the other side to the story, from your client's
perspective. Don't just adopt the moving party's version of what happened.
And second, in your argument, in addition to arguing your position, you
should also address the arguments the other side made in the original
motion. State your position first, then develop the counterarguments
required to refute whatever the other side's position is.
Now that we have covered the memoranda appropriate for motion
practice in the trial court, let's talk about how to argue a motion before a
judge.

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18. MOTION SESSION

A fter the filing of your motion and supporting memorandum, as

well as any opposition, the court will either decide the issue “on
the papers” or hold a hearing. If a hearing is held, you will need
to appear and argue the motion orally in court. The practice for hearings
varies from court to court, so you need to find out ahead of time what is
expected of you; and, as with all things in the practice of law, be prepared.

Start by reading through the case file and making sure you are
intimately familiar with the facts and the law cited in the memoranda
submitted to the court. I would also make extra copies of the material you
filed in case the court is missing something. And then start to outline the

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argument you want to make. Don’t make a script to read to the judge. Just
outline the facts and the cases, so you will have something to guide you
once you start talking. I also used to put my name and the name of my
client at the top of my outline so I wouldn’t forget to introduce myself.

Make sure you know where the court is. Print out a copy of the
directions if you need to, and leave yourself plenty of time to get there. You
don’t want to risk running late and showing up all flustered. I would also
call the clerk’s office ahead of time and confirm the day and time for your
hearing. If this is your first time, you should get there early and scope out
the courtroom you are in and how things are organized. Some judges will
have you argue from a podium. Others want counsel to stand at counsel’s
table; and others will have you approach the bench or meet in chambers to
state your argument.

I’m sure I don’t need to tell you to dress appropriately (i.e.

conservatively), and sit quietly while you are waiting for your case to be
called. When the judge enters the room, stand up, and remain standing until
she sits down. When it is your turn to argue, wait for the judge to signal
when you should start talking. Usually she will say something like “I’ll
hear from plaintiff’s counsel on the motion.”

When you address the court, start with “may it please the court” and
refer to the judge as “your honor.” Some people refer to the attorney on the
other side as “my brother” or “my sister,” but I think that sounds a little
cheesy. I prefer to refer to the attorney representing the other side as
“counsel,” “the defendant’s attorney” or "the plaintiff's attorney."

If you are nervous, you are not alone. Most people are nervous in
the beginning, and I was no exception. For me what helped is practicing a
lot until I had my argument down pat, getting there early so I didn’t arrive
stressed out, and becoming familiar with the courtroom and the procedures
for the hearing. The more prepared you are, the less anxiety you will have
about what you are about to do. Also, if there are other attorneys in the
audience, be assured they are likely not listening to your argument. They

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are just hoping you will hurry up and get it over with so they can take their
turn.

Before you get into the substance of your argument, tell the judge
who you are (introduce yourself), and state in a summary way what you
want, and why the judge should give it to you. In other words, do an
introduction, just like you did in your memo. Then start going through your
argument, and keep talking until the judge interjects a question. Make sure
to get to the point quickly. Judges are busy, just like everyone else, so
concision is appreciated.

Usually the judge will interrupt you right away, but there are also
times when the judge will just sit back and listen. If the judge doesn't ask
questions, go through the facts, argument and conclusion, and then address
whatever the other side brought up in their opposition, if you are the
moving party. Make sure your voice is loud enough for the judge to hear
you, make good eye contact and speak with conviction.

If you do get a question, stop talking, listen carefully to the question

and answer it. Don’t talk over the judge and don’t try to avoid answering a
direct question. Doing that will hurt your credibility. If there is an obvious
weakness in your argument, figure out ahead of time how to address it.
When the judge asks about the weakness, give her the answer you prepared
and move on.

All communication should go through the judge. Any documents

should be handed to the clerk, who will then hand them to the judge. When
the other attorney is talking, don’t interrupt him. Let him have his turn, as
he let you have yours. After he is finished, if there is something you want
to say, ask the judge for an opportunity to respond. If she grants your
request, then start talking again. But don’t speak directly to the other
attorney. Speak to the judge.

Be aware of your body language. Try not to make distracting

gestures with your hands. If you chew gum, get the gum out of your

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mouth. If you like to put your hands in your pockets when you talk, empty
your pockets before you stand up.

Be sure to treat everyone with respect. Be professional but don’t

feel like you have to act like a stereotype. Be genuine instead. If you aren’t
sure what to do, ask. Better to ask and get it right than to do it wrong and
get reprimanded. Also, try not to get overly emotional, and don’t
personalize your arguments.

Listen carefully to the judge and opposing counsel. Often you can
tell what the judge's concerns are by listening to the questions she asks.
Also, you will want to address any points the other attorney makes in his
argument, especially if they raise issues you didn't have an opportunity to
address in your memorandum. So take notes while the other side is making
his case, and ask for an opportunity to rebut whatever points he makes.

If you are arguing in opposition to a motion, the process is the same

with the same two exceptions that apply if you are writing a memorandum
in opposition to a motion. When you address the facts be brief. The judge
already heard the facts from the moving party so quickly zero in on
whatever information the other attorney failed to disclose. Tell the other
side to the story, from your client's perspective. But don't force the judge to
suffer through a rehash of what the other attorney has already said.

Second, in addition to arguing your position, you should also

address the arguments the other side made orally, including any additional
arguments that were not included in the papers. If you are caught off guard
and can't effectively address an issue raise for the first time at the hearing,
then ask the court for the opportunity to submit a reply memo addressing
just that new issue.

After the arguments are over, thank the judge for her time and
consideration, even if she decided against you. Sometimes the judge will
issue a decision from the bench. If she grants your requested relief, it may
be appropriate to stick around for a copy of the decision, or you may have
to wait until the judge and the clerk are done with motions for the day, and

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then obtain the copy from the clerk’s office. Otherwise, if the judge takes
the matter under advisement, just pack up your briefcase and head back to
the office.

If you lose and your motion is denied (or the other side’s motion is
allowed), don’t beat yourself up over it. If you practice litigation long
enough you will find out that the process is very unpredictable. Sometimes
you win cases you should have lost, and sometimes you lose cases you
should have won. Enjoy the victories and don’t let the losses get to you.
Any litigator who tells you he has never lost is a liar trying to intimidate
you. You make your case as best you can, and then accept the decision
whatever it is, and move on.

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19. APPELLATE BRIEFS

T he other type of persuasive document you may encounter if you

practice in litigation is an appellate brief, which is similar to a
memorandum in support of a motion but more formal. In an
appellate brief you have to deal with what happened in the trial below, in
addition to the facts of the case. The rules are the rules of appellate
procedure, instead of the rules of civil procedure. And there are a lot of
specific requirements for the brief. Also there is usually more than one
judge you address in oral argument, and the process is timed. So it’s a
process with a lot of differences, but is still similar to the one we just
discussed.
Instead of a caption, an appellate brief starts with a cover page
printed on colored paper. The cover of the appellant’s brief is blue; the
appellee’s brief is red (The “appellant” is the party filing the appeal, which
can be the plaintiff or the defendant; the “appellee” is the other party); an
intervener’s or amicus curiae’s brief is green; any reply brief is gray; and
any supplemental brief is tan. Fed. R. App. Proc. R. 32(a). Also, the cover
must contain the following information: “(A) the number of the case
centered at the top; (B) the name of the court; (C) the title of the case; (D)
the nature of the proceeding (e.g., Appeal, Petition for Review) and the
name of the court or agency below; (E) the title of the brief, identifying the
party or parties for whom the brief is filed; and (F) the name, office address,
and telephone number of counsel representing the party for whom the brief
is filed.” Id. Here is an example of how that information is typically
formatted:

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 CASE NO. ______
_________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
_________________________________________________

JANE DOE., Plaintiff/Appellant

v.
XYZ Corp, Defendant/Appellee.
_________________________________________________
On Appeal From The United States District Court For The
Central District Of Illinois
_________________________________________________
Plaintiff / Appellant’s Appeal Brief
_________________________________________________

__________________________
Name, ______Bar No.: ______
Name of Firm
Street Address
City, State Zip Code
Tel. (xxx) xxx-xxxx
E-Mail: __________@____.com

After the cover page, you must include five introductory sections
before you get to the facts, argument and conclusion: (1) a statement

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regarding oral argument; (2) a table of contents, (3) a table of authorities,
(4) a jurisdictional statement and (5) a statement of the issues presented for
review. Fed. R. App. Proc. 28. (If your client is a corporation, you must
also include a statement that “identifies any parent corporation and any
publicly held corporation that owns 10% or more of its stock or states that
there is no such corporation.” Fed. R. App. Proc. 26.1.) I’ll cover these
introductory sections first because they are the sections that come in the
beginning of an appellate brief, but if I were drafting a brief, I would draft
the statement of the case (facts) and argument first, then add these sections
– as well as the additional sections that come at the end of a brief – later.

The statement regarding oral argument should just explain why oral
argument should be permitted or should not be permitted. Fed. R. App.
Proc. 34(a)(1).

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Fed. R. App. Proc. 34(a)(1), Plaintiff / Appellant

Jane Doe (“Doe”) states that oral argument should be permitted

because oral argument would assist the Court in a determination of

the issues.

The table of contents should list each of the sections of the brief and
the page numbers on which they begin. Fed. R. App. Proc. 28.

TABLE OF CONTENTS

STATEMENT REGARDING ORAL

ARGUMENT…………............................................………#

TABLE OF AUTHORITIES...................................……….#

STATEMENT OF JURISDICTION...…………….………..#

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STATEMENT OF THE ISSUES

ON APPEAL……………….....................................……….#

STATEMENT OF THE CASE ……................….…………#

SUMMARY OF THE ARGUMENT………….….………. .#

ARGUMENT……………….…….………….……………...#

A. Standard of Review…………………......………...#

B. The Claim Against Holding Company Should Not Have Been

Dismissed Because Holding Company had Notice of the EEOC

Charge and an Opportunity to

Conciliate………..…………………………........………...#

C. The Claim Against Holding Company Should Not Have Been

Dismissed Because Doe Stated a Plausible Claim for Piercing the

Corporate Veil………………….#

CONCLUSION………………………………………………..#

CERTICATE OF COMPLIANCE……………....…………..#

CERTIFICATE OF SERVICE………………………………#

The table of authorities should list all the case cited, alphabetically
arranged, as well as all the statutes and other authorities in the brief, with
page numbers for the pages in which they appear. Fed. R. App. Proc. 28.

TABLE OF AUTHORITIES

CASES

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Ashcroft v. Iqbal, 556 U.S. 662 (2009)………………….#

Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 644

(7th Cir. 2019)…….…………………….…#

Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130,

657 F.2d 890, 905 (7th Cir.1981)..…..#

Reger Development, LLC v. National City Bank, 592 F.3d 759, 763

(7th Cir. 2010)……...……………………..#

STATUTES

42 U.S.C. § 12117..........................………………………...#

42 U.S.C. § 2000e-5(b)…………………………….………#
42 U.S.C. § 2000e-5(f)(1)…………...…………………….#

The jurisdictional statement should include the basis for the lower
(trial) court’s subject matter jurisdiction as well as the basis for the court of
appeals’ jurisdiction. Also, you need to list the filing dates demonstrating
the timeliness of the appeal, and a statement that “the appeal is from a final
order or judgment that disposes of all parties’ claims, or information
establishing the court of appeals’ jurisdiction on some other basis.” Fed. R.
App. Proc. 28.

STATEMENT OF JURISDICTION

The District Court had jurisdiction in this case pursuant to 28

U.S.C. § 1331, as this action arises under federal law, and 28 U.S.C. §
1332(a)(1), as this also is a civil action where the matter in

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controversy exceeds the sum or value of $75,000, exclusive of interest

and costs, and is between citizens of different States.

This Court has jurisdiction to decide this appeal under 28

U.S.C. § 1291 because this is appeal is from a final decision of a

district court of the United States dated ________ __, ____.

The last introductory section is the statement of the issues presented

for review, Fed. R. App. Proc. 28, and that section is actually similar to the
statement of the issues in a legal research memorandum, except you need to
include the context of what happened at the trial court. So, instead of
saying the issue is whether a motion to dismiss should be denied, you
would say the issue on appeal is whether the Court erred in dismissing the
case.

Also, when you add the facts to the issue, add the facts favorable to
your client. In other words, state the issues persuasively. In this example, I
am arguing the motion to dismiss should have been denied (unlike the trial
memo when I was arguing motion should be allowed). I don’t want to
frame the issue as “whether the District Court erred in dismissing the claim
against Holding Company because it was not named in the original EEOC
charge.” Not naming the Holding Company is the reason to allow the
motion. Instead I want to frame the issue as "whether the District Court
erred in dismissing the claim against Holding Company because it had
notice of the EEOC charge and an opportunity to conciliate." Having notice
and an opportunity to conciliate is a reason to deny the motion, which is
what I am arguing should have happened below.

STATEMENT OF THE ISSUE

The issue on appeal is whether the District Court erred in

dismissing the claim against Defendant/Appellee XYZ Corp.

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(“Holding Company”) because it had notice of the EEOC charge and

an opportunity to conciliate.

After you have finished with those introductory sections, you begin
with a concise statement of the case, which is basically a statement of facts,
but must also include the procedural history below, as well as the rulings
presented for review. Fed. R. App. Proc. 28. Just like you would if you
were drafting the facts in a memorandum in support of a motion, state the
facts in an appellate brief persuasively.

STATEMENT OF THE CASE

In her EEOC charge, Doe claimed she suffered from “Chronic

Fatigue and Immune Deficiency Syndrome (CFIDS)” and ABC Corp.

(the “Employer”) discriminated “against [her] because of [her]

disability by not allowing [her] to work at home.” Complaint, Exh.

B. Doe named the Employer as a respondent in the charge. In

addition, Doe alleges in this case that:

1. Holding Company and the Employer “share a unity of

ownership and interests such that they are not, in fact, two separate
corporate entities.” Complaint, Par. 5;
2. Holding Company, “as the parent corporation and sole

shareholder of [the Employer], should have been aware of the EEOC

Charge…;” Complaint, Par. 11; and

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 3. Holding Company “knew or should have known about
[Employer’s] unlawful employment practices and failed to take action

to prohibit such unlawful practices.” Complaint, Par. 29.

Doe commenced this action on _________ __, ____. Prior to

trial, Holding Company filed a motion to dismiss the claim against it.
And the District Court allowed the motion without holding a hearing

on _________ __, ____.

Then state “a succinct, clear and accurate” summary of your

position, and proceed to make your full argument. Start with the standard
of review, then state the applicable substantive law, organized with point
headings and CREAC. State your strongest points first, and state the
strongest cases first as well. Cite primary binding authority before
secondary and/or persuasive authority. Analogize cases that support your
point and distinguish those that don’t. If you can, don’t hesitate to add
policy arguments to further support your position (i.e. argue deciding in
your favor is best for social policy). And finish strong with a short
conclusion reiterating whatever relief you request. Fed. R. App. Proc. 28.

SUMMARY OF ARGUMENT
The claim against Holding Company should not have been

dismissed because, even though Holding Company was not named in

the original EEOC charge, it still knew or should have known about

the charge and could have conciliated the claim. Alternatively, the
Doe stated a plausible claim for piercing the corporate veil; Holding

Company and the Employer were effectively one and the same.

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 ARGUMENT
A. Standard of Review

“A dismissal for failure to state a claim is reviewed under a de

novo standard.” Benson v. Fannie May Confections Brands, Inc., 944

F.3d 639, 644 (7th Cir. 2019). In analyzing a motion to dismiss, the
court construes the complaint “in the light most favorable to the

nonmoving party, accept[ing] well-pleaded facts as true, and

draw[ing] all inferences in her favor.” Reger Development, LLC v.

National City Bank, 592 F.3d 759, 763 (7th Cir. 2010).
B. Holding Company Had Notice of the EEOC

Charge and an Opportunity to Conciliate

ADA claims, like other discrimination claims, must be brought

before the EEOC before a civil action may be filed in federal court.
42 U.S.C. § 2000e-5(b). A civil action may then be brought “against

the respondent named in the [EEOC] charge.” 42 U.S.C. §2000e-5(f)

(1). Also, a parent corporation that “has been provided with
adequate notice of the charge . . . and . . . has been given the

opportunity to participate in conciliation proceedings aimed at

voluntary compliance . . .” may be joined in a civil action against its

subsidiary. Eggleston v. Chicago Journeymen Plumbers' Local Union

No. 130, 657 F.2d 890, 905 (7th Cir.1981).

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 In Eggleston, five persons brought an EEOC charge against a

plumbers union, claiming discrimination in the administration of the

apprenticeship program for plumbers. Id. at 893. After the EEOC

case, they filed a civil action against the union, and also added a claim
against the committee that administered the apprenticeship

program. Id. The committee was comprised of ten people, five of

whom were also were also officers in the union. Id. at 906. Because
of the overlap in personnel, and the claim in the EEOC charge that

the program the committee administered was discriminatory, the

appeals court found the committee “knew or should have known of

the EEOC charge and that their conduct would be subject to EEOC
inquiry;” and there was nothing preventing the committee “from

attempting to resolve the alleged discrimination in an amicable

manner.” Id. at 906-907. Therefore, the trial court’s decision allowing

the committee’s motion to dismiss was reversed, and the committee

was reinstated as a defendant to the plaintiffs’ claim. Id. at 907.

This case is clearly analogous to Eggleston. Here Doe claims

Holding Company and the Employer “share a unity of ownership and

interests such that they are not, in fact, two separate corporate
entities.” Complaint, Par. 5. If Holding Company and Employer

are effectively the same company, then the Eggleston test is more than

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satisfied. As Doe alleged, Holding Company “should have been

aware of the EEOC Charge…;” and, as a result, there was nothing

preventing Holding Company “from attempting to resolve the alleged

discrimination in an amicable manner.” Therefore, the complaint

stated a claim against Holding Company, and should not have been

dismissed.

The ADA embodies the very important public policy of helping

people with disabilities retain their employment. And this case
presents exactly the situation to which that policy applies. Doe is a

disabled employee who wants to keep making a contribution to

society despite her disability. If what she alleges is true, Holding

Company had a role in the discrimination against her. To dismiss her

claim against the Holding Company now because of a procedural

technicality would be contrary to public policy. As a result the

motion to dismiss should not have been allowed.

C. Doe Stated a Plausible Claim for Piercing

the Corporate Veil

A corporate entity may be disregarded where there is such

“unity of interest and ownership that the separate personalities of the

corporation and [the parent company] no longer exist. . .” and the

circumstances are such that “. . . adherence to the fiction of separate

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corporate existence would sanction a fraud or promote injustice.”
E.g., Van Dorn Co. v. Future Chem. & Oil Corp., 753 F.2d 565, 569-

70 (7th Cir.1985). Again, Doe alleges that the Employer and Holding
Company “share a unity of ownership and interests such that they
are not, in fact, two separate corporate entities.” Complaint, Par. 5.

If Doe can prove that allegation at trial; and not piercing the veil
would “sanction a fraud or promote injustice,” then Doe will be

entitled to a judgment against Holding Company. Therefore, a claim

for piercing the corporate veil was also plausible based on the

allegations of the complaint and, again, the District Court erred by

dismissing the claim against Holding Company.

D. The Allegations of the Complaint Were not

Just Legal Conclusions

In its Motion to Dismiss Holding Company argued that a the

Employee’s allegations against it were “legal conclusions,” and,

therefore, the court was not required to accept them as true for the
purposes of the motion. See e.g., Ashcroft v. Iqbal, 556 U.S. 662, ___

(2009). However, there is a difference between a legal conclusion and

a factual conclusion. For example, one could argue that an allegation

that a party knew or should have known of some material fact is

conclusory, but that clearly is not the type of allegation the Supreme

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Court was referring to in Ashcroft. Doe did not allege that the statute
authorized the claim against Holding Company or that the Court

should pierce the corporate veil. She alleged that Holding Company
and the Employer were essentially the same company. Complaint,

Par. 5. And she specifically stated that Holding Company “should

have been aware of the EEOC Charge…” and “failed to take action

to prohibit such unlawful practices.” Complaint, Par. 11 & 29. Those

are allegations which, if accepted as true, more than justified the

claim against Holding Company. As a result, that claim should not

have been dismissed.

CONCLUSION

For these reasons, Doe requests this Court reverse the

dismissal entered in favor of the Holding Company and reinstate the
Holding Company as a defendant to the plaintiffs’ claim.

After the conclusion you must include two additional sections. The
first is a certificate that the brief complies with the type-volume limitation
in Rule 32(a)(7)(the brief contains no more than 13,000 words, or 6,500
words for a reply brief). Fed. R. App. Proc. 32(g). The second is a
certificate of service stating “(i) the date and manner of service; (ii) the
names of the persons served; and (iii) their mail or electronic addresses,
facsimile numbers, or the addresses of the places of delivery, as appropriate
for the manner of service.” Fed. R. App. Proc. 25(d). Here is a sample of
what those sections look like in practice:

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 CERTIFICATE OF COMPLIANCE

This is to certify that this brief complies with Federal

Rule of Appellate Procedure 32(a)(7), and contains _______ words.

CERTIFICATE OF SERVICE
I certify that I electronically filed the this brief on this ____ day

of _________ ____, with the Clerk of Court using the CM/ECF

electronic filing system and that a true copy of this brief was served
via transmission of Notices of Electronic Filing generated by
such system to : ________________________________________.
_____________________
Name

In addition to these required sections, there are also specific binding

and formatting requirements for appellate briefs. The document must be
bound in any manner that is “secure, does not obscure the text, and permits
the brief to lie reasonably flat when open.” Fed. R. App. Proc. 32. The
required paper size is 8 ½ by 11 with one inch margins on all four sides.
Id. The text must be double spaced (except headings and footnotes) and
there is a page limitation of 30 pages for the principal brief and 15 pages for
a reply brief. Id.
Also, the court rules may add additional requirements. For example,
the 11th Circuit Court of Appeals requires that the cover of the brief be on at
least 90# paper. 11th Cir. R. 32-2. Attorneys must file a certificate of
interested persons in addition to a corporate disclosure. 11th Cir. R. 26.1.
The summary of argument “should not be a mere repetition of the headings
under which the argument is arranged.” 11th Cir. R. 28-1 (j). Also, there is

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a specific citation rule requiring compliance with “the latest edition of
either the “Bluebook” (A Uniform System of Citation) or the “ALWD
Guide” Association of Legal Writing Directors’ Guide to Legal Citation).”
11th Cir. R. 28-1(k). Again, you should always check the local rules for
the court you are practicing in.

That completes your introduction to persuasive drafting. Now you

know what is involved you can begin developing the skills you need to
advocate well. Keep learning as much as you can. Practice. And seek
perfection in everything you write. Good luck!

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20. ORAL ARGUMENT

L ike an appellate brief, oral argument before the court of appeals is

also more formal. The primary differences between appellate oral
argument and trial court motion hearings are two: appellate
argument is timed; and it is usually made to a panel of judges, not just one
judge. The primary similarity is what is most important for both types of
arguments: being prepared.

In addition to the case file, you need to be familiar with the case
docket, which lists everything that happened at the court below and all the
relevant dates for each event. Also, if there was a trial on the merits, you

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need to read the transcript and make sure you are up to speed on everything
that happened during the trial of the case.

On the day of the argument, the attorneys are usually required to

check in with the Clerk’s Office before argument is scheduled to begin. At
check-in, the Clerk’s Office staff will verify the names of arguing counsel
and the argument time allotted. Usually, you have either fifteen minutes or
thirty minutes to state your argument to the court. Plus you can typically
reserve additional time for rebuttal.

When court is in session, there should be no talking in the audience;

and only material relating to the court’s business can be read by persons
sitting in the courtroom. So don’t bring the newspaper or a novel to read
while you are waiting. Also, taking photographs is prohibited (no selfies),
as is eating or drinking, and using any electronic device, including
computers, laptops, tablets, and mobile phones.

As in the trial court, everyone in the courtroom must stand when the
judges enter the room, and remain standing until the presiding judge invites
everyone to sit. Similarly, when court adjourns, everyone must stand until
the judges leave the courtroom.
It is a good idea to get there early and get organized, and maybe get
a cup of coffee and relax a little before its time to go into the courtroom.
Litigators don't usually get to argue appeals very often so it is that much
more important to make sure you are familiar with the environment and the
process before you begin.
You also want to give the right impression by dressing and acting
appropriately, and expressing yourself clearly and concisely. Even more
importantly, you need to speak with conviction about your client’s position.
If you don’t believe in what you’re saying, you won’t be able to convince
anyone of anything. And don’t avoid questions. Meet the weaknesses in
your case head on and deal with them. Then try to finish on a high note.
When you refer to the judge or counsel on the other side, follow the
same practices that apply in a motion hearing. Refer the judges as “your

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honor.” Start by introducing yourself, then stating your argument, and
answering succinctly whatever questions they ask. Don’t feel like your oral
argument has to be organized the same way your appellate brief was
organized. Likely, you will want to start by stating the issues, then
outlining the relevant facts, introducing your position, and then going point
by point through the main arguments for granting the relief you request.
But be flexible and do whatever you think will work best under the
circumstances.

When the judge asks a question, mark where you left off in your
outline, so you can return to that section after the question is answered.
Also, if your answer will have multiple parts, jot down a quick outline of
what you want to say as the judge is speaking. That way you won’t forget
one of your points (or your response to one aspect of the question) before
you are done giving your answer.

There is usually a digital clock on the podium that provides a

countdown of the time remaining for your argument. If the light is green
you are within your allotted time. Keep talking. If the light is yellow, you
are within your allotted time for rebuttal. Keep talking. But if the light is
red, your time is up. Sum up by reiterating what you want and stop talking.

While the other side presents their case, listen carefully and continue
to take good notes. It is not unusual for things to come up in oral argument
that were not discussed in the briefs. So take note of anything new and any
other points you want to make in your rebuttal, then you will have a short
outline to refer to when you stand up again. Keep the rebuttal short and to
the point. You won't have much time and the judges will be looking to
wrap up. So don't feel like you have to repeat what you already said. Just
rebut any points you haven't addressed and conclude your presentation.

After you are done, and you are outside the courtroom, go ahead and
take that selfie. Plenty of lawyers practice a long time and never have the
opportunity to argue a case before a court of appeals. So give yourself
something to remember it by!

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Electronic copy available at: https://ssrn.com/abstract=4293995
APPPENDIX
Sources of Authority Chart, Types of Authority Chart,
Research Checklist Chart

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Electronic copy available at: https://ssrn.com/abstract=4293995
Electronic copy available at: https://ssrn.com/abstract=4293995
Electronic copy available at: https://ssrn.com/abstract=4293995
CASE BRIEFING EXERCISE
MEMORANDUM
To: Associate
From: Senior Partner
Subject: ____________________
Date: ___________ __, ____

I represent the defendant in a personal injury case involving a rear

end collision. Please brief the issue of whether the defendant in the

following cases breached the duty of reasonable care by rear ending the
plaintiff’s vehicle: Clampitt v. Spencer Sales, 786 So.2d 570 (Fla. 2001)

and Epler v. Tarmac, 752 So.2d 592 (Fla. 2000). Copies of the decisions

are attached.

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CLAMPITT V. SPENCER
786 So.2d 570
Supreme Court of Florida.
Colletta P. CLAMPITT, Petitioner,
v.
D.J. SPENCER SALES, et al., Respondents.
No. SC92603.
May 10, 2001.
Preceding motorist brought negligence action against rear motorist to
recover for personal injuries suffered in rear-end collision. The Circuit
Court, Levy County, granted summary judgment for preceding motorist on
issue of liability, and thereafter entered judgment on jury verdict awarding
her damages. Rear motorist appealed. The District Court of Appeal reversed
and remanded, 704 So.2d 601. On application for review, the Supreme
Court, Shaw, J., held that sudden stop by preceding motorist was
insufficient to rebut presumption of negligence on part of rear motorist.
District Court of Appeal's decision quashed.
Pariente, J., issued opinion concurring in result only.
SHAW, J.
We have for review D.J. Spencer Sales v. Clampitt, 704 So.2d 601 (Fla. 1st
DCA 1997), based on conflict with Pierce v. Progressive American
Insurance Co., 582 So.2d 712 (Fla. 5th DCA 1991). We have jurisdiction.
See art. V, § 3(b)(3), Fla. Const. We quash D.J. Spencer Sales.
I. FACTS
During the morning of August 30, 1993, three vehicles were following one
another in the southbound lane of Alternate U.S. 27 south of Bronson,
Florida. The lead vehicle, which was driven by Charles Huguley, was a

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pickup truck hauling a small trailer; the second vehicle, driven by Colletta
Clampitt, was an automobile; and the third vehicle, driven by Carl Hetz,
was a commercial tractor-trailer rig owned by D.J. Spencer Sales (“Spencer
Sales” or “Spencer”). The posted speed limit was fifty-five miles per hour;
the weather was clear. The three vehicles were involved in an accident
about a mile south of the Bronson 572 city limits and Clampitt was
seriously injured. She sued Spencer Sales.1 Prior to trial, she moved for
summary judgment on the issue of fault, contending that Spencer had failed
to rebut the presumption of negligence that attaches to the rear driver in a
rear-end collision. She submitted Huguley's and Hetz's deposition testimony
and Hetz's answers to interrogatories. Spencer submitted no evidence on the
issue.
Huguley testified in his deposition as follows: He was traveling south at
forty-five to fifty-five miles an hour; he activated his turn signal and began
braking one hundred and fifty yards prior to entering the driveway of his
place of business; his pickup truck and trailer had turned almost completely
off the highway when the trailer was struck from behind by Clampitt's auto.
Hetz testified as follows: He was traveling at forty-five to fifty miles per
hour; he was following Clampitt's auto by approximately one hundred and
twenty feet; although he had an unobstructed view of Huguley's vehicle, he
did not know that Huguley was turning until he saw Clampitt's auto strike
Huguley's trailer and push the pickup truck and trailer off the road; at that
point, he saw Clampitt's auto come to a “dead-stop” on the highway; he
slammed on his brakes, left one hundred feet of skid marks, and struck
Clampitt's auto; he did not see Huguley's turn signal or brake lights
illuminate at any time prior to the accident (although he did testify that the
trooper at the scene confirmed that Huguley's turn signals and brake lights
were operational); he did not see Clampitt's brake lights illuminate at any
time.2
The trial court granted summary judgment in favor of Clampitt on the issue
of fault. The case proceeded to trial on the issue of damages and the jury
returned a verdict of $857,997 for Clampitt.3 The district court reversed on
the summary judgment issue, ruling that the evidence in favor of Spencer
Sales was sufficient to overcome the presumption of negligence. This Court
granted review based on conflict with Pierce v. Progressive American

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Insurance Co., 582 So.2d 712 (Fla. 5th DCA 1991), wherein the district
court held that an abrupt stop, by itself, is insufficient to overcome the
presumption of negligence that attaches to a rear driver.4
II. THE APPLICABLE LAW
The rebuttable presumption of negligence that attaches to the rear driver in
a rear-end collision in Florida arises out of necessity in cases where the lead
driver *573 sues the rear driver. The presumption bears only upon the
causal negligence of the rear driver:
The usefulness of the rule is obvious. A plaintiff ordinarily bears the
burden of proof of all four elements of negligence-duty of care,
breach of that duty, causation and damages. Yet, obtaining proof of
two of those elements, breach and causation, is difficult when a
plaintiff driver who has been rear-ended knows that the defendant
driver rear-ended him but usually does not know why. Beginning
with McNulty, therefore, the law presumed that the driver of the rear
vehicle was negligent unless that driver provided a substantial and
reasonable explanation as to why he was not negligent, in which
case the presumption would vanish and the case could go to the jury
on its merits.
Jefferies v. Amery Leasing, Inc., 698 So.2d 368, 370-71 (Fla. 5th DCA
1997) (citations omitted).
This Court in Gulle v. Boggs, 174 So.2d 26 (Fla.1965), endorsed the
rebuttable presumption established in McNulty v. Cusack, 104 So.2d 785
(Fla. 2d DCA 1958), and held that the burden is on the defendant to come
forward with evidence that “fairly and reasonably tends to show” that the
presumption of negligence is misplaced:
We have stated that the presumption announced in McNulty, and
subsequently followed, is rebuttable. It is constructed by the law to
give particular effect to a certain group of facts in the absence of
further evidence. The presumption provides a prima facie case
which shifts to the defendant the burden to go forward with evidence
to contradict or rebut the fact presumed. When the defendant
produces evidence which fairly and reasonably tends to show that
the real fact is not as presumed, the impact of “the presumption is

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 dissipated”. Whether the ultimate fact has been established must
then be decided by the jury from all of the evidence before it without
the aid of the presumption. At this point the entire matter should be
deposited with the trier of facts to reconcile the conflicts and
evaluate the credibility of the witnesses and the weight of the
evidence.
Gulle v. Boggs, 174 So.2d at 28-29 (emphasis added).
The Court recently revisited this issue in Eppler v. Tarmac America, Inc.,
752 So.2d 592 (Fla.2000). There, Eppler was stopped in a line of vehicles at
a red light and when the light turned green all the vehicles accelerated and
proceeded forward in a routine fashion for several seconds. Eppler then
suddenly-without warning and for no apparent reason-slammed on her
brakes and was struck from behind by the defendant's cement-mixer truck.
The Court held that under those circumstances the presumption of
negligence was overcome:
Based on the foregoing, we agree with the decisions of both the trial
and district courts below. Abrupt and arbitrary braking in bumper-to-
bumper, accelerating traffic is an irresponsible and dangerous act
that invites a collision. Cases involving allegations of such an act are
properly submitted to the jury, for the crucible of cross-examination
is well-suited for gleaning meritorious from non-meritorious claims.
In the present case, the trial court properly denied Eppler's motion
for a directed verdict.
Eppler, 752 So.2d at 595-96.
III. THE PRESENT CASE
In the present case, the district court ruled that the presumption of
negligence was overcome by the following alleged *574 facts: Clampitt
“dead-stopped” in front of Hetz; and Clampitt failed to use her brakes prior
to colliding with Huguley's trailer.5 From these facts, the court reasoned that
a jury could infer that Clampitt negligently failed to decelerate gradually as
Huguley's vehicle pulled off the highway.6 This was error.
The present case differs from Eppler wherein the forward driver allegedly
made an abrupt and arbitrary stop in bumper-to-bumper accelerating traffic,
i.e., a “gotcha” stop. Rather, this case is similar to Pierce v. Progressive

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American Insurance Co., 582 So.2d 712 (Fla. 5th DCA 1991), and other
“sudden stop” cases wherein the forward driver merely stopped abruptly.
The court in Pierce explained that a sudden stop standing alone is
insufficient to overcome the presumption of negligence:
It is not merely an “abrupt stop” by a preceding vehicle (if it is in its
proper place on the highway) that rebuts or dissipates the
presumption that the negligence of the rear driver was the sole
proximate cause of a rear-end collision. It is a sudden stop by the
preceding driver at a time and place where it could not reasonably be
expected by the following driver that creates the factual issue.
Pierce, 582 So.2d at 714 (citations omitted). The court in Pierce also
rejected the notion that the rear driver can benefit from a claim that the
forward driver was negligent in rear-ending the vehicle in front of him or
her.7
*575 In the present case, the accident took place at midmorning on a clear
day on a level stretch of two-lane roadway just outside the Bronson city
limits. In the area of the accident, the roadway is bordered by a farm supply
store and several other commercial establishments, several apartment
complexes and a residential development, and the campus of Central
Florida Junior College, all of which maintain entrances and exits on the
roadway. Hetz testified that, in spite of his vantage point in the cab (from
where he had a clear view of both vehicles in front of him), he did not see
Huguley activate his turn signal; he did not see Huguley illuminate his
brake lights; he did not see Huguley slow down; and he did not see Huguley
turn into his driveway. Nor did he see Clampitt slow down or activate her
brake lights. At best, according to Hetz's own testimony, Clampitt made a
sudden stop on the roadway ahead and Hetz did not see her until the last
minute.
It is well settled that a sudden stop, without more, is insufficient to
overcome the presumption of negligence. We also know that-in spite of
Hetz's testimony otherwise-some of the aforementioned events probably did
take place. We know, for instance, that Huguley turned off the highway, that
he probably slowed down (from fifty miles per hour) in order to do so, that
his brake lights (which were in working order) probably illuminated, and
that Clampitt probably slowed down before striking the trailer (she did only

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slight damage to the trailer). Thus, even interpreting the alleged facts in the
light most favorable to Spencer Sales, Hetz appears to have been “asleep at
the wheel” of a seventy-six thousand pound vehicle traveling at fifty miles
an hour.
Based on this record, Spencer Sales failed to meet the Gulle standard: It
failed to present evidence that “fairly and reasonably” tends to show that
Hetz was not negligent in colliding with Clampitt's auto. The trial court
properly granted Clampitt's motion for summary judgment and the district
court erred in ruling otherwise.
IV. CONCLUSION
This is a classic “sudden stop” case. Clampitt's auto stopped abruptly on the
highway as the result of a collision with Huguley's trailer, and Hetz's
tractor-trailer rig was unable to stop in time. Unfortunately, accidents on the
roadway ahead are a routine hazard faced by the driving public. Such
accidents are encountered far too frequently and are to be reasonably
expected. Each driver is charged under the law with remaining alert and
following the vehicle in front of him or her at a safe distance.8
In effect the law requires all drivers to push ahead of themselves an
imaginary clear stopping distance or assured stopping space or
adequate zone within which the driven vehicle can come to a stop.
Failure to maintain such a zone is normally the sole proximate cause
of injuries and damages resulting from the collision of a vehicle with
an object ahead. This is why when a vehicle collides *576 with an
object ahead of it, including the rear of a leading vehicle, there is a
presumption of negligence on the part of the overtaking or following
vehicle.
Lynch v. Tennyson, 443 So.2d 1017, 1020-21 (Fla. 5th DCA 1983)
(Cowart, J., dissenting). Each driver must be prepared to stop
suddenly (particularly during school and business hours on a
roadway that is bordered by multiple business and residential
establishments and a school, as in the present case). It is logical to
charge the rear driver with this responsibility because he or she is
the person who is in control of the following distance.

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Based on the foregoing we quash D.J. Spencer Sales v. Clampitt, 704 So.2d
601 (Fla. 1st DCA 1997).
It is so ordered.
WELLS, C.J., and HARDING, ANSTEAD, LEWIS and QUINCE, JJ.,
concur.
PARIENTE, J., concurs in result only with an opinion.
PARIENTE, J., concurring in result only.
I concur in the majority's opinion holding that an abrupt stop by the forward
driver is insufficient to overcome the presumption of negligence on the part
of the rear driver. See majority op. at 575. As the majority notes “accidents
are encountered far too frequently and are to be reasonably expected. Each
driver is charged under the law with remaining alert and following the
vehicle in front of him or her at a safe distance.” Id. at 575.
As observed by the Fifth District in Pierce v. Progressive American
Insurance Co., 582 So.2d 712 (Fla. 5th DCA 1991), which we today
approve:
It is not merely an “abrupt stop” by a preceding vehicle (if it is in its
proper place on the highway) that rebuts or dissipates the
presumption.... It is a sudden stop by the preceding driver at a time
and place where it could not reasonably be expected by the
following driver that creates the factual issue.
Id. at 714 (citation omitted) (emphasis added). As I explained in my
dissenting opinion in Eppler v. Tarmac America, Inc., 752 So.2d 592, 597
(Fla.2000) (Pariente, J., dissenting), an abrupt stop at a busy intersection
should impose the same obligation on the rear driver as a sudden stop by
the forward driver on a highway as in this case. The reason for the forward
driver's stop is not the issue, as this factor relates to the issue of comparative
fault. See id. Rather, the only issue involved in determining whether the rear
driver has overcome the presumption of negligence is whether the stop
occurred at a time and place that the rear driver reasonably could have
expected. See id. As the Third District observed in Tacher v. Asmus, 743
So.2d 157, 158 (Fla. 3d DCA 1999), review dismissed, 767 So.2d 461
(Fla.2000):

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 We conclude that a sudden stop by a preceding driver or drivers
approaching or going through a busy intersection should be
reasonably expected so as to impose a duty on the drivers which
follow them to operate their vehicles at a safe distance. It is not at all
unusual for vehicles [proceeding] through busy intersections, for
example, to have to suddenly brake for pedestrians, emergency
vehicles or other drivers running a red traffic light from a cross-
street.
As the majority correctly observes in this case, “[e]ach driver must be
prepared to stop suddenly (particulary during school and business hours on
a roadway that is bordered by multiple business and residential
establishments and a school, as in the present case). It is logical to charge
the rear driver with this responsibility because *577 he or she is the person
who is in control of the following distance.” Majority op. at 576. My only
dispute is with the majority's distinction of Eppler on the basis that the stop
in that case was both “arbitrary” and abrupt. See majority op. at 574.
Because I disagree that the stop in Eppler was not reasonably foreseeable
for the reasons stated in my dissenting opinion in that case, I concur in the
result only in this case.
Footnotes
1 Clampitt also sued Huguley but the trial court dismissed the claim.
2 Hetz testified as follows:
Q. Okay. From where you were sitting in your rig and from your
habits and the way you drive, would you have seen her brake lights,
do you believe, had she applied the brakes to her vehicle?
A. Yeah, I would have seen them.
Q. Okay. So you believe she did not hit the brakes then; is that
correct?
A. I didn't see them, no.
Q. Okay.
A. Because I don't think-well, no.
Q. Okay. But you didn't see brake lights on Mr. Huguley's vehicle
either?

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 A. No.
Q. Okay.
A. Like I said, I didn't see him-like I said, I didn't know for sure he
was turning, I didn't even know he was turning until he was [hit], I
mean, he was already in motion.
3 Pursuant to a stipulation of the parties, the court reduced the award to
$842,997 due to collateral source benefits already paid to Clampitt.
4 Clampitt raises an additional issue that is outside the scope of the
inter-district conflict and was not the basis this Court's granting of
discretionary review.
5 The district court below summarized the key evidence on the
summary judgment issue:
In this case, appellant Hetz, the driver of the rear vehicle, testified
that appellee “dead-stopped” in front of him in an area with a posted
speed limit of 55 miles per hour. He also testified that after leaving
the Bronson city limits, he remained two truck lengths behind
appellee's car. Appellant Hetz then stated that when he saw appellee
stop on the highway, he hit his brakes and put down 110 feet of skid
marks. He further testified that appellee's brake lights did not come
on prior to the collision.
D.J. Spencer Sales v. Clampitt, 704 So.2d 601, 603 (Fla. 1st DCA 1997).
6 The district court below concluded as follows:
Viewing the evidence in a light most favorable to appellants, we
conclude appellant Hetz's affirmative testimony concerning
appellee's “dead-stop” in front of him and her seeming failure to use
her brakes prior to impact with the lead vehicle, constitutes
sufficient evidence to overcome the presumption of negligence
which attaches to the driver of the rear vehicle involved in a
collision. Since the lead driver testified that he used his turn
indicators to signal his turn into his business, a jury could reasonably
infer that appellee was negligent in failing to decelerate gradually as
the lead driver slowed and turned in front of her vehicle. In these
circumstances, we conclude the trial court erred in granting the

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 motion for partial summary judgment and in removing the question
of negligence from the jury.
D.J. Spencer Sales, 704 So.2d at 603.
7 See Pierce, wherein the district court ruled as follows:
The second argument [i.e., that the negligence of the first three
drivers in rear-ending the vehicles in front of them inured to Pierce's
benefit] is equally fallacious. The presumption of negligence arising
from the collision between Boone and Reaves [i.e., the first and
second drivers, respectively] inured only in favor of Boone, and
against Reaves. Likewise, any presumption of negligence against
Tiroff and in favor of Reaves [i.e., the third and second drivers,
respectively] arising from a second collision could not benefit Pierce
in regard to the third collision where he struck Tiroff.
....
Other than the fact that Reaves and Tiroff each collided with a
preceding car, there is no evidence whatsoever of any negligence by
either of them to rebut the presumption of Pierce's negligence in
regard to the third collision. The burden to produce that evidence
was upon Pierce. Even on this appeal, Pierce has not contended that
there was any material evidence of negligence on the part of Tiroff
or Reaves other than the fact each ran into a preceding vehicle.
Pierce, 582 So.2d at 714-15 (citation omitted).
8 See section 316.0895(1), Florida Statutes (1993), which provides in
relevant part:
316.0895 Following too closely.-
(1) The driver of a motor vehicle shall not follow another vehicle
more closely than is reasonable and prudent, having due regard for
the speed of such vehicles and the traffic upon, and the condition of,
the highway.

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EPPLER V. TARMAC
752 So.2d 592
Supreme Court of Florida.
Sybil EPPLER, Petitioner,
v.
TARMAC AMERICA, INC., Respondent.
No. SC91066.
Feb. 17, 2000.Rehearing Denied March 21, 2000.
Driver of lead vehicle sued employer of rear driver following rear-end
accident. The Circuit Court for Duval County, Henry F. Martin, Jr., J.,
entered judgment on jury verdict for employer. Lead driver appealed and
the District Court of Appeal, Wolf, J., 695 So.2d 775, affirmed and certified
question. The Supreme Court, Shaw, J., held that rear driver's testimony
was sufficient to overcome presumption of negligence.
Certified question answered.
Pariente, J., filed a dissenting opinion.
SHAW, J.
We have for review Eppler v. Tarmac America, Inc., 695 So.2d 775 (Fla. 1st
DCA 1997), wherein the district court certified the following question:
Does the testimony of the defendant of a sudden unexpected stop
immediately after starting forward constitute sufficient evidence to
overcome the presumption of negligence which attaches in a rear-
end collision?
Id. at 778. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in
the affirmative as explained below and approve Eppler.

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In the late afternoon of September 27, 1994, Sybil Eppler's station wagon
was stopped in a line of traffic at a stoplight and Lawrence Morris's cement-
mixer truck, which was owned by Tarmac America, Inc., was stopped
directly behind her. At some point after the light turned green, Eppler's car
was struck from behind by Morris's truck, which was moving forward at a
low rate of speed. Eppler's car rolled forward and made contact with a car
driven by James Richards. Richards' car was undamaged and he later drove
off. Eppler also appeared uninjured, and she too drove off. The next day,
however, Eppler complained that her neck and back hurt, and she sought
treatment from a chiropractor and from a psychiatrist. She sued Tarmac.
Eppler testified at trial that she was struck by Morris's truck before she had
started moving forward at the stoplight. Morris, on the other hand, testified
that once the light had turned green, all the vehicles in line began
accelerating and then Eppler suddenly-without warning and for no reason-
slammed on her brakes. At the close of all the evidence, Eppler moved for a
directed verdict, and the trial court denied the motion. The jury returned a
verdict in favor of Tarmac, finding no negligence on Morris's part.1 Eppler
appealed the denial of her motion for a directed verdict and the district court
affirmed, ruling that the evidence presented by Tarmac was sufficient to
overcome the presumption of negligence that attaches to the driver of a rear
vehicle involved in a rear-end collision:
In the instant case, the evidence viewed in the light most favorable
to the defendant established an unexpected stop immediately after
starting to move when the signal light changed. We, therefore,
[affirm the trial court's ruling on the motion for a directed verdict].
Eppler v. Tarmac America, Inc., 695 So.2d 775, 778 (Fla. 1st DCA
1997) (on motion for rehearing).
While Eppler agrees that evidence of a sudden unexpected stop by the
forward driver is sufficient to overcome the presumption of negligence that
attaches to the *594 rear driver, she contends that-viewing the testimony in
the light most favorable to Tarmac-her own stop was merely sudden, not
unexpected. She claims that the trial court erred in denying her motion for a
directed verdict. We disagree.

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The rebuttable presumption of negligence that attaches to the rear driver in
a rear-end collision in Florida arises out of necessity in cases where the lead
driver sues the rear driver. The device bears only upon the causal
negligence of the rear driver:
The usefulness of the rule is obvious. A plaintiff ordinarily bears the
burden of proof of all four elements of negligence-duty of care,
breach of that duty, causation and damages. Yet, obtaining proof of
two of those elements, breach and causation, is difficult when a
plaintiff driver who has been rear-ended knows that the defendant
driver rear-ended him but usually does not know why. Beginning
with McNulty, therefore, the law presumed that the driver of the rear
vehicle was negligent unless that driver provided a substantial and
reasonable explanation as to why he was not negligent, in which
case the presumption would vanish and the case could go to the jury
on its merits.
Jefferies v. Amery Leasing, Inc., 698 So.2d 368, 370-371 (Fla. 5th DCA
1997) (citations omitted).
This Court in Gulle v. Boggs, 174 So.2d 26 (Fla.1965), endorsed the
rebuttable presumption established in McNulty v. Cusack, 104 So.2d 785
(Fla. 2d DCA 1958), and held that the burden is on the defendant to come
forward with evidence that “fairly and reasonably tends to show” that the
presumption of negligence is misplaced:
We have stated that the presumption announced in McNulty, and
subsequently followed, is rebuttable. It is constructed by the law to
give particular effect to a certain group of facts in the absence of
further evidence. The presumption provides a prima facie case
which shifts to the defendant the burden to go forward with evidence
to contradict or rebut the fact presumed. When the defendant
produces evidence which fairly and reasonably tends to show that
the real fact is not as presumed, the impact of “the presumption is
dissipated”. Whether the ultimate fact has been established must
then be decided by the jury from all of the evidence before it without
the aid of the presumption. At this point the entire matter should be
deposited with the trier of facts to reconcile the conflicts and

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 evaluate the credibility of the witnesses and the weight of the
evidence.
Gulle, 174 So.2d at 28-29 (emphasis added).
In the present case, Tarmac came forward with evidence showing the
following: (1) The Tarmac truck was stopped ten to eleven feet behind
Eppler's auto in a line of traffic at a red light;2 (2) when the light turned
green, all the vehicles in the line proceeded forward and were accelerating
in a routine fashion;3 (3) the Tarmac*595 driver, Morris, accelerated slowly
with the other vehicles, shifted from first to second gear, and had been in
second gear for three or four seconds when Eppler suddenly-without
warning and for no reason-slammed on her brakes.4 Pursuant to the Gulle
standard, this evidence “fairly and reasonably tends to show” that the
presumption of negligence on Morris's part is misplaced, for an abrupt and
arbitrary stop in such a situation is not reasonably expected. In fact, it is a
classic surprise.
The present “arbitrary stop” case thus differs from Tacher v. Asmus, 743
So.2d 157 (Fla. 3d DCA 1999), and other “sudden stop” cases wherein the
forward driver merely stopped abruptly.5 In Tacher, three autos collided in a
chain reaction at a stoplight. The evidence showed the following: After the
light had turned green, all the vehicles were proceeding forward when the
auto in front of Tacher (driven by Matthews) suddenly stopped; Tacher was
unable to stop in time and his vehicle struck Matthews' auto; Matthews'
auto then struck Asmus's vehicle. Matthews and Asmus sued Tacher, and
the trial court granted their motion for a directed verdict. The district court
affirmed.
The district court in Tacher explained that the forward driver's stop should
have been reasonably expected:
We conclude that a sudden stop by a preceding driver or drivers
approaching or going through a busy intersection should be
reasonably expected so as to impose a duty on the drivers which
follow them to operate their vehicles at a safe distance. It is not at all
unusual for vehicles [proceeding] through busy intersections, for
example, to have to suddenly brake for pedestrians, emergency
vehicles or other drivers running a red traffic light from a cross-

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 street. For that reason, we do not believe that the evidence of a
preceding vehicles' sudden stop at a busy intersection, in this case,
was sufficient to overcome the presumption of negligence on the
part of appellant, Tacher.
Tacher, 743 So.2d at 158. Unlike the present case where Morris testified
repeatedly that Eppler slammed on her brakes “for no reason,” the district
court in Tacher noted no such misconduct on the part of Matthews or
Asmus. Tacher is framed as a simple “sudden stop” case.
Based on the foregoing, we agree with the decisions of both the trial and
district courts below. Abrupt and arbitrary braking in bumper-to-bumper,
accelerating traffic is an irresponsible and dangerous act that invites a
collision. Cases involving allegations of such an act are properly submitted
to the jury, for the crucible of *596 cross-examination is well-suited for
gleaning meritorious from non-meritorious claims. In the present case, the
trial court properly denied Eppler's motion for a directed verdict.
We answer the certified question in the affirmative and approve Eppler on
this issue. We distinguish Tacher as explained herein.6
It is so ordered.
HARDING, C.J., and WELLS and ANSTEAD, JJ., concur.
PARIENTE, J., dissents with an opinion.
PARIENTE, J., dissenting.
I respectfully dissent. The question certified by the First District and
answered by the majority is whether a defendant's testimony of a “sudden
unexpected stop” immediately after starting forward constitutes sufficient
evidence to overcome the presumption of negligence. A sudden stop,
however, is not necessarily an unexpected or unanticipated stop; that is, one
that could not reasonably be anticipated by the rear driver under the
circumstances. As observed by the Fifth District:
It is not merely an “abrupt stop” by a preceding vehicle (if it is in its
proper place on the highway) that rebuts or dissipates the
presumption.... It is a sudden stop by the preceding driver at a time
and place where it could not reasonably be expected by the
following driver that creates the factual issue.

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Pierce v. Progressive Am. Ins. Co., 582 So.2d 712, 714 (Fla. 5th DCA
1991) (emphasis supplied). As explained by Judge Green in her recent
opinion in Tacher v. Asmus, 743 So.2d 157 (Fla. 3rd DCA 1999):
Where, as in this case, it is claimed that the rear-end collision was
precipitated by a sudden stop by the preceding driver, most districts
(including our own) have found that the presumption cannot be
rebutted if the stop happened at a place and time where it was
reasonably expected. See Pierce v. Progressive Am. Ins. Co., 582
So.2d 712, 714 (Fla. 5th DCA 1991); see also Kao v. Lauredo, 617
So.2d 775, 777 (Fla. 3d DCA 1993); Tozier v. Jarvis, 469 So.2d 884,
888 (Fla. 4th DCA 1985); but compare Eppler v. Tarmac Am., Inc.,
695 So.2d 775 (Fla. 1st DCA 1997) (the defendants testimony of a
sudden and unexpected stop of the preceding driver at an
intersection was sufficient to overcome the presumption of
negligence and create jury issue of fault).
Id. at 158.
The Third District recognized the conflict between the district courts of
appeal as it expressly certified direct conflict with Eppler in its opinion:
We conclude that a sudden stop by a preceding driver or drivers
approaching or going through a busy intersection should be
reasonably expected so as to impose a duty on the drivers which
follow them to operate their vehicles at a safe distance. It is not at
all unusual for vehicles [proceeding] through busy intersections, for
example, to have to suddenly brake for pedestrians, emergency
vehicles or other drivers running a red traffic light from a cross-
street. For that reason, we do not believe that the evidence of a
preceding vehicles' sudden stop at a busy intersection, in this case,
was sufficient to overcome the presumption of negligence on the
part of appellant, Tacher.
We therefore affirm the directed verdict entered on the issue of
liability in this case. Further, as we recognize that our holding in this
case is in direct conflict with the first district's Eppler decision, we
certify direct conflict.
*597 Tacher, 743 So.2d at 158 (emphasis supplied).

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Likewise, the concern in the present case should be whether the forward
driver's sudden stop should have been reasonably expected or anticipated by
the rear driver. The majority opinion does little to assist the district courts of
appeal in resolving the conflict among them concerning application of the
presumption of negligence in a rear-end collision when there is a sudden
stop by the forward driver at a busy intersection. Instead of resolving the
conflict among the districts, the majority attempts to distinguish Tacher
from Eppler and neither approves nor disapproves of Kao v. Lauredo, 617
So.2d 775 (Fla. 3rd DCA 1993), and Pierce, 582 So.2d at 712. In my
opinion, the holdings of Kao and Pierce are contrary to the result reached
by the majority in this case but are consistent with the Third District's
opinion in Tacher.
Further, the additional facts supplied by the majority opinion appear
nowhere in the First District's Eppler opinion. In Eppler, the First District
summarized the testimony at trial as follows:
At trial, both appellant [the plaintiff] and the Tarmac truck driver
[the defendant] agreed that appellant had stopped due to a red light,
but their testimony differed as to the cause of the accident once the
traffic light changed to green. Appellant testified that she was hit by
the Tarmac truck before she started forward; however, the Tarmac
driver testified that appellant started forward and then stopped
suddenly in front of him which caused him to rear-end her vehicle
and push it into the vehicle ahead of her. The only other witness to
the collision, the driver of the lead vehicle struck by appellant,
testified only that he had not started moving forward after the light
change when appellant struck him from behind.
Eppler, 695 So.2d at 776. Similarly, in Tacher, the Third District explained
the facts as follows:
Tacher was the operator of the third car stopped behind Matthews'
vehicle at a distance of three to five feet. After the light turned
green, Tacher testified that he observed both the Asmus vehicle and
the Matthews vehicle begin to move forward. At that point, Tacher
stated that he began to move forward traveling at approximately
three to five miles per hour. Suddenly, he saw the Matthews vehicle
abruptly stop.

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Tacher, 743 So.2d at 157.
More importantly, to the extent the majority attempts to distinguish Eppler
from Tacher, the distinction is one without a difference as to the critical
issue of the rear driver's negligence. The majority claims that the two cases
can be distinguished by asserting that the plaintiff in Eppler “slammed on
her brakes ‘for no reason,’ ” whereas in Tacher, the court “noted no such
misconduct ... [rather] Tacher is framed as a simple ‘sudden stop’ case.”
Majority op. at 595. This distinction, however, is misplaced because the
focus of the Third District's opinion in Tacher was that “the stop happened
at a place and time where it was reasonably expected.” Tacher, 743 So.2d at
158.
The majority's concern over the possibility of misconduct on the part of the
forward driver should be directed toward the issue of the forward driver's
comparative negligence, where, as in this case, that forward driver is the
plaintiff. Even if the trial court were to enter a directed verdict as to the rear
driver's negligence, this decision would not end the liability equation as to
the forward driver's negligence. I would address the majority's concern with
fault on the part of the forward driver by holding that if the forward driver
stopped suddenly at a busy intersection for no justifiable reason, the
forward driver could also be found negligent.
In other words, while a sudden stop alone does not defeat a directed verdict
on the issue of the rear driver's negligence, a sudden stop that occurs
because the forward *598 driver failed to exercise reasonable care (i.e.
stopped for no apparent reason) could also be the basis for a claim of
comparative negligence where the forward driver is the plaintiff. Indeed,
after this Court first adopted the presumption of negligence in rear-end
collisions, the principle of comparative negligence replaced the all-or-
nothing contributory negligence doctrine. See Hoffman v. Jones, 280 So.2d
431, 438 (Fla.1973).7 Comparative negligence allows a jury to apportion
liability between a negligent plaintiff and a negligent defendant. See id.
Although addressing a case where the rear driver was the plaintiff, Judge
Griffin's explanation in Jefferies v. Amery Leasing, Inc., 698 So.2d 368,
371 (Fla. 5th DCA 1997), is pertinent to the fact that the negligence of the
forward driver is a question distinct from the negligence of the rear driver
who fails to stop:

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 At the time when this rear-end collision rule was developed, Florida
was still a contributory negligence state. Thus, if the presumption
were not overcome, the following driver's claim would be barred.
Under contributory negligence, a negligent plaintiff could not
recover against a negligent defendant.
... Today, when a rear driver sues a lead driver for damages from a
rear-end collision, and the lead driver answers with an affirmative
defense of comparative negligence, the rule will, at most, establish
as a matter of law that the driver of the rear car is liable for some
portion of the overall damages. There is no logic in blindly applying
the rear-end collision rule to determine the rear driver automatically
to be the sole source of negligence in all rear-end collisions. If it is
sufficiently demonstrated that the lead driver was negligent as well,
the jury should pass upon the question of shared liability and
apportionment of damages.
Id. at 371 (emphasis supplied) (citations omitted); see Johnson v. Deep S.
Crane Rentals, Inc., 634 So.2d 1113, 1114 (Fla. 1st DCA 1994). I agree.
There is no reason that the rear driver should be barred from also
establishing that the forward driver's own negligence was a legal cause of a
portion of the damages suffered.
As to the defendant's negligence, “If the defendant had a justifiable reason
for not observing traffic rules, then it was his duty to go forward with the
evidence to show that he was not negligent....” McNulty v. Cusack, 104
So.2d 785, 788 (Fla. 2nd DCA 1958) (emphasis supplied). However, if
evidence establishes a reasonable explanation for the rear driver's failure to
stop in a timely manner, from which a jury could infer that the rear driver
was exercising reasonable care under the circumstances, a motion for
directed verdict on the rear driver's negligence should not be granted.
As the majority explains, the rebuttable presumption of negligence places
the burden on the defendant to produce evidence that “fairly and reasonably
tends to show” that the defendant was not negligent. Gulle v. Boggs, 174
So.2d 26, 29 (Fla.1965). As explained in Gulle, “When the [rear driver]
produces evidence which fairly and reasonably tends to show that the real
fact [of the rear driver's negligence] is not as presumed, then the impact of
‘the presumption is dissipated.’ ” 174 So.2d at 29. For example, in Yellow

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Cab Co. v. Betsey, 696 So.2d 769, 771 (Fla. 2d DCA 1996), evidence of the
slow moving traffic on a heavily congested bridge, combined with the rear
driver’s explanation that the collision was caused by his avoidance of
another emergency situation, was sufficient to rebut the presumption of
negligence and defeat a directed verdict. In Sistrunk v. *599 Douglas, 468
So.2d 1059, 1060 (Fla. 1st DCA 1985), testimony that the rear driver was
avoiding another road emergency that prevented him from braking in time
to avoid the collision when the forward driver unexpectedly decelerated
was sufficient to create a jury question on whether the rear driver was
acting reasonably. Likewise, in Holden v. Dye, 224 So.2d 350, 351 (Fla. 1st
DCA 1969), the presumption of negligence was found to be rebutted when
the defendant testified that the plaintiff pulled out sharply from a parking
spot in front of the defendant, and that the defendant could not avoid hitting
the plaintiff despite applying his brakes and skidding.
The issue of whether the defendant's explanation is sufficient to rebut the
presumption of negligence should be evaluated under the standard
governing directed verdicts. In other words, once the rear driver provides an
explanation for the collision, a directed verdict should only be granted if the
party opposing the directed verdict could not prevail under any reasonable
view of the evidence. See Bruce Constr. Corp. v. State Exch. Bank, 102
So.2d 288, 291 (Fla.1958); Scott v. Otis Elevator Co., 680 So.2d 462, 462
(Fla. 1st DCA 1996). On a motion for directed verdict, the non-moving
party is entitled to all reasonable inferences from the facts that would
support his or her claim. See Bruce Constr. Corp., 102 So.2d at 291;
Stringer v. Katzell, 674 So.2d 193, 195 (Fla. 4th DCA 1996), review denied,
698 So.2d 1225 (Fla.1997).
This is particularly true in negligence actions. See Conda v. Plain, 222
So.2d 417, 418 (Fla.1969). Negligence is the failure to use reasonable care
under the circumstances. See Fla. Std. Jury Instr. (Civ.) 4.1. Thus, to defeat
a directed verdict on negligence,8 the rear driver is “required only to
produce evidence from which his exercise of reasonable care under the
circumstances could properly be inferred by the jury.” Sistrunk, 468 So.2d
at 1060-61; accord § 90.302(1), Fla. Stat. (1999) (requiring only “credible
evidence” to rebut an evidentiary presumption). Once the presumption of
negligence is rebutted, the presumption vanishes and the case is sent “to the

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jury on the basis of all the evidence submitted, together with justifiable
inferences-not presumptions-to be drawn therefrom.” Gulle, 174 So.2d at
29.9
The undisputed circumstances of this case show that when the light turned
green, the plaintiff was in the proper lane of traffic stopped at a traffic light
behind three other vehicles. The plaintiff testified that she was stopped at
the traffic light when she was rear-ended by the defendant's truck. The
defendant driver, however, stated that the plaintiff had started moving
forward after the light turned green, and then suddenly “slam[med] on the
brakes,” just like the forward driver in Tacher. Taking the testimony and the
reasonable inferences in the light most favorable to the defendant, we must
assume that the plaintiff had started moving forward and then stopped
before the collision.
*600 The sole evidence that the plaintiff's vehicle started and then stopped
after a traffic light turned from red to green at a busy intersection does not
provide a basis to infer that the driver of the Tarmac vehicle should not have
been able to anticipate the stop and avoid the rear-end collision. As Judge
Green noted, “It is not at all unusual for vehicles [proceeding] through busy
intersections ... to have to suddenly brake....” Tacher, 743 So.2d at 158.
While the Tarmac driver's testimony may establish that the plaintiff stopped
suddenly, there is no evidence from which a jury could properly conclude
that his vehicle was being operated with the degree of care required by the
traffic regulations10 to control the vehicle so as to avoid colliding with the
forward vehicle. Thus, in Eppler, as in Tacher, Kao, and Pierce, the forward
driver's stop, even if abrupt, should have been reasonably anticipated as a
matter of law.
If testimony that the rear driver did not know why the forward driver had
abruptly or suddenly stopped at an intersection were sufficient to rebut the
presumption of negligence, then the rear driver's failure to observe the
cause of the stop would always be sufficient to dissipate the presumption.
This would inappropriately shift the focus to the forward driver's conduct
and away from the conduct of the rear driver for failing to stop under
circumstances.

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I would point out, however, one other wrinkle in the facts in this case. In
addition to the arguments it advances in support of the First District's
decision, the defendant also asserts that even if its driver had been
negligent, the trial court's failure to grant a directed verdict on liability was
not erroneous.11 Also, because there was still a factual dispute as to whether
the defendant was a legal cause of the plaintiff's damages, this would have
been a further reason for not granting a directed verdict on liability.12
Indeed, although the defendant claims that the plaintiff's damages were
either pre-existing or caused by a subsequent accident, when the trial court
denied the plaintiff's motion for directed verdict on liability at the close of
the case, it did so on the basis of the “conflicting evidence about the sudden
stop.” There was no discussion whatsoever about causation or about the
plaintiff's comparative negligence. In affirming and certifying the question
for review, the district court did not address these arguments raised by the
defendant. See Eppler, 695 So.2d at 776 n. 1. Accordingly, while I disagree
with the reasoning of the First District in Eppler as to the issue of the
defendant's negligence, I would remand this case to the First District for
consideration of the effect of the causation question on the propriety of a
directed verdict as to liability in this case.
Footnotes
1 The jury responded “No” to the following question on the verdict
form: “Was there negligence on the part of Defendant Tarmac America, Inc.
which was a legal cause of damage to plaintiff Sybil Eppler?”
2 On direct examination of Morris, the following transpired:
Q. How far were you back from her....
A. Yes, at the light I was back approximately 10, 11 feet from her.
3
On cross-examination of Morris by Eppler's lawyer, the following
transpired:
Q. How many cars were in front of Mrs. Eppler's vehicle?
A. I would estimate three cars.
Q. You don't know for sure, though?

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 A. No, but I estimated it was four in front of me, so she was right in
front of me.
Q. Okay. It was Mrs. Eppler's car, and then three more in front of
her?
A. Yes, sir.
Q. Now, when the light turned green, do you recall what occurred
with regard to the three vehicles in front of Mrs. Eppler's car?
A. Traffic started off, just the way they always do.
Q. Do you have a vivid recollection in your mind as to whether or
not the vehicle in front of Mrs. Eppler started off?
A. Yes, as far as I'm concerned, it did.
Q. Okay.
A. All the traffic was moving.
Q. So it's your testimony that the vehicle immediately in front of
Mrs. Eppler's vehicle started off?
A. Yes, sir.
4 On cross-examination of Morris, the following transpired:
Q. So it's your testimony that the vehicle immediately in front of
Mrs. Eppler's vehicle started off?
A. Yes, sir.
Q. All right. And then Mrs. Eppler just slammed on brakes without
any reason; is that right?
A. That's what I thought.
....
Q. Now, I got to make sure I understand you now. You took off in
first gear, you shifted into second gear, and had you given it any gas
in second gear?
A. Somewhat, yes.
Q. And then Mrs. Eppler slammed on brakes for no apparent reason,
and then you hit the brake; is that right?
A. That's right.

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 (Emphasis added.)
5 See, e.g., Pierce v. Progressive Am. Ins. Co., 582 So.2d 712, 714 (Fla.
5th DCA 1991) (“As a matter of law, it is not a substantial and reasonable
explanation by Pierce to merely say that the vehicles ahead of him ...
stopped abruptly.”); see also Kao v. Lauredo, 617 So.2d 775, 777 (Fla. 3d
DCA 1993) (“[T]he defendant testified that he was driving in a careful
manner, but that plaintiff stopped in an abrupt manner.... The defendant's
version of the collision is not sufficient to rebut or dissipate the presumption
that his negligence was the sole proximate cause of the accident.”).
The district court in Tacher certified conflict with Eppler; Tacher is not
currently before this Court.
7 After the advent of comparative negligence, an unrebutted
presumption of negligence no longer means that the negligence of the rear
driver must be the “sole proximate cause” of a rear collision. Thus, I would
disapprove of language in cases such as Kao v. Lauredo, 617 So.2d 775,
777 (Fla. 3rd DCA 1993), and Pierce v. Progressive American Insurance.
Co., 582 So.2d 712, 714 (Fla. 5th DCA 1991), stating otherwise.
8 A directed verdict on liability includes both the issues of negligence
and legal cause. See, e.g., Fla. Std. Jury. Inst. (Civ.) 3.1(d). This instruction
is titled, “Directed verdict on liability,” and provides:
The court has determined and now instructs you, as a matter of law,
that (defendant) was negligent and that such negligence was a legal
cause of [loss] [injury] [or] [damage] to (claimant). (Claimant) is
therefore entitled to recover from (defendant) for such [loss] [injury]
[or] [damage] as is shown by the greater weight of the evidence to
have thus been caused.
Id. (brackets and parentheses in original). When a trial court has directed a
verdict on the defendant's negligence, the issues for the jury to resolve are
causation and damages. See Fla. Std. Jury Instr. (Civ.) 3.1(c).
9 This is in contrast to other states that provide that the jury may be
instructed on the rebuttable presumption of the rear driver's negligence. See,
e.g., Bettner v. Boring, 764 P.2d 829, 832 (Colo.1988); Beausoleil v.
Vollucci, 711 A.2d 643, 644 (R.I.1998).

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10 The traffic regulations require that the “driver of a motor vehicle shall
not follow another vehicle more closely than is reasonable and prudent,
having due regard for the speed of such vehicles and the traffic upon, and
the condition of, the highway.” § 316.0895(1), Fla. Stat. (1997).
11 Because there was a question of the plaintiff's comparative
negligence, the directed verdict should only have been on negligence and
not as to liability. See Note on use of Fla. Std. Jury Inst. (Civ.) 3.1(d)
(instruction on directed verdict on liability “should be given only when the
sole issue to be determined by the jury is the matter of damages”).
12 See supra note 8.

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SAMPLE CASE BRIEFS
MEMORANDUM
To: Senior Partner
From: Associate
Subject: _____________________
Date: ___________ __, ____

As you requested, I am attaching briefs of the issue of whether the

defendant in the following cases breached the duty of reasonable care by

rear ending the plaintiff’s vehicle: Clampitt v. Spencer Sales, 786 So.2d 570

(Fla. 2001) and Epler v. Tarmac, 752 So.2d 592 (Fla. 2000).

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CLAMPITT V. SPENCER
BRIEF

Facts

Three vehicles were traveling on a highway in Florida. The speed limit was
fifty-five miles per hour; the weather was clear. The first vehicle was

towing a trailer. That vehicle slowed and had turned almost completely off

the highway when it was struck from behind by the second vehicle. The
third vehicle was traveling at forty-five to fifty miles per hour and

following the second vehicle by approximately one hundred and twenty

feet. The driver of the third vehicle did not see the first vehicle turning

until he saw the second vehicle strike the first vehicle. He then saw the
second vehicle come to a “dead-stop” on the highway. He slammed on his

brakes, left one hundred feet of skid marks, and struck the second vehicle.

Issue

Whether the defendant breached the duty of reasonable care by rear ending

the plaintiff’s vehicle.

Rule

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The law presumes that the driver of the rear vehicle in a rear end collision is

negligent unless that driver provided a substantial and reasonable

explanation as to why he was not negligent. A sudden stop by the driver of

the leading vehicle at a “time and place where it could not reasonably be

expected” by the driver of the following vehicle rebuts the presumption.

Holding

An accident in the roadway ahead is to be reasonably expected and,

therefore, not a substantial and reasonable explanation as to why the driver

of the rear vehicle was not negligent in causing a rear-end collision.

Therefore, the law presumes that the defendant was negligent in rear-

ending the plaintiff.

Rationale

Accidents on the road ahead are a “routine hazard faced by the driving
public” and are to “be reasonably expected.”

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EPPLER V. TARMAC BRIEF

Facts

Three vehicles were stopped in a line of traffic at a stoplight. Once the light

had turned green, all the vehicles in line began accelerating in a routine
fashion. The third vehicle accelerated slowly with the other vehicles,
shifted from first to second gear, and had been in second gear for three or

four seconds when the second vehicle “suddenly-without warning and for

no reason-slammed on her brakes.” Then the third vehicle struck the

second vehicle from behind.

Issue

Whether the defendant breached the duty of reasonable care by rear ending
the plaintiff’s vehicle.

Rule

The law presumes that the driver of the rear vehicle in a rear end collision is

negligent unless that driver provided a substantial and reasonable

explanation as to why he was not negligent. A sudden stop by the driver of

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the leading vehicle at a “time and place where it could not reasonably be

expected” by the driver of the following vehicle rebuts the presumption.

Holding

An abrupt and arbitrary stop after a traffic light turns green is not

reasonably expected. In fact, it is a classic surprise. Therefore, the

presumption of negligence does not apply.

Rationale

“Abrupt and arbitrary braking in bumper-to-bumper, accelerating traffic is

an irresponsible and dangerous act that invites a collision.” It is not

something that should be reasonably expected.

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CASE ANALOGY EXERCISE
MEMORANDUM
To: Associate
From: Senior Partner
Subject: ___________________________
Date: ___________ __, ____

We represent UF undergraduate student Buford Rawlings in

connection with sexual harassment and a criminal charges brought against

him by fellow student Cam Lewis. I need your help with a legal

memorandum I am working on for the criminal case only.

The criminal charge is based on an incident that occurred six months

ago outside the Smathers Library around noon. Lewis is pledging at a

fraternity on campus. Rawlings is a brother in the fraternity. Rawlings

recently found out Lewis is a transgender student. Although the other

brothers are open to Lewis becoming a member of the fraternity, Rawlings

does not feel Lewis should be allowed to join.

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 As part of the hazing that goes along with pledging, Rawlings has

been harassing Lewis whenever they meet on campus. On one occasion,

Rawlings apparently “pantsed” Lewis in the middle of the courtyard in front

of the library. Lewis was standing with a group of peers discussing a class

they had just attended. Rawlings came up behind Lewis and pulled Lewis’
shorts down below the knees. Lewis was shocked and humiliated. In fact,

the emotional repercussions were so bad Lewis has since dropped out of

school. Lewis just filed a claim against Rawlings for sexual harassment

that another associate in the firm is working on. And Lewis also went to

the police and filed a criminal complaint for battery.

Rawlings admits to pantsing Lewis but claims he intended no harm

and the whole thing was just a “joke.” As to the allegations of battery,

Rawlings claims he never touched Lewis. The shorts Lewis was wearing

were loose fitting work shorts; Rawlings pulled them down by pulling a

tool loop that protruded on one side of the shorts.

My understanding of the law is that it doesn’t matter that Rawlings

did not actually touch Lewis’ body (he only touched the shorts Lewis was

wearing). The case of Malczewski v. State of Florida, 444 So.2d 1096 (Fla.

DCA 1984) (attached) appears to be on point. Please do an analogy of the

case to this fact pattern. I want to use the analogy in the discussion of this

issue in my legal memorandum.

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MALCZEWSKI V. FLORIDA
444 So.2d 1096 (1984)
Albert MALCZEWSKI, Appellant,
v.
STATE of Florida, Appellee.
No. 83-1555.
District Court of Appeal of Florida, Second District.
January 25, 1984.
BOARDMAN, Acting Chief Judge.
Albert Malczewski appeals a conviction and sentence for aggravated battery
imposed upon him after the denial of his motion to dismiss a count of an
amended information which charged him with aggravated battery. We
affirm.
The amended aggravated battery count which Malczewski sought to dismiss
pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) alleged that on
March 16, 1983, Malczewski, "by use of a deadly weapon, to-wit [sic]: a
knife, did knowingly and intentionally touch or strike Dwain Reeder against
his will by stabbing the money bag Dwain Reeder was clutching to his
chest, thereby placing Dwain Reeder in fear."
As grounds for dismissal of this amended count, which he labeled as
"confusing and contradictory," Malczewski outlined the following material,
undisputed facts:
1. That on March 16, 1983, Dwain Reeder, an employee of Publix
Supermarkets was walking to a bank accompanied by one Tony
Gregoris for the purpose of making a deposit at said bank.

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 2. Mr. Reeder was carrying a money bag which contained bundles of
checks and currency in it.
3. While walking to the bank, Mr. Reeder was accosted by an armed
individual who demanded Mr. Reeder relinquish possession of the
money bag.
4. Mr. Reeder held said money bag next to his chest and at first did
not drop it or relinquish possession of it.
5. The armed individual thereupon struck [sic] an object, believed by
Mr. Reeder to be a knife, into said money bag, but not coming into
contact with Mr. Reeder himself.
6. Mr. Reeder's body never came into direct contact with the object
he believed to be a knife, nor did he suffer any physical injury from
said object.
The state filed a traverse under Florida Rule of Criminal Procedure 3.190(d)
which admitted the allegations contained in paragraphs 1 through 6 of
Malczewski's motion to dismiss. However, the traverse added the following
facts which the state believed necessary for a fair determination of the
issue:
a. The victim was carrying the night money bag from the Publix
Store to a nearby bank for deposit.
b. In the bag was $4,650.00 in cash and over $6,000.00 in checks.
c. The Defendant approached from the rear, pulled out a pistol and
pointed it at both victim Reeder and victim's assistant... . The
Defendant pointed the pistol at both of them and clicked it twice.
Both victims believed the gun was real and deadly and were in great
fear for their lives.
d. The Defendant ordered the victim to "drop the bag". Instead, the
victim clutched the bag to his chest. The Defendant then pulled out a
knife and lunged at the victim Reeder. The Defendant stabbed the
bag, which was held against Reeder's chest. The knife blade went
through the bag, puncturing several of the checks and deposit slips
which were inside. The victim used the bag for 1098*1098

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 protection and only the bag prevented the knife from entering
victim's chest.
The applicable 1981 Florida Statutes provide in relevant part as follows:
"784.03 Battery. — (1) A person commits battery if he: (a) Actually and
intentionally touches or strikes another person against the will of the other;
... . 784.045 Aggravated battery. — (1) A person commits aggravated
battery who, in committing battery: ... (b) Uses a deadly weapon."
The trial court entered an order denying Malczewski's motion to dismiss the
amended aggravated battery count. Malczewski thereafter pled nolo
contendere as to the amended count, expressly reserving his right to appeal
the denial of his motion to dismiss. The court subsequently rendered an
order adjudicating him guilty of aggravated battery and sentencing him
thereon to a ten-year term of imprisonment.
Malczewski contends that the stabbing of the money bag carried by Dwain
Reeder did not constitute an aggravated battery because there was never any
actual contact between the knife which he wielded and Reeder. He contends
further that in order for a battery to occur the victim or plaintiff must suffer
an actual harmful or unconsented contact which is caused by the criminal
defendant or tort-feasor. Goswick v. State, 143 So.2d 817 (Fla. 1962);
Chorak v. Naughton, 409 So.2d 35 (Fla. 2d DCA 1981); Rodriguez v. State,
263 So.2d 267 (Fla. 3d DCA 1972). The state responds that the accusatory
pleading establishes a harmful or offensive contact, stressing that it is a
general proposition of criminal law that a battery may be against something
carried by the victim. See 6A C.J.S. Assault & Battery § 70; Respublica v.
DeLongchamps, 1 U.S. (Dall.) 111, 1 L.Ed. 59 (1784). The state contends
and we agree that under the facts of this case the victim was subjected
against his will to an intentional touching by Malczewski. See Grant v.
State, 363 So.2d 1063 (Fla. 1978).
The issue before us is whether the language of Florida's battery statute,
section 784.03(1)(a), particularly the words, "[a]ctually ... touches or strikes
another person," encompasses the conduct engaged in by Malczewski.
None of the Florida cases cited by either party is directly on point.
Turning to hornbook law, Dean William Prosser wrote:

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 The protection [afforded a plaintiff by an action for the tort of
battery] extends to any part of the body, or to anything which is
attached to it and practically identified with it. Thus contact with the
plaintiff's clothing, or with a cane, a paper, or any other object held
in his hand, will be sufficient... . His interest in the integrity of his
person includes all those things which are in contact or connected
with it.
W. Prosser, Law of Torts § 9 at 34 (4th ed. 1971). (Emphasis added.)
Commentators have stated that the above common law rule with respect to
the tort of battery applies as well to the crime of battery. In 6 Am.Jur.2d
Assault and Battery § 37 at 38, it is stated:
The rules that to be held liable for a battery the offender need not
directly affect the unlawful contact with the person of the victim,
and that a battery need not be committed directly against the person
of the victim, but may be committed against anything so intimately
connected with the person of the victim as in law to be regarded as a
part of that person, are applicable in criminal prosecutions for
battery, as are the principles that there may be a battery in the legal
sense of the term even though no physical harm resulted therefrom...
.
(Footnotes omitted and emphasis added.) Similarly, in 6A C.J.S. Assault
and Battery, § 70 at 440-41, cited by the state, it is said: "It is essential to
the [criminal] offense of battery ... that there be a touching of the person of
the prosecutor, or something so intimately associated with, or attached to,
his person as to be regarded as a part thereof... . The contact may have
been ... with something carried by him." (Footnotes omitted and emphasis
added.)
1099*1099 The eighteenth century criminal case cited by the state,
Respublica v. DeLongchamps, lends support to the logical and reasonable
proposition of criminal law that there need not be an actual touching of the
victim's person in order for a battery to occur, but only a touching of
something intimately connected with the victim's body. See also Stokes v.
State, 233 Ind. 10, 115 N.E.2d 442 (1953).

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In Respublica v. DeLongchamps, which is almost directly on point, the
defendant struck the victim's cane. In affirming his conviction for assault
and battery, the Supreme Court of Pennsylvania said that the assault and
battery
is, perhaps, one of that kind, in which the insult is more to be
considered, than the actual damage; for, though no great bodily pain
is suffered by a blow on the palm of the hand, or the skirt of the
coat, yet these are clearly within the legal definition of assault and
battery... . [T]herefore, anything attached to the person, partakes of
its inviolability... .
1 U.S. (Dall.) at 114, 1 L.Ed. at 61. (Emphasis added.)
In Stokes, the defendant fired a gun at the victim. The bullet perforated the
victim's necktie and creased his shirt. In upholding the battery conviction,
the Indiana Supreme Court held, quoting from one of its earlier cases,
Kirland v. State, 43 Ind. 146 (1873), that "`[o]ne's wearing apparel is so
intimately connected with the person, as in law to be regarded, in case of a
battery, as a part of the person.'" 115 N.E.2d at 443.
Several out-of-state cases have suggested the same result as DeLongchamps
and Stokes by way of dicta. See Huffman v. State, 200 Tenn. 487, 292
S.W.2d 738 (1956); State v. Sudderth, 184 N.C. 753, 114 S.E. 828 (1922);
Reese v. State, 3 Tenn. Cr.App. 97, 457 S.W.2d 877 (1970).
Considering the above-quoted authorities and case law on the subject of the
crime of battery, we hold that the word "person" in our state's battery
statute, section 784.03(1)(a), means person or anything intimately
connected with the person. Applying this definition of "person" to the facts
of this case, we submit that it would be an overly restrictive construction of
section 784.03(1)(a) to decide that the money bag which Reeder clutched to
his chest to protect himself from a serious injury or death, when
Malczewski "actually" stabbed it with a knife during his attack, was not a
part of Reeder's "person" as contemplated by the statute.
Accordingly, we affirm Malczewski's conviction and sentence for
aggravated battery.
AFFIRMED.
GRIMES and LEHAN, JJ., concur.

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SAMPLE CASE ANALOGY

MEMORANDUM
To: Senior Partner
From: Associate
Subject: _____________________
Date: ___________ __, ____

You asked me to write a case analogy for the Rawlings

memorandum you are working on. Rawlings apparently “pantsed” fellow

student Cam Lewis in the middle of the courtyard in front of the library.

You indicated that Lewis was standing in a group of peers discussing a class
they had just attended. Rawlings came up behind Lewis and pulled Lewis’

shorts down below the knees. Lewis was shocked and humiliated, and

actually dropped out of school because of what happened. Lewis just filed

a civil claim against Rawlings for sexual harassment and a criminal

complaint for assault. Your memorandum is just for the criminal assault

case.

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 The case you wanted me to analogize is Malczewski v. State of

Florida, 444 So.2d 1096 (Fla. DCA 1984). Comparing that case to the fact

pattern, I drafted the following case analogy:

In Malczewski v. State of Florida, 444 So.2d 1096 (Fla. DCA 1984),

the victim “was carrying a money bag which contained bundles of checks

and currency in it.” Id. at 1096. On his way to deposit the money at the
bank, he “was accosted by an armed individual who demanded [he]

relinquish possession of the money bag.” Id. The victim “held [the] money

bag next to his chest’ and the defendant stabbed him with a knife. Id. The

knife penetrated the bag but did not “[come] into contact with [the victim]

himself.” Id. at 1096-1097. The defendant was charged with aggravated

battery which involves “intentionally touch[ing] or strik[ing] another person

against the will of the other” with a dangerous weapon. Id. at 1097. Based

on these facts, the court held that the money bag the victim held to his chest

was part of his “person” for the purposes of the law, so the defendant

intentionally touched his “person” by touching the bag. Id. at 1099. As is

the case with the tort of battery, a person’s “interest in the integrity of his

person includes all those things which are in contact or connected with it.”
Id.

Malczewski is analogous to the case involving the Rawlings. In both

cases, the defendant is charged with battery for intentionally touching

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something intimately connected with the victim. In Rawlings’ case,

Rawling camp up behind Lewis, and pulled on a tool loop protruding from

Lewis’ shorts. In Malczewski, the defendant stabbed a bag full of money

the victim was clutching to his chest. In both cases it is irrelevant that the

defendant did not actually touch the victim. The victim’s interest in the

integrity of his person includes all things in contact or connected with his
person. Just like the money bag, the shorts Lewis was wearing were part of

the victim’s person for the purposes of the law. Like the defendant in

Malczewski, Rawlings actually and intentionally touched Lewis’ person by

pulling on the tool loop attached to Lewis’ shorts. Therefore, Rawlings

likely committed the crime of battery by “pantsing” Lewis.

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IRAC EXERCISE
MEMORANDUM
To: Associate
From: Senior Partner
Subject: ___________________________
Date: ___________ __, ____

Your assistance is requested in connection with a matter involving a

senior partner at this firm. The partner, Frederick Washington, is a member

of the litigation department. Because of extenuating circumstances, he

failed to timely file an answer to a complaint on behalf of one of the firm’s

clients, and now a default judgment has entered.

As you may recall, Washington left the firm a short time ago for

personal reasons, and he was away from the office for six months. He had
been taking oxycontin for a recurring back problem he has, and he became

addicted to the medication. He self-admitted at a local rehabilitation center

and has resolved the issue. Since he has been back, he has been

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consistently performing at the high level that is expected of every lawyer at

this firm.

As you know, the usual procedure is to arrange for coverage of

pending cases prior to taking any extended leave. Unfortunately,

Washington left under exigent circumstances because of his condition. He

was in crisis and had to move quickly. And he was not of his right mind

when he left. As a result certain matters Washington had responsibility for

“fell through the cracks.”

What we would like you to do is determine under what

circumstances Washington could obtain a new trial for the case, and,
specifically, whether this situation would qualify under the “conscious

indifference” standard applicable here in Texas. We are not looking for you

to do a full blown legal research memorandum. We only want your analysis

of the issue in the usual IRAC format.

Please use the following cases to analyze this issue: Young v.

Kirsch, 814 S.W.2d 77 (Tex. App. (Tex. App. 1991); State Farm Life Ins.

Co. v. Mosharaf, 794 S.W.2d 578 (Tex. App. 1990); Southland Paint Co. v.
Thousand Oaks Racket Club, 724 S.W.2d 809 (Tex. App. 1986). Copies of

the cases are attached.

Your discretion is handling this matter is also appreciated.

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YOUNG V. KIRSCH
814 S.W.2d 77 (1991)
James B. YOUNG, Appellant,
v.
Raymond R. KIRSCH, Appellee.
No. 04-90-00533-CV.
Court of Appeals of Texas, San Antonio.
June 12, 1991.
CHAP A, Justice.
This court, sitting en banc on its own motion, considers the appeal of
appellant, James B. Young, from a default judgment rendered in favor of
appellee, Raymond R. Kirsch, and the trial court's denial of a motion for
new trial. TEX.R.APP.P. 79.
The issues before this court are whether the trial court erred:
1) in denying the motion for new trial;
2) in granting the default judgment when the evidence was legally
and factually insufficient to support the default judgment;
3) in rendering the default judgment where the appellee's petition
"did not support the judgment"; and,
4) in rendering the default judgment where appellee's petition "did
not properly allege Defendant's residence."
On November 20, 1987, Young and Kirsch were involved in an auto
accident in San Antonio, Texas. Plaintiff Kirsch's property damage claim
was paid, and the claim file was eventually closed. On November 16, 1989,
Kirsch filed a lawsuit against Young for personal injury damages. Young
was eventually served with suit papers in Boca Raton, Florida on January
24, 1990. Young forwarded these suit papers to his insurance carrier's office

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in Houston, Texas by regular mail upon his agent's instructions. No answer
was filed prior to the default judgment being rendered. Default judgment
was taken on May 23, 1990. Young filed a motion for new trial, along with
affidavits which set forth facts allegedly entitling him to a new trial.
Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126
(1939). Although no controverting affidavits were filed by the appellee,
depositions, as well as live testimony, were presented to the court at a
hearing held on appellant's motion for new trial.[1] Appellant's motion was
denied, and judgment was rendered for appellee Kirsch in the amount of
$350,000.
Initially, appellant contends that the trial court erred in overruling Young's
motion for new trial.
In Craddock, the Texas Supreme Court established the guiding rule to be
applied in determining whether a new trial should be granted:
A default judgment should be set aside and a new trial ordered in
any case in which the failure of the defendant to answer before
judgment was not intentional, or the result of conscious indifference
on his part, but was due to a mistake or an accident; provided the
motion for a new trial sets up a meritorious defense and is filed at a
time when the granting thereof will occasion no delay or otherwise
work an injury to the plaintiff.
Craddock, 133 S.W.2d at 126.
The appellant argues that the default judgment should have been set aside
and a new trial granted because his failure to file an answer was due to
accident or mistake and not conscious indifference; further, appellant
contends that he demonstrated a meritorious defense and established that
the granting of a new trial would occasion no delay and injury.
Notwithstanding appellant's assertions, the question of whether the trial
court erred in denying a motion for new trial is "directed to the sound
discretion of the trial court." Craddock, 133 S.W.2d at 126. "[T]he court's
ruling on such will not be disturbed on appeal in the absence of a showing
of an abuse of *80 that discretion." Cliff v. Huggins, 724 S.W.2d 778, 778
(Tex.1987).

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However, the trial court's discretion is more limited with regard to the
meritorious defense prong of Craddock. Craddock, 133 S.W.2d at 126.
When the movant "has thus set forth such meritorious defense, supported by
such affidavits or other evidence as prima facie to entitle him to a new trial,
such new trial should not be denied upon any consideration of counter
affidavits or contradictory testimony offered in resistance to such motion."
Cragin v. Henderson County Oil Dev. Co., 280 S.W. 554, 555
(Tex.Com.App.1926, holding approved). Likewise, "[w]here factual
allegations in a movant's affidavits are not controverted, a conscious
indifference question must be determined in the same manner as a claim of
meritorious defense" and "[i]t is sufficient that the movant's motion and
affidavits set forth facts which, if true, would negate intentional or
consciously indifferent conduct." Strackbein v. Preuritt, 671 S.W.2d 37, 38-
39 (Tex.1984).[2]
Appellant misplaces his reliance on Strackbein for the proposition that
appellee's failure to present controverting affidavits in response to
appellant's motion for new trial and supporting affidavits requires the trial
court to grant a new trial, regardless of any other evidence which may have
been presented at the hearing. Although appellant concedes the Texas
Supreme Court did not specifically state that only affidavits could be
considered by the court, appellant, nevertheless, insists that this is the
proper interpretation of Strackbein. We disagree.
In Strackbein, the only evidence before the trial court was the affidavits
presented in support of the motion for new trial, which, if true, negated
intentional or consciously indifferent conduct and set up a meritorious
defense. Strackbein, 671 S.W.2d at 39. The supreme court expressly stated
that "a conscious indifference question must be determined in the same
manner as a claim of meritorious defense" "[w]here factual allegations in a
movant's affidavits [as to conscious indifference] are not controverted"; "the
trial judge, in considering the motion for new trial, [can] look only to the
record before him at that time which include[s] [the movant's] motion for
new trial and the affidavits submitted therewith." Id. at 38. As recognized
by the appellant, the court did not require that the movant's affidavits be
controverted only by counter affidavits, or that the trial court ignore any
other evidence. Indeed, appellate courts have used the term "affidavits or

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other evidence" repeatedly when addressing the issue of setting aside a
default judgment on the basis of conscious indifference, which must
necessarily include documents, depositions, and testimony. Ivy v. Carrell,
407 S.W.2d 212, 214 (Tex.1966) (emphasis added); Cragin, 280 S.W. at
555; Russell v. Northeast Bank, 527 S.W.2d 783, 788 (Tex.Civ.App. —
Houston [1st Dist.] 1975, writ ref'd n.r.e.). Accordingly, our decision must
rest on whether the trial judge abused his discretion in denying appellant's
motion for new trial in view of "the record before him at that time" which in
this case not only included appellant's affidavits, but also depositions and
testimony presented by the appellee controverting appellant's affidavits as
to the issue of conscious indifference. Strackbein, 671 S.W.2d at 38.
In a supplemental brief, appellant cites this court's opinion in Peoples Sav.
& Loan Ass'n v. Barber, 733 S.W.2d 679, 681 (Tex. App. — San Antonio
1987, writ dism'd by agr.), which appellant says supports his contention that
this court should not consider any evidence adduced at the evidentiary
hearing other than the affidavits or counter affidavits filed. However, the
supreme court granted writ in Peoples Sav. & Loan Ass'n on the following
point:
The Court of Appeals erred in reversing the trial court's proper
denial of Respondents' Motion for New Trial, because, evidence,
which was properly considered, controverted Respondents' *81
allegation that their failure to answer was the result of accident or
mistake, which evidence supports the trial court's finding of fact that
Respondents' failure to answer was intentional or the result of
conscious indifference.
31 Tex.Sup.Ct.J. 9 (October 10, 1987). But by agreement of the parties, the
writ was dismissed.
We hereby disapprove of the language in Peoples Sav. & Loan Ass'n, or any
other prior opinion by this court, which suggests that evidence adduced at a
hearing to set aside a default judgment, other than affidavits or counter
affidavits, may not be considered by the trial court, in determining whether
the failure to answer was intentional or the result of conscious indifference,
or by the appellate court, in determining whether the trial court abused its
discretion.

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As such, we find that the evidence properly before the trial court at the
hearing on the motion for new trial reflects the following: suit was filed by
Kirsch on November 16, 1989; Young was served with citation on or about
January 24, 1990; although an answer was due on February 20, 1990, no
answer was filed; Young failed to take any action at all until February 26,
1990, thirty three days after he was served, at which time Young contacted
his insurance carrier in San Antonio and notified it of the lawsuit; Kirsch,
through his counsel, phoned Young on at least four different occasions,
notifying Young that no answer had been filed; between April 17, 1990,
when Young phoned his insurance company for the second and last time,
and the time the default judgment was entered, Young took no other action;
and, on May 23, 1990, four months after Young was originally served, the
default judgment was entered. Additionally, there was testimony that Young
had previously been employed for twenty years as a stockbroker and
manager, and that while so employed, he had been sued on several
occasions.
Appellant contends that his actions do not amount to conscious
indifference. Conscious indifference has been defined as "the failure to take
some action which would seem indicated to a person of reasonable
sensibilities under the same or similar circumstances". Sunrizon Homes,
Inc. v. Fuller, 747 S.W.2d 530, 532 (Tex.App. — San Antonio 1988, writ
denied); Johnson v. Edmonds, 712 S.W.2d 651, 652 (Tex.App. — Fort
Worth 1986, no writ); see also Liberty Mut. Fire Ins. Co. v. Ybarra, 751
S.W.2d 615, 618 (Tex.App. — El Paso 1988, no writ); Holberg v. Short, 731
S.W.2d 584, 586 (Tex. App. — Houston [14th Dist.] 1987, no writ).
Another court has defined conscious indifference to mean that the defendant
"was clearly aware of the situation and acted contrary to what such
awareness dictated." Guardsman Life Ins. Co. v. Andrade, 745 S.W.2d 404,
405 (Tex.App — Houston [1st Dist.] 1987, writ denied). In Ivy v. Carrell,
407 S.W.2d 212, 213 (Tex.1966), the Texas Supreme Court disapproved a
finding of conscious indifference based on a new trial movant's failure to
show that the movant's default was "not due to his fault or negligence".
Instead, the supreme court reiterated the rule espoused by the court in
Craddock, which requires the setting aside of a default judgment upon
finding that "the failure of the defendant to answer before judgment was not

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intentional, or the result of conscious indifference on his part, but was due
to a mistake or an accident...." Craddock, 133 S.W.2d at 126. Thus,
conscious indifference must amount to more than mere negligence to satisfy
the Craddock rule.
In the present case, we fail to see how the trial judge abused his discretion
in denying the motion for new trial. This is especially true in view of the
constant phone calls from the appellee reminding the appellant of his
responsibility to take some action, the fact that the appellant testified he had
some prior familiarity with the legal system, and the length of time which
lapsed before the default judgment was finally entered. We hold the trial
court's finding was based on more than mere negligence and amounted to
conscious indifference.
Moreover, in the absence of findings of fact and conclusions of law, we
must *82 affirm the judgment on any legal theory that finds support in the
evidence. Strackbein, 671 S.W.2d at 38. Accordingly, we hold that the
appellant has failed in his burden of showing that the trial court abused its
discretion in denying the motion for new trial. The point is, therefore,
rejected.
Appellant next argues that the evidence was legally and factually
insufficient to support the default judgment.
In considering a "no evidence" or legal sufficiency point, we consider only
the evidence favorable to the decision of the trier of fact and disregard all
evidence and inferences to the contrary. Davis v. City of San Antonio, 752
S.W.2d 518, 522 (Tex.1988); Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.
1965).
In considering a factual sufficiency point, we may not substitute our
judgment for that of the jury, but must assess all the evidence and reverse
for a new trial only if the challenged finding is so against the great weight
and preponderance of the evidence as to be manifestly unjust, shocks the
conscience, or clearly demonstrates bias. Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)
(great weight and preponderance); In re King's Estate, 150 Tex. 662, 244
S.W.2d 660, 661 (1951). "In considering an `insufficient evidence' point, we
must remain cognizant of the fact that it is for the jury, as the trier of fact, to

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judge the credibility of the witnesses, to assign the weight to be given their
testimony, and to resolve any conflicts or inconsistencies in the testimony."
Texas Employers' Ins. Ass'n v. Jackson, 719 S.W.2d 245, 249-50 (Tex.App.
— El Paso 1986, writ ref'd n.r.e.), citing Commonwealth Lloyd's Ins. Co. v.
Thomas, 678 S.W.2d 278, 289 (Tex.App. — Fort Worth 1984, writ ref'd
n.r.e.).
The record further reflects that Dr. Kirsch, a 54 year old dentist, was sitting
stationary in his vehicle at the corner of Broadway and Loop 410 when he
was struck from the rear by a vehicle driven by Mr. Young. At the time of
obtaining the judgment in May of 1990, Dr. Kirsch testified that he had not
had a full night of sleep in the two and a half years since the accident, that
he had given up all of his previously extensive athletic endeavors, that the
pain relievers given to him by his physician created side effects which were
equal to or worse than his neck and back problems, that his physician had
told him that the only possible alternative would be steroid injections for
temporary relief and that the only potential permanent resolution would be a
laminectomy and a discectomy. Other evidence before the trial court was
that these surgical procedures could cost as much as $25,000 and that Dr.
Kirsch would be off work from his private dental practice for approximately
three months at a loss of gross income of approximately $15,000 per month,
as well as a significant loss of patients who would choose to go to other
dentists. Dr. Kirsch also testified that he had been in constant pain for the
two and a half years since the accident. Accordingly, the evidence is amply
sufficient to support the default judgment that the rear end collision was
caused by the negligence of Mr. Young and that Dr. Kirsch suffered
significant damages to his professional practice, his enjoyment of life, and
the physical structure of his body. Although a different factfinder might
have arrived at a higher or lower figure, the $350,000 does not appear
excessive in light of the evidence presented. The point is rejected.
Appellant also contends that the appellee's original petition does not support
the default judgment. Specifically, appellant contends that the petition is
fatally defective because it "failed to specify the amount of damages
[appellee] was claiming" and "merely pleaded for damages in excess of the
minimum jurisdiction of the court."

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Appellant relies primarily on White Motor Co. v. Loden, 373 S.W.2d 863
(Tex.Civ. App. — Dallas 1963, no writ). However, White Motor Co. was
decided prior to the 1978 amendment to TEX.R.CIV.P. 47, and held that the
plaintiff's petition was fatally defective because not only did it fail to *83
specify the amount of damages claimed, but it was "apparently [an]
undertaking to plead a products liability tort action in abbreviated form"
which did not, in the court's opinion, "give fair notice to the opponent of
their claim against it." Id. at 866. The holding can be distinguished easily
from the case before this court.
First, in 1978, and subsequent to the White Motor Co. decision,
TEX.R.CIV.P. 47 was amended to read:
An original pleading which sets forth a claim for relief, whether an
original petition, counterclaim, cross-claim, or third party claim,
shall contain ...
(b) in all claims for unliquidated damages only the statement that the
damages sought are within the jurisdictional limits of the court....
Second, appellant does not contend that appellee's petition is defective in
any other manner, or that he had not otherwise received fair notice of the
claim; further, the record clearly reflects that the petition gave sufficient
notice to the appellant of the claim, and that it supports the default
judgment. The point is, therefore, rejected.
Finally, appellant asserts that appellee's petition "did not properly allege
Defendant's residence."
It has been held that "[s]ince enactment of Rule 101, T.R.C.P., citation is
directed to the individual rather than to a particular county, so the failure to
allege residency in a particular county is not a fatal defect." Stark v.
Nationwide Financial Corp., 610 S.W.2d 193, 194 (Tex.Civ.App. —
Houston [1st Dist] 1980, no writ).[3] Moreover, since the accident was
alleged to have occurred in Bexar County, the defendant's residence is
irrelevant. The point is rejected.
The judgment is affirmed.
NOTES
[1] While the record contains a statement of facts of the hearing on the
motion to set aside the judgment, there are no findings of fact or

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conclusions of law.
[2] Moreover, the court in Strackbein emphasized that "[i]n reviewing the
judgment of the trial court where there are no findings of fact and
conclusions of law requested or filed, the judgment must be upheld on any
legal theory that finds support in the evidence." Id. at 38.
[3] TEX.R.CIV.P. 101 was repealed by order of July 15, 1987; however, the
substance of this rule, now found in TEX.R.CIV.P. 99, merely requires that
the citation "be directed to the defendant."

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STATE FARM V. MOSHARAF
794 S.W.2d 578 (1990)
STATE FARM LIFE INSURANCE COMPANY, Appellant,
v.
Ferial MOSHARAF and Narjes Vahdati, Appellees.
No. 01-89-00344-CV.
Court of Appeals of Texas, Houston (1st Dist.).
August 2, 1990.
Rehearing Denied August 30, 1990.
Before MIRABAL, WARREN and DUGGAN, JJ.
DUGGAN, Justice.
This is an appeal from a default judgment rendered against appellant, State
Farm Life Insurance Company. Appellant's first point of error complains
that the trial court's refusal to grant a new trial was an abuse of discretion.
Because we sustain the first point of error, we do not reach the remaining
points, but reverse and remand.
Appellees, Ferial Mosharaf and Narjes Vahdati, filed suit on July 27, 1988,
against Sykes Roofing & Contracting Company ("Sykes Roofing") and
appellant, alleging property damage, emotional distress, and medical
expenses incurred as a result of a fire at their Houston apartment unit in the
Northwood Apartment complex, owned by appellant. Appellees alleged that
appellant hired Sykes Roofing to repair their apartment building's roof, and
that a roofer's torch ignited roofing materials on the building and "burned it
completely."
On September 28, 1988, appellant's registered agent for service, Bruce
Romig, was served in Austin, Texas, by certified mail, return receipt
requested, with citation and a copy of appellees' original petition. No
answer was filed. On November 1, 1988, the trial court entered an

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interlocutory default judgment in favor of appellees, with a hearing on
damages to be held at a later date. On December 12, 1988, the trial court
granted appellees' motion to dismiss Sykes Roofing without prejudice, and
entered a final judgment in favor of appellees. The judgment awarded: (1)
$298,159 in actual damages and $1,192,636 in exemplary damages to
appellee Mosharaf; (2) $804,700 in actual damages and $3,218,800 in
exemplary damages to appellee Vahdati; and (3) pre-and post-judgment
interest.
On January 13, 1989, appellant filed a motion for new trial and to set aside
default judgment. Appellant's motion, accompanied by affidavits from
employees of appellant and its affiliated companies, set *581 out facts
relied upon to prove that appellant's failure to answer was the result of an
accident and mistake, and not conscious indifference.
Appellant's motion and affidavits asserted the following: Bruce Romig was
a State Farm Mutual Automobile Insurance Company ("State Farm Auto")
regional vice-president for the Texas region, was appellant's registered
agent for service of process, and was served on September 28, 1988. That
same day, Romig forwarded the citation and petition to Tommy Stinson, a
State Farm Auto divisional claims superintendent, also in Austin. Under
Stinson's supervision, the lawsuit was entered that day on State Farm Auto's
"lawsuit log" used to keep track of incoming lawsuits; the next day,
September 29, 1988, the petition was sent by interoffice mail to Charles
Owens, State Farm Fire and Casualty Insurance Company's divisional
claims superintendent, in Houston.
Owens received the petition in Houston on September 29, 1988, as
evidenced by the acknowledgment receipt he signed and returned, which
Stinson received on October 5, 1988. On October 6, 1988, Owen telecopied
the petition to William J. Hess, State Farm Auto's senior assistant
investment counsel, at State Farm's corporate office in Bloomington,
Illinois; Hess received it that day.
By an interoffice routing slip, Hess directed the petition to Cynthia Weaver,
a real estate administrator employed by State Farm Auto in its investment
real estate department. Weaver is responsible for the operations of
appellant's Northwood apartment complex. A copy of Hess's routing slip
was attached as an exhibit to appellant's motion, and showed Weaver's

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name and Hess's notation, "Please make sure or [sic] liability carrier is
aware of this. B.H."
Somewhere in the routing process between Hess and Weaver, the routing
slip and petition were inadvertently filed before Weaver received them.
Weaver never saw Hess' instruction or received a copy of the citation and
petition, and did not learn of the lawsuit until she received the notice of the
final default judgment on December 28, 1988, 12 days after the judgment
was signed.
Appellant's motion also set forth the defense that Sykes Roofing's
negligence was the sole cause of appellees' losses, and asserted that a new
trial in the cause would neither occasion delay nor cause prejudice to
appellees.
Appellees filed a controverting plea, but presented no evidence that directly
controverted the facts alleged and shown by appellant; the trial court
overruled appellant's motion. Appellant filed a motion to reconsider and a
motion to supplement the record on motion for new trial, accompanied by
affidavits which further detailed the activities of various State Farm entities
and appellant's reasons for not answering the original petition. Appellees
objected that appellant's motions were untimely under Tex.R.Civ.P. 329b(b),
citing L.B. Foster Co. v. Glacier Energy, Inc., 714 S.W.2d 48, 49 (Tex.App.-
San Antonio 1986, writ ref'd n.r.e.). The trial court declined to consider
these filings and overruled the motion to reconsider; this appeal followed.
We likewise decline to consider appellant's motions and affidavits that were
not before the trial court at the time of the hearing on appellant's motion for
new trial. L.B. Foster, 714 S.W.2d at 49.
The Craddock Test
Appellant's first point of error alleges that the trial court abused its
discretion in overruling appellant's motion for new trial and to set aside the
default judgment. The standard for granting a motion for new trial and
setting aside a default judgment was established in Craddock v. Sunshine
Bus Lines, Inc.:
A default judgment should be set aside and a new trial ordered in
any case in which the failure of the defendant to answer before
judgment was not intentional, or the result of conscious indifference

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 on his part, but was due to mistake or accident; provided the motion
sets up a meritorious defense and is filed at a time when the granting
thereof will occasion *582 no delay or otherwise work an injury to
the plaintiff.
134 Tex. 388, 393, 133 S.W.2d 124, 126 (Tex.Comm'n App.1939, opinion
adopted).
A motion for new trial is addressed to the trial court's discretion, which will
not be disturbed on appeal absent a showing of abuse of discretion.
Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984). However, the trial
court's discretion is not unbridled. Craddock, 134 Tex. at 388, 133 S.W.2d
at 126. Because appellant's evidence at the motion for new trial hearing was
undisputed, the issue on appeal is whether the trial court's exercise of
discretion was erroneous as a matter of law. Strackbein, 671 S.W.2d at 39.
The trial court must test the motion for new trial and accompanying
affidavits against the Craddock requirements, and grant a new trial if those
requirements are met. Strackbein, 671 S.W.2d at 39.
Conscious Indifference
The first prong of the Craddock test requires the determination of whether
appellant's failure to answer was due to mistake or accident, or was the
result of conscious indifference. Craddock and its progeny establish no
criteria for applying this test, but "it is clear that courts have applied this
prong liberally, and that each case depends on its own facts." Gotcher v.
Barnett, 757 S.W.2d 398, 401 (Tex.App.- Houston [14th Dist.] 1988, no
writ).
Mistakes virtually identical to those of appellant in the present case, all
resulting in a failure to answer, have repeatedly been excused under
Craddock as not being the result of conscious indifference or of bad faith.
See Craddock, 134 Tex. at 393, 133 S.W.2d at 126 (insurance company,
faced with numerous claims because of a flood, inadvertently placed
defendant's citation with mail not requiring immediate attention); Southland
Paint Co. v. Thousand Oaks Racket Club, 724 S.W.2d 809, 811 (Tex.App.-
San Antonio 1986, writ ref'd n.r.e.) (late answer filed due to staff shortage at
defendant's insurance broker's office); Evans v. Woodward, 669 S.W.2d 154,
155 (Tex.App.-Dallas 1984, no writ) (answer not filed due to confusion in

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attorney's office); Drake v. McGalin, 626 S.W.2d 786, 788 (Tex.Civ.App.-
Beaumont 1981, no writ) (answer prepared by secretary presumably lost by
volunteer exchange student who was assisting defendant's attorney as an
"office boy"); Dallas Heating Co. v. Pardee, 561 S.W.2d 16, 19
(Tex.Civ.App.-Dallas 1977, writ ref'd n.r.e.) (suit papers inadvertently
misplaced in defendant's office); Leonard v. Leonard, 512 S.W.2d 771, 773
(Tex.Civ.App.- Corpus Christi 1974, writ dism'd) (attorney misplaced file);
Continental Airlines, Inc. v. Carter, 499 S.W.2d 673, 674 (Tex.Civ. App.-El
Paso 1973, no writ) (secretary misplaced file); Republic Bankers Life Ins.
Co. v. Dixon, 469 S.W.2d 646, 647 (Tex.Civ.App.-Tyler 1971, no writ)
(attorney forgot to prepare answer when his secretary placed the file with
his general files, rather than returning it to his desk for immediate action);
Reynolds v. Looney, 389 S.W.2d 100, 101 (Tex.Civ.App.- Eastland 1965,
writ ref'd n.r.e.) (citation mislaid in insurance company's office).
Appellees contend that appellant nevertheless failed to meet its burden of
proof to establish that it did not act with conscious indifference, citing
Grissom v. Watson, 704 S.W.2d 325, 327 (Tex.1986). There, quoting from
Harris v. LeBow, 363 S.W.2d 184, 186 (Tex.Civ.App.-Dallas 1962, writ
ref'd n.r. e.), the supreme court stated: "A party who has been duly served
with citation to appear and defend a cause asserted against him may not
relieve himself of the burden of the judgment rendered unless he thoroughly
demonstrates that he and his agent were free of negligence or conscious
indifference." Appellees urge that Cynthia Weaver and appellant's affiants
were not employees of appellant, but of affiliated State Farm companies;
that appellant could not explain how the filing mistake occurred; and that
appellant thereby failed to disprove its own negligence and that of its
various agents.
We adopt the reasoning and conclusion of Ferguson & Co. v. Roll, where
Justice Stewart carefully analyzed Grissom v. Watson and the court of civil
appeals opinion *583 it relies on, Harris v. LeBow (as well as that opinion's
cited authorities), and concluded:
that this line of cases should properly be interpreted as holding that
when a defendant's excuse is his reliance on a third party to file his
answer ... he must prove that the third party's failure was due to
accident or mistake and not intentional or the result of conscious

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 indifference. We do not read these cases as establishing a rule that a
defendant must show he and/or his agent were free from negligence.
Roll, 776 S.W.2d 692, 696-97 (Tex.App.- Dallas 1989, no writ). The court
in Roll cited two sources as support: (1) the supreme court decision in Cliff
v. Huggins, 724 S.W.2d 778, 779 (Tex.1987), that "makes no mention of a
free of negligence standard with regard to the three-prong Craddock test;"
and (2) "the in-depth analysis given this topic in the law review article of
Pohl and Hittner, Judgment by Default in Texas, 37 SW.L.J. 421, 443, in
which the authors unequivocally state that, under the Craddock test, `The
defendant's negligence will not preclude the setting aside of a judgment by
default. In fact, the defendant's burden of demonstrating the accidental or
mistaken nature of his failure to answer may often result in an admission of
negligence.'" Id. at 697 (emphasis added).
The applicable test is not whether appellant was negligent in failing to
answer. Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966); Gotcher, 757
S.W.2d at 402. Rather, the controlling factor is the "absence of a purposeful
or bad faith failure to answer ... [and] even a slight excuse will suffice...."
Gotcher, 757 S.W.2d at 401.
Appellees argue that appellant failed to "take some action which would
seem indicated to a person of reasonable sensibilities under the same
circumstances," citing Johnson v. Edmonds, 712 S.W.2d 651, 652-53
(Tex.App.-Fort Worth 1986, no writ). In Johnson, the defendant failed to
answer because he allegedly did not understand the nature of the citation
served upon him; he simply read the "papers" and filed them. The Johnson
court held that inaction resulting from alleged ignorance amounted to
evidence of conscious indifference. The equating of conscious indifference
with non-action because of ignorance in Johnson is distinguishable from the
facts before us. Here, no evidence suggests that the failure to answer
resulted from a lack of understanding of the citation and petition.
Appellees further rely on First Nat'l Bank v. Peterson, 709 S.W.2d 276
(Tex. App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.), which is likewise
distinguishable. In Peterson, as in Johnson, the defendant took no action
after receiving a writ of garnishment. Id. at 278-79. Both cases, Johnson
and Peterson, involved inaction by the defendant after service, and are
distinguishable from cases where a defendant took actions that resulted in

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accidental loss or misplacement of suit papers after service. Roll, 776
S.W.2d at 697-98.
To determine if appellant acted with intentional disregard or conscious
indifference in not answering the suit, we must look to the knowledge and
acts of appellant's employees and agents. Strackbein, 671 S.W.2d at 39;
Roll, 776 S.W.2d at 697. Appellant's motion for new trial is supported by
the affidavits of Romig, Stinson, Owens, and Hess, and establishes that nine
days passed from the service of the citation and petition on Romig, on
September 28, 1988, until Hess received and routed them on October 6,
1988, to Cynthia Weaver, whose duty it was to forward them to appellant's
insurance carrier. Eighteen days remained within which appellant's answer
could have been timely filed, had the petition not been misfiled.
At the motion for new trial hearing, Cynthia Weaver testified that she is a
real estate administrator in State Farm Auto's investment department; that
the department "handles property owned by any of the State Farm Insurance
companies for investment purposes;" that she is responsible for asset
management on the Northwood Apartments in Houston; that she "knew we
had had a fire at Northwood and that [she] had a loss report in the file;" that
appellant maintains a separate insurance *584 file for each property, and
"any claim that we would have would go into that file." She testified that
Craig Watson of the Risk Management Department called her on December
28, 1988, when a default notice was received, and asked if she had ever
seen a petition concerning the Northwood fire; that she replied in the
negative and said she would go look in the file and see if she could find
anything. She went to the Northwood file and found appellees' petition and
Hess' routing slip there, where "normal pieces of correspondence" would
be, but not lawsuits, for which separate files would be set up. Weaver
testified that in the normal course of business, her secretary would have
picked up the routing slip and petition from a central location, date-stamped
it, and put it in her basket where she would have seen it. She testified that
she does not know how the petition got into the file or who put it there, that
no one ever called her on the phone or talked to her about it before Watson's
call, and that she first saw it on December 29, 1988. She testified that if she
had received the routing slip and petition, she "would have done exactly
what Bill [Hess] told me [on the routing slip] to do. I would have made sure

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our liability carrier received it, which I would have done through our Risk
Management Department...."
Appellees did not offer testimony to controvert appellant's above testimony
or affidavits at the motion for new trial hearing, but instead relied on their
motion in opposition and affidavits, and argued that the facts appellant
showed were insufficient to prove a lack of conscious indifference.
Where factual allegations in a movant's motion and affidavits are not
controverted, the movant is entitled to have the default judgment set aside if
the facts set forth negate intentional or consciously indifferent conduct.
Strackbein, 671 S.W.2d at 38-39; Dallas Heating Co., 561 S.W.2d at 19-20;
see also Ivy, 407 S.W.2d at 214. In Strackbein, a fact situation similar to
ours, the uncontroverted affidavits showed that suit papers were
inadvertently misplaced in the defendant's office, rather than mailed to his
attorney. The supreme court held that this explanation constituted evidence
that the defendant's failure to answer the citation was not the result of an
intentional act or conscious indifference. Strackbein, 671 S.W.2d at 39.
We hold that while appellant's proof may indeed have shown negligence on
the part of its agents, and did fail to explain how the filing mistake
occurred, appellant nonetheless met its burden to prove that it did not timely
answer the suit due to accident or mistake, and proved that its failure to
answer was unintentional and not the result of conscious indifference.
Meritorious Defense
Appellant urges that it established a meritorious defense, in accordance with
the second requirement of the Craddock test,[1] which requires that a
defendant set up a meritorious defense, not that it prove one. "The motion
must allege facts which in law would constitute a defense to the cause of
action asserted by the plaintiff, and must be supported by affidavits or other
evidence proving prima facie that the defendant has such meritorious
defense." Ivy, 407 S.W.2d at 214 (emphasis added). When a defendant
meets this burden, a trial court cannot deny a motion for new trial based
solely on consideration of counteraffidavits or contradictory testimony.
Guaranty Bank v. Thompson, 632 S.W.2d 338, 340 (Tex.1982); Harlen v.
Pfeffer, 693 S.W.2d 543, 546 (Tex.App.-San Antonio 1985, no writ); Farley
v. Clark Equip. Co., 484 S.W.2d 142, 147 (Tex.Civ.App.-Amarillo 1972,

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writ ref'd n.r.e.). However, the sufficiency of the facts may be challenged.
See Dallas Heating Co., 561 S.W.2d at 20.
A meritorious defense is one that, if ultimately proved, will cause a
different result when the case is tried again. The Moving Co. v. Whitten, 717
S.W.2d *585 117, 120 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd
n.r.e.); Harlen, 693 S.W.2d at 546. However, a meritorious defense is not
limited to one that, if proved, would lead to an entirely opposite result. It is
sufficient if at least a portion of the judgment would not be sustained on
retrial. See, e.g., HST Gathering Co. v. Motor Serv., Inc., 683 S.W.2d 743,
745 (Tex. App. —Corpus Christi 1984, no writ) (defendant set up a prima
facie defense as "to some, if not all, of the monies" awarded in the
judgment); Folsom Investments, Inc. v. Troutz, 632 S.W.2d 872, 875 (Tex.
App.- Fort Worth 1982, writ ref'd n.r.e.) (defendant set up a meritorious
defense as to a lesser amount of damages; opposite result of total
nonliability need not be proved).
Appellees claim that appellant's affidavit which asserted that a meritorious
defense existed was merely conclusory and does not set forth specific facts
to establish a prima facie defense of "sole cause." However, appellees' own
live pleading alleged that Sykes Roofing negligently started the fire by
leaving its roofing torch on the roof. In its motion for new trial, appellant
alleged that the dismissed co-defendant, Sykes Roofing, was negligent in
starting the fire, and that such negligence was the "sole cause" of the fire at
the Northwood complex. Sole cause and a co-defendant's negligence are
valid defenses in Texas. See generally Ahlschlager v. Remington Arms Co.,
750 S.W.2d 832, 833-36 (Tex. App.-Houston [14th Dist.] 1988, writ denied)
(discussing the current state of Texas law on "sole cause").
To support its defense of sole cause, appellant presented the affidavit of Jan
Taylor, a claims adjuster for The Travelers Insurance Company, the liability
carrier of Sykes Roofing. Taylor investigated the fire at the Northwood
complex, and concluded that it was started by Sykes Roofing. When Taylor
demanded reimbursement from Sykes Roofing for damages, Sykes
Roofing's liability carrier paid State Farm approximately $31,000.[2]
Appellant alleged and presented a prima facie defense that the conduct of a
third party was the sole cause of the accident. See Ahlschlager, 750 S.W.2d

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at 835. Appellants successfully raised a meritorious defense so as to satisfy
Craddock.
No Delay or Injury
The third prong of Craddock requires the appellant to demonstrate that at
the time of the filing of the motion for new trial, its granting would not
occasion a delay or otherwise work an injury to the appellees. Craddock,
134 Tex. at 393, 133 S.W.2d at 126. The two key questions in determining
whether delay or injury will occur to the plaintiffs are: (1) whether the
defendant offers to reimburse the plaintiffs for the costs in obtaining their
default judgment; and (2) whether the defendant is ready, willing, and able
to go to trial. Angelo v. Champion Restaurant Equip. Co., 713 S.W.2d 96,
98 (Tex.1986). In its motion for new trial, and at the evidentiary hearing on
the motion, appellant agreed to reimburse appellees for reasonable costs,
attorneys' fees, and any other reasonable expenses incurred in obtaining the
default judgment and in responding to the motion for new trial.
Additionally, appellant agreed to proceed to trial immediately. In making
these offers, appellant satisfied Craddock's "no delay or injury" prong for a
case where nothing in the record showed that a new trial would work an
injury to the plaintiffs. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987).
Once appellant tendered prima facie evidence that the granting of a new
trial would not delay or otherwise injure appellees, the burden of going
forward with proof of injury then shifted to appellees. Cliff, 724 S.W.2d at
779; Burns v. *586 Burns, 568 S.W.2d 669, 672 (Tex.Civ.App. —Fort
Worth 1978, writ ref'd n.r.e.). Appellees were required to come forward
with evidence to show that they would be in a "worse condition in the event
of a new trial than that in which [they] would have been had answer to
[their] suit been timely filed." Burns, 568 S.W.2d at 672.
By three affidavits attached to their opposition to appellant's motion for new
trial, appellees sought to prove that the granting of appellant's motion would
"work an injury" to them. The three affidavits, from one of appellees'
attorneys, from appellee Mosharaf, and from Dr. Sajadi, appellee Vahdati's
psychiatrist, asserted: (1) appellee Vahdati could suffer severe emotional
damage if she was required to testify in another proceeding; and (2)
appellee Mosharaf would be delayed in fulfilling her desire to relocate to

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California, where she wants to go and take her mother, appellee Vahdati, "to
get our lives back together."
Only Dr. Sajadi's affidavit presented competent medical evidence that
Vahdati would be harmed by testifying at a retrial. However, appellees did
not show that appellee Vahdati would have to testify in a retrial. The bulk of
appellees' proof at the damages hearing consisted either of documentary
evidence or the testimony of persons other than Vahdati, including appellee
Mosharaf, Masoud Mosharaf, the brother and son of the two appellees, and
Dr. Sajadi. Vahdati's limited testimony was cumulative to that of other
witnesses. In short, Vahdati's testimony would be unnecessary to prove
either a cause of action or damages as to either plaintiff at a retrial.
Accordingly, appellees' affidavits were insufficient to controvert appellant's
prima facie showing that the granting of the motion for new trial would not
"otherwise work an injury" upon appellees.
The amount of reasonable expenses that appellant must pay as a condition
of new trial will be determined at an appropriate hearing for that purpose by
the trial court, "which should consider not only travel expenses ... but also
attorney's fees, and loss of earnings caused by trial attendance, expenses of
witnesses, and any other expenses of plaintiff[s] arising from defendant's
default." United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958, 959
(Tex.1976) (footnote omitted).
We hold that appellant has successfully met all three of the Craddock
criteria for setting aside a default judgment, and that the trial court abused
its discretion in overruling appellant's motion for new trial.
Appellant's first point of error is sustained.
The judgment of the trial court is reversed, and the cause is remanded to the
trial court.
NOTES
[1] Appellant contends that the recent cases of Peralta v. Heights Medical
Center, Inc., 485 U.S. 80, 108 S. Ct. 896, 99 L. Ed. 2d 75 (1988), and Lopez
v. Lopez, 757 S.W.2d 721 (Tex.1988), establish that it is not required to
establish a meritorious defense. Nevertheless, appellant proceeds to argue
that it has met Craddock's requirements.

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[2] Plaintiffs attempted to controvert appellant's meritorious defense with
the affidavit of Phillip Munsen, the Travelers' claims examiner in charge of
the claim made against Sykes Roofing. Munsen's affidavit stated that
Travelers settled appellant's claim with no knowledge of appellant's
negligence, and that the settlement was not an admission of liability on the
part of Sykes Roofing. The trial court cannot deny the motion upon
consideration of counteraffidavits or contradictory testimony. Guaranty
Bank, 632 S.W.2d at 340; Harlen, 693 S.W.2d at 546; Farley, 484 S.W.2d at
147.

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SOUTHLAND V. THOUSAND
OAKS
724 S.W.2d 809 (1986)
SOUTHLAND PAINT COMPANY, INC., Appellant,
v.
THOUSAND OAKS RACKET CLUB, A DIVISION OF COUNTRY
CLUB CONDOMINIUMS, LTD., et al., Appellees.
No. 04-84-00456-CV.
Court of Appeals of Texas, San Antonio.
January 31, 1986.
Rehearing Denied March 9, 1987.
Before CADENA, C.J., and REEVES and TIJERINA, JJ.
TIJERINA, Justice.
This is an appeal from a default judgment. Appellees brought suit against
appellant and Handy Dan Hardware, Inc.; appellant failed to appear and file
an answer. The trial court's interlocutory judgment recites that citation was
served according to law, properly returned, and filed with the clerk where it
remained for the required time. The default judgment entered on July 31,
1984, awarded a total of $5,174,960.74. The motion for a new trial was
denied; however, on motion for rehearing a remittitur on the damages and
attorney's fees was ordered reducing the default judgment to $3,849,278.50.
The essential facts established that appellees purchased a linseed oil product
manufactured by appellant from a Handy Dan Hardware Store. The product
was used to clean floors; the linseed oil soaked rags were left on a table
where they later ignited as a result of spontaneous combustion, causing the
damages asserted. Appellees' suit alleged that appellant negligently failed to

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provide a label which warned of the spontaneous combustibility of the
product and which gave instructions for the disposal of the rags used.
*810 Appellant initially complains that the trial court did not have
jurisdiction to enter the default judgment because appellees failed to prove
by affirmative evidence that C.T. Corporation System was the registered
agent for service of process on appellant. Plaintiff's First Amended Original
Petition alleged that defendant was a Delaware corporation duly licensed to
do business under the law of the State of Texas and that its designated agent
for service of process was C.T. Corporation System, 3200 Republic
National Bank Building, Dallas, Texas, 75201. The constable's return
certifies that service of process was executed by delivering the citation and
a copy of Plaintiff's First Amended Original Petition to Southland Paint
Company, Inc., through its registered agent for service, C.T. Corporation
System, by delivery to its registered agent for service, Mary Lou Boring.
Appellant argues that its status as a foreign corporation required a showing
by affirmative evidence the agency of the person served, apart from the
allegations in the pleadings and the statement contained in the constable's
return, citing Anglo Mexicana De Seguros, S.A. v. Elizondo, 405 S.W.2d
722 (Tex.Civ.App.-Corpus Christi 1966, writ ref'd n.r.e.).
There is authority for the proposition that a citation return showing service
on a defendant by serving his agent is sufficient, without proof of such
agency, to warrant a default judgment. Employer's Reinsurance Corp. v.
Brock, 74 S.W.2d 435, 438 (Tex.Civ.App.-Eastland 1934, writ dism'd).
Moreover, the affidavit of Robert S. Kersch attached to appellant's motion
for new trial acknowledged that C.T. Corporation System was appellant's
agent for service of process and was instructed to send all legal notices
addressed to Southland Paint Company to De Soto, Inc. in Des Plaines,
Illinois. Kersch is corporate secretary for De Soto, Inc., the legal entity that
acquired the liabilities of appellant. Similarly, the affidavits of Stephen J.
Couto, the claims manager for Emmett and Chandler, the insurance broker
for Southland Paint Company, Thomas Karol, President of H.M.K.
Industries, and their attorney, Dale Akonou, did not dispute that C.T.
Corporation System was their agent for service of process and
acknowledged receipt of service of citation. The party seeking to have the
default judgment set aside has the burden of proving that the person served

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was not its agent. Employer's Reinsurance Corp. v. Brock, supra at 438; see
also TEX.REV.CIV.STAT.ANN. art. 2031b, § 3 (Vernon 1964). In this case,
appellant had a designated agent in Texas and there is no dispute that the
agent was the person actually served with the citation. Appellant's first
point of error is overruled.
Secondly, appellant contends that the trial court erroneously denied the
motion for a new trial. Specifically, they allege that the default judgment
should be vacated under the rule of Craddock v. Sunshine Bus Lines, 134
Tex. 388, 133 S.W.2d 124, 126 (1939):
A default judgment should be set aside and a new trial ordered in
any case in which the failure of the defendant to answer before
judgment was not intentional, or the result of conscious indifference
on his part, but was due to a mistake or an accident; provided the
motion for new trial sets up a meritorious defense; and is filed at a
time when the granting thereof will occasion no delay or otherwise
work an injury to the plaintiff. This is a just rule. It prevents an
injustice to the defendant without working an injustice on the
plaintiff. Such a rule has the sanction of equity.
The Supreme Court has reaffirmed the Craddock rule in Strackbein v.
Prewitt, 671 S.W.2d 37, 39 (Tex.1984) saying: "That law requires the trial
court to test the motion for new trial and the accompanying affidavits
against the requirements of Craddock. If the motion and affidavits meet
those requirements, a new trial should be granted." In this case there is no
dispute that the motion was timely filed and alleged the three requirements
of Craddock. Moreover, the supporting affidavits contained statements that
the failure to answer was not intentional or the result of conscious
indifference.
*811 The record shows that the De Soto, Inc., purchased the name and
assets of appellant. De Soto, Inc. received the citation from its agent, C.T.
Corporation System, and immediately forwarded it to H.M.K., Inc. The
citation was then mailed to De Soto's New York attorneys, who forwarded it
to Emmett and Chandler, appellant's insurance broker. The offices of
Emmett and Chandler did not mail the citation to Liberty Mutual Company
until seven days after the answer was due. The affidavits indicate that the
delay in mailing the citation to Liberty Mutual for answer was occasioned

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by shortness of staff in the word processing and claims departments, due to
vacation schedules. In National Rigging, Inc. v. City of San Antonio, 657
S.W.2d 171, 173 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.) this court
stated:
We recognize that the excuse for failure to file an answer for
National Rigging given by the president of Mashburn and National
Rigging, as well as insurance representatives and their attorney, is
`certainly very slight' but does indicate no intention by him or the
insurance carrier or their attorney to suffer judgment to go by
default.
The affidavit of Stephen J. Couto, based on personal knowledge, recites that
the failure to file an answer was not the result of conscious indifference.
Appellant also established a meritorious defense. We conclude that the
granting of a new trial would not cause a delay or injure appellees.
Accordingly, we sustain point of error two. We further find it unnecessary
to review the other assignment of error in view of our disposition of point
of error two.
The judgment is reversed and the cause remanded.
CADENA, Chief Justice, dissenting.
The judgment should be affirmed because appellant failed to prove that the
failure to answer was not the result of conscious indifference but was due to
a mistake or accident.
The record reflects that the trial court held an evidentiary hearing on
appellant's motion for new trial. Appellee had filed a response to the motion
and had specifically denied appellant's allegations that the failure to answer
was not the result of conscious indifference. At the hearing appellant
presented no testimony, although appellee presented evidence that the
procedures followed by Emmett and Chandler in this case reflected a
conscious indifference. Under these circumstances, the affidavit of Couto,
relied on by the majority opinion,
is not evidence, as distinguished from the situation where no
evidentiary hearing is afforded.... [W]hen a hearing is held on a
motion to set aside a default judgment and to grant a new trial, the
movant has the burden of proving by a preponderance of the

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 evidence that his failure to answer was not intentional or due to
conscious indifference, but rather was due to accident or mistake.
Reedy Co., Inc. v. Garnsey, 608 S.W.2d 755, 757 (Tex.1980).
Since appellant presented no testimony, the trial court did not err in refusing
to set aside the default judgment and grant a new trial.

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SAMPLE IRAC

MEMORANDUM
To: Senior Partner
From: Associate
Subject: _____________________
Date: ___________ __, ____

You have asked me to determine whether we could obtain a new

trial for case in which a default judgment has entered against our client.

The general rule for removing a default judgment is as follows:

A default judgment should be set aside and a new trial ordered in
any case in which the failure of the defendant to answer before
judgment was not intentional, or the result of conscious indifference
on his part, but was due to mistake or accident; provided the motion
sets up a meritorious defense and is filed at a time when the granting
thereof will occasion no delay or otherwise work an injury to the
plaintiff.
Young v. Kirsch, 814 S.W.2d 77 (Tex. App. 1991) citing Craddock v.

Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). This memo will

analyze the issue of “conscious indifference.” I am assuming our motion

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will be filed at a time when granting it will cause no delay or otherwise

harm the plaintiff, and that the client has a meritorious defense to the

underlying claim.

To act with “conscious indifference” is to act “purposefully” or in

“bad faith.” State Farm Life Ins. Co. v. Mosharaf, 794 S.W.2d 578 (Tex.

App. 1990) (holding that a misfiling, the cause of which could not be
explained, was not conscious indifference). The person must act with intent

“to suffer judgment to go by default.” Southland Paint Co. v. Thousand

Oaks Racket Club, 724 S.W.2d 809 (Tex. App. 1986) (holding that a delay

in mailing due to “shortness of staff” and “vacation schedules” was not

conscious indifference). The controlling factor is the "absence of a

purposeful or bad faith failure to answer ... [and] even a slight excuse will

suffice...." State Farm, 794 S.W.2d at 583. Further, courts have applied this

test liberally Id.

This case is analogous to State Farm and Southland Paint. Like the

responsible parties in those cases, the attorney here was not aware that an

answer was due. He did not act purposefully or in bad faith; he missed the

deadline due to an accident. He was in the hospital at the time the answer

was due. Perhaps he should have done more to compensate for what
happened, just like the parties in State Farm and Southland Paint, but that is

not the test that applies here. Any excuse – however slight – is enough to

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preclude a finding that the mistake was purposeful or intentional. As a

result, the precedents in State Farm and Southland Paint applied liberally to

the facts of this case support the conclusion that this is not a case of

conscious indifference.

The other side may argue that this case similar to the Young case

because both the plaintiff in Young and the attorney here were familiar with

the legal system and presumably knew that had to file an answer within

some required time period. Young, 814 S.W.2d at 81. However, it is not
knowledge of the legal requirement that supports and inference the

individual acted purposefully or intentionally, it is knowledge of the

deadline to serve an answer to the complaint that is key. Unlike the plaintiff

in Young, the attorney here was not aware an answer was due. As a result,

Young is distinguishable. In this case, a court would likely allow our

request for a new trial.

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LEGAL MEMORANDUM
EXERCISE
MEMORANDUM
To: Associate
From: Senior Partner
Subject: ___________________________
Date: ___________ __, ____

I need your help with another personal injury case. Our client is

Bob Smith; he was involved in a car accident last year and has been sued by
the driver of the other car. Apparently, an individual named Fred Jones was

traveling east in the left-hand lane of Atlantic Boulevard, a four-lane

divided highway, in Jacksonville. He attempted a left turn at a break in the

grass median designed for turning, and had to stop to wait for oncoming

traffic. While he was stopped, the car he was towing extended into the left

lane of Atlantic Boulevard approximately three feet. A car driven by

another individual named Mary Miller braked and stopped to avoid the

towed car protruding into the left lane.

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 Meanwhile, our client, Bob Smith, was also traveling East on

Atlantic Boulevard. He was in the right hand land and came upon a beer

truck that was moving slowly. Smith checked his rear view mirror,

accelerated and moved into the left lane to pass the truck. He saw Miller’s

vehicle but didn’t realize it wasn’t moving. When he did he braked hard
but could not stop in time. As a result, Smith struck Miller’s vehicle from

behind.

Smith was not injured in the accident but Miller suffered numerous

personal injuries, including two broken ribs and a laceration to her

forehead. Apparently, the ribs were broken by the force of the seatbelt
against her chest. And Miller’s head hit the windshield, causing the

laceration to her forehead. Miller’s car did have airbags but they failed to

operate properly and did not inflate. Her car was also totaled as a result of

the accident.

Miller has brought a civil action against Smith for personal injury

damages. In Florida, a presumption of negligence attaches to the driver of

the rear vehicle in a rear-end collision. However, there are exceptions to

that rule, and Smith may be able to use one in his defense. I have found

two cases I believe would govern on this issue: Clampitt v. D.J. Spencer

Sales, 786 So.2d 570 (Fla. 2001) and Eppler v. Tarmac America, Inc., 752

So.2d 592 (Fla. 2000)). What I need you to do is read the cases, analyze the

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likelihood of Smith’s defense succeeding in court, and draft a research

memorandum presenting you findings.

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SAMPLE LEGAL
MEMORANDUM
MEMORANDUM
To: Senior Partner
From: Associate
Subject: ___________________________
Date: ___________ __, ____

Issue Presented

Whether Smith is likely at fault for rear-ending Miller’s car, which

had stopped in the road to avoid another stopped vehicle attempting to

make a left hand turn.

Brief Answer

Yes, Smith is likely at fault. People making left hand turns is to be

reasonably expected and, therefore, not a substantial and reasonable

explanation as to why the driver of the rear vehicle was not negligent in
causing a rear-end collision.

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Facts

Our client, Bob Smith, was involved in an auto accident last year.

Apparently, an individual named Fred Jones was traveling east in the left-

hand lane of Atlantic Boulevard, towing a car behind his vehicle. He

attempted a left turn at a break in the median, and stopped to wait for

oncoming traffic. The car he was towing extended into the left lane of
approximately three feet. A car driven by another individual named Mary

Miller was traveling behind. She braked and stopped to avoid the towed car

protruding into the left lane.

Meanwhile, our client, Bob Smith, was also traveling East on

Atlantic Boulevard. He was in the right hand land and went to pass a truck
that was moving slowly in that lane. Smith checked his rear view mirror,

accelerated and moved into the left lane. When he realized Miller’s vehicle

had stopped, he braked hard but could not stop in time. As a result, Smith

struck Miller’s vehicle from behind.

Discussion

The issue here is whether Smith breached the duty of reasonable

care by rear-ending Miller’s car. The law presumes that the driver of the

rear vehicle is negligent unless that driver provides a substantial and

reasonable explanation as to why he was not negligent, in which case the

presumption will vanish. E.g., Clampitt v. D.J. Spencer Sales, 786 So.2d

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570, 573 (Fla. 2001)(an accident in the roadway ahead is to be reasonably

expected and is not enough to rebut the presumption of negligence.), Eppler

v. Tarmac America, Inc., 752 So.2d 592 (Fla. 2000)(an abrupt and arbitrary

stop after a traffic light turns green is not to be reasonably expected and is

sufficient to rebut the presumption).

In Clampitt, three vehicles were following one another in the

southbound lane of Alternate U.S. 27 south of Bronson, Florida. Clampitt,

786 So.2d at 571. The lead vehicle, which was driven by Charles Huguley,
was a pickup truck hauling a small trailer; the second vehicle, driven by

Colletta Clampitt, was an automobile; and the third vehicle, driven by Carl

Hetz, was a commercial tractor-trailer rig owned by D.J. Spencer Sales. Id.

Huguley was traveling south at forty-five to fifty-five miles an hour;

he activated his turn signal and began braking one hundred and fifty yards

prior to entering the driveway of his place of business; his pickup truck and

trailer had turned almost completely off the highway when the trailer was

struck from behind by Clampitt's auto. Id. at 572. Hetz saw Clampitt's auto

come to a “dead-stop” on the highway; he slammed on his brakes, left one

hundred feet of skid marks, and struck Clampitt's auto. Id. He did not see

Huguley's turn signal or brake lights illuminate at any time prior to the
accident. Id.

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 Based on this evidence, the court held that an accident in the

roadway ahead is to be reasonably expected and, therefore, not a substantial

and reasonable explanation as to why the driver of the rear vehicle was not
negligent in causing a rear-end collision. Id. at 575. Unfortunately,

accidents on the roadway ahead are a routine hazard faced by the driving

public. Id. As a result, every driver is charged under the law with

remaining alert and following the vehicle in front of him or her at a safe

distance. Id.

The Smith case is analogous. Both cases involve a rear end

collision with another vehicle stopped in the roadway. In Clampitt, the

vehicle had stopped because of an accident; in the Smith case the reason for

the stop was another vehicle turning left. However, people making left
hand turns on the roadway ahead, like accidents in the roadway ahead, are

routine hazards faced by the driving public. Turning vehicles and accidents

are encountered frequently and are to be reasonably expected. In either

case, drivers are charged under the law with remaining alert and following

the vehicle in front of him or her at a safe distance. Therefore, neither

circumstance provides a substantial and reasonable explanation as to why

the driver of the rear vehicle was not negligent in causing a rear-end

collision.

Conclusion

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 Smith is likely at fault for rear-ending Miller’s car, which had

stopped in the road to avoid another stopped vehicle attempting to make a

left hand turn.

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 ABOUT THE AUTHOR
Ben L. Fernandez
Prof. Fernandez teaches Legal Drafting and
Legal Writing at the University of Florida Levin
College of Law. He had previously taught Legal
Methods, Legal Research and Objective Writing,
Lawyering Process for Litigation Practice, and
Transactional Drafting at Florida Coastal School
of Law. Also, he worked as an adjunct professor
teaching Legal Writing at Northeastern
University School of Law in Boston, and
Business Law at Cape Cod Community College.

Prof. Fernandez has twenty-five years of experience practicing law in

Massachusetts. He represented financial institutions and government
finance agencies in commercial and residential finance transactions. He had
his own practice in Plymouth, Massachusetts for ten years. Before that, he
practiced law in the city of Boston for fifteen years. He worked as in-house
counsel for a state-sponsored affordable housing finance agency, managed
the business department of a prominent minority-owned firm, and was an
associate at two large Boston law firms. Also, he served on the Board of
Directors for Habitat for Humanity of Greater Plymouth, Massachusetts. He
was a volunteer teacher in Junior Achievement's Financial Literacy
program, and a regular speaker at Homebuyer Education Workshops
sponsored by South Shore Housing and Housing Assistance Corporation on
Cape Cod.

Prof. Fernandez has an LL.M. from Boston University School of Law, as

Electronic copy available at: https://ssrn.com/abstract=4293995

well as a J.D. from Northeastern University School of Law and a B.A. from
Cornell University.

Electronic copy available at: https://ssrn.com/abstract=4293995