Touro Scholar

Open Touro Created Open Educational Resources

3-2025

Legal Writing Simplified

Michelle Zakarin
Touro Law Center, [email protected]

Follow this and additional works at: https://touroscholar.touro.edu/opentextbooks

Part of the Law Commons

Recommended Citation
Zakarin, M. (2025). Legal Writing Simplified. Retrieved from https://touroscholar.touro.edu/
opentextbooks/11

This Book is brought to you for free and open access by the Open Educational Resources at Touro Scholar. It has
been accepted for inclusion in Open Touro Created by an authorized administrator of Touro Scholar. For more
information, please contact [email protected].
Legal Writing Simplified
Legal Writing Simplified

MICHELLE ZAKARIN
TOURO UNIVERSITY
NEW YORK, NY
Legal Writing Simplified Copyright © by Michelle Zakarin is licensed under a Creative
Commons Attribution-NonCommercial 4.0 International License, except where
otherwise noted.

Photo by Marissa Grootes on Unsplash

This book was produced with Pressbooks (https://pressbooks.com) and

rendered with Prince.
Contents

Acknowledgements vii

Part I. Introduction to Legal Writing

Welcome to Legal Writing Simplified 3

Reading a Case 4
Briefing a Case 5

Part II. Sources of Law and Types of Authority

Primary Sources of Law 9

Secondary Sources of Law 10
Mandatory Authority 13
Persuasive Authority 14
Mandatory vs. Persuasive Authority 15

Part III. Objective Writing

Using the Active Voice 19

Part IV. The Interoffice Memorandum of Law

Heading 23
Statement of Facts 24
Question Presented 26
Brief Answer 28
Applicable Statute 29
Discussion 31
The Five-Paragraph Analysis 32
Paragraph 1 – Specific Rule of Law 33
Paragraph 2 - Rule Support 35
Paragraph 3 – Analysis 37
Paragraph 4 – Counterargument 40
Paragraph 5 – Final Paragraph 41
Thesis Paragraph 43
Conclusion 45

Part V. Grammar and Punctuation

Acknowledgements
Many, many thanks to Touro University and Touro University Jacob
D. Fuchsberg School of Law for providing an inspiring OER
fellowship opportunity which started the process of writing this
book. Specifically, thank you Patricia Salkin, Senior Vice President
of Academic Affairs, Provost of Graduate and Professional Divisions,
and Professor of Law, and Elena Langan, Dean and Professor of
Law who have collectively provided continued support for this
publication. Special thanks also to Kirk Snyder, OER and
Instructional Librarian, who has patiently answered every question
regarding the development of these OER materials. It is my hope
that this book will serve as a resource to professors and students of
legal writing.

Acknowledgements | vii
viii | Acknowledgements
PART I
INTRODUCTION TO LEGAL
WRITING

Introduction to Legal Writing | 1

2 | Introduction to Legal Writing
Welcome to Legal Writing
Simplified
Welcome to the beginning of your learning about legal writing.
Often, people believe that to be a strong legal writer, the writing
itself must use words that are confusing or difficult to understand.
This, first and foremost, is untrue. As you explore more details
of legal writing, you will see this theme repeated time and again:
simple and clear is best.
As you begin reading cases, directions from professors, and
instructions for assignments, you will notice that when the writing
is clear and easy to understand, you will learn and work better. Law
students often have a misperception that legal writing means using
confusing and difficult words in order to intimidate the reader. This
is not true. Our collective goal as new learners should be to strive
to make our writing easy to understand. We will work together to
make this goal achievable.

Welcome to Legal Writing Simplified | 3

Reading a Case
One of the first things new law students read are cases. Cases
are judicial opinions and are considered primary sources of law (A
full explanation of Primary Sources can be found here.). Judicial
opinions are important to read because they let the reader know
what a judge decided based on particular facts in a case and based
on the law in that jurisdiction. The more cases we read on a specific
topic, the better able we will be to predict how a court may rule on a
similar issue that may arise in the future. Predicting an outcome is
an important skill law students learn in their first year of law school.
We will discuss more about this skill in later chapters. For now, we
need to focus on reading the cases carefully.
As we read a case, one of the things we are looking to notice is
the relevancy of the facts that are included. This may sound simple
at first, but it actually takes some time and practice to understand
which facts are relevant to a legal issue. Sometimes judges include
facts that are not relevant to the issue at hand, but provide some
other useful information, like background information. Other times,
there are facts that are not useful in any way. It is the reader’s job to
try to figure out which are relevant to the judicial decision.
It may now seem a bit more obvious as to why clear writing is
favored. This thought holds true in judicial opinions just as much as
it does in other forms of legal writing. Judges who state the facts of
a case clearly, allow the readers an easier opportunity to figure out
which are relevant. My advice is to take it slowly and read carefully.
This skill often takes some time to develop so do not rush it.

4 | Reading a Case
Briefing a Case
One of the first assignments law students receive (as early as during
orientation) is to read and brief a case. A case brief should not
cause you any stress. From my experience, these case briefs are
usually more for your own benefit and will typically not be shared
with others (of course this can change from school to school and
professor to professor).
When asked to brief a case, one of the first things to consider
is the word “brief.” A case brief should be just that – brief. Often
students’ case briefs are as long as the cases they read, and this is
simply not the way it should be. It is important to understand the
reason why students brief cases in the first place.
Students are asked to brief cases because it is a great way to
extract the relevant information for a case. Law students are asked
to read a multitude of cases in each class as soon as school begins.
Thus, it will be difficult to remember which case stood for each
legal topic without something that will jog one’s memory. You may
want to think of a case brief as a “cheat sheet” (even though it is
not cheating at all). Imagine walking into a law school classroom and
being called on to discuss a case you were assigned to read. Having
read so many cases, it will likely be difficult to recall the specifics
of that particular case. When you have a case brief in front of you,
however, you can feel a bit calmer because there is no need to rely
solely on your memory. A well-written, clear, and concise case brief
will have all of the answers you need at your fingertips. These briefs
are also useful when studying for an exam because they are neat and
compact summaries of the most important aspects of the cases.

Briefing a Case | 5
6 | Briefing a Case
PART II
SOURCES OF LAW AND
TYPES OF AUTHORITY
Something to consider as you embark on this new field of study is
where laws originate and how they are followed. Laws come from
different sources – primary sources and secondary sources. Most
often, it is a review of a combination of both primary and secondary
sources that will help lawyers understand the law on a topic in a
particular jurisdiction.
Once you know about primary authority and secondary authority.
It is important to determine which authority a court must follow
(mandatory authority) and which authority a court may choose to
follow even though it is not mandated to do so (persuasive
authority).

Sources of Law and Types of Authority | 7

8 | Sources of Law and Types of Authority
Primary Sources of Law
Primary sources of law consist of laws that govern a particular
jurisdiction. There are state and federal primary sources of law so
it is important to know the jurisdiction you need before you begin
researching sources of law. Primary sources consist of enacted law
and case law. Enacted laws are laws that have been enacted by
the legislative branch of government. This typically means laws like
the constitution, statutes, and regulations. Case law refers to laws
that have been set forth through the judicial branch of government.
Judges hear cases and draft written opinions. These opinions are
case law (and we read and brief these cases as discussed earlier).
Stare decisis is a legal doctrine with a latin name that means that
courts will follow precedent when making legal decisions. This can
be explained by thinking about previous courts that have ruled on
the same or a similar issue, then the court will make its decision
in in the same way as previous courts’ decision. In this situation,
the previous deciding-court must have binding authority over the
court; otherwise, the previous decision is merely persuasive
authority. There will be more about this in the following chapters.
A court can either overrule or reverse a previous court’s decision.
“Overrule” refers to when a court changes an existing appellate
court rule; “reverse” refers to when a court changes the result
reached by the court below.

Primary Sources of Law | 9

Secondary Sources of Law
Secondary sources provide persuasive authority at best. These are
not written laws, but rather entries that explain the laws. At times,
judges may be interested in legal scholars’ opinions, or an
explanatory entry in a legal periodical. Some examples of secondary
sources are listed below.

• Legal Encyclopedias – These are books (and they are also

found online) that explain various legal concepts in a simple
form. Encyclopedias are a great place to educate yourself
about an area of law with which you have little or no
knowledge. Entries are typically short, clear, and easy to
understand. There are often citations provided as well, and
many citations are to primary sources. Thus, if, for example,
the area of law you are learning about has a governing statute,
that statute will be provided in a citation with the entry. This
can be a valuable start to any legal research project.

• Legal Treatises – These are books (and they are also found
online) that, like encyclopedias, provide information about
legal topics. Treatises tend to go in greater depth and detail
than encyclopedias. So, if you began your research by reading
an encyclopedia, and you feel like you would like more detailed
information, a treatise is a great next stop. And like
encyclopedias, there will be citations provided to outside
sources, including primary sources.

• Law Reviews/Journals – Most law reviews and law journals are

student-run publications within a law school. There are some

10 | Secondary Sources of Law

 peer review journals that are not student-run, but not as many.
Student-run law reviews/journals mean that the students run
all aspects of the publication; this includes selecting what will
be included in the journal, editing the written work, and
publishing the journal. The entries within law reviews and
journals are usually articles written by expert attorneys who
have something important to share about a legal issue or topic.
These articles are often long and contain a lot of citations to
both primary and secondary sources.

• Legal Periodicals – These are newspapers or magazines that

specialize in law-related topics. An example of this is the New
York Law Journal. Like encyclopedias, entries in legal
periodicals will provide a reader with insight into a particular
legal issue. These entries typically relate to current legal
events, like the latest cases that have been decided, or newly
enacted statutes.

• American Law Reports (ALR) – Like encyclopedias, the ALR

summarizes legal concepts and provides a level of
understanding about a topic of law. The ALR is set up by
jurisdiction so there is the ALR, ALR2, ALR3, ALR4, ALR5, and
then there the ALR Federal for federal laws and legal topics. All
of the entries in an ALR contain citations to primary sources
that can be useful when researching a topic.

• Restatements – Restatements clarify areas of law, like

contracts and torts through a publication that explains what
the laws mean and how they should be defined. Restatements
are secondary sources. Some jurisdictions, however, follow

Secondary Sources of Law | 11

 Restatements closely, even though they are not bound to do
so.

Secondary sources video:

One or more interactive elements has been excluded

from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=28

12 | Secondary Sources of Law

Mandatory Authority
Mandatory authority refers to authority that a court must follow.
Another way to state this is that the authority is binding. An example
is a case of a higher weight value in a lower court in the same
jurisdiction. If a lower lever trial court hears a case about
negligence, it is bound by a rule about negligence from a decision
from a higher level court within this jurisdiction. The idea behind
this is to keep consistency on the rules that govern a specific
jurisdiction.

Mandatory Authority | 13
Persuasive Authority
Persuasive authority means that the authority is not binding on the
court. Instead, it is said to be “persuasive at best.” This means that
the authority may persuade the court to follow its holding, but the
court is in no way bound to do so, because it is not mandatory.
A good example of this is secondary authority, like a law review
article. The author may make a convincing argument, and a court
wold be free to consider and follow the author’s viewpoint when
making its decision. It is not, however, mandated to do so.

14 | Persuasive Authority
Mandatory vs. Persuasive
Authority
Things may seem a little tricky when trying to figure out which
authority is mandatory and which is persuasive. When in doubt,
follow these simple steps:

1. Is the authority primary authority or secondary authority? If it

is secondary authority, then the authority is persuasive it best.
Secondary authority is always persuasive, and can never be
mandatory authority.
2. If the authority is primary authority (a case or a statute), then
it may be either mandatory or persuasive, and we need to look
into this more closely.
3. Think about the jurisdiction you are in, and whether the
primary authority is from this same jurisdiction. A statute from
the jurisdiction you are in must be followed by a court within
that jurisdiction. That would make a statute within the same
jurisdiction mandatory authority. If it is from a different
jurisdiction, it is still a statute, so it remains primary authority,
but it is not mandatory on a jurisdiction outside its own, so it
would be persuasive authority.
4. A case within your jurisdiction may be persuasive on higher
level or equivalent level courts, yet mandatory on lower level
courts within the same jurisdiction. A case form outside your
jurisdiction, is persuasive only and can never be mandatory on
your jurisdiction. Remember, the case will still be (and will
always be) primary authority since it is a case.

Mandatory vs. Persuasive Authority | 15

16 | Mandatory vs. Persuasive Authority
PART III
OBJECTIVE WRITING
The term objective writing means that the style of writing takes
a neutral tone. This is true even when you have been assigned to
a client already. Remaining neutral in writing requires the writer
to understand all points about a legal issue, and it requires that
a lawyer not get sidetracked with what the lawyer believes to be
best or obvious. Instead, objective writers must be sure that whole
picture (which may include some negative information for the
client).
It may help to think of a judicial opinion that you have read
recently. A good judicial opinion will be written neutrally because
the judge will be analyzing both sides’ points before drawing a
conclusion. Therefore, until the end of the opinion where the judge
reveals the decision, the writing should be demonstrating the
various information from both parties.

Objective Writing | 17
18 | Objective Writing
Using the Active Voice
Active voice is used for most objective legal writing. Using active
voice promotes clarity in the writing, and prevents the sentences
from becoming too complicated or wordy. The key to the active
voice is that the subject should perform the action.
Ex – Eighty-five percent of the recent law school graduates
passed the bar exam.
Here, the subject (recent law school graduates) performed the
action (passing the bar exam).
Ex – The judge struck the gavel down to try to gain order in the
court.
Here, the subject (the judge) is performing the action (striking the
gavel).
There is something called the “passive voice” as well. This style is
used more frequently when strategically trying to hide the subject
of the sentence. This can be useful in persuasive writing which will
be discussed further next semster.

Using the Active Voice | 19

20 | Using the Active Voice
PART IV
THE INTEROFFICE
MEMORANDUM OF LAW
This is a document, prepared by an attorney, which summarizes the
law in a particular jurisdiction and analyzes it with the facts of a
legal situation/case. An example of a legal situation is when a client
approaches a law firm seeking legal guidance. Typically, a lawyer will
prepare a memorandum of law for a superior, like a senior partner
at the law firm, or the general counsel of a legal department. The
senior lawyer is usually making this request for a memorandum of
law in order to learn the likelihood of success for the client.

The document itself is a true and accurate description of the

likelihood of success for your client. It is NOT meant to convince
that the client will be successful. In fact, often the client’s chances
are weak and the case will not be a strong one. Regardless of that,
the memorandum of law must accurately provide the chances of
success to the reader. The senior partner at a law firm needs a
realistic assessment of the client’s chances of success.

Who is the intended audience of the interoffice memorandum of

law?

• 1) Senior Partner (or any attorney who assigned the work) –

This person will read your memorandum because this person
assigned it and is looking forward to reading your prediction of
the outcome.
• 2) Other attorneys/Paralegals/Administrative Assistants at the
law office – These people may read your memorandum if it
crosses their path related to the client. They are members of
the legal team and it is possible they may need to review the
document.

The Interoffice Memorandum of Law | 21

 Who will NOT be reviewing the interoffice memorandum of law?

• 1) Opposing counsel (the attorney who represents the other

side) – This person will not review the document because it is
an internal document and will not be passed along to people
outside of the law firm. It is the lawyer’s work. The other side’s
lawyer can and should do his or her own work.
• 2) A judge – A judge will not see this document because it is not
something that will be offered to a court. If an when the time
comes for a judge to rule on a legal issue, there will be different
type of documents submitted.
• 3) The client – The client will not view this document because
it will contain analysis that will be helpful to attorneys, but not
as much to non-lawyers. When the time comes to let the client
know his or her chances of success, this can be done in a client
letter.

Sections of the Memorandum of Law (Each of these sections will

be reviewed individually in this book.)

• 1) Heading
• 2) Question Presented
• 3) Brief Answer
• 4) Applicable Statute
• 5) Statement of Facts
• 6) Discussion
• 7) Conclusion

22 | The Interoffice Memorandum of Law

Heading
This is barely a section, but technically, every memorandum should
have an official heading. It should look like this:
To:
From:
Re:
Date:

Depending on the professor in your course, students may be

allowed to use their own name in the name portion. There are
courses, however, where assignments are graded anonymously. In
that event, use either a school ID or some other form of
identification so to preserve anonymity.

A short video about this chapter:

One or more interactive elements has been excluded

from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=42

Heading | 23
Statement of Facts
Every case begins with a unique story. This section is used to
provide your client’s story to the reader. It is the section of the
paper that requires little (if any) understanding of legal concepts.
It is, instead, based on the legally relevant facts from your client’s
situation. Think of yourself as the neutral narrator who needs
reader to understand all of the important facts that led to this
action. Facts are considered to be relevant when they relate to the
legal rules at issue.
It is important to remain objective. This means that facts should
not be slanted in any way.

1. (slanted version) The police officer intruded into defendant’s

home without a justifiable reason.
2. (objective version) The police officer entered the home without
a warrant.

Students may feel funny remaining neutral when they feel loyalty to
their new client. This means that students may not want to point out
any facts that could potentially have a negative impact on the case.
It is important, however, to tell the story accurately by including all
of the legally relevant facts, and background facts, even ones that
may paint your client in a more negative light. The reason for this is
to be sure that the partner to whom you are writing has a complete
understanding of the story. Therefore, try not to worry about client
loyalty, because the best thing you can do for a client is provide all
of the information to ensure all of the lawyers are prepared for the
next steps in the litigation process.
Legal conclusions, legal analysis, and references to case law do
not belong within this section. It is meant to be factual only.
Telling a story may not require much legal knowledge, but it
does require strong organization. A disorganized version of facts
can be difficult to read and understand. The most common way

24 | Statement of Facts
to organize a story is by using chronological order. This method
starts with the first event and progresses through the events as
they happened. Most stories can be told this way, and it will usually
promote clarity. Another method of organizing the facts is when the
story has multiple issues. In this instance, the story can be told issue
by issue instead of in a timeline order.
Below is a video about the Statement of Facts section:

One or more interactive elements has been excluded

from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=44

Statement of Facts | 25
Question Presented
The Question Presented section is where the precise legal issue in
the problem is posed. It is typically written as one sentence in the
form of a question.
It appears before the Statement of Facts, so a reader will not yet
be familiar with the facts or parties of the case. Therefore, it is
important to avoid using names, because they will not have much
of an impact. Instead, it is better to use a descriptive term as a
reference to the person involved.
Therefore, if your client is John Smith, refer to him instead in
a descriptive way, like the math teacher, the accountant, the tax-
payer.
It is important that the question presented identify the cause of
action and the key relevant facts. Do not insert judgements into the
question presented. For example, do not refer to a garage a “small
structure.” The term “small” is subjective and unclear. Instead, refer
to the garage as a one-car garage. This will provide context without
judgment.
Isolate the Specific Issue
The issue should be broadly stated as to encompass many
possible issues under the cause of action.
Ex – Too narrow: Was Carey Jones denied due process?
Better – Was a juvenile denied due process when the juvenile was
not represented by counsel at a delinquency hearing?
Include key significant facts
Next, include facts that a court will consider when answering
the legal question. Typically, it is necessary to summarize the facts,
organize them, and then include only the most significant facts.
Do not make conclusions within the question presented. Pose the
question, but do not answer it.
Too conclusory – Is a person guilty of criminal contempt if he
recklessly fails to read a court order and disobeys it?

26 | Question Presented
 Better – Is a person guilty of criminal contempt if he disobeys a
court order because he did not listen to or read the order?
In the first example, the writer concluded that the person was
reckless. This is conclusory because recklessness is a question that
is posed, so the writer should not provide a conclusion to that here.
It is important to keep the question at a readable length, even
though there is a lot to include. Do not include every relevant fact
within the question, just the key ones that raise the issue.
Format –
Under, does, when
under [insert reference to applicable law] which provides [insert
a summary of the law (unless it is a well-known law)]
does/is/may [insert legal question]
when [insert most important legally significant facts]
Ex –
Under §413 of the New York Family Court Act, which provides
parents are financially responsible for their children until they reach
the age of twenty-one, may a mother have her son declared
emancipated when he disobeys her rules, moved into an apartment
above the garage, and works twenty-five to thirty hours per week
earning twenty-five dollars per hour?
First lay out applicable law. Then set out the question. Then
include the legally significant facts.
Question Presented video:

One or more interactive elements has been excluded

from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=46

Question Presented | 27
Brief Answer
This section is meant to provide an answer to the question
presented and summarize the reasons for the answer. It should
begin with a “yes” or “no” and then a brief statement to support the
answer of “yes” or no.”

1. Be conclusory. This is not the place for a discussion of how you

evaluated strengths and weaknesses in coming to your
conclusion. This information will be provided within the
Discussion section. Instead, limit this to a short summary.
2. Do not include authority. No citations, no case law. All of the
law with their citations will be included within the Discussion
section. If you have a statutory problem, you may include a
reference to the statute in the Brief Answer, but do not include
a citation.

Ex – Yes, the mother can have her son declared emancipated

because he is economically independent through employment. He
earns a sufficient amount of money at his job fixing computers to
support himself.
Below is a video about the Brief Answer section of the
Memorandum of Law:

One or more interactive elements has been excluded

from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=48

28 | Brief Answer
Applicable Statute
Any problem that involves the application of a statute, a section of
a constitution, or an administrative regulation, set out the exact
language of the pertinent parts in this section of the memorandum.
The Bluebook 21st edition lists instructions for using block quotes
when there are 50 or more words within a quotation.
There are four rules to remember when creating a block quote:

1. This quote needs to be indented on the right and on the left.

2. There are no quotation marks included in this quote.
3. This quote needs to be single-spaced.
4. Use proper Bluebook citation after the quote, outside of the
block quote.

Ex –

Upon the filing of the certificate of incorporation by the

department of state, the corporate existence shall begin,
and such certificate shall be conclusive evidence that all
conditions precedent have been fulfilled and that the
corporation has been formed under this chapter, except in
an action or special proceeding brought by the attorney-
general. Notwithstanding the above, a certificate of
incorporation may set forth a date subsequent to filing, not
to exceed ninety days after filing, upon which date corporate
existence shall begin.

N.Y. BUS. CORP. LAW § 401 (McKinney 2019).

If your quote is fewer than 50 words, you will not need to use
block quote form. Instead, use quotation marks, double spacing, no
additional indents, and cite at the end of the quote. This will be
written to look much like any other part of the memorandum.
Ex –

Applicable Statute | 29
“One or more natural persons of the age of eighteen years or over
may act as incorporators of a corporation to be formed under this
chapter.” N.Y. BUS. CORP. LAW § 401 (McKinney 2019).

Below is a video about the Applicable Statute section:

One or more interactive elements has been excluded

from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=50

30 | Applicable Statute
Discussion
• 1) This is the “heart” of your memorandum of law because it is
where all of your legal analysis will take place. In other words,
you will be applying the fats of your case to the law in the
jurisdiction in which you are working. It needs to be thorough
and complete. It must be objective.

There are two important aspects of this section. First, there is a

thesis paragraph. Next, there is a five-paragraph analysis for every
issue or sub-issue you are analyzing. We will begin with the five-
paragraph analysis first, and then we will move on to the thesis
paragraph.

Discussion | 31
The Five-Paragraph Analysis
When analyzing any issue while remaining objective, the five-
paragraph analysis format will help to include everything necessary
to be sure the writer remains thorough and clear. The legal analysis
all takes place within the structure of this five-paragraph format. It
may take a few attempts to get it right, but once you do, you will
have reached the goal of effective analysis.
There are specific items that should appear in each of the
paragraphs we are about to discuss. Try your best to include what
belongs in each paragraph, and only what belongs in each
paragraph. In addition to the written explanations I include here, be
sure to watch the instructional videos for this section that are linked
here as well. I have broken the videos down into a general video for
the Discussion Section, and I have also included separate videos for
each of the five paragraphs.
For more information on the Discussion Section generally, see the
video below.

One or more interactive elements has been excluded

from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=54

32 | The Five-Paragraph Analysis

Paragraph 1 – Specific Rule of
Law
The specific rule of law refers to the rule that surrounds the specific
part of the issue that is being analyzed. For example, if a battery
claim is being analyzed objectively, one would need to begin with
elements of battery: intent, contact, and harm. In an example like
this, the general rule would be – “In order to prove a claim of
battery, the elements that must be met are intent, contact, and
harm.” The specific rule, however, would focus on one of the
elements, like intent, instead of the general rule of battery. Thus,
the specific rule of law in this case would be the rule about intent
specifically, not battery generally.
It is important to let the reader know how this specific rule is
defined by the courts that have analyzed this rule. Thus, after
reading case law on a particular topic, we may start to gain an better
understanding. Unfortunately, most judicial decisions do not neatly
state the definition for the specific rules of law we may need. It
becomes our job, as lawyers, to sift through the case law to find the
definitions we need.
The best way to conquer this challenge is by looking closely at
the “things” court are looking for in order to determine whether the
legal claim is present. In other words, if one wanted to come up with
a definition for the specific rule of law for “harm,” one would need
to know the things courts are looking at to determine whether harm
was present in the cases read. Thus, if courts looked determined a
sprained ankle was harm, but that slight brush of contact was not
harm, these are important pieces of information. Within this first
paragraph, it is important to let the reader know the specific item
we will be analyzing and then we must tell the reader what the
courts have examined when trying to reach a determination about
whether that item is present.

Paragraph 1 – Specific Rule of Law | 33

 For more information on paragraph 1 of the five-paragraph
format, see the video below.

One or more interactive elements has been excluded

from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=56

34 | Paragraph 1 – Specific Rule of Law

Paragraph 2 - Rule Support
This paragraph will show support for the rule you provided in
paragraph one by providing details about the case law that has
analyzed and ruled on this issue. The important details a superior
would need to know about the cases are included here. It is best
to assume that your reader has not read the cases, and therefore, a
detailed summary of each case must be provided.
It is important to include the relevant facts and the holding for
each case. In the beginning, it may be difficult to know which facts
are relevant and which are not. The first step is read the cases that
you are using for this specific issue. Once you have read all of them
(and briefed them as well), you will start to notice a pattern of the
things courts were looking for to make their determinations about
the issue at hand. Those are also what you included in paragraph
one. You will notice that there are facts of each case that are
precisely related to those things the courts are examining. Those
facts are the relevant facts. They are the facts that a court would
need to know to make a proper legal conclusion on the case. This
may take some practice, but remember, if you include more than
you need, you will have time to edit before you submit your
memorandum.
This paragraph should sound like case summaries, one for each
case you will be using. These summaries include the relevant facts
from each case along with each case’s holding. Think of this as
taking the step to summarize the cases and their respective
holdings for the senior partner who is too busy to do this himself or
herself.
For more information on paragraph 2 of the five-paragraph
format, see the video.

Paragraph 2 - Rule Support | 35

 One or more interactive elements has been excluded
from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=58

36 | Paragraph 2 - Rule Support

Paragraph 3 – Analysis
This paragraph is the start of legal analysis, a skill you will be using
throughout your career. All students are capable of learning this
skill. Some are seemingly born with the understanding necessary
for this part, while others find it a bit more challenging. All in all, no
one has ever left my class not understanding the concepts behind
legal analysis.
It is important to think about analogies and distinctions.
Analogies are used to show how one fact is similar to another fact.

Ex –

Person 1 – A person who slips on a banana peel at a supermarket and

suffers an injury.
Person 2 – A person who slips on an orange peel at a small fruit
shop and suffers an injury.

Similarities?

These two people (person 1 and person 2) share some similarities.

They both slipped on fruit at stores, and they were both injured.

Differences?

These two people share some differences. One slipped on a banana

peel and another on an orange peel. Also, one slipped at a
supermarket and another slipped at a small fruit shop.

Paragraph 3 – Analysis | 37
 Often, when reading cases and thinking about the relevant facts,
we will notice some similarities and some differences. No two cases
are ever exactly alike, so this is typical. As lawyers, we need to think
about whether the similarities outweigh the differences or whether
the differences outweigh the similarities. In our example, it seems
like the similarities outweigh the differences because both slipped
on fruit at stores and both were injured.
Once we understand the use of analogies and distinctions, it
is important to realize that we are using them to help us decide
whether the facts of our client’s case is similar to or different from
the facts from the cases we read (and summarized in paragraph
2). In other words, we are NEVER looking to decide whether the
facts among those cases we read are similar to or different from
each other. This would not help us in our analysis. Rather, thinking
about and scrutinizing whether the facts in our case are similar to
or different from each of the cases we read (and summarized in
paragraph 2), can help us tremendously. Let’s see why.

Let’s say we have read three cases that are applicable to our legal
issue:

• 1) Red v. Blue
• 2) Yellow v. Orange
• 3) Green v. Purple

And let’s also say that these three cases all analyzed the same legal
principle – whether there was sufficient consideration to form a
contract. We can look and see what each case held when deciding
whether consideration existed:

Red v. Blue – Holding: No consideration in this case.

Yellow v. Orange – Holding: No consideration in this case.

38 | Paragraph 3 – Analysis
 Green v. Purple – Holding: Yes, there was consideration in this
case.

What happens in a lawyer’s brain when we tell the lawyer that our
client’s case is similar to a case that we read? A lawyer is trained
to think about the holding of the case. So, if we state that our
case is similar to Red v. Blue, something subtle happens. The lawyer
associates the holding of Red v. Blue with your statement that it
is similar to your client’s case. And that creates an inference. It
is then inferred that the same holding (because they are similar)
will apply to your client’s case. This is true even though it was
never explicitly stated this way. A lawyer is trained to think in a
way that automatically connects the holding with the analogy or
distinction, thus creating a legal prediction about the chances of
your client’s case. A lawyer begins forming predictions about the
client’s outcome automatically when analogies or distinctions are
drawn.
For more information about paragraph 3, see video below.

One or more interactive elements has been excluded

from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=60

Paragraph 3 – Analysis | 39
Paragraph 4 –
Counterargument
This paragraph is meant to present another point of view that is
basically the opposite of what you have stated in paragraph 3. It is
called the counterargument paragraph, but try not to think of this
as “against your client.” It is simply another way to view the way your
client’s case compares with or contrasts from the precedent cases
you have read.
To make this other point of understood to the reader, it is
important to begin with a transition word or phrase. Commonly,
the word “arguably” is used or the phrase “it can be argued that” is
used to indicate that what is being written in this paragraph do not
necessarily reflect the viewpoint of the author. Rather, this is simply
another way to view your client’s situation as you bring in precedent
cases. A transition word or phrase should be used each time you
begin the comparison to or contrast from another precedent case.

For example, a typical counterargument paragraph may begin like

this: Arguably, our case is different from Red v. Blue because unlike
the worker in Red v. Blue who merely made a promise to perform the
work of painting the house, the homeowner in our client’s case agreed
in writing to pay a definite price for the work being done in the home.
For more information about paragraph 4, see video below.

One or more interactive elements has been excluded

from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=62

40 | Paragraph 4 – Counterargument
Paragraph 5 – Final Paragraph
This final paragraph of the 5-paragraph analysis is meant to tie it all
together and provide an answer on the specific issue that was being
analyzed with these paragraphs. Thinking about the precedent
cases that you read, it is often best to compare and contrast using
these cases again, much like how it was done in paragraph 3. It
may feel repetitive but it is necessary to bring the reader’s
understanding up to speed with your ultimate conclusion. Consider
that paragraph 4 explained the opposite of what your ultimate
conclusion will be. Thus, we will need to remind the reader that
those were only possible viewpoints, not the viewpoint you deem
to be proper. The “proper” viewpoint (according to your research)
was indicated in paragraph 3 already, and getting back to that here
will help avoid any confusion. You may want to use a different
reason from the one used in paragraph 3 to support the analogy
or distinction. For example, if you had more than one reason to
support your analogy to Red v. Blue in paragraph 3, you may want
to remove one of those reasons from paragraph 3 and use it instead
in paragraph 5. This will help it sound less repetitive. Regardless,
when repetition cannot be avoided, it is okay to repeat the reason in
paragraph 5.
It is important for the final sentence in this paragraph to be
conclusive and clear. It is often written using a transition like
“therefore” before the final sentence. For example, it may look like
this: Therefore, since there was a quid pro quo defined with our
client’s contract, consideration will likely be found.
For more information about paragraph 5, see video below.

One or more interactive elements has been excluded

from this version of the text. You can view them online

Paragraph 5 – Final Paragraph | 41

 here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=64

42 | Paragraph 5 – Final Paragraph

Thesis Paragraph
The thesis paragraph is the very first paragraph within the
Discussion section. It appears before “Paragraph 1.” If you are
wondering why we discuss this part last, even though it appears
first, allow me to explain.
The thesis paragraph serves as an introduction and summary of
what the rest of what will be included within the Discussion. I often
like to think of this in the same way I think of a “trailer” or “teaser”
before an upcoming movie. It should effectively allow a reader to
fully understand a summary of what will be addressed in greater
detail within the rest of the Discussion section.
The most useful format to write a thesis paragraph is the standard
IRAC format.
I = Issue
R = Rule
A = Analysis or Application
C = Conclusion
As the name suggests, the thesis paragraph should be only one
paragraph. It should be written concisely, focusing on providing the
IRAC items, without too much detail. We can review each part of the
IRAC here.
“I” (Issue) – This should be one sentence explaining the overall
issue in the case. It needs to be a complete sentence. Ex: The issue
is whether a grocery store is liable for negligence when a customer
in injured after she slips on a banana peel.
“R” (Rule) – This should be the general overall rule of law that
governs your case. Sometimes there may be sub-issues, and these
sub-issues may have specific rules of law that govern only them. The
thesis paragraph is not the place to include specific rules. Instead,
focus only on the general rule that governs the overall case.
Ex – In New York, to find negligence, there must be a duty, a

Thesis Paragraph | 43
breach of duty, proximate cause, and injury. Red v. Blue, 100 N.Y.3d
150, 152, 200 N.E.2d 250, 254, 300 N.Y.S.2d 350, 356 (2022).
In this example, the sentence provides the rule for negligence
generally. There are likely specific rules as well, like the rule for what
constitutes proximate cause. It would not be correct to include this
specific rule within the thesis paragraph. Instead, save the specific
rule of law for paragraph 1 of your 5 paragraph analysis for
proximate cause.
“A” (Analysis or Application) – I like to think of this part as a mini-
analysis and mini-conclusion. It should contain a conclusion for
each sub-issue and a brief reason to support it. Ex. – The plaintiff
cannot establish proximate cause because the grocery store did not
create the presence of the banana peel and did not have knowledge
of its existence.
If there is more than one sub-issue, another “A” sentence should
be included for the next one and all of them.
“C” – (Conclusion) – This is the overall general conclusion about
the question you are analyzing. Ex – Therefore, since not every
element of negligence has been met, the plaintiff will be unable to
show that the grocery store was negligent.
A video for the thesis paragraph can be found below.

One or more interactive elements has been excluded

from this version of the text. You can view them online
here: https://touro.pressbooks.pub/
legalwritingsimplified/?p=66

44 | Thesis Paragraph
Conclusion
This is the final section of the memorandum. (PLEASE do not
confuse this with paragraph 5 of the 5-paragraphs discussed above.)
We use the CRAC formula to write this section. It is similar in
some ways to the thesis paragraph (discussed above), but a bit less
formal. This will be explained as we continue below.
CRAC stands for
Conclusion
Relevant Rule
Analysis
Conclusion

First Conclusion –
Since you are now at the end of the memorandum, you have
reached a legal conclusion. Therefore, it is best to begin this section
with that conclusion. This is meant to let the reader know clearly
what the answer is to the question you posed. You no longer need
to phrase it as an “issue” because you have, in many ways, come to a
resolution of that issue. For example,

Phrased as an issue – The issue is whether consideration existed

in the contract.
Phrased as a conclusion – There was no consideration in the
contract.

While there are times when phrasing a statement as an issue

is best (like in the thesis paragraph), at this point in your
memorandum, it is better to let the reader know your conclusion in
a clear and direct way.

Relevant Rule –
This should be one or two sentences, explaining only the part of

Conclusion | 45
the rule that is relevant to your client’s case. In paragraph two of the
5-paragraph formula, and in the thesis paragraph, you were asked
to include the specific and general rule of law. You may have needed
to explain the rule to the reader. In this Conclusion section, you are
permitted to jump directly to the portion of the rule that is most
relevant to your case. There may be times when the relevant rule
and the complete rule are the same, but when you can, it is a good
idea to shorten the rule to include only the relevant part.

Analysis –
This is much like the analysis part from the thesis paragraph. You
are providing about one sentence for every 5-paragraph analysis
you wrote (one sentence for each sub-issue). This sentence will be a
“mini-conclusion” on that issue along with a reason. It is short. It is
direct. It is straightforward.
Ex – There is no consideration in the contract because there was
no quid pro quo on the part of the defendant.

Final Conclusion –
This should be one sentence and should sound a lot like your first
conclusion. Typically, a transition is used, like “therefore.”
Ex – Therefore, since there is no consideration, the contract is
unenforceable.

46 | Conclusion
PART V
GRAMMAR AND
PUNCTUATION
The rules of grammar and punctuation are important in legal
writing (and in any writing). Using improper grammar and/or
punctuation can often send a signal to the reader that the author
is unconcerned about the writing. This is often untrue, but yet the
signal may last regardless.
Most students have learned or at least encountered grammar
and punctuation instruction long before law school. Some have
mastered it to a point where proper usage has become second
nature, Others, however, may not have been exposed as much, so
they are at a slight disadvantage when it comes to understanding
the rules. This is not a great excuse. Once you have decided to enroll
in law school, it is your duty to learn and apply these rules, even if
you failed to receive formal instruction.
The following link provides grammar exercises. [Naomi Salmon
CC BY 4.0]
The following link reviews punctuation marks. [Parveen Sharma
CC BY 4.0]

Grammar and Punctuation | 47