Legal Writing: Briefs and Legal Arguments

Objectives

1. Recognize the difference between English composition and business writing.

2. List the Rules of Writing that apply to legal writing.
3. Know when to use introductory paragraphs, summary paragraphs, and how to avoid
transitions bombs.
4. Recognize facts, issues, laws, analysis, and conclusions/answers/opinions.
5. Determine value/overall issues, factual issues, and legal issues.
6. List the differences and similarities between legal arguments, briefs, and outlines.
7. Recognize a legal argument, brief, and an outline.
8. Explain what the acronym “FIRAC” stands for.
9. List what is contained in each part of a simple legal argument using FIRAC.
10. List the labels that must be included in a brief.

Comparing English Composition to Business Writing

Most college students have had several classes called something like “English Composition”.
Some of the fundamental concepts covered there are “audience” and “purpose.” Legal writing is just a
specialized form of business writing that relates to legal issues. Business writing is a special type of
writing with its own audience, purpose, and context and you will need to understand those concepts to do
well in any type of business writing, including legal writing. When writing in a business context be sure
to write with an eye toward the audience and the purpose. For example, an email or text message to a
friend is vastly different than a memo in a business class and a memo in the business world.

As mentioned above, legal writing is a subset of business writing an you need to employ a style
that is different from that used to write history papers or English papers. The style in business writing is
more direct and to the point. The topic sentence in a paragraph is normally the first or second sentence
and is not buried deep in the paragraph. Compare the two introductory paragraphs below. The assignment
is to write about certain administrative agencies and give the reader some information about those
agencies. You should be able to tell which one is written for a business reader and which for an English
professor. The only problem with the one written for an English paper it that it is not geared toward the
audience and the audience’s’ needs. (Grammar side bar: Notice the use of ‘s here. It is not audiences
needs, it is “audience’s” needs because it is possessive.)

Some of the differences between business writing and English composition are:

 Business writing gets to the point quickly.

 Business writing tells the reader the topic of the writing in the first or second sentence.
 Business writing is less “artistic” or creative.

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 Example A: This memo is in response to your memo to me asking for an overview of
three specific federal agencies and a current news article relative to each agency. The
agencies you have asked me to review are Federal Agency A, Federal Agency B, and
Federal Agency C. The federal government, as well as state and tribal governments,
have many administrative agencies designed to enforce specific laws and regulations.

Example B: The proper amount of government imposition is a frequently debated issue

within our country today. Some believe that taxes should decrease and government
interference should be minimal, while others believe the opposite or somewhere in
between. Regardless of beliefs, the citizens of the U.S. should remember that much of
the bureaucratic work done day-to-day goes unrecognized. Many of our government
agencies employ our citizens to ensure the health and wellbeing of the rest of the
United States. Multiple agencies exist within our government today; however, a few of
these agencies are tasked with ensuring and enforcing fair business practice within the
United states. Three of the largest and most imperative agencies for American
commerce and employment are the Agency A, Agency B, and Agency C. As a U.S. citizen,
it is important to have some sort of concept of these agencies and how they play a
factor in our lives, especially if they are in charge of protecting our hard earned
paychecks.

Rules of Writing

The following general rules of good, professional writing apply to legal writing and I suspect you
already know these but I have included them here for your review:

1. It is the writer’s job to convey the information to the reader, it is not the reader’s job to try to
figure out what the writer means.
2. Proper grammar and professional presentation are a must. All fonts should be the same unless for
some special type of emphasis or quote.
3. While the following might be acceptable in emails or text messages, in professional memos, you
should follow the following rules:
a) Avoid slang or swearing of any kind.
b) Avoid the word “so”. Say, “Therefore…”
c) Never say or write “being that” instead use the word “because.”
d) Do not use contractions in professional memos.
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 e) Do not start sentences with “there,” “and,” or “but.”
f) No one sentence paragraphs or long paragraphs.
g) Use commas when appropriate.
h) Know when to use “s” (plural such as “cats”) and “’s” (possessive such as “the cat’s
bowl”).
4. Talk about only one topic at a time. This rule is often broken by beginner writers. Many, if not
most, people use a “stream of consciousness” approach to writing. There is nothing wrong with
this. However, after using a stream of consciousness approach, you need to rearrange the
information so that related information is together.
5. When you introduce a topic, resolve it before moving on to the next topic. In this class a topic is
usually an issue. If you have, for example the issues “Is A entitled to workers’ compensation?”
and “Was A wrongfully terminated for filing a workers compensation claim?” these are two
different topics or issues. You must first completely discuss and resolve the first topic/issue
before moving on to the second. Many beginner writers attempt to discuss everything at the same
time, jumping back and forth between the two topics and confusing the reader.
6. Each paragraph should have only one topic. Many new writers will jumble several topics into
one paragraph, just putting down whatever thoughts come into their heads. While this stream of
consciousness writing is extremely common it is necessary to go back over the stream and
organize it so that all information on any particular topic is together. This rule does have
exceptions: An introductory paragraph can state all the topics to be covered in a paper. In
addition, a summary paragraph can briefly summarize all the topics in the paper. Please note that
the introductory paragraph and the summary paragraph do not have the same function and if they
are the same one or both is incorrect. More on introductory and summary paragraphs below.
7. Topic sentences. Although the first sentence of a paragraph is not always the topic sentence, it is
good practice to do this in business writing where the reader wants you to get to the point.
Business writing is not English literature; the reader is not reading to admire the beauty of your
prose but to get information quickly and accurately.

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 1

Facts, Issues, Laws/rules, Analysis, and Conclusions

Laws and legal writing have one tool and that tool is very important: words. Words are important
and the meanings of words are debated and decided by courts and other branches of the government. Be
very careful of the words you use and the meanings they convey.

In legal reality and writing each of the words in the list below has a specific meaning and each of
these is used in a very specific way. It is impossible to comprehend legal writing and actually, legal
reality, without understanding of what these words mean and how they are used in the law:

 Fact
 Issue
 Law or rule
 Analysis
 Conclusions also called opinions2 or answers

Facts

Facts are unemotional, nonjudgmental, objective observations of reality. An example of a fact is

“the boiling point of water is 100°C or 212° F at 1 atmosphere of pressure at sea level.” We often call
upon science to discover facts. In law we are also interested in facts and use them to make value
judgements. The law attempts to determine the facts, which is not easy and it is true that many mistakes
are made. However, no better system has been developed. For example an example of a fact you might
see in a law class is, “Lars and Hilda signed a contract” or “Lars said to Hilda, ‘I offer to pay you $500
for your used car’”.

Many students think facts are “something that exists”. This is incorrect because laws, opinions,
emotions, and other things exist that are not facts. Please memorize the legal definition of “facts” above
and use it for this class.

EXAMPLES OF FACTS

 Tabitha fell down the stairs.

 The stairs had water on them.

 The stair had a handrail.

 Tabitha was not using the handrail when she fell down the stairs.

1
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2
A conclusions to a factual issue is considered a fact in legal reality, whether or not that is actually what happened.

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 Just as a warning social constructs (defined in Chapter 1) the parties agree exist or you are told to
assume exist, are usually included in the “Facts” section and not a separate section titled “social
constructs”. For example, the facts might include a statement “A and B have a contract” if the parties
agree they have a contract or the problem wants you to assume a contract exists. A contract is really a
social construct, not a fact. However, if the parties agree on something or you are told to assume
something happened, you can assume it is a fact and can be used in the legal analysis.

Many students confuse laws and facts, probably because they are thinking, “laws exist, so laws
must be facts.” Again, notice how this person is thinking “a fact is something that exists” however that is
not the proper definition of “fact”. Laws are not facts, facts are not laws. Remember facts are
unemotional, nonjudgemental observations of reality. Laws are opinions and change over time or with
different people in power. Laws are made and unmade by people and governments, they change over time
and in different countries. A fact is the same everywhere.

Scientists and courts may have difficulty determining what the facts are and may make errors.
However, facts do not change, only our understanding and comprehension of them changes.

You need to be able to recognize a fact when you see it and not confuse it with, for example a law
or a conclusion/opinion. This topic will be covered in more detail below.

Another very common error to think opinions are facts. Opinions are, by definition, not facts,
they are in a separate category: opinions. You might ask me, “Well isn’t it a fact that Joe’s opinion is X”.
This statement makes no sense to me because by definition, opinions are not facts they have their own
category called “opinions”. It is the erroneous use of the phrase, “Isn’t a fact…,” that has caused a great
deal of confusion because people use it even when they are not talking about facts.

Later you will learn about issues of fact. In legal reality an issue of fact exists when the parties
disagree about the facts or the existence of certain social constructs (social constructs are discussed at the
beginning of Chapter 1 if you need a review). When this happens both versions of the facts are presented
to the jury and the jury decides what the facts are.3 One could say that this is just the jury’s opinion but in
legal reality, it is not considered an opinion, it is considered an unemotional determination of the state of
reality that is a fact.

Another way you might find it easier to recognize facts in this class is that they will always be
statements about what happened in the past and they are usually the first thing you read when given a
problem. Sometimes they are even conveniently labeled “facts”! You should be able to recognize them,
even if not labeled, because they are just unemotional, nonjudgemental renditions of behaviors of people.

3
Compare what happens in scientific reality when parties disagree about what the facts are. In science when this
happens the parties perform experiments to try to determine what the facts about the natural world are. This is not
easy and humans still have a limited understanding of how the natural world operates although many facts have been
determined.

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Once we make a value judgement (good, bad, reasonable, legal, illegal, ethical, unethical) we are out of
the realm of facts and into the realm of opinions and value judgements.

Laws are never facts.

Facts are never laws.

FUNDAMENTAL CONCEPT

Opinions/conclusions/answers, except those

made by juries, are never facts.

FUNDAMENTAL CONCEPT

Laws or rules

Laws or rules are the government standards of behavior/values set out by a constitution, statute,
regulation, or case. Laws and rules include the definition of any word used in a law or rule. The following
is an example of a law, specifically, an OSHA (Occupational Safety and Health Agency) regulation:
“Each employer - (1) shall furnish to each of his employees employment and a place of employment
which are free from recognized hazards that are causing or are likely to cause death or serious physical
harm to this employees… (OSHA Sec. 5).

Some decisions of some courts in some cases are laws for some of the later cases that arise on that
topic. This is the concept of “precedent” or “stare decisis”. The decision of a court on the
value/overall/legal consequences issue is never a law however; it is always an opinion. This is why
judge’s opinions are called opinions: they are opinions, not facts. If the case has raised a legal issue (What
does the law mean or what laws apply to this particular type of situation?) AND the answer to that legal
issue has been made by an appeal or supreme court (not a trial court, trial courts do not make law), the
answer may be a new piece of law but only if the legal issue has not been answered before.

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 Issues

The issue is the question that is being resolved. In the law, issues can be categorized as: (1)
value/overall/legal consequences issues, (2) factual issues, and (3) legal issues. These were explained to
you above but all issues will be explained here again so the information is in one spot.

Value Issues aka Overall Issues aka Legal Consequences Issues

Primarily, people involved in the legal system are asked to make value judgments about whether
certain behavior is “legal,” “illegal,” “in good faith,” or “reasonable.” People in business often ask
something like, “What is the legal consequences if we do “X” or fail to do “X” in this situation?” Another
way of looking at this is, “If this matter were to go to court, what decision would the court make?” These
are all very general ways of wording a value aka overall aka legal consequences issue. A
value/overall/legal consequences issue then is a question about the legality of behavior or the legal
consequences of a certain situation. A value judgment is a conclusion/opinion/answer to a
value/overall/legal consequences issue.

EXAMPLES OF VALUE ISSUES

1. Did the defendant violate any law? Did anyone violate the law?

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Stock Photo</a>

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 2. What are the legal consequences of this scenario/problem/situation?

3. Who is responsible here?

4. Is this matter were to be decided in a court of law, who would win?

5. Who wins the argument in this scenario?

6. Has a contract been formed between A and B?

7. Has A breached the contract?

8. Was the plaintiff wrongfully terminated?

9. What should legally be done in this situation?

10. Is Lina an independent contractor or an employee?

11. Is General Motors strictly liable for the damage caused by its faulty ignition
switch?

The value/overall/legal consequences issue can be worded in countless ways. You will not be
able to memorize the value/overall/legal consequences issues; you must understand the concepts and be
able to recognize the dispute in order to recognize one.

Did you notice that before you can answer a value/overall/legal consequences issue, you need to
know two things: what law applies (aka the legal issue)? and what are the facts (with any factual issues
that may exist)? These are both discussed in more detail below.

Factual Issues aka Issues of Fact

In order to answer a value/overall/legal consequence issue, you must answer two other issues:
“What happened?” and “What law applies?” The first issue, “What happened?” If the parties agree on
what happened or you are given a problem where no disagreement about what happened exists, then you

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123RF Stock Photo</a>

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can move onto the legal issue. This is common in the study of law: you are given the facts. However, in
the real world lawyers and judges spend most of their time to figure out what happened because it is not
uncommon for people to lie or misremember.

If the parties disagree about what happened, and this is very common since, as stated above,
people lie or distort the truth, then a factual issue or issue of fact arises. In legal reality, factual issues
are more common and more difficult to handle than any other type of issue. This is because humans
have not developed time travel and cannot go back and see what actually happened or what someone
actually did. We must depend on evidence to attempt to determine what someone actually did or what
actually happened. Juries resolve factual issues unless the jury is waived. If the jury is waived the trial is
considered a bench trail, that is trial where the judge decides all of the issues.

You will be expected to recognize simple factual issues. Again, you cannot memorize this, you
must understand the concept and recognize whether or not the parties disagree. Usually no factual issue
will exist in a problem in an educational setting however, in order to train you to recognize factual issues
some problems will have them.

Here is an example of a situation where no factual issue exists and you can move onto the legal
issues: Motina, Inc. and Narsa, LLC have a contract that says Motina will sell and Narsa will buy all of
the lumber cut by Motina, Inc. upt to 500,000 board feet per year.

Here is an example of a situation where a factual issue exists and this issue must either be
resolved by a jury or looked at from both sides until the jury has decided the issue: Gbenga, Inc. enters
into a contract with Vigale, Inc. whereby Gbenga, Inc. agrees to sell to Vigale, Inc. 1 million gallons of
sweet crude oil, that is crude oil with less than .42% sulfer. Vigale, Inc.’s engineer says the oil they
receive has. .5% sulfer but the Gbenga, Inc. engineer insists the oil is “sweet”. Vigale, Inc. refuses to pay
for the oil and returns it to Gbenga, Inc. Gbenga, Inc. sues for damages. In order to resolve any
value/overall/legal consequences issue between the parties we must first determine if the oil delivered was
sweet or not. To do this requires testing and testimony. A jury will decide if the oil delivered was sweet or
not. If you were given this problem you would have to look at it from both Gbenga, Inc., point of view
and from Vigale, Inc.’s point of view and discuss both sides of the argument.

EXAMPLES FACTUAL ISSUES: Ask what happened here?

1. Did John cheat on the test?

2. Did Mary hit Larry?

3. Did Josephina agree to pay $500 or $600 for the car?

4. Why did the employer fire the employee?

5. Did the company violate the wage/hour laws?

6. Did the company discriminate?

7. Why was Lin fired?

8. Did the employees of Company A take the display racks of Company B and
destroy them?

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 9. Who spilled the milk?

The job of the jury involves not only resolving factual issues such as those mentioned above, but
also some issues that involve social constructs. (Social constructs are explained at the beginning of
Chapter 1 if you need to review.) For example, whether or not certain behavior is “reasonable behavior”
is always a jury issue even though “reasonable behavior” is just a social construct. Allowing the jury to
decide whether or not certain behavior is reasonable, rather than the judge, diffuses the power of the
judicial branch of government and places it with the governed. This is a topic that is complex even for
lawyers and judges who have extensive knowledge of the law and it is not a concept you need an in-depth
understanding of at this point.

The Difference between Factual Issues, Facts, and Evidence

In legal reality, a great deal of time and effort is spent trying to determine the facts and it is very
common for the parties to disagree about the facts. A disagreement about what happened, that is a
disagreement about the facts, is called an issue of fact or a factual issue as explained above. Assume the
factual issue in a particular case is, “Why did the employer fire the employee?” In order to answer this
factual issue in legal reality each party presents proof or evidence to the jury in support of their version of
the facts. Proof or evidence consists of statements, records, pictures, documents or anything a party
believes will help the jury determine the facts. Of course juries can make mistakes when deciding the
facts. This is usually irrelevant to the legal determination and the judge will use the facts as decided by
the jury to make a determination of the legal consequences of the facts.

Juries can read minds and their crystal balls

always work perfectly.

FUNDAMENTAL CONCEPT

Juries do not make mistakes, only

judges make mistakes.

FUNDAMENTAL CONCEPT

Legal Issues aka Issues of Law

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 6

Once you know what happened, that is once you know the facts, you must determine what law
applies to the given situation. Issues of law ask: what law applies or what does the law mean? In a law
class you will be asked this question many, many times and will be expected to know what law applies to
certain situations. The answer to a legal issue will always be an overview of the law or an explanation of
what the law means. The answer will never be a conclusion/answer/opinion to the specific
value/overall/legal consequence issue raised in a scenario. Here is one way to check your answer to a
legal issue: if your answer has any name in it, it is not the answer to the legal issue because laws apply to
everyone and do not have names in them. No law says, “Mira is negligent.” The law can be used to
support the opinion that Mira is negligent, but no law specifically says, “Mira is negligent”. The law says,
“a party is negligent if they have acted unreasonably and caused injury. (Simplified rule of negligence)”.

For example, here is a law: Parties in a contractual relationship must act in good faith with each
other. Here is a conclusion/answer/opinion to a value/overall/legal consequences issue: Batista, LLC did
not act in good faith with Leron, Inc.

EXAMPLES OF ISSUES OF LAW: Ask what law applies or what does the law mean?

1. What does the law say about situations like this? (Please notice this is a very
different question than: Did Person X violate the law in this situation? The first
issue here is a legal issue and the second is a value/overall/legal consequence
issue.)

2. What does the law mean by “gift”? Is an engagement ring a gift?

3. What is the difference between an independent contractor and an employee?

4. What is meant by the term “strict liability”?

5. What is the law of strict liability?

6. When can an employer fire an employee?

7. What are the legal elements needed to win a case of negligence?

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 8. What is needed to form contract?

9. What is the liability of a corporation for the acts of the corporation’s

employees?

Analysis

This is usually the most important and the most difficult of a legal argument. Analysis contains
the reasons in support of the conclusion/answer/opinion. The analysis section must contain a repeat of the
elements of the law and the facts that support that element of the law. An element of the law or legal
element is some part of law that must be proved. For example, the simplified rule of negligence is: A
party is negligent if they have acted unreasonably and caused injury. This law has two elements: (1) a
party acted unreasonably and (2) this unreasonable act caused injury. In order to win an argument using
this law both elements must be supported by facts. If only one element is supported by facts, then the
argument is lost.

Caution, analysis is not merely repeat of the facts and laws. Analysis is the application of the law
to the facts and thus is your opinion as to how the law will treat a particular set of facts. If there are no
facts to support a needed element, that should be made clear. If the analysis section does not contain an
application of the law to the important facts, it is not analysis and is therefore, wrong.

The following is an example of good analysis. The issue in the case was: Had the parties formed a
joint venture? I have bolded all of the facts so you can easily see them, they were not bolded in the
original. The non-bolded wording is the law and the author’s opinions. See how the law has been applied
to the facts:

A joint venture, as a practical matter, is essentially a partnership carried on for a single enterprise.
The single enterprise in this case was the scratching of the lottery tickets purchased by Burke and the
television appearance and the winnings that came from it. A joint venture is an association of two or
more persons to carry out a single enterprise for profit. Phyllis, Judy, Frances and Burke carried out
this enterprise of buying and scratching off lottery tickets for profit. Whether a joint venture exists is
a question of the intent of the parties. Phyllis, Judy and Frances testified that Burke indicated to them
that if they would help him scratch off the lottery tickets they would be his partners and would
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share in any winnings which resulted from those tickets. A formal agreement is not essential to
establish a joint venture. No formal agreement was made, only a verbal agreement. The existence of a
joint venture may be inferred from facts and circumstances demonstrating that the parties, in fact,
undertook a joint enterprise. The testimony of Phyllis, Judy, Francis, Sherry Payne, Robert Seld and
Thomas Vincent, along with the initials of all of the parties written on the winning ticket by Burke,
indicates that a joint venture was formed by the parties.7

Here is an incorrect analysis section based on the same issue. This one is incorrect because it
contains no facts.

A joint venture, as a practical matter, is essentially a partnership carried on for a single

enterprise. The parties had a single enterprise because they worked together. A joint
venture is an association of two or more persons to carry out a single enterprise for
profit. There was no formal agreement but the acts of the parties show a joint venture.

Here is an incorrect analysis section based on the same issue. This one is incorrect because it
contains no law.

Phyllis, Judy and Frances testified that Burke indicated to them that if they would help
him scratch off the lottery tickets they would be his partners and would share in any
winnings which resulted from those tickets. When one of the tickets was a winner,
Burke wrote the initials of all of the parties on the back of the winning ticket.

Here is an incorrect analysis section based on the same issue. This one is incorrect because,
although it has law and facts, the law is not applied to the facts. Each is just copied and dumped into the
analysis without any application. Notice that all of the law is first and all of the facts are second. Putting
all the facts first and the law second is equally incorrect.

The single enterprise in this case was the scratching of the ticket that led to the
television appearance and the winnings that came from it. Phyllis, Judy, Frances and
Burke carried out this enterprise for profit. Phyllis, Judy and Frances testified that Burke
indicated to them that if they would help him scratch off the lottery tickets they would
be his partners and would share in any winnings which resulted from those tickets. The
testimony of Phyllis, Judy, Francis, Sherry Payne, Robert Seld and Thomas Vincent, along
with the initials written on the winning ticket, indicates that a joint venture may be
inferred from the facts. A joint venture, as a practical matter, is essentially a partnership
carried on for a single enterprise. A joint venture is an association of two or more
persons to carry out a single enterprise for profit. Whether a joint venture exists is a
question of the intent of the parties. A formal agreement is not essential to establish a
joint venture. No formal agreement was made, only a verbal agreement. The existence
of a joint venture may be inferred from facts and circumstances demonstrating that the
parties, in fact, undertook a joint enterprise.

7
Zender, Joseph, Unpublished paper, BLR 202 Spring 2012, “Legal Brief”.

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 Conclusion/opinion/answer

The conclusion/opinion/answer is a word or two in answer to the issue and without any
supporting statement. The conclusion is usually one or two words. However, the conclusion must be
supported by facts and law as stated in the analysis. If the conclusion is not supported by both facts and
law, it is automatically wrong.

Conclusions/answers/opinions unsupported by
facts and law are always wrong.

FUNDAMENTAL CONCEPT

Students often have trouble differentiating between conclusions to value/overall/legal

consequence issues, factual issues, and legal issues. The conclusion to a value issue tells you who wins or
who you think wins in the situation; in other words the legal consequences of the situation. The list below
contains a type of issue with it corresponding answer. Please pay special attention to the difference
between answers to value issues and answers to legal issues as many students confuse them.

Value/overall/legal consequence issue: Was the defendant negligent?

Answer to value issue: No, the defendant was not negligent.

(Notice that the answer often contains the name of a party.)

Factual issue: Was Katy texting while driving or not?

Answer: She was not texting.

(Notice how the answer chooses between two competing descriptions of what happened, not two
competing conclusions of who wins or what law applies.)

Legal issue: What does the law say about negligence?

Answer: A party is negligent if they have acted unreasonably and caused injury. (Simplified rule
of negligence).

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 (Notice how the answer gives the reader an overview of the law. Please compare this to the
conclusion to the value issue and do not confuse them. No law exists saying, “The defendant was not
negligent” this is a conclusion to the value/overall/legal consequences issue.

Arguments

An argument is a passage/statement designed to convince another of the validity of the author’s

opinion or conclusion to some issue and is supported by at least one reason why the listener should
believe the author. Arguments are based on the science of logic, which is the science of arguments, how
they are made and how to recognize good and bad ones. Arguments are made in all disciplines from
English literature to nuclear physics. In this class you will concentrate on a specialized type of argument
called the legal argument. A legal argument is merely an argument that uses at least one law as a reason
in support of the conclusion.

Before going on with this reading, please look again at the sample legal argument, brief, and
outline above. Notice the differences and similarities between the three. Notice that a legal argument is
not a brief. A brief is not a legal argument. An outline is not a brief. A brief is not an outline even though
they look very similar. Please do not confuse arguments, briefs, and outlines. If I ask for one and you give
me another, your paper is downgraded because it is nonresponsive to the assignment.

As mentioned above, a legal argument is merely an argument that uses at least one law as a
reason in support of the conclusion. Unlike science, ideas other than the results of scientific
experimentation may be used as reasons in support of the legal argument’s conclusion. A reason is a
statement used to support an opinion. Other reasons used to support the conclusion of a legal argument,
but not a scientific argument, include ethical reasons, religious reason, economic reasons, and political
(power) reasons.

I want to draw your attention to a pitfall many students fall into. Please review the definition of
legal argument in the first sentence of the above paragraph. Many students just think legal arguments are
arguments that contain legal issues. This is incorrect. A legal argument could, but is not required, to have
a legal issue. A legal argument just uses some law in support of the conclusion. “What law applies here?”
or “What does this law/word in the law, mean?”

In the real world most legal arguments are about disputed facts not about disputed law. The law is
usually fairly simple, the facts are often complicated, convoluted, hidden, misremembered or downright
lied about.

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 The following is a very simple legal argument. Notice the overall/value/legal consequences issue
and the legal issue is resolved. Because the situation contains an issue of fact, the argument must address
both sides of the factual issue. The factual issue will ultimately be resolved by a court unless the parties
settle.

Xavier was driving her car and collided with Marla, a pedestrian walking in a crosswalk. Marla
was injured because of the collision.

Marla says Xavier deliberately rammed Marla with her car because Marla had recently had a date
with Xavier’s old boyfriend whom Xavier still liked. Xavier denies this. [Notice the issue of fact
raised here]. If Xavier deliberately rammed Marla the law of battery, which is an intentional
offensive touching of another without their consent8 [Notice the legal issue is resolved here by
giving the reader the law and the citation here. This is simplified for this example] applies and
Marla can get punitive damages, which are damages designed to punish someone who
intentionally injures someone9 [Again, notice the law and citation. This is the law to be used if the
jury decides that Xavier deliberately rammed Marla]. If Xavier did not deliberately ram Marla,
but accidently rammed Marla, then Xavier can be liable, at the most, for negligence, which is as
an unreasonable act that causes injury.10 [Again, notice the law and citation. This is the law to be
used if the jury decides that Xavier did not deliberately ram Marla].

The prior example is a simple legal argument. The overall/value/legal consequences issue is: Who
wins? The factual issue is, “Did Xavier deliberately ram Marla?” The legal issues are: What law applies if
Xavier deliberately rammed Marla?” and “What law applies if Xavier did not deliberately ram Marla?”

Analysis/Reasons /Premises/Hypotheses

In order for a passage/statement to qualify as an argument it must contain some reason or reasons
in support of the opinion/conclusion. If no reason is given in support of the opinion/conclusion, the
passage is, by definition, not an argument. An example of a statement that is not an argument, but merely
an unsupported opinion is: War is bad. This statement qualifies as a simple argument because it gives at
least one reason in support of the conclusion/answer/opinion: War is bad because people are killed,
property is destroyed, and people suffer.

8
Battery, Wikipedia, http://en.wikipedia.org/wiki/Battery_(tort), accessed 9 June 2013.

9
Punitive Damages, The Free Dictionary, http://legal-dictionary.thefreedictionary.com/punitive+damages, accessed
9 June 2013.

10
Negligence, Legal Information Institute, http://www.law.cornell.edu/wex/negligence, accessed 9 June 2013.

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 Notice that the reason in support of the opinion need not be proved in order for a statement to
qualify as an argument. Also, many people make arguments based upon reasons that later prove to be
incorrect. This is because humans have a limited ability to determine and understand facts. It is common
for humans to form opinions based on reasons that “sound good,” “feel good,” “seem likely” or come
from sources they trust, even if the reasons are not good or true.

The reason(s) in an argument have different names in different disciplines, including the law. In
the law we usually call the reasons in support of the conclusion/opinion/answer to the issue analysis or
premises. In science reasons are typically called the hypothesis. Whatever discipline you are studying
may have a different term but they all mean the same thing: the reasons given in support of the
conclusion/opinion/answer to the issue under discussion.

In legal arguments, the reasons in the analysis must always include the laws and facts, even if the
laws and facts have been given to the reader before that point. This often causes problems for student
writers who do not like to repeat. However repeating and drawing attention to important information,
such as laws and facts, is an important tool for both the writer and the reader.

In addition to laws and facts reasons may include other information such as economic principles,
accounting principles, or any other information the writer believes helps to bolster the argument. To
qualify as a legal argument, the argument must contain at least one law in support of the
conclusion/answer/opinion.

A conclusion/opinion/answer to a legal problem that is unsupported by facts and laws in the

analysis section is always wrong. Another way of saying this is: in legal reality, a
conclusion/opinion/answer unsupported by facts and law is always wrong. True, in reality people have
all kinds of conclusions/answers/opinions based on all kinds of things other than facts and laws. However,
in legal reality, at least in this classroom, conclusions/answers/opinions must be supported by facts and
laws, and those facts and laws must be stated in the analysis section.

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Making a Layer Cake, Oh, I mean Writing a Legal Argument or Any Argument

FIGURE 5-1: LAYERING A LEGAL ARGUMENT11

Writing a legal argument or anything else is sort of like making a layer cake. There are good ones
and bad ones. In a good one, the frosting stays on the top and does not melt into the body of the cake.
Each layer is distinct but you can tell it is part of a whole. Each layer has its own qualities and purposes.
You can tell where the layers are. Look at the picture above. Issue 1 and Issue 2 are not mixed up in the
same layer, each issue is in its own layer and it comes AFTER the analysis of that issue. You have Issue 1
followed by Issue 2. A legal argument, and every other paper/memo/project/report you will ever prepare
is organized this way.

In this class, you will be taught to make and write simple legal arguments. A legal argument is,
by definition, an argument that contains at least one law as a reason in support of the
answer/conclusion/opinion. In other words, at least one of the reasons in support of the opinion is
something like, “My opinion is based upon the law that says ________.”

However, the most important part of any legal argument is not the law: it is the facts. This may
sound odd but it is true: Facts are more important than law. You must always have factual support for
your opinions. At least one reason in support of your conclusion/opinion must say something like: “My
opinion is based upon the fact that X happened.”

An opinion/conclusion based just upon law is always a poor argument. An opinion/conclusion

based just upon facts is, by definition, not a legal argument since it has not law. Your opinion in a legal
argument must always be based upon both the law and the facts.

11
Photo licensed from Bigstockphotos.com

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 The facts are always
more important than the law.

FUNDAMENTAL CONCEPT

Outline of a Simple Legal Argument/Paper with 1 Issue/Topic

In this class you will be required to use the following simple outline when preparing your legal
arguments. In other classes and in the business world you would be preparing similar outlines for
whatever topic you were writing about. Failure to follow this format will result in a drastic reduction in
grade, not only in this class but every class you have to write a paper for. Failing to do it in the business
world will hold you back from promotions and recognition.

<Part 1>: Facts

<Part 2>: Issue/topic, detailed summary of the applicable law/overview of the topic, examples,
and citations to the law/resources about the topic. You MUST use the Chicago Manual of Style. I no
longer accept anything else. This REQUIRES footnotes. Google “FOOTNOTES”. Here is an
example of an acceptable citation to a website but this MUST be in a footnote:

2. “McDonald’s Happy Meal Toy Safety Facts,” McDonald’s Corporation, accessed July 19,
2017, http://www.mcdonalds.com/corp/about/factsheets.html.

How to insert a footnote: If you do not know how to use footnotes here is an explanation. In
Word go to the <References> menu and chose <Insert footnote>. You will be taken to the footnote
location to enter the citation. See picture below.

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 Use only Chicago Manual format, do not use legal citation format. Do not include a
“Bibliography” or a simple list of sources. DO NOT MAKE UP YOUR OWN CITATION FORMAT!!!
See examples below in Table 4-1, Acceptable Citation formats.

For more examples google “Chicago Manual of Style”

Book example
1. Miller & Jentz, Business Law Today: The Essentials, 9th ed.
(South-Western 2011), p. 345.

Webpage example– CAUTION MUST CONTAIN THE NAME OF THE

WEBPAGE AND DATE ACCESSED, MERELY DUMPING A URL IS NOT
ACCEPTABLE
2. “Contract law,” Wikipedia, accessed June 10, 2011,
http://en.wikipedia.org/wiki/.

Note: I do not accept citations to PowerPoints, even my own.

TABLE 4-1: ACCEPTABLE CITATION FORMATS

<Part 3>: Analysis or reasons in support of the conclusion and the conclusion. Your analysis
must apply the law to facts, if it merely restates the law and the facts it is defective. If you are just writing
about some topic, and not being asked to give an opinion (unlikely in the real world, business people want
opinions supported by data and analysis) this section might not exist.

Extremely simple analysis paragraph in a history paper: The states in the United States fought a
war between 1860 and 1865 called the Civil War. A civil war is an internal war where different parts of a
county fight over some issue. The Civil War was fought because the states disagreed about whether or not
a state should be allowed to have the social institution of slavery in its boarders. Although the Civil War
had a high cost it did get rid of slavery in the United States.

Extremely simple analysis paragraph in a legal argument: Jared is negligent. He is negligent

because he was texting while driving. Texting while driving is an unreasonable act. In addition, he
collided with Travis and Travis had $10,000 in medical bills that is he caused injury by his unreasonable
act.

The analysis section of a legal argument has specific requirements. Notice that this paragraph
does not contain a repeat of the law of negligence. The law of negligence was defined in the prior
paragraph. This paragraph applies the law of negligence to the facts. Notice that the element
“unreasonable act” is mentioned (twice actually) and the element “injury” is mentioned. Both elements
have the law that shows the existence of that element in the paragraph also.

If you have more than one issue/topic, you must continue with those issues and topics after Part 2
and 3. If you have a paper 10 topics, you will have Part 1, Part 2, Part 3, Part 4, part 5, part 6, part 7, Part
8, Part 9, Part 10…etc. until you complete each topic/issue. THIS RULE EXISTS FOR ALL PAPERS IN
EVER CLASS AND IN THE BUSINESS WORLD.

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 Write about only one topic/issue at a time. Finish a topic/issue completely before moving onto a
new topic/issue. The only exception to this rule is if you have several topics or issues an introductory
paragraph may be helpful to the reader. This is a matter of writing style and the specific content of the
paper. See an outline of a legal argument with one issue in Table 4-2 below and an outline of a legal
argument with three issues in table 4-3. Notice that the legal argument with three issues contains an
introductory paragraph and a summary paragraph as is required when a paper or memo has more than one
topic.

Part 1: Facts, background.

Part 2: Issue/topic, summary of law/topic, examples, research, citations
Part 3: Conclusion/opinion/answer and analysis

TABLE 4-2: OUTLINE OF A SIMPLE LEGAL ARGUMENT/PAPER CONTAINING ONLY ONE ISSUE/TOPIC

Part 1: Introductory paragraph outlining the issues/topics to be addressed.

Part 2: Background, facts, (May be many paragraphs)
Part 3: Issue/topic #1, summary of law/topic, examples, research, citations (May be
many paragraphs)
Part 4: Conclusion/opinion/answer and analysis to issue/topic #1, if applicable (May
be many paragraphs)
Part 5: Issue/topic #2, summary of law/topic #2, examples, research, citations (May
be many paragraphs)
Part 6: Conclusion/opinion/answer and analysis to issue/topic #2, if applicable (May
be many paragraphs)
Part 7: Issue/topic #3, summary of law/topic #3, examples, research, citations (May
be many paragraphs)
Part 8: Conclusion/opinion/answer and analysis to issue/topic #3, if applicable (May
be many paragraphs)
(Continue parts until all issues/topics are addressed in the paper, this is a 3-topic
outline but you may have more.)
Summary paragraph containing main point of each topic.

TABLE 4-3: OUTLINE OF A LEGAL ARGUMENT/PAPER CONTAINING BACKGROUND INFORMATION AND THREE
OTHER ISSUES/TOPICS

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 Legal Elements and the Analysis

When making a cake you start with a recipe right? Well, when making a legal argument you start
with some laws. Laws are your recipe. The laws give you a list of ingredients. Each specific ingredient
is an element. However, you still do not have a cake, you have a recipe (law) which is a list of
ingredients (legal elements).

To make a cake you do not just cut up the recipe and listed ingredient into the bowl. You have to
get the actual ingredients from the cupboard. The actual ingredients are the facts.

However, this is where the analogy breaks down. When making a cake you just put the
ingredients into the bowl, mix and cook. When making a legal argument you must add not just the facts
but also the legal elements. You combine the facts and the legal elements in a logical and understandable
way, and produce the analysis section of the argument which supports your opinion.

A legal element is a part of a law that must be proved by facts in order to win using that law.
Some laws are more complicated than others. In this class all of the laws you will use are vastly
simplified but you will run into laws that have more than one element. A simple example is the simplified
rule of negligence: A party is negligent if they have acted unreasonably and caused injury. The elements
of negligence are (1) unreasonable action and (2) injury. In order to win using this law you have to have
facts supporting the existence of an unreasonable action and facts supporting the existence of injury. If
you do not have those facts, you cannot win using this law. Look at the first argument attached at the end
of this chapter labeled “Negligence Argument”. The author has treated each element of negligence as a
separate issue and given more law to bolster the argument.

A much more complicated law is the law of contract formation. I will use an extremely simplified
rule that is really not sufficient because it does not tell you much, but it is sufficient to compare the
elements to negligence above. The rule of contract formation is: A contract is formed if there is an offer,
acceptance, consideration, and sometimes a writing is needed. This law has 4 elements:

1. Offer

2. Acceptance

3. Consideration

4. and sometimes a writing

If you wanted to prove that a contract existed, you would need facts to support each element. If
you do not have facts supporting each element, no contract is formed.

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 The analysis section then, must contain the legal elements and the facts that support each legal
element. In the real world each legal element is usually a separate issue because there will be a lot of law
for every legal element. In your writing you make a judgments about how much law to include and how
to apply the law to the facts. Your decisions are judged. You can make good ones or bad ones.

Checklist of Common Mistakes Students Make When Writing Legal Arguments

1. Attempting to discuss two issues at the same time by switching back and forth between them
instead of introducing one issue, finishing it, and then moving on.
2. Failure to use proper citation format.
3. Cutting and pasting the laws and/or facts into the analysis and not why any particular law or fact
is important.
4. Not including enough law in the argument to make sense.
5. Paragraphs are too long.

Briefs

A brief is the dissection of a legal argument or case (a case is merely the name the legal
profession gives to a legal argument written by a judge)12 into its component parts. A brief is similar to a
book report. In this class you will be asked to dissect other’s legal arguments. Because you are dissecting
someone else’s legal argument, your opinion is irrelevant. Even if you think the author of the legal
argument is wrong, you can still brief the author’s legal argument.

Preparing legal arguments takes practice and is an art, not a science. The way you will practice
writing legal arguments is to first dissect simple legal arguments written by others and label the parts.
This will help you understand how legal arguments are put together. Dissecting legal arguments is called
briefing. This way you will see how legal arguments are put together. In the real world briefs are
prepared by lawyers and judges and they have more parts than the briefs you will do in this class. A
sample grading rubric for a simple brief can be found in the Appendix to this chapter.

12
Grammar note: I have correctly used parenthesis in this this sentence. Most students incorrectly use them when
they should be using commas. The parenthesis are used when the information in the parenthesis is giving the reader
more information, such as a definition, about the prior word. Here the information in the parenthesis is giving the
reader more information about the word “case”.

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 Sections of a Brief with Label

In this class all briefs must contain the sections below with the appropriate label. A list of the
needed labels only can be found in Table 4-4 below. Notice that the acronym “FIRAC” can be used to
remind you of the sections. FIRAC is the term used in law schools to remind students of most of the
labels: facts, issue, rules, analysis, and conclusion. I use the term FIRAC although the briefs done in this
class are much simplified from those done by law students and lawyers. If you were to go to law school,
you would be required to have a more complex brief including procedural posture, disposition, and law
made by the case. You are not required to do any of that in this class.

Here is a more detailed explanation of each of the labels. Again, a list of the labels can be found
in Table 4-4 below.

Name of case: If the legal argument you are dissecting is a case written by a judge, there will be a
name of the case, such as Smith v. Jones. If the legal argument you are dissecting is not a case written by
a judge, it will not have a name and therefore your brief will not contain a section entitled, “Name of
case.”

Facts/background: Put a summary of the who, what, where, when, why, and/or how here. This
section should be short. DO NOT JUST CUT AND PASTE. If this section is more than a paragraph, it is
probably too long.

If you are having trouble distinguishing facts from other sections of the brief, this section might
also be called “background” although I have never seen that term used in connection with legal
arguments. This section may also contain any agreed upon social constructs (social constructs are
discussed at the beginning of Chapter 1 if you need to review) such as “A and B have a contract.” It will
also include things the parties agree on or you are to assume exist to solve a problem such as “The jury
determined that A was negligent.” Please note you will have to repeat the important facts in the
analysis section. Nothing put here counts for the requirement that facts be repeated in the analysis
section.

Issue: This is the question you are being asked to solve or decide. The issue must always be
formed as a question and failure to do so will result in a reduction of grade.

Rules/Laws: Normally this is a summary of the law used by the author of the argument in
support of the conclusion. However, for beginners at briefing I am a bit flexible and if other laws
mentioned in the argument are included here, no deduction is taken. The main problem students have with
this section is putting an incomplete summary of the law actually used in the argument to get to the
conclusion.

Analysis: THIS IS THE MOST IMPORTANT SECTION OF THE BRIEF. Assume this is
the only section of the brief your instructor will read. Assuming this will force you to write a complete
summary of the argument including the facts and law because you are to assume no one has read that
section of your brief. Since this may be the first time you have done this, here are very specific items to
include:

 The first sentence must answer the issue you have raised.
 The next sentence must contain the word “because”. The word “because” may need to be
used many times in the analysis.

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  The analysis must have the important law/legal elements used to reach the conclusion
even if they were already mentioned in the rules section.
 The analysis must have the important facts even if they were already mentioned in the
facts section. REPEAT THE IMPORTANT FACTS in the analysis and explain how they
support the conclusion.
 REPEAT THE IMPORTANT FACTS.
 REPEAT THE IMPORTANT FACTS. (I am trying to emphasize this requirement by
repeating the requirement. Repeating important information is often beneficial to the
reader and the writer).
Conclusion/opinion/answer: This is a simple one or two word answer to the issue you have
raised. For beginner writers you may put either the value issue (most common) or the legal issue (very
rare for students to be able to determine this). Although not wrong, if your conclusion is more than 2
words you may have put some of the analysis in this section and therefore, this section will be wrong. If
you have a factual issue in your argument, you will notice that you have a minimum of two arguments.
Argument 1 will determine the conclusion if the facts are determined as Party 1 wants. Argument 2 will
determine the conclusion if the facts are determined as Part 2 wants. This type of assignment is rare.

Your brief must contain all of the above sections, labeled, in order to qualify as a brief. If you
were to use an alternative label, for example “premises” instead of “analysis” or “answer” instead of
“conclusion,” I would accept that. As long as each part is labeled, I do not care which specific label you
use.

Name of case and citation: (Only used if the argument

is a case).
Facts:
Issue:
Rule:
Analysis:
Conclusion:

TABLE 4-4: LABELS NEEDED FOR A SIMPLE BRIEF USING THE FIRAC ACRONYM

Example of a simple brief of a case

Name of case and citation: Johnson v. M’Intosh, 21 U.S. 543, 8 Wheat. 543 (1823, U.S. Supreme
13
Court).

Facts: Plaintiffs received deeds to certain parcels of land from certain Indian chiefs in 1773 and
in 1775. These parcels are now situated in the chartered area of Virginia, which later became part of the

13
I did not put a copy of the case here because it is over 24 pages long. However, if you are interested in reading the
case just Google the name of the case and the citation, it will come up. The writing is very difficult to follow, as is
common in older cases.

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state of Kentucky. The defendant obtained title to the same land from the United States government about
1785.14

Issue: Who owns the land?

Rule: Rule of Conquest: this rule says that land conquered by one country or army belongs to that
country or army. Discovery Rule: holds that the nation of a European conqueror or discoverer of land in
North America became the owner of those lands. Native inhabitants have no rights under the Discovery
Doctrine and do not own the lands they occupy, only individuals of European descent can own the land.

Analysis: Defendant owns the land even though his deed is later in time than the deed of the
plaintiffs. Defendant’s15 deed is dated 1785 and plaintiffs’16 deeds are dated 1773 and 1775 respectively.
The reason defendant wins is because the defendant received his deed from the US government. The US
government conquered Great Britain in the war known as the Revolutionary War. This war ended in 1783
and therefore all lands belonging to the King of Great Britain at that moment became lands of the US
government under the Rule of Conquest, which says that land conquered by one country or army belongs
to that country or army.

Using the Discovery Doctrine17, the lands originally belonged to Great Britain because they were
the Europeans who discovered the lands. Then followed the Revolutionary War and Great Britain lost its
rights in the lands to the United States under the Rule of Conquest. Therefore, only the United States
government has the power to sell the lands. Since the defendants received their deed from the US
government, the lands belong to defendants.

The Indian chiefs never had the right to sell lands they are occupying because they did not own
them. Under the Discovery Doctrine, Indian tribes do not own lands, only Europeans can own land. Any
deeds or transfers of title from Indians to private citizens are invalid because Indians do own the land they
occupy.

Conclusion: Defendant

Outlines

An outline is a tool for organizing a paper or speech. A legal argument is merely a specific type
of paper and, like all papers, benefits from organization and using an outline. I assume you know what an
outline is.

I use the term “part” for my outlines and explain what each part of the legal argument/paper
contains. The explanation must be modified if more or fewer issues/topics exist. Each part may consist

14
Review from Chapter 1: Deeds transfer rights and are social constructs. The United States government is a social
institution.

15
Grammar note: Notice the use of the ‘s. The ‘s is used for possession: the defendant’s deed.

16
Grammar note: Notice the use of s’ rather than ‘s. This is because the second “s” can be removed because
“plaintiffs” is plural. The writer does not write “Plaintiffs’s deeds” only “Plaintiffs’ deeds”.

17
Yes, this is a real case and this is the real law used to justify why Indians did not own land. This has changed over
time and now Indians can own certain lands. That concept is beyond this course.

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of several paragraphs. For the simple legal arguments written in this class I want you to use the
following outline, however your particular assignment may need more parts depending on what is asked
for in your particular semester’s assignment.

Example of an outline of a simple legal argument with 2 issues:

Part 1: Facts aka background

Introductory paragraph. If your paper/memo/argument has more than one topic this
paragraph is mandatory.

Part 2: Topic 1. Information on the first topic.

Part 3: Topic 2. Information on the second topic. Continue with each topic you have
been asked to write about. Remember to write about only one topic at a time and to
finish a topic before moving to the next.

Part 4: Issue 1 and detailed overview of the law related to issue 1.

Part 5: Analysis of issue 1 with an explanation of why the author has come to the
author’s conclusion/answer/opinion to issue 1.

Part 6: Issue 2, summary of the applicable law, citations to the law

Part 5: Analysis of issue 2 with an explanation of why the author has come to the
author’s conclusion/answer/opinion to issue 2. Continue until all legal issues/questions
have been resolved.

Summary paragraph. Must contain the main point of each topic and conclusion. If it is a
repeat of the introductory paragraph, it is incorrect.

Introductory paragraphs, Summary Paragraphs, Body of the Writing, and Transition Bomb
Avoidance

If you are writing a paper containing two or more topics/issues/concepts an introduction/opening

paragraph(s) is often useful. In this class, it is expected although some real life situations may not require
it. The introduction/opening only to contain an overview of the topics/issues/subjects to de developed in
the paper. No information is given about the topics/issues/subjects. See Table 4-5 for a checklist for
introductory paragraphs. The detailed information about the topics/issues/subjects is in the body of the
writing/paper/memo/report.

To start using the technique of opening/introduction read the paragraph below and fill in the
blanks with your topics/issues/concepts from a paper you are working on. As you become more skilled at
this, as all writing techniques, your paragraphs will be less stilted than this one but this is a beginning
step.

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 WRITING TAKES WORK!18

PRACTICE: This memo/paper/email/presentation (choose one that is appropriate) will

cover the following issues/topics/concepts (choose one or more words that is
appropriate). The first issue/topic/concept is _________________. The next
issue/topic/concept to be reviewed/covered/discussed/presented/analyzed (choose a
word that is appropriate) is ________________. (Continue until all of the major
issues/topics/concepts have been mentioned.) (In addition to this include important
information such as why the memo is being written, or the purpose of the memo, what
goals of the memo might have. If the memo is about a topic the reader is not familiar
with, a brief overview might be helpful. No one way exists to write an introductory
paragraph. Be creative.)

In addition to an introduction/opening, and usually following the body, is the summary/ending

paragraph(s). The summary/ending contains a brief statement of the main point about each of the topics
mentioned in the introduction/opening. I say “usually” because it is very common in the business world to
put the summary/ending in a special section at the beginning of the report/paper/memo and label it
“executive summary”. You are not expected to use this technique at this time however.

18
Image licensed from 123rf.com. Image ID : 44570722. Copyright : Wavebreak Media Ltd (Follow)

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 19

Finally, abrupt changes in topics, which can be called “transition bombs” should be avoided.
When the topic changes, let the reader know in the first sentence of the paragraph containing the new
topic. Do not put the transition sentence at the end of the prior topic. This violates the “one topic per
paragraph” rule. Examples of transition sentences are:

 The next topic to be discussed is…

 The above leads me to the topic of …
 Moving on to the next issue…
 The above situation raises the issue of …

 Each topic is mentioned and the reader knows

what to expect.
 Tell the reader the goals/purpose of the writing.
 No details of any of topics are included here.

TABLE 4-5 CHECKLIST FOR INTRODUCTORY/OPENING PARAGRAPHS FOR BUSINESS WRITING

In addition to an introductory paragraph (please note how I have avoided the transition bomb here
and made a smooth transition from the first topic, introductory paragraphs, to the next topic, summary
paragraphs. I have also put the transition sentence as the first sentence of this paragraph where it does
double duty: transition and topic. This makes the entire paper shorter. Shorter is usually better.) a
summary/ending paragraph is needed. In the real world this may be the only paragraph that is read. The
summary/ending paragraph gives the reader the main point associated with each topic. Please not that
this is not the same as the introductory paragraph. The summary/ending paragraph is not about you or
what you wrote about in the paper. The summary/ending paragraph contains the main points made in the
paper. See the following example, which is a bit stilted but is a good way to begin honing this technique:

Three issues/topics/concepts (choose one or more appropriate words) have been

reviewed/covered/discussed/presented/analyzed (choose a word that is appropriate) in
this memo/paper/email/presentation (choose one that is appropriate). The first can be
summarized as, (brief summary here, and continue until you have one sentence on each
of the topics/issues/concepts.)

19
Photo credit, used with permission: Copyright: <a href='http://www.123rf.com/profile_chudtsankov'>chudtsankov
/ 123RF Stock Photo</a>

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  In the real world, the summary paragraph
is the most important paragraph in a long memo
or paper.
 It must contain the main point of each
topic.
 If it reads the same as the introductory
paragraph it is wrong.

TABLE 4-6 CHECKLIST FOR SUMMARY PARAGRAPH FOR BUSINESS WRITING

In between the introductory paragraph and the summary paragraph is the body of the memo or
paper. The following is a simple outline of a paper covering three topics and the relationship of the topics
to each other. Notice how the topics are first introduced and then any relationships are discussed later.
Beginning writers often try to discuss the relationships too early before the topics have been introduced.

Introduction: This paper covers Topic 1, 2, and 3.

Topic 1
Topic 2
Topic 3
Relationship of Topic 1, Topic 2, Topic 3 to each other
Summary paragraph

Grammar and Style Notes

Grammar check website

Grammar has many, many rules most of which you know without realizing them and I will not
review them here. However, in my experience many students can use a refresher on some rules or can
benefit by my simplified rules which work most of the time but may have some exceptions. I have also
included a few simple stylistic suggestions to will make your memos and other written communications
more professional sounding.

Capital letters rule: Cap names and titles ONLY

Simplified rule that will save you in most circumstances: Capitalize names and titles only.

The basic rule here is: DON’T. In my experience students tend to cap words that should not be
capped. Students tend to cap new words or important words. There is no rule that says cap “new” or
“important” words. Other than the first word of the sentence, the only other words you will probably need
to worry about are names, including names of businesses. Do not cap concepts such as “federal” “law”
“torts” “negligence”, “defamation” or “government”.

Example: The president is speaking about financial aid this afternoon.

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 Example: “The Importance of Financial Aid”, is the topic of the speech to be given by
President Kent at Central Michigan University this afternoon.

Note: “President” is capped in this sentence because it is the title of the president. The title of the
speech is also capped because it is the title of the speech. Central Michigan University is capped because
it is a name.

“Me” rule: Never begin a sentence with the word “me”.

Simplified rule that will save you in most circumstances: Never start a sentence with “me” unless
you are a toddler. “Me” cannot ever be the first word of sentence, either written or spoken. “I” can be the
first word of the sentence.

Hint to help you get this correct: Many people have trouble determining when to use “me” or “I”.
However, few have trouble with “us” or “we”. Here is a trick to help determine if you should use “me” or
“I”: say the sentence with “us” or “we”. If “us” sounds right, then “me” is the proper word, if “we”
sounds right, then “I” is the proper word.

Incorrect: Me and my friends are studying.

You know this is incorrect because “me” is never the first word in the sentence. You would never
say “Me is studying”.

Example: My friends and me are studying.

This is a bit trickier. Should you be using “me” or “I” in this sentence? To find the answer
substitute “us” and “we”. The two choices are “Us are studying” or “We are studying”. “We” should
sound right to you therefore “I” should be used here, not “me”. The proper sentence is: My friends and I
are studying.

Another hint is that “me” hardly every appears at the beginning of sentence, but “I” does.

Avoid contractions in formal business writing. (Stylistic rule).

Do not use the words “don’t” “can’t” “haven’t” and similar contractions in formal business
writing. These are fine in informal, personal communications but avoid in formal settings. This will also
limit your misuse of ‘s

Poor writing: Marketing hasn’t finished the project yet.

Better writing: Marketing has not finished the project yet.

‘s and s’ Rule: Use when one thing belongs to another thing, never for plurals

This simplified rule will save you in most circumstances but takes practice. One reason this is
complicated is that the apostrophe is also used in contractions albeit for a different reason. However, if
you avoid contractions in written work your errors will be limited.

Rule: ‘s is used only when one thing (noun) belongs to another thing (noun), never for plurals.
Notice you will always have two nouns when using ‘s or the understanding of two nouns.

Correct: Josh’s books are over there.

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 Incorrect: Joshs books are over there.

Incorrect: Joshs book’s are over there.

Correct: “Rosie’s” on a restaurant sign. It is understand that the meaning is “Rosie’s

Restaurant” or “Rosie’s Place.”

Correct: The government’s stand on this topic is….(Note the two nouns “government”
and “stand”; this should clue you into the fact that the first noun needs and ‘s or s’.)

Incorrect: The governments stand on this topic is….

Another complication with this rule is that if the first noun is a plural, then you should drop the
second s:

Correct: Most students’ (not ‘students’s) attempts to understand this rule are…

Incorrect: Most student’s attempts….. (This is incorrect because “student” is plural in

the sentence, see example below).

Incorrect: Most student’s attempts…..(Notice “attempts” is merely plural and that is

why it has an “s” on the end.

Correct: All of my dogs’ medicines are in this cupboard but my cat’s medicine is in that
one.

Correct: All of my dogs’ medicines are in this cupboard but my cat’s medicines are in
that one. (The words “dogs,” “medicines,” and “cats” are all plural. Only the possessive
noun has the ‘s.

Additional examples

Correct: Students’ homework is at the front of the room. (This is correct because the
homework belongs to the students. The apostrophe comes after the “s” in “students”
because “students” is plural).

Correct: Students’ homework assignments are at the front of the room. (This is correct
because the assignments belong to the students. The apostrophe comes after the “s” in
“students” because “students” is plural).

Correct: Many students find this rule hard. (No ‘s because “students” is just a plural,
there is nothing in the sentence that belongs to the students).

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 REVIEW AND REVISE YOUR WORK!20

Commas: More commas, no parentheses

Whenever you are tempted to use parentheses: STOP. You probably need a comma instead. I
suggest you never use parentheses since most people use them incorrectly. Use commas if you would stop
when saying the sentence or have more than two items in a list.

Incorrect because it has no commas: He was not looking for the knight’s body he was
looking for the tomb itself and found the body.

Incorrect because parentheses are used: He was not looking for the knight’s body (he
was looking for the tomb itself) and found the body.

Correct: He was not looking for the knight’s body, but he was looking for the tomb itself,
and found the body.

Incorrect: We have apples oranges and spiders.

Correct: We have apples, oranges, and spiders. (Note: The last comma is optional).

Incorrect: The cave had only bats, and guano.

Correct: The cave had only bats and guano. (Rule: No comma if only two items in the
list).

Paragraphs: More

Many students are unsure where to break up a paragraph. As a general statement, more is better.
If in doubt, break up a long paragraph into shorter ones. When you do that you will begin to see what
information goes together and what does not.

20
Image licensed from 123rf.com. Image ID : 32846274. Copyright : iqoncept

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 Never start a paragraph with the word “there”. (Stylistic rule).

Poor writing example: There are three reasons this not a good idea.

Better writing example: This is not a good idea for three reasons.

Hint: If you find yourself using the word “there” to begin sentences, try beginning the sentence
with other nouns in the sentence to see which one sounds better.

Avoid the word “that” and “being that” in written sentences. (Stylistic rule).

The word “that” can often be eliminated from a sentence and the sentence has the same meaning.
It is always a good idea to eliminate useless words from your writing. I do not think the phrase “being
that” has any meaning in the English language but it appears to be becoming a substitute for “because”
however you should avoid that phrase. 

Poor writing example: The student believes that this is the best major for her.

Better writing example: The student believes this is the best major for her.

Poor communication example: Being that I speak English, I can make up just about
anything and people will understand; being that English grammar is very easy to learn
and being that most people ignore it anyway.

Good communication example: Because I speak English, I can make up just about
anything and people will understand; English grammar is very easy to learn and most
people ignore it anyway.

Avoid the word “so” in formal business writing. (Stylistic rule).

Do not use “so” in formal business writing, use “therefore” instead.

Poor writing example: The principal has not given the agent that power so the principal
is not bound by the agent’s act.

Better writing example: The principal has not given the agent that power, therefore the
principal is not bound by the agent’s act.

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Chapter 4 Review Questions

1. Which of the following is an example of business writing and which is an example of English
composition? Also, list one characteristic that differentiates the two.
Example A: This memo is in response to your memo to me asking for an overview of
three specific federal agencies and a current news article relative to each agency. The
agencies you have asked me to review are Federal Agency A, Federal Agency B, and
Federal Agency C. The federal government, as well as state and tribal governments,
have many administrative agencies designed to enforce specific laws and regulations.

Example B: The proper amount of government imposition is a frequently debated issue

within our country today. Some believe that taxes should decrease and government
interference should be minimal, while others believe the opposite or somewhere in
between. Regardless of beliefs, the citizens of the U.S. should remember that much of
the bureaucratic work done day-to-day goes unrecognized. Many of our government
agencies employ our citizens to ensure the health and wellbeing of the rest of the
United States. Multiple agencies exist within our government today; however, a few of
these agencies are tasked with ensuring and enforcing fair business practice within the
United states. Three of the largest and most imperative agencies for American
commerce and employment are the Agency A, Agency B, and Agency C. As a U.S. citizen,
it is important to have some sort of concept of these agencies and how they play a
factor in our lives, especially if they are in charge of protecting our hard earned
paychecks.

Example A is an example of business writing. Characteristics that differentiate it from

English composition are: it is shorter, it gets to the point, the reader does not have to read the entire
paragraph to figure out what the topic of the writing will be.

2. True or false: It is the reader’s job to figure out what the writer is saying. False.
3. True or false: In professional writing it is best to tell the reader the topic of the paragraph in the
first sentence. True
4. True or false: When I write about two different issues/topics/concepts I can jump back and forth
between the different issues/topics/concepts in my paper. False
5. True or false: When I write about two different issues/topics/concepts I should have an
introductory paragraph and a summary paragraph. True
6. True or false: The summary paragraph is the most important paragraph in a complex
paper/memo. True
7. True or false: I can just cut and paste my introductory/opening paragraph into the
summary/ending as they are both the same thing. False
8. True or false: The only difference between an introductory/opening paragraph and a
summary/ending paragraph is that the first tells the reader what the writer will do and the second
tells the reader what the writer did. False
9. True or false: The introductory/opening paragraph tells the reader the topics and the
summary/ending paragraph tells the reader the main point about each topic. True
10. True or false: If #6 and #7 above have the same answer, one or both of them is incorrect. True

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 11. True or false: The transition sentence should be the last sentence of a paragraph. False
12. True or false: In professional writing the word “so” should be avoided. True
13. List at least two differences between a legal argument and a brief.
Legal argument gives your opinion, a brief does not.
Legal arguments look like a short paper and a brief looks like a book report.

Briefs have the parts labeled, legal arguments do not.

Legal arguments must contain the citation of the law, legal briefs do not have to, but can.

14. What are the differences between a brief and an outline?

A brief is someone else’s argument dissected and outlined. An outline is a tool used to organize
your legal arguments.

15. List what is contained in each part of a simple legal argument as per the recommended outline. If
you do not know what is meant by “part” go back to the reading, specifically the section titled,
“Making a Layer Cake, Oh, I mean Writing a Legal Argument.”
Part 1: Facts

Part 2: Summary of the law with citations.

Part 3: Analysis and conclusion

16. True or false: It is not necessary to put a detailed overview of the law in a legal argument, a few
lines are sufficient.
False

17. True or false: The reasons in support of the conclusion/answer/opinion of a legal argument are
found in the analysis part of the legal argument.
True

18. True or false: All legal arguments must have at least one reason in support of the
conclusion/answer/opinion that is similar to the following, “My opinion is based on this law
which is supported by this fact”.
True

19. True or false: When writing any paper, you may introduce several topics and jump back and forth
in the paper talking a bit about this one and then a bit about that one, and then coming back to the
first, and then moving to the second, then back to the first.
False

20. What are the three types of issues that may exist in a legal argument? Value/overall/legal
consequences issue, legal issue, factual issue
21. How can you easily recognize the value/overall/legal consequences issue?

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 You can recognize this type of issue because you need the law and the facts to answer it. Also
acceptable: Because the parties are arguing over who wins or what is the legal consequence of a certain
set of facts.

22. Basically every value/overall/legal consequence issue is the same. What is that basic
value/overall issue?
Who wins? Was the law broken here? Does anyone have any legal rights here? If this were to go to
court, what would the court say?

23. Basically every factual issue is the same. What is that basic factual issue? “What happened here?’
24. Basically every legal issue is the same. What is that basic legal issue? What does the law say or
mean?
25. Which of the following is an answer to a value/overall/legal consequence issue and which is the
answer to a legal issue?
a. The defendant can wear the headscarf. Conclusion to the value/overall/legal
consequences issue
b. Persons can wear headscarves if required by their religion even if a company dress policy
does not allow it. Legal issue conclusion
26. True or false: The simplest legal argument with only 1 issue has 1 part.
False

27. True or false: The simplest legal argument with only 1 issue has 3 parts.
True

28. Which of the following statements is correct?

a. A legal element is a law.
b. A legal element is a part of a law.
“B”

29. True or false: The legal elements must be discussed in the analysis section of the argument and
each supported by a fact and if you do not have a fact to support the element, then you must make
that clear.
True

30. True or false: Your legal arguments will be judged on things such as how much law you include
and how well your organize your argument.
True

31. True or false: In the analysis section you combine the important facts and the legal elements in a
logical and understandable way to convince the reader of your conclusion/answer/opinion.
True

32. List the labels that must be included in a simple brief in this class. Other professors may have
slightly different labels.

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 Facts Issue Rule Analysis Conclusion

33. True or false: You have been instructed to answer the issue in the first sentence of the analysis
section of the brief.
True

34. True or false: You have been instructed to use the word “because” in the second sentence of the
analysis section of the brief.
True

35. Go to Argument 1, Negligence Argument, at the end of this chapter. This is the argument about
the man driving the truck. It is not the best argument that could have been written. I have done
this for a purpose to see if you can improve on it. Read it and answer these questions.
a. Why does the passage contain footnotes? To cite where the law came from
b. What are the FACTS presented in the above passage? Man drives truck, almost hits man
in chicken suit
c. Certainly the value/overall/legal consequences issue is “Who wins?” or “Was the law
broken here?” The author has been more specific in wording the issue which is always
helpful to a reader. What is the value/overall/legal consequence issue this author
presents? Is the driver negligent?
d. What laws or RULES (and remember definitions are rules) are given in the passage?
HINT: THIS QUESTION CANNOT BE ANSWERED IN ONE SENTENCE. IF YOU
HAVE ONLY ONE SENTENCE YOU HAVE MISSED SOME LAW. GO BACK AND
RE-READ THE ARGUMENT. A party is negligent if they have acted unreasonably and
caused injury. In order to recover for mental injury, physical injury must have occurred.
e. The simplified law of negligence, as presented by this author has two elements. What are
they? If you do not understand this question go back and read the section of the chapter
that explains what elements are. (1) unreasonable activity and (2) injury
f. One element of the law of negligence is satisfied, according to the author of the
argument. What element is satisfied? I only want the element. ONLY THE ELEMENT.
Do NOT put a conclusion here, only list the element. Your answer should 2 words, do not
write a complete sentence. unreasonable activity
g. What FACTS did the author use to satisfy this element? Again, I want only facts, no
conclusions, and no laws. JUST THE FACTS. Missed stop sign warning, didn’t stop,
stop sign labeled
h. Smyth is not negligent because his actions did not support the second element of the law
of negligence. What element is that? Again, list only the element, not a conclusion. Injury
i. Several irrelevant fact(s) are presented in the passage. List two. Man’s name, red truck

Chapter 4 Problems

1. Is the following passage an argument, a legal argument, a brief, or none of these?

CAUTION: This sample is intentionally extremely brief and would not be acceptable as a
homework assignment. Brief
Name of case and citation: Saratoga County Chamber of Commerce Inc., v. Pataki, 100 N.Y.2d
801, 798 N.E.2d 1047, 766 N.Y.S.2d 654 (2003, N.Y. App.).
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 Facts: Governor entered into an agreement with Indian tribe to allow the tribe to open a Las
Vegas gambling center. The compact was approved by the federal government.

Issue: Is the agreement between the Governor and the tribe valid?

Rule: Federal law requires states to allow Indian gambling if other businesses can engage in
gaming. The NY constitution only allows the following forms of gambling: state-run lottery and private
pari-mutuel betting (betting on horse races).

Analysis: The court reviewed prior NY constitutions and determined that the state does not allow
gambling in the state except in limited circumstances. The only type of gambling that private businesses
are allowed to engage in is pari-mutuel betting and therefore that is the only type of gambling that Indian
tribes in New York can engage in. Since the agreement between the Governor and the tribe was for all
types of Las Vegas style gambling it went beyond the gambling allowed by the state.

Conclusion: No

2. Is the following passage an argument, a legal argument, a brief, or none of these?

CAUTION: This sample is intentionally extremely brief and would not be acceptable as a
homework assignment. Legal argument
Saratoga County Chamber of Commerce Inc., v. Pataki, 100 N.Y.2d 801, 798 N.E.2d 1047, 766
N.Y.S.2d 654 (2003, N.Y. App.).

On October 15, 1993, then-Governor Cuomo entered into the "Tribal-State Compact (aka
“agreement”) Between the St. Regis Mohawk Tribe and the State of New York." This compact was
approved by the federal government as required by federal law and the Tribe opened its casino in 1999.
This agreement allowed for all types of Las Vegas gambling such as poker, machines, Kino, and other
forms of gambling.

As background, it is necessary to understand that Indian tribes are under federal government
control, not state control. US Congress passed a statute (25 USC § 2701 [5]) which essentially allows
Indian tribes to have casinos in any state where the state law does not outright bar gambling for business
purposes in the state. That is, if the state allows some businesses to engage in gambling, it must also allow
Indian tribes to engage in the business of gambling. The issue raised in this argument then is: does the
Constitution of the State of New York allow gambling?

Article I, § 9 of the New York State Constitution clearly forbids the business of gambling. It states,
"Except as hereinafter provided, no lottery or the sale of lottery tickets, pool-selling, bookmaking, or any
other kind of gambling, except lotteries operated by the state… and except pari-mutuel betting on horse
races shall be allowed within this state..” (NY Const art I, § 9 [1]).

Before the first New York State Constitution was written in 1777, gambling in New York was
forbidden. The original Constitution of 1777 does not mention gambling or lotteries but the Second
through fifth Constitutions, and the current Constitution prohibits gambling.

The agreement entered into by the Governor and the Tribe is therefore invalid because it violates
the state constitution prohibition against gambling. While it is true the state constitution allows the state to
run a lottery it does not allow private businesses to run gambling businesses. The federal government only
requires the state to allow Indian gambling if the state allows other businesses to operate gambling
businesses. The only exception to this is the law allowing betting on horses. The state must allow betting

- 39 -
on horse races at businesses on tribal lands like it does other businesses. However, this does not mean that
all forms of gambling are allowable on tribal lands.

3. Is the following passage an argument, a legal argument, a brief, or none of these?

“This class has too much homework.”

None of these.

4. Is the following passage an argument, a legal argument, a brief, or none of these?

“This class has too much homework. In the first week, I had to read about 30 pages and answer
over 50 chapter questions and problems!”

Argument.

5. Is the following passage an argument, a legal argument, a brief, or none of these?

CAUTION: This sample is intentionally extremely brief and would not be acceptable as a
homework assignment. Brief
Facts: The state of Oklahoma passed a statute which prevented the shipping or selling of
Oklahoma minnows out of state. The state passed this law to protect a limited resource and make sure the
minnows were not depleted.

Issue: Does the Oklahoma statute violate the Commerce Clause of the U.S. Constitution?

Rule: The Commerce Clause of the US Constitution, which prevents some state laws. The
above clause has been interpreted by the courts to prevent state laws that (1) discriminate (other than
minor, incidental discrimination) against interstate commerce, (2) whether the statute serves a legitimate
local purpose and, if so, (3) whether alternative means could promote the local purpose without
discrimination. Meiners, Legal Environment of Business, 5th Ed. P. 224, 2001.

Analysis: The Oklahoma statute discriminates against interstate commerce by preventing

the sale and transportation of minnows across state lines – that is the minnows can only be harvested for
use in Oklahoma. This discrimination is not minor. While the state of Oklahoma has done this for a
legitimate purpose, that of conserving a limited natural resource, the state has used an unacceptable
method of protecting the minnows. They must come up with some other method of protecting the
minnows that does not discriminate against interstate commerce.

Conclusion: Yes

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Complete Arguments for Briefing Practice

Argument 1: Simple Negligence argument

Tim Smyth, an employee of Schmall Business Planners, Inc. was sent to the office supply
store to pick up needed supplies, such as copier paper and pens. He drove his red Ford pick-up. Since it
was 11:45 he stopped to have lunch - a hamburger - and had a beer with his lunch. On his way to the
office supply store Smyth failed to stop at a stop sign and almost ran over a pedestrian who was wearing a
chicken suit. The stop sign was clearly visible and a warning sign existed approximately 100 feet before
the stop sign warning motorists that a stop was coming up on the road. Smyth stated that he did not see
the pedestrian. However, the pedestrian was able to dodge the car without coming into contact with the
car or falling. The pedestrian was scared by the incident, but was otherwise uninjured. The pedestrian did
not go to the hospital or receive medical treatment, however the pedestrian did have nightmares for a few
weeks after the incident.

One issue presented in this problem is: Is Smyth liable to the pedestrian for negligence?
Negligence is a tort cause of action – one that is designed to compensate people when others have acted
unreasonably and caused them injury. Under the simplified rule of negligence a person is liable to another
for negligence if they acted unreasonably and caused damages.21

Failing to stop at a stop sign is acting unreasonably and this first element of the law is satisfied.
The existence of unreasonable conduct is further supported by the fact that not only was the stop sign
clearly visible, but there was a warning sign approximately 100 feet before the stop sign warning drivers
that a stop sign was approaching.

Next, it must be decided if the pedestrian was damaged. Damages are injuries suffered by
someone. A party who wins a lawsuit is usually entitled to some form of damages to compensate them for
their injuries.22 There are several types of damages: compensatory, nominal, and punitive to make a few.

The problem states that the pedestrian was scared but was not physically injured. Is being scared
a form of damage? Most states require that in order to be compensated for mental damages an injured
party must be physically damaged as well as mentally damaged.23 Since the pedestrian was able to dodge
the car and the car did not come into contact with the pedestrian, the pedestrian did not suffer any
physical injury. The pedestrian did not go to the hospital or receive medical treatment. Since no physical
injury was incurred the law prevents the recovery of any damages for the mental injury of being scared.
The pedestrian was scared and had nightmares, but these do not constitute a physical injury.

In summary then, Smyth is not negligent. He is not negligent even though his behavior is
unreasonable. This is because he did not cause any legally recognized damage to the pedestrian. In order
to sustain a claim for negligence the injured party must prove both unreasonable behavior and injury,
unreasonable behavior by itself is not enough. The injured party has not done so in this case and therefore,
Smyth is not liable to the pedestrian for negligence.

21
Meiners, Business Law – The Essentials, 8th Edition, p. 455 (2010).

22
Meiners, Business Law – The Essentials, 8th Edition, p. 475 (2010).

23
Meiners, Business Law – The Essentials, 8th Edition, p. 480 (2010).

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 Facts: Employee on a job errand did not stop at a stop sign and almost hit a pedestrian
wearing a chicken suit. The pedestrian was able to dodge the car however and was not physically
hurt but did complain of nightmares.

Issue: Was the employee negligent?

Rule: A person is liable for negligence if they have acted unreasonably and caused damages.
In order to recover for mental damages a person must be physically injured.

Analysis: Failing to stop at a stop sign is acting unreasonably and this first element of the
law is satisfied. The existence of unreasonable conduct is further supported by the fact that not only
was the stop sign clearly visible, but there was a warning sign approximately 100 feet before the
stop sign warning drivers that a stop sign was approaching. Finally, the pedestrian was wearing a
chicken suit. Failing to notice someone in a chicken suit indicates that Smyth was not paying
reasonable attention to his driving. However, the pedestrian was not physically damaged, he only
had nightmares, therefore, the employee did not commit negligence.

Conclusion: No

Argument 2: Argument Written by a Judge - Tribal Gambling Case

Saratoga County Chamber of Commerce Inc., v. Pataki, 100 N.Y.2d 801, 798 N.E.2d
1047, 766 N.Y.S.2d 654 (2003, N.Y. App.).

(Note: Case has been shortened and simplified by the author).

On October 15, 1993, then-Governor Cuomo entered into the "Tribal-State Compact (aka
“agreement”) Between the St. Regis Mohawk Tribe and the State of New York." This compact was
approved by the federal government as required by federal law and the Tribe opened its casino in 1999.
This agreement allowed for all types of Las Vegas gambling such as poker, machines, Kino, and other
forms of gambling.

As background, it is necessary to understand that Indian tribes are under federal government
control, not state control. US Congress passed a statute (25 USC § 2701 [5]) which essentially allows
Indian tribes to have casinos in any state where the state law does not outright bar gambling for business
purposes in the state. That is, if the state allows some businesses to engage in gambling, it must also allow
Indian tribes to engage in the business of gambling. The issue raised in this argument then is: does the
Constitution of the State of New York allow gambling?

Article I, § 9 of the New York State Constitution clearly forbids the business of gambling. It states,
"Except as hereinafter provided, no lottery or the sale of lottery tickets, pool-selling, bookmaking, or any
other kind of gambling, except lotteries operated by the state… and except pari-mutuel betting on horse
races shall be allowed within this state..” (NY Const art I, § 9 [1]).

Before the first New York State Constitution was written in 1777, gambling in New York was
forbidden. The original Constitution of 1777 does not mention gambling or lotteries but the Second
through fifth Constitutions, and the current Constitution prohibits gambling.

- 42 -
 The agreement entered into by the Governor and the Tribe is therefore invalid because it violates
the state constitution prohibition against gambling. While it is true the state constitution allows the state to
run a lottery it does not allow private businesses to run gambling businesses. The federal government only
requires the state to allow Indian gambling if the state allows other businesses to operate gambling
businesses. The only exception to this is the law allowing betting on horses. The state must allow betting
on horse races at businesses on tribal lands like it does other businesses. However, this does not mean that
all forms of gambling are allowable on tribal lands.

Name of case and citation: Saratoga County Chamber of Commerce Inc., v. Pataki, 100
N.Y.2d 801, 798 N.E.2d 1047, 766 N.Y.S.2d 654 (2003, N.Y. App.).

Facts: Governor entered into an agreement with Indian tribe to allow the tribe to open a
Las Vegas gambling center. The compact was approved by the federal government.

Issue: Is the agreement between the Governor and the tribe valid?

Rule: Federal law requires states to allow Indian gambling if other businesses can engage in
gaming. The NY constitution only allows the following forms of gambling: state-run lottery and
private pari-mutuel betting (betting on horse races).

Analysis: The court reviewed prior NY constitutions and determined that the state does not
allow gambling in the state except in limited circumstances. The only type of gambling that private
businesses are allowed to engage in is pari-mutuel betting and therefore that is the only type of
gambling that Indian tribes in New York can engage in. Since the agreement between the Governor
and the tribe was for all types of Las Vegas style gambling it went beyond the gambling allowed by
the state.

Conclusion to value/overall/legal consequences issue: No

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 Argument 3: School prayer case

SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE, 120 S.Ct. 2266 (2000)

(Note: Case has been shortened and simplified by the author).

Justice Stevens delivered the opinion of the Court.

A Santa Fe High School student who occupied the school's elective office of student council
chaplain delivered a prayer over the public address system before each varsity football game for the entire
season. This practice, along with others, was challenged in [trial court] as a violation of the Establishment
Clause of the First Amendment.

The Santa Fe Independent School District (District) is a political subdivision of the State of
Texas, [a government entity] responsible for the education of more than 4,000 students in a small
community in the southern part of the State. "[T]he district's high school students … selected a student "to
deliver the prayer at varsity football games."

The first Clause in the First Amendment to the Federal Constitution provides that "Congress
shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The
Fourteenth Amendment imposes those [same] limitations on the legislative power of the States and their
political subdivisions.

In this case the District first argues that the First Amendment is inapplicable to its pregame
invocation policy because the messages are private student speech, not public speech. It reminds us that
"there is a crucial difference between government speech endorsing religion, which the Establishment
Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses
protect." We certainly agree with that distinction, but we are not persuaded that the pregame invocations
should be regarded as "private speech."

These invocations are authorized by a government policy and take place on government
property at government-sponsored school-related events…. Santa Fe's student election system ensures
that only those messages deemed "appropriate" under the District's policy may be delivered. That is, the
majoritarian process implemented by the District guarantees, by definition, that minority candidates will
never prevail and that their views will be effectively silenced. Because "fundamental rights may not be
submitted to vote; they depend on the outcome of no elections," the District's elections are insufficient
safeguards of diverse student speech…

Even if we regard every high school student's decision to attend a home football game as
purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper
effect of coercing those present to participate in an act of religious worship. …The constitutional
command will not permit the District "to exact religious conformity from a student as the price" of joining
her classmates at a varsity football game…

The District, nevertheless, asks us to pretend that we do not recognize what every Santa Fe
High School student understands clearly--that this policy is about prayer…

The judgment of the Court of Appeals is, accordingly, affirmed. [That is: no pregame prayers
or invocations]. It is so ordered.

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 Brief of Argument #3

NAME OF CASE AND CITATION: SANTA FE INDEPENDENT SCHOOL DISTRICT v.

DOE, 120 S.Ct. 2266 (2000).

FACTS: A Santa Fe High School student who occupied the school's elective office of
student council chaplain delivered a prayer over the public address system before each varsity
football game for the entire season. The district's high school students … selected a student "to
deliver the prayer at varsity football games." The Santa Fe School District argues that [the First
Amendment] is inapplicable to its [pregame invocation] policy because the messages are private
student speech, not public speech and are not persuaded that the pregame invocations should be
regarded as "private speech."

ISSUE: Is the school district allowed to have a selected student deliver a prayer over the
loudspeaker at varsity football games?

RULE: First Amendment of the United States Constitution states, “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof." The
Fourteenth Amendment imposes this same requirement on the states and their political
subdivisions.

ANALYSIS: No pregame prayers or invocations over the loudspeakers are allowed. The
School District claims this case is about anything but prayer at school functions even when
everyone else knows this is what it is about. The district’s process, that is having a student elected
by the majority of the student body, guarantees, by definition, that minority candidates will never
prevail and that their views will be effectively silenced. "[F]undamental rights may not be
submitted to vote; they depend on the outcome of no elections," the District's elections are
insufficient safeguards of diverse student speech…” Students should not be forced to listen to
prayers so they can go to football games.

CONCLUSION to value/overall/legal consequences issue: No.

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 Argument 4: Breach of contract case

ENDICOTT ENTERPRISES INC. v. STAR BRIGHT CONSTRUCTION COMPANY, INC.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

848 F. Supp. 1161 (1994)

(Note: Case has been shortened and simplified by the author).

The plaintiff, Endicott Enterprises, Inc., (“Enco”) entered into a contract with the defendant, Star
Brite Construction Company, Inc. ("Star Brite") to install certain mechanical work in airplane hangars
which Star Brite was renovating.

Enco claims that it justifiably walked off the job because Star Brite repeatedly failed to make the
required monthly payments to Enco for the work being performed.

Star Brite, conversely, contends that Enco was behind schedule and had been fully paid when it
walked off the job.

A. FINDINGS OF FACT

This Court held a nonjury trial from Monday, January 10 Thursday, January 13. After carefully
considering the sufficiency and weight of the testimony produced at trial, the demeanor of the witnesses
who testified, the exhibits admitted into evidence, and the post-trial memoranda filed by the parties, the
Court finds that Star Brite breached its contract with Enco by failing to pay Enco the required monthly
payments to Enco for the work Enco was performing.

1. In late September of 2005, the United States of America ("government") and defendant Star
Brite entered into three contracts whereby Star Brite agreed to perform alterations and
renovations to certain hangars at the Dover Air Force Base, Dover, Delaware.
2. On January 3, 2006, Star Brite and Enco entered into a written subcontract whereby Enco was
to provide all mechanical services and some mechanical materials for the hangars.
3. Enco submitted its bill to Star Brite for the work it had completed for January, February, and
March and payment by Star Brite was due within two to three weeks after that date. Star Brite
paid Enco approximately 25% of the amount billed for those 3 months.
4. 14. Many letters, calls, and meetings were held by Enco in an attempt to get paid. Enco claims
it was owed $132,000 when it refused to perform any more work for Star Brite. (Note to
students: pages and pages of the various documents supporting this amount and the work done
are omitted).
5. Star Brite sent letters and faxes essentially alleging that Enco was not performing adequately
under the contract and that "repeated requests to fully complete all work to date have been
ignored," and that "we have no alternative but to withhold any future payments until daily
proper job manning has been accomplished and maintained." (Note to students: pages and
pages of various documents and evidence supporting this statement are omitted).
6. This Court finds that Mr. Endicott, Enco's vice-president and chief witness at trial, was more
credible than either Mr. Lynardakis or Mr. Smilios, Star Brite's supervisor and president,
respectively, and chief witnesses at trial.

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 7. The Court finds that Enco was adequately performing under the contract and that Star Brite’s
withholding of the payments was not justified but was a breach of the contract.
8. The Court finds that the amount due Enco for the work provided was $132,000.
9. The Court finds that had Enco completed the project, it would have made a profit of an
additional $100,000.
10. The Court finds that Enco’s reasonable attorney fees are $30,000.
B. CONCLUSION

Star Brite has breached its contract with Enco. In a breach of contract case, the amount of
damages a plaintiff is entitled to is measured by what is necessary to place the plaintiff in the same
position that he would have been in if the contract had been performed. Reiver v. Murdoch & Walsh, P.A.,
625 F. Supp. 998, 1009 (D.Del. 1985); American General v. Continental Airlines, 622 A.2d 1, 8 (Del.
Ch.), aff'd, 620 A.2d 856 (Del. 1992); J.J. White, Inc. v. Metropolitan Merchandise Mart, 48 Del. 526,
107 A.2d 892, 894 (Del. Super. 1954). In this case, Enco is entitled to the value of the work they have
completed minus any payments they have already received and in addition, lost profits on the work they
would have done, had they completed the contract. Also, the plaintiff is entitled to reasonable attorney
fees because the contract had a provision for such to be recovered in a breach of contract action.

The plaintiff also seeks prejudgment interest, which is interest on the sum due to it from the date
the sum was due, several years ago. Under Delaware law, a party is entitled to prejudgment interest when
the amount of damages are calculable, and such interest has been awarded in breach of contract cases.
F.E. Myers Co. v. Pipe Maintenance Services, Inc., 599 F. Supp. 697, 704 (D.Del. 1984); Citadel Holding
Corp. v. Roven, 603 A.2d 818, 826 (Del. Super. Ct. 1992). Such interest is calculated from the date
payment is due. Citadel Holding Corp., 603 A.2d at 826.

When the contract does not specify an interest rate, 6 Del. Code § 2301(a) states that, "the legal
rate of interest shall be 5% over the Federal Reserve discount rate including any surcharge as of the time
from which interest is due." Del. Code Ann. tit. 6, § 2301(a) (1993). Enco is entitled to a total of $
43,000.00 in prejudgment interest in addition to the $132,000 for work completed and not paid for. (Note
to students: calculation of interest omitted).

JUDGEMENT

1. Judgment is hereby entered in favor of plaintiff, Endicott Enterprises, Inc. t/a ENCO, and
against defendants, Star Brite Construction Co., Inc. on its claim for breach of contract for the following
amounts:

(a) $132,000 for damages for work performed; $100,000 for lost profits; $30,000 for attorney fees;
and $43,000 for prejudgment interest for a total of $305,000.
Signed, Judge of the United States District Court (trial court).

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 Name of case: ENDICOTT ENTERPRISES INC. v. STAR BRIGHT CONSTRUCTION
COMPANY, INC., 848 F. Supp. 1161 (1994).

Facts: Star Brite breached its contract with Enco by failing to pay Enco the required
monthly payments to Enco for the work Enco was performing. Star Brite entered into three
contracts with the US government for repairs and renovations to airplane hangars. Star Brite
entered into a subcontract with Enco, Endo to provide mechanical services.

Issue: Who breached the contract?

Rule: In a breach of contract case, the amount of damages a plaintiff is entitled to is

measured by what is necessary to place the plaintiff in the same position that he would have been in
if the contract had been performed. Delaware law, a party is entitled to prejudgment interest when
the amount of damages are calculable, and such interest has been awarded in breach of contract
cases. When the contract does not specify an interest rate, 6 Del. Code § 2301(a) states that, "the
legal rate of interest shall be 5% over the Federal Reserve discount rate including any surcharge as
of the time from which interest is due."

Analysis: Enco submitted its bill to Star Brite for the work it had completed for January,
February, and March and payment by Star Brite was due within two to three weeks after that date.
Star Brite paid Enco approximately 25% of the amount billed for those 3 months. The parties
exchanged letters and faxes, Star Brite alleging the work was inadequate. After a bench trial the
court determined plaintiff’s version of the events was accurate, Enco was adequately performing
under the contract and that Star Brite’s withholding of the payments was not justified but was a
breach of the contract. The Court finds that the amount due Enco for the work provided was
$132,000. The Court finds that had Enco completed the project, it would have made a profit of an
additional $100,000. The Court finds that Enco’s reasonable attorney fees are $30,000. Plaintiff is
entitled to reasonable attorney fees because the contract had a provision for such to be recovered in
a breach of contract action.

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 Argument 5: Lottery ticket joint venture case

JUDY RITCHIE et al., Plaintiffs-Appellees, v. RICHARD BURKE, Defendant-Appellant

(Illinois Lottery Commission, Defendant)
Appellate Court of Illinois, Second District

(Note: Based on Fitchie v. Yurko, 570 NE2d 892, but shortened and some modifications made to
the actual case to illustrate role of jury).

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiffs, Judy Ritchie, Phyllis Seld, and Frances Vincent, brought this action seeking a an equal
share, with the defendant to a $100,000 lottery prize claimed by defendant, Richard Burke, from the
Illinois Department of the Lottery (Lottery). The jury held that a partnership or joint venture existed
between the parties and the judge ordered defendant to pay each plaintiff the sum of $25,000 plus court
costs. We affirm.

The trial testimony revealed the following sequence of events. Plaintiff Phyllis Seld and her
husband, Robert, owned a combination service station and coffee shop, which they called Hitching-A-
Ride, in Burlington. Phyllis operated the coffee shop, and, as a part of the coffee shop business, she sold
lottery tickets. Defendant Burke started coming into the coffee shop in November 1989 to have a cup of
coffee or pancakes and to socialize. Sometimes Phyllis would play the lottery with Burke. Phyllis
indicated, but Burke disputed, that they would share equally in any winnings even when only one of them
supplied the money to buy lottery tickets. Plaintiff Judy Ritchie had known Phyllis for a number of years
and sometimes helped her in the coffee shop. Judy was acquainted with Burke only because she saw him
occasionally at Hitching-A-Ride.

During the second or third week of February 1990 Phyllis and Judy were both in the coffee shop
when Burke came in and said he wanted to play the lottery. While there were inconsistencies between
plaintiffs' and defendant's testimony, as well as minor differences even in the testimony of the various
plaintiffs, it appears clear the following events occurred. Phyllis was behind the counter, waiting on
customers. Judy, along with plaintiff Frances Vincent, was sitting at the counter. Burke purchased lottery
tickets which needed to have film scratched off the front of them in order to reveal whether a prize had
been won.

At some point Burke asked Phyllis if she wanted to help him scratch the film off the tickets, but
Phyllis suggested that he ask Judy to help because she was the luckier one. … While Burke repeatedly
denied it, all three plaintiffs testified that Burke indicated to them that if they would help him scratch off
the lottery tickets they would be his partners and would share in any winnings which resulted from those
tickets. After playing for some time, Judy uncovered three television sets and announced that she had a
winner. At the time, the parties were playing the Fortune Hunt lottery game, and the ticket scratched by
Judy gave the owner a chance to compete for a $ 100,000 prize.

All of the plaintiffs gave very similar testimony as to what occurred after the winning ticket was
scratched. Judy placed the ticket on the counter near Phyllis. Burke urged Phyllis to fill it out, but she said
she did not want to go on television. Burke indicated he was willing to be on the television show, and,
after some discussion, all the parties agreed that Burke should be their representative and go on television.
Burke then printed "F.J.P. Rick Burke," representing the first initial of each plaintiff and his own name,
on the line provided on the back of the ticket for the name of the ticket holder. He also gave his address
and phone number. According to Phyllis, when Burke started filling out the ticket he told her he was

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going to put all of the plaintiffs' initials and his name on the ticket and indicated once again that they
would be partners no matter what they might win.

During the time Burke and the plaintiffs were playing the lottery, Robert Seld and Thomas
Vincent, Frances' husband, were having coffee in a booth in the coffee shop. Both spouses testified that
after Judy declared she had a winner they heard Burke ask the three plaintiffs for their initials. He
indicated he wanted to put their initials on the ticket because they were partners. All of the plaintiffs
admitted that they did not pay out of their own pockets for any of the lottery tickets that were purchased
that day.

Burke acknowledged that he placed plaintiffs' initials on the back of the winning ticket. He said
he did so because he wanted to remember who helped him scratch the ticket. Then, if he won, he could
take them out to dinner or give them something for helping him.

Burke subsequently mailed the ticket to the Lottery and it was one of the six tickets drawn on
March 10, 1990. On March 11 Burke stopped at Hitching-A-Ride to see the Selds. Phyllis' daughter,
Sherry Payne, was there at the time. Sherry testified that Burke gave her a nudge in the arm and said, "We
are going to be rich." She knew he was referring to the lottery because her mother had told her about the
winning ticket. Phyllis also testified that she heard Burke make the comment about all of them getting
rich. She also said Burke remarked that Judy would probably use her share to put a down payment on her
house and that he was going to go to Las Vegas with his share. Burke testified that he consulted an
attorney regarding the ownership of the ticket about two days before he went on the television show.

The Lottery show on which Burke appeared as a contestant was taped on March 16 and aired on
the evening of March 17. Burke won the $ 100,000 prize and placed only his own name on the claim form
for the prize. Over the next several days plaintiffs tried unsuccessfully to reach Burke. On March 22,
1990, they filed this suit [seeking a share of the proceeds of the ticket].

After a jury trial the jury held that a partnership existed between the parties and that the value of
the ticket was to be divided between the three plaintiffs and defendant. Judgment was so entered.
Defendant appeals the judgment.

Whether a partnership exists is generally a question of fact to be resolved by the fact finder.
(Peterson v. Prince (1981), 102 Ill. App. 3d 220, 224.) A court of appeal may not overturn a judgment
merely because it disagrees with it or might have reached a different conclusion had it been presented
with the issue in the first instance. (Schulenberg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356; In re Estate
of Elson (1983), 120 Ill. App. 3d 649, 655.) In this case the jury found that the parties had formed a joint
venture. A joint venture, as a practical matter, is essentially a partnership carried on for a single
enterprise. O'Connell v. Pharmaco (1987), 164 Ill. App. 3d 68, 72.

A joint venture is an association of two or more persons to carry out a single enterprise for profit.
( In re Johnson (1989), 133 Ill. 2d 516, 525-26; Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d
313, 318.) Whether a joint venture exists is a question of the intent of the parties. (United Nuclear Corp.
v. Energy Conversion Devices, Inc. (1982), 110 Ill. App. 3d 88, 109.) A formal agreement is not essential
to establish a joint venture. (Barton v. Evanston Hospital (1987), 159 Ill. App. 3d 970, 973.) Rather, the
existence of a joint venture may be inferred from facts and circumstances demonstrating that the parties,
in fact, undertook a joint enterprise. Ambuul, 162 Ill. App. 3d at 1068.

In accordance with the foregoing, the judgment of the circuit court of Kane County is affirmed.

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 Name of case: Ritchie v. Burke

Facts: Richard, the defendant, was a regular customer of Phyllis, who owned a coffee shop.
The coffee shop sold lottery tickets. On several occasions, Phyllis and Richard would play the
lottery together with the verbal agreement that they would share any winnings. In February,
Richard came into the coffee shop and Phyllis and Richard agreed to the same arrangement.
Richard purchased tickets. Both Phyllis and Judy scratched off the film to reveal whether or not a
prize had been won. After playing for some time, Judy uncovered a combination that allowed the
holder of that ticket to compete in the “Fortune Hunt lottery game” which was a televised game
with a $100,000 prize. The parties agreed that Richard would go on the show. Richard wrote
“FJP.RickBurke” on the back as the owner of the ticket. The letters ‘FJP’ are the initials of
plaintiffs. After winning the $100,000 on the show, Richard refused to split the money with
plaintiffs.

Issue: Has a partnership or joint venture been formed?

Rule: A joint venture is an association of two or more persons to carry out a single
enterprise for profit. No formal agreement is needed. A joint venture can be inferred from the facts
and circumstances.

Analysis: The jury believed the testimony of the plaintiffs that the parties had agreed to
share in the winnings of the lottery ticket. The initials on the back of the ticket show the existence of
a joint venture and that the parties agreed that should Richard win, the money would be split
between the parties. Both Judy and Phyllis helped in the scratching off of the tickets. The facts
show that the parties intended that a joint venture be formed. The money is to be split among the
four.

Conclusion to value/overall/legal consequences issue: Yes.

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 Argument 6: Trespass case

DAVID R. ADAMS, ET AL., Plaintiffs-Appellees, v CLEVELAND-CLIFFS IRON COMPANY

and EMPIRE MINING PARTNERSHIP, Defendants-Appellants.

COURT OF APPEALS OF MICHIGAN

237 Mich. App. 51; 602 N.W.2d 215 (1999)

(Note: Case has been shortened and simplified by the author).

Defendants appeal from a jury verdict in favor of plaintiffs. The jury awarded plaintiffs damages
in trespass for invasions of plaintiffs' property by intrusions of dust, noise, and vibrations. We conclude
that the law of trespass in Michigan does not cover airborne particulate, noise, or vibrations, and that the
complaint should have been based on nuisance. Jury verdict is reversed and the matter is returned to the
trial court to determine if plaintiffs can recover under nuisance.

Plaintiffs brought suit seeking damages in both trespass and nuisance, complaining of dust, noise,
and vibrations emanating from the Empire Mine. The Empire Mine is one of the nation's largest mines,
producing eight million tons of iron ore annually. The mine operates twenty-four hours a day, year round.
The Empire Mine was originally dug in the 1870s, and then expanded in the 1960s and in 1990-91.

According to the testimony, the dust from the mine is fine, gritty, oily, and difficult to clean.
Some plaintiffs complained that they seldom opened their windows because of the dust, and virtually
every plaintiff complained that the snow in Palmer tended to be gray or black. Evidence presented at trial
indicates that the emissions from the mining operations have consistently remained within applicable air-
quality standards and that the amount of particulate matter accumulating over Palmer each month
amounts to less than the thickness of a sheet of paper, but that this amount is nonetheless four times
greater than what normally settles onto surrounding communities.

In addition to concerns about the dust, many plaintiffs testified that the noise and vibrations from
the blasts caused them to suffer shock, nervousness, and sleeplessness. Finally, several plaintiffs asserted
that these conditions diminished the value of their homes, in some cases to the point of rendering them
unmarketable.

At the close of proofs, the trial court instructed the jury concerning both trespass and nuisance.
The jury found [in favor of some of the plaintiffs on a claim of trespass only] awarding damages totaling
$ 599,199. [Defendant appeals claiming that as a matter of law it did not commit trespass. Plaintiff claims
that the jury’s decision that the matter is a nuisance is valid.]

"'Trespass is an invasion of the plaintiff's interest in the exclusive possession of his land, while
nuisance is an interference with his use and enjoyment of it.'" Hadfield v Oakland Co Drain Comm'r, 430
Mich. 139, 151; 422 N.W.2d 205 (1988) (Brickley, J., joined by Riley, C.J., and Cavanagh, J.), quoting
Prosser & Keeton, at § 87, p 622. Historically, "every unauthorized intrusion upon the private premises of
another is a trespass . . . ." Giddings v Rogalewski, 192 Mich. 319, 326; 158 N.W. 951 (1916). Because a
trespass violated a landholder's right to exclude others from the premises, the landholder could recover at
least nominal damages even in the absence of proof of any other injury. Id. Recovery for nuisance,
however, traditionally required proof of actual and substantial injury. Further, the doctrine of nuisance
customarily called for balancing the disturbance complained of against the social utility of its cause.

The traditional view of trespass required a direct entry onto the land by a tangible object. Because

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noise or vibrations are clearly not tangible objects, we hold that they cannot give rise to an action in
trespass in this state. We further hold that dust must generally be considered intangible and thus not
actionable in trespass.

Reversed and remanded. The trial court judge is to instruct the jury only on nuisance, not
trespass.

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 Name of case and citation; Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215, 237 Mich.
App. 51 (1999).

Facts; Plaintiffs live near a mine and the dust from the mine is fine, gritty, oily, and difficult
to clean. In addition the noise and vibrations from the blasts caused them to suffer shock,
nervousness, and sleeplessness. The amount of dust was about the thickness of a piece of a paper
and about four times the amount of dust falling on neighboring communities.

Issue: Can dust at this level commit a trespass or only a nuisance?

Rule: Trespass is an invasion of the plaintiff's interest in the exclusive possession of his land,
while nuisance is an interference with his use and enjoyment of it. Every unauthorized intrusion
upon the private premises of another is a trespass. Proof of any other injury. Recovery for
nuisance, however, traditionally required proof of actual and substantial injury. Further, the
doctrine of nuisance customarily called for balancing the disturbance complained of against the
social utility of its cause.

Analysis: The traditional view of trespass required a direct entry onto the land by a tangible object.
Because noise or vibrations are clearly not tangible objects, we hold that they cannot give rise to an
action in trespass in this state. We further hold that dust must generally be considered intangible
and thus not actionable in trespass.

Conclusion to value/overall/legal consequences issue: Only a nuisance.

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 Argument 7: Commerce Clause argument

Plainstow, New Hampshire is located along a major interstate highway. At one exit a major truck
terminal was built to allow trucks to load, unload, and otherwise conduct business. However, the noise
and traffic was substantial and people living near the terminal complained. Based on the complaints, the
city passed an ordinance (Note to students: "ordinance" is the word often used for laws passed by smaller
government agencies such as towns and counties) prohibiting truck traffic between the hours of 10 p.m.
and 5 a.m.

The truck terminal had been in operation several years prior to the date the ordinance was passed.
Most of the trucks visiting the terminal were from other states or Canada. The truckers filed a lawsuit
requesting the court to overturn the ordinance because it violated the United States Constitution by
limiting interstate commerce.

The only time a court can overturn a statute, ordinance, or administrative regulation is if it
violates either the state or the federal constitution. If the statute, ordinance, or administrative regulation
does not violate a constitution, then the court must uphold its validity. The only way a constitutional
statute, ordinance, or administrative regulation can be overturned is by a vote of the body that made it.
Some states do have procedures, called referendums that allow the people of the state to overturn statutes,
ordinances, or administrative regulations.

The issue raised by the truckers is whether or not the ordinance violates the United States’
Constitution. The specific section of the United States Constitution applicable here is the Tenth
Amendment to the United States Constitution usually called the "Commerce Clause". This clause states
that the United States Congress shall have power "To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes".24 The first ten amendments to the United States
Constitution are often called the Bill of Rights because they were adopted shortly after the Constitution
was written to make sure that certain limits on government action were more clearly outlined in the US
Constitution.25 The Tenth Amendment limits certain actions of state governments and makes it clear the
power of the federal government to regulate interstate commerce. State governments may impact
interstate commerce but cannot place an unreasonable burden on interstate commerce. The truckers are
claiming that the ordinance preventing them from using the truck terminal could only have been made by
the federal government because only the federal government, and not the city of Plainstow, has the power
to regulate interstate commerce.

However, the Commerce Clause does not invalidate every state law that somehow touches upon
interstate commerce. As with most constitutional issues, the court will balance the two competing
interests. Here, the two competing interests are the truckers' desire to use the terminal at all times and the
resident's desire for peace and quiet during sleeping times. In my opinion the court will not overturn the
ordinance because the burden on interstate commerce is fairly small. While truckers cannot use this
particular facility possibly they can use others.

24
United States Constitution, Article I, Section 8, Clause 3.

25
Tenth Amendment to the United States Constitution, Wikipedia, Aug. 8, 2010,
http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution#Commerce_clause.

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 Facts: The city passed an ordinance that prevented truckers from using a terminal located
within the city limits between the hours of 10 p.m. and 5 a.m.

Issue: Is the ordinance a violation of the Interstate Commerce Clause of the United States
Constitution?

Rule: The Commerce Clause of the United States Constitution gives the US congress the
power "To regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes". The only time a court can overturn a statute, ordinance, or administrative
regulation is if it violates either the state or the federal constitution.

Analysis: The Commerce Clause does not invalidate every state law that somehow touches
upon interstate commerce. As with most constitutional issues, the court will balance the two
competing interests. Here, the two competing interests are the truckers' desire to use the terminal
at all times and the resident's desire for peace and quiet during sleeping times. In my opinion the
court will not overturn the ordinance because the burden on interstate commerce is fairly small.
While truckers cannot use this particular facility possibly they can use others.

Conclusion to value/overall/legal consequences issue: No.

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Appendix: Sample Grading Rubrics

Generic Brief Grading Rubric for 2 Issue Brief

% Description
Contains the label “Name of case” with the name of the case, if any. At this level of your
5% education a correct legal citation is not necessary but no deduction if you attempt to put the
legal citation and it is wrong.
Contains the label “Facts” with a summary of the facts following the label. Caution:
5% Nothing said here counts for required facts in analysis.

ISSUE #1
Contains the label “Issue 1” with the issue WORDED IN THE FORM OF A QUESTION
5%
AND USING A QUESTION MARK.
Contains the label “Rule” or “Law” with a summary of the law used in the argument
relevant to the first issue. The law need not be cited in the brief but no deduction if it is.
15%
No credit if law is taken from other source such as the PowerPoints or the text.

Contains the label “Analysis” or “Premises”. FIRST SENTENCE MUST ANSWER THE
ISSUE AND USE THE WORD “BECAUSE”. The remainder of the analysis explains why
the writer of the argument came to the conclusion the writer came to using both the FACTS
20%
and the LAW specifically the LEGAL ELEMENTS of the law.

Cutting and pasting will result in a very low or even failed grade.
Contains a one or two word answer to the issue. This should not be a complete sentence but
5%
just an answer to the issue without any explanation.
ISSUE #2
Contains the label “Issue 2” with the issue WORDED IN THE FORM OF A QUESTION
5%
AND USING A QUESTION MARK.
Contains the label “Rule” or “Law” with a summary of the law used in the argument. The
law need not be cited in the brief but nothing is taken off the grade if it is.
15%
No credit if law is taken from other source such as the PowerPoints or the text.

Contains the label “Analysis” or “Premises”. FIRST SENTENCE MUST ANSWER THE
ISSUE AND USE THE WORD “BECAUSE”. The remainder of the analysis explains why
the writer of the argument came to the conclusion the writer came to using both the FACTS
20%
and the LAW specifically the LEGAL ELEMENTS of the law.

Cutting and pasting will result in a very low or even failed grade.
Contains a one or two word answer to the issue. This should not be a complete sentence but
5%
just an answer to the issue without any explanation.
100 TOTAL
%

Revised 4/29/2017

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 Generic Legal Argument/memo/paper - 6 Issues/topics Grading Rubric

% Description
Formatted properly: No points, I expect this to be done properly. See deduction section below however.
 Memo, double-spaced, 12 point font, first paragraph line indented.
0
 Citations done properly. 50% deduction for improper citations that are not in footnotes.
First part contains the facts. Again no points, this is just cut and paste.
2.5 Introductory paragraph with the topics to be discussed but no details on the topics.
2.5 ISSUE/TOPIC #1. Detailed overview of the law.
ISSUE/TOPIC #2: Example: this is where the factual issue, if any, might be discussed. Factual issues might be
5
discussed at end as an alternative.
5 LAW/Explanation: Overview of what a factual issue is and how it is handled, with citations.
5 Gave example to help the reader understand. Example properly cited.
ISSUE/TOPIC/ELEMENT #1: Varies by problem. The law is likely to have several elements
5
needing review.
5 LAW: Overview of the law with proper citations.
5 Gave example to help the reader understand. Example properly cited.
ANALYSIS: Came to a conclusion, applied law to facts, mentioned major facts related to the issue ONLY. No
5
cut and paste.
5 ISSUE/TOPIC/ELEMENT #2: Varies by problem.
5 LAW: Gave overview of the parol evidence rule with proper citations.
5 Gave at least one example of a parol evidence rule situation with proper citation.
ANALYSIS: Came to a conclusion, applied law to facts, mentioned major facts related to the issue ONLY. No cut
5
and paste.
5 ISSUE/TOPIC/ELEMENT #3: Varies by problem.
5 LAW: Gave overview of law with proper citations.
5 Gave at least one example of a mistake situation with proper citation.
ANALYSIS: Came to a conclusion, applied law to facts, mentioned major facts related to the issue ONLY. No cut
5
and paste.
2.5 ISSUE/TOPIC/ELEMENT #4: Varies by problem.
5 LAW: Gave overview of law with proper citations.
5 Gave at least one example of a breach of contract situation with proper citation.
ANALYSIS: Came to a conclusion, applied law to facts, mentioned major facts related to the issue ONLY. No cut
5
and paste.
ISSUE/TOPIC: For example ethics discussion or settlement options. Gave overview of the various
settlement options available including pros and cons. Recommended mediation as the option. No credit
5
for arbitration recommendation as that is a poor choice in these circumstances. No reason to give up your right
to trial and appeal so early in the negotiations.
2.5 Summary paragraph.
Deductions for improper citations, failure to put overview of facts of the problem at the beginning,
unorganized paper, unprofessional looking paper, paragraphs with 1 sentence, paragraphs that are too
long, paragraphs that have more than one topic, or____________________
TOTAL

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 Chapter 1. Dispute Resolution
Chapter Objectives

1. Explain negotiation, arbitration, mediation, and litigation.

2. List the advantages and disadvantages of negotiation, arbitration, mediation, and
litigation.
3. Explain the organization of a typical judicial branch of a government.
4. Explain the job of the trail court and the job of the appeal court.
5. Define the following terms: discovery, interrogatories, depositions, requests for
documents.
6. Explain the simplified path taken by a lawsuit as described in this chapter, including the
discovery process.

Even though relatively few disputes in business are resolved in a court, the power of the law as
applied by the strong judicial branches of governments in the United States greatly influences how
entities elect to handle their disputes. Because the judicial branch is powerful, respected, and relatively
accessible, entities may use it, rather than informal means such as mediation and arbitration, to resolve
disputes. Another factor is that in the culture of the United States winning signifies power and settling
may be seen as a weakness.

This section discusses some of the most common methods of dispute resolution in use in the
United States: negotiation, arbitration, mediation, and finally, litigation. The term alternative dispute
resolution or ADR refers to arbitration, mediation, and any method of dispute resolution that does not
include the judicial system. Other forms of dispute resolution exist but are not outline here. For example,
one party may hold a private mock trial or mini-trial on the issues before a jury to see how a jury might
react to the evidence.

Negotiation

Negotiation occurs when two or more parties attempt to resolve a dispute by discussing it among
themselves. The parties may hire attorneys or others to help them during the discussion, but ultimately it
is the parties who agree to the resolution of the dispute. No judges, juries, or arbitrators make any
decisions. Negotiation usually requires each party to give up some of what they desire. One party to the
negotiation may believe they have been taken advantage of because of their lack of power, knowledge,
and/or assertiveness. This may lead to an unwillingness to engage in further business or negotiation with
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the other party. That is, the relationship of the parties may be destroyed. The advantages of negotiation
are flexibility and low cost and it is usually the first method business entities use to try to settle disputes.

Example 1: A dispute arises between the architect and the contractor about which of
them will pay for cabinets that do not fit. The architect and the contractor meet to
discuss the matter. If the parties desire to maintain a good relationship with each other
they are likely to cooperate and reach a mutually agreeable solution through
negotiation. Both are likely to compromise and give up some of what they think they
deserve.

Example 2: A dispute arises between a vendor and a customer. The parties desire to
maintain a good relationship with each other and therefore discuss the matter and
come to a mutually agreeable solution. Both will usually compromise and give up some
of what they want.

Negotiation should always be the first choice to resolve any dispute. Using proper negotiation
techniques, such as listening to the other party, the relationship between the parties can often continue.
Sometimes the relationship is even strengthened because the parties realize they will be treated with
respect by the other side. Other dispute resolution methods, particularly litigation and arbitration, usually
mean the relationship between the parties is over.

Many business people take classes and learn negotiation techniques. Take a moment and google
“negotiation skills training” and you will see many courses offered. This class does not review negotiation
skills but these are skills that most business people develop.

Advantages and Disadvantages of Negotiation

The advantages of negotiation include:

 Less costly than any other form of dispute resolution in terms of both time and money.
 The issues, value, legal, or factual, are not important. The only important issue is: How
can we settle this matter as quickly as possible?
 No one wins or loses, a mutually agreed upon resolution is reached.
 The process is private.
 The relationship between the parties is usually maintained.
 Neither party may be totally happy but they are usually satisfied with the result.

Disadvantages of negotiation include:

 Differences in power between the parties may become major influences on the settlement
and one party may feel taken advantage of.
 If a party does not uphold the negotiated agreement, then the only recourse is to some
other dispute resolution method.

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Arbitration

Arbitration is a non-government dispute resolution process, that is no judges or juries are

involved. It is one form of alternative dispute resolution. The arbitration process resembles litigation but
is less formal and is not before a government employee that is a judge. Private companies such as the
American Arbitration Association provide this service. Google “American Arbitration Association” to see
what services they offer.

In arbitration the parties, and their attorneys if they wish, present their dispute to a person called
an “arbitrator”. Sometimes the parties choose a panel of arbitrators. This is up to the parties. The
arbitrators have been hired by the parties to resolve the dispute. The arbitrator(s) hears the dispute and
decides who wins. In other words, the arbitrator serves the same function as the judge and jury. The
decision of an arbitrator is called an award and can be enforced by the judicial system by filing a copy of
the award in a court and following the government-provided enforcement of judgment procedures. The
concept of “enforcement of judgment” is more fully discussed below.

Advantages and Disadvantages of Arbitration

The advantages of arbitration include:

 Less costly than litigation both in terms of time and money. Arbitrations are usually
faster than a trial because they are less formal and no jury is involved.
 No jury is involved. This lessens the possibility a decision will be made on an emotional
response to the evidence. Arbitrators have a greater tendency to make decisions based on
the evidence and the law and not on any emotional reactions to the situation.
 Arbitration awards are not appealable. The arbitrator’s decision is final and the losing
party has no further recourse.26
 The process is private. Arbitrations are not open to the public
 Arbitrators with knowledge relevant to the particular dispute can be hired to resolve the
dispute. For example, an engineer, manager, and/or professor knowledgeable about the
specific area problem can be an arbitrator.
 At least one person involved in the dispute, the winner, will be happy.

Disadvantages of arbitration include:

 Arbitrators may not be familiar with the applicable law or any law. This could result in a
legally incorrect decision.
 Courts seldom overturn arbitration decisions. Arbitration decisions are not reviewed for legal
accuracy.
 One party wins and one party loses, thus the relationship between the parties is usually
destroyed.

26
Some exceptions to this occur but they are very rare and will not be reviewed here.

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 If you are interested in more details on arbitration, visit the website of the American Arbitration
Association, one of the largest providers of arbitration services in the United States.

Mediation

27

In mediation a person called a mediator, is hired to help the parties resolve a dispute. Mediation
is a form of alternative dispute resolution. The mediator does not decide who wins and loses the way an
arbitrator does. Mediation most closely resembles negotiation and has little in common with arbitration.
Students tend to confuse arbitration and mediation, thinking they are the same but they are very different.
Table 5-1outlines the difference between these two forms of alternative dispute resolution. The main
difference between the two is the mediator does not decide who wins and does not apply the law to the
matter.

Parties to any dispute can seek the help of a mediator at any time. Some contracts are now
requiring mediation before the filing of arbitration or a lawsuit. Many counties provide free or low cost
mediation services, often staffed by volunteer attorneys in the area.

The mediator employs techniques that would not be allowed in either arbitration or litigation to
help the parties come to a mutually agreeable settlement. First, the mediator meets with all of the parties
and their attorneys, if any. The mediator may require the parties, as compared to their attorneys, to outline
the claim as they see it even though the claims are irrelevant to the mediator. However, this process is
often fruitful because it is the first time parties have actually listened to each other. Attorneys play less of
a role in mediation than other forms of dispute resolution because neither the law nor the facts are really
important. The only thing the mediator cares about is settling the dispute.

If a settlement is reached, the mediator will strongly encourage the parties to prepare a written
settlement agreement immediately and sign it. A settlement agreement is a contract. If the settlement
agreement is not prepared and signed immediately, it is common for the parties or their attorneys to add
new and/or different terms not agreed upon during the mediation. This may destroy the settlement.

27
Photo licensed from 123rf.com. Image ID : 23865017, Jorg Schiemann.

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 A settlement agreement is a contract and if either party fails to uphold the settlement agreement,
it can be enforced at law to the same extent as any other contract. Mediated settlement agreements are
seldom litigated however, as the parties have mutually agreed to the terms.

If the parties fail to settle a matter at mediation, they may schedule additional mediation sessions,
engage in negotiation, proceed to arbitration, or proceed to litigation. Contract provisions may control
subsequent procedures the parties must follow.

Arbitration Mediation

Arbitrator decides who wins the dispute.
Parties are told how the dispute will be settled.
Legal and factual issues important.
Private
Arbitrator issues an award that may be enforced
through the government’s enforcement of
judgment process.
No appeal. Decision is final.
Similar to litigation
TABLE 5-1 COMPARISON OF ARBITRATION AND MEDIATION
Mediator helps the parties settle the dispute;
seldom does either party win the dispute.
Parties settle the dispute
Legal and factual issues of little importance;
settlement of the claim is only important issue.
Private
If the parties settle the dispute, a contract is
normally drawn up at that time. The contract can
be enforced through a breach of contract lawsuit.
If parties do not settle, they may proceed with
arbitration or litigation.
Similar to negotiation

Advantages and Disadvantages of Mediation

The advantages of mediation include:

 Less costly than arbitration and litigation, both in terms of time and money. Mediations
are usually faster than a trial or arbitration and have few rules.
 The issues, value, legal, or factual, are not important. The only important issue is: How
can we settle this matter now?
 No one wins or loses, a mutually agreed upon resolution is reached and the parties sign a
contract outlining the settlement.
 Mediation agreements are contracts and therefore cannot be appealed. No “decision” or
“award” is made, a contract is entered into.
 The process is private. Mediations are not open to the public
 The relationship between the parties is often maintained.
 It is irrelevant whether or not the mediator has any understanding of the applicable law,
the law is irrelevant to the matter.
 Anyone can be a mediator. Usually people undergo training to be mediators however.

Disadvantages to mediation include:

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  No one will be happy with the result of the mediation except for the fact that the dispute is
settled. Everyone will think they gave up too much and did not get enough in return.
 If a party does not uphold the mediation agreement, then the only recourse is to sue for
breach of contract or continue with negotiation or more mediation. This seldom happens
because parties, although not happy with the mediated result, at least feel they have had a say
in it and therefore usually abide by it.

Litigation and Court Organization

Avoid lawsuits beyond all things; they impair your health, & dissipate your property.
J. de La Bruyere

Litigation is the government-provided dispute resolution process and as such is complex, time-
consuming, and costly, both to the parties involved and the taxpayers who pay for it. It can take years or
even decades to reach a judgment in a lawsuit. Most parties in business who engage in litigation use
lawyers although this is not required. Lawyers are expensive. The litigation process is generally open to
the public. All hearings, trials, and even the documents filed in the case are subject to public scrutiny.

Advantages and Disadvantages to Litigation

The advantages of litigation are:

 Legal and factual issues are examined in minute detail in an attempt to determine who is
legally correct and what actually happened.
 The dispute is open to the public and anyone can review and comment on the litigation.
 Decisions by the various government employees involved, that is the judges, are
reviewed at various levels for accuracy and accountability by other judges.
 Judges have knowledge of the law and are trained in how to apply it.
 At least one person involved in the dispute, the winner, will be happy.

Drawbacks to litigation include:

 Litigation is expensive and time consuming.

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  The relationship between the parties is destroyed.

The Litigation Process in the United States

In the United States the court system, that is the judicial branch of the government, provides
dispute resolution services and that process is called “litigation”. The plaintiff brings a dispute to the court
by filing a complaint and thus starting the litigation process. The judicial process decides who wins and
who loses. In the United States the court system operates using the adversary system of justice. Under
the adversary system of justice, the goal of each side is to win, within the bounds of the law and legal
ethics. It is believed that through this battle to win, truth and justice will emerge and the judge and/or jury
can make the right decisions. Under this system the lawyers have a great deal of control over the litigation
process. The judge and jury are, for the most part, observers and make decisions based upon the evidence
and legal arguments made by the lawyers.

FIGURE 5-2: SIMPLIFIED BREAKDOWN OF THE JUDICIAL BRANCH OF A TYPICAL GOVERNMENT

Most court systems (aka judicial branch of a government) are divided into three levels: trial (first
stage), appeal (reviews decisions from first stage), and supreme (final review of decisions at both other
stages). See Figure 5-2 for a simplified breakdown of a typical judicial branch of a typical government.
See Appendix at the end of this chapter for the breakdown of the Michigan state court system.

All cases are first filed in a trial court. The trial court hears all of the issues of law and fact and
decides who wins and who loses. Each government in the federation known as the United States may
have a different name for the trial court and may divide the trial courts into different categories, such as
courts that handle small claims, family law, or matters over $50,000. Some of the names of trial courts
used in different states are:

District court

County court

Superior court

Supreme court

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 Above the trial courts are appeal courts. An appeal court reviews what the trial court judge has
done. Appeal courts do not review decisions made by juries because, in our court system, it is assumed
juries do not make mistakes. All litigants have the right to an appeal, that is the appeal court must review
their case if asked to do so. A supreme court is the final level of appeal and supreme courts review what
trial court judges and appeal court judges decide. Again, supreme courts do not review what juries do
because juries do not make mistakes. Supreme courts can usually decide which cases to hear and they
usually only hear cases to resolve some issue of law that has arisen.

Typical Path Taken by a Lawsuit

The following are the typical stages of litigation. Some additional stages exist but have been
eliminated here to simplify the process.

1. Filing of pleadings. Pleadings is the term given to all of the documents filed by all of the parties
to lay their claims and defenses before the court. The plaintiff is the party who files the document,
called a complaint, to begin lawsuit. The person being sued is the defendant and the defendant files an
answer which is a brief response to the complaint. If the defendant does not file an answer the court
may assume everything in the complaint is true and enter a default judgment in favor of the plaintiff.
Other common pleadings are: counter claims, claims defendants may raise against the plaintiff, and
cross-complaints, claims defendants may raise against other defendants. All parties may bring all
complaints they have against any party to the lawsuit into the lawsuit.
For example, assume Owner enters into a contract with a contractor to build the building. A
stairwell collapses and injures the owner and requires extensive repairs to the building. Owner stops
paying the contractor. Owner starts the litigation process by filing a complaint against the contractor for
failing to build in a good and workmanlike manner. The contractor files an answer to the complaint. The
contractor files a counter claim against the owner for payments due.

2. Discovery. After the pleadings are filed, the next stage in litigation is usually the discovery stage
although pretrial motions (discussed next) can be filed at any time prior to trial.. During this stage of the
litigation the parties attempt to discover all of the evidence available. Several tools are available to the
parties at this stage to help them discover the evidence in the possession of the other party (or parties)
and even evidence in the hands of third parties (people who are not actually involved in the case, but are
at most, potentially witnesses to the events giving rise to the case).
The most common discovery tools are:

a. Interrogatories. Written questions from one party to another. Cannot be sent to

third parties. Example: “What is the name, address, and telephone number of all
persons on the construction site on May 10, 20xx?”
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 b. Request for Documents or Other Things. Requests to view (and usually copy)
documents in the possession of the other side. In addition, a party may wish to
inspect some item, building, machine, or object in the possession of the other side
or a third party. Example: “Produce the Contract(s), General Conditions,
Supplemental Conditions for the construction project ____________ (identify)
for review and copying on ________ (fill in date) at____________. (Fill in
location).
c. Depositions. Face to face meetings between the attorneys, a potential witness
(party or not), in the presence of a person certified to take testimony, called a
“court reporter”. The court reporter swears in the witness, takes the testimony
as elicited by the attorneys, records the testimony, and makes it available in a
booklet for review by the attorneys, parties, and deponent (person giving the
deposition).Most court reporters do not work in courts, they take depositions
outside of court to be used in a court at some later time. The deposition can be
used in court if the witness should die or be otherwise unavailable. For this
reason, it is common to take the depositions of all potential witnesses.

Deposition Taker aka Court Reporter28

3. Pretrial motions. Before trial, and after discover, it is common, though not mandatory, for each
side to try to clarify the issues and attempt to get weak claims dismissed. This is done usually toward the
end of discovery, when the facts are clearer and before the trial. Two main types of pretrial motions
exist although each jurisdiction may have a slightly different name for the motion. Pretrial motions can
be filed at any time prior to trial.
a. Motion for summary judgment: This motion must be supported by written
evidence such as depositions and affidavits. It basically says, “Here are the facts
that prove I should win, the other side has no facts to counter these facts of mine,
and therefore, we should not have to have a trial. Therefore, judge, please enter a
judgment that I win now so we don’t have to have a trial”.
This motion is not often successful but it forces the opposing side to submit its evidence in
opposition to your motion and allows you to better understand how your opponent will approach the

28 Copyright: <a href='http://www.123rf.com/profile_lisafx'>lisafx / 123RF Stock Photo</a>

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arguments. This motion can be filed to eliminate some legal issues or narrow the scope of the issues. If a
party wins a motion for summary judgment then the decision can be appealed just as if the party had won
a trial. Most jurisdictions will not allow an appeal if the motion is lost but will require the parties to go to
trial first.

b. Motion for dismissal: Similar to the above but usually based only on the law and
usually filed by the defendant. The defendant basically is saying, “Judge, even
assuming everything the plaintiff says is true, there is no legal justification for
filing this lawsuit, so please dismiss it. If a party wins this motion then the other
party can appeal. Most states do not allow an appeal of a denial of a motion to
dismiss but require the parties to go to trial first.
8.
4. Trial. All issues, value/overall, fact and law, are handled in the trial court. These concepts are
presented in more detail in Chapter 4, Legal Writing, however a brief review is as follows:
a. Value/overall issue: The fundamental issue of every case or trial is “Who wins?”
or “Was the law broken here?” In order to determine who wins at trial two other
types of issues, both discussed below, must be answered.
b. Issues of fact: In order to determine the value/overall issue the court needs to
know “what happened?” Disputes about what happened are factual issues and
presented to the jury. This type of issue is also called a “factual issue.” Some
issues involving social constructs such as “was defendant reasonable?” are also
decided by the jury.
c. Issues of law: In order to determine the value/overall issue, the court needs to
know what law applies. The parties prepare legal briefs summarizing the law and
the legal issues.
In the simplest sense parties present the facts via the evidence. Evidence is the information or
objects the jury hears or sees. For example, witness testimony is the most common form of evidence.
Other types of evidence might be documents, photos, machinery, or any other item that will give the jury
information about the facts. After reviewing the evidence the jury decides any factual issues and the
amount of damages, if any. See “Relief” below for a discussion of damages. The judge decides any issues
of law and also makes the final value/overall determination of who wins.

5. Judgment. At the end of the trial or motion for summary judgment, the judge or winning lawyer,
will prepare a piece of paper called a judgment which outlines who wins and how much they win, if
anything. Trial court judges do not usually write up an opinion or legal argument explaining their
conclusion they just sign a judgment. Appeal and supreme court judges write opinions giving an
explanation for their decision. One exception is in the federal court system where trial court judges
usually write a legal argument explaining their answers to the issues raised.

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 29

6. Appeal. If either of the parties is of the opinion the trial judge has made an error, they may appeal
the trial judge ruling (or rulings). This is the first level of appeal and the appeals are usually heard by a
panel of 3 judges. Appeal to this level is as of right meaning the appeal court must review the case.
Appeal court judges usually prepare a legal argument explaining their conclusions.
Supreme court. The federal government and most states have a second level of appeal often
called a supreme court. The United States Supreme Court and most state supreme courts, decide whether
or not to take the case, that is the parties have no right to an appeal to a supreme court. Supreme court
judges prepare a legal argument explaining their conclusions.

7. Enforcement of Judgment. Once the lawsuit and any appeals are over, a party who has been
awarded money at the trial winning (“awarded” is the legal term) money must embark on the final stage
of the litigation: getting any money awarded it by the judgment. This final stage is called enforcement
of judgment. Neither the judge nor the court system helps the winning party do this. If the losing party
does not voluntarily pay the judgment, the winning party must embark on the enforcement process. This
process is often longer and more difficult than the trial and appeal process. Basically at this point in the
process the winning party must find seizable assets (not all assets of the losing party can be seized), and
inform the sheriff where the seizable assets are. The sheriff can then seize the assets, sell them, and give
the proceeds to the winning party.

Relief or Remedy

The terms “relief” and “remedy” are general terms for the list of things a court can do for a
winning party. The types of relief aka remedies you are expected to know are:

 Damages: A court order for one party to pay another a sum of money in compensation for
injuries. Another name for this type of relief is “compensatory damages”.
Example: A stack of bricks falls from a scaffold onto the electrical subcontractor. The
electrical subcontractor’s medical bills and lost wages are $10,000. Assuming the
electrical subcontractor could prove negligence on the part of the mason, the damages
recovered would be $10,000. Other costs would also be recoverable, such as filing fees.

29
Copyright: <a href='http://www.123rf.com/profile_ivelinradkov'>ivelinradkov / 123RF Stock Photo</a>

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  Specific performance: A court order to perform a contract.
Example: Jana enters into a contract to sell her home to Thad but later changes her
mind and decides she does not want to sell. The court can order her to sell the home to
Thad. If she refuses to sign the deed, the judge can do so.

 Injunction: A court order to do or not to do something except that a court order to pay
money is always damages and a court order to perform a contract is specific performance.
Example: The court orders a homeowner to remove a fence which was built onto
another’s property.

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Chapter 5 Review Questions

1. List two advantages and two disadvantages of each of the following types of dispute resolution:
negotiation, arbitration, mediation, and litigation.
Advantages and Disadvantages of Negotiation

o The advantages of negotiation include:

 Less costly than any other form of dispute resolution in terms of both time and money.
 The issues, value, legal, or factual, are not important. The only important issue is: How can
we settle this matter now?
 No one wins or loses, a mutually agreed upon resolution is reached.
 The process is private.
 The relationship between the parties is usually maintained.
o Disadvantages to negotiation include:
 Differences in power between the parties become major influences on the settlement.
 If a party does not uphold the negotiated agreement, then the only recourse is to some other
dispute resolution method.

Advantages and Disadvantages of Arbitration

o The advantages of arbitration include:

 Less costly both in terms of time and money. Arbitrations are usually faster than a trial
because they are less formal and no jury is involved.
 No jury is involved. This lessons the possibility a decision will be made on an emotional
response to the evidence.
 Arbitration awards are not appealable. The arbitrator’s decision is final and the losing
party has no further recourse.
 The process is private. Arbitrations are not open to the public
 Arbitrators with knowledge of business can be hired to resolve the dispute.
 At least one person involved in the dispute, the winner, will be happy.
 For example, an engineer, manager, and/or professor can be an arbitrator.

o Disadvantages of arbitration include:

 Arbitrators may not be familiar with the applicable law or any law. This could result in a
legally incorrect decision.
 Courts seldom overturn arbitration decisions. Arbitration decisions are not reviewed for
accuracy.
 One party wins and one party loses, thus the relationship is usually destroyed.
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 Advantages and Disadvantages of Mediation

o The advantages of mediation include:

 Less costly than arbitration and litigation, both in terms of time and money. Mediations are
usually faster than a trial or arbitration and have few rules.
 The issues, value, legal, or factual, are not important. The only important issue is: How can
we settle this matter now?
 No one wins or loses, a mutually agreed upon resolution is reached and the parties sign a
contract outlining the settlement.
 No one is ever completely happy with the result. Unlike litigation and arbitration no one
“wins” the argument.
 Mediation agreements are contracts and therefore cannot be appealed. No “decision” or
“award” is made.
 The process is private. Mediations are not open to the public
 The relationship between the parties is often maintained.
 It is irrelevant whether or not the mediator has any understanding of the applicable law,
the law is irrelevant to the matter.
 Anyone can be a mediator. Usually people undergo training to do this.
o Disadvantages to mediation include:
 No one will be happy with the result of the mediation except for the fact the dispute is
settled. Everyone will think they gave up too much and did not get enough in return.
 If a party does not uphold the mediation agreement, then the only recourse is to sue for
breach of contract. This happens seldom because parties, although not happy with the
result at least feel they have had a part in it and therefore usually abide by it.
Advantages and Disadvantages to Litigation

o The advantages of litigation are:

 Legal and factual issues are examined in minute detail in an attempt to determine who is
legally correct and what actually happened.
 The dispute is open to the public and anyone can review and comment on the litigation.
 Decisions by the various government employees involved, that is the judges, are reviewed at
various levels for accuracy and accountability.
 Judges have knowledge of the law and are trained in how to apply it.
 At least one person involved in the dispute, the winner, will be happy.

o Drawbacks to litigation include:

 Litigation is expensive and time consuming.
 The relationship between the parties is destroyed.
2. How is a typical judicial branch of a government organized?
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 Trial, appeal, supreme court levels

3. Define the following terms: discovery, interrogatories, depositions, requests for documents.
Discovery: The stage of the litigation process where the parties attempt to discover all of the
evidence available.

Interrogatories. Written questions from one party to another.

Depositions. Face to face meetings between the attorneys, a potential witness (party or not),
in the presence of a person certified to take testimony, called a “court reporter”.

Request for Documents or Other Things. Requests to view (and usually copy) documents in
the possession of the other side.

4. What are pleadings and what are the pleadings mentioned in this chapter?
Pleadings is the term given to all of the documents filed by all of the parties to lay their
claim and defenses before the court.

5. What is a plaintiff and what is a defendant?

Plaintiff: files a lawsuit. Defendant: answers the lawsuit; is person being sued.

6. What is discovery and what are the discovery techniques mentioned in this chapter?
After pleadings filed when the parties try and discover all of the facts. Interrogatories,
depositions, and request for documents

7. What is a legal brief? A detailed summary of the law.

8. What does an appeal court do?
Determine if a trial judge made an error.

9. What is a judgment?
Judgment. A piece of paper signed by the judge that outlines who wins and how much they
win, if anything.

10. What is meant by enforcement of judgment? Attempt to get the money owed after the trial.
11. Make a flow chart outlining the steps taken in a typical lawsuit.
Filing of pleadings  Discovery Pretrial motions  Trial  Judgment  Appeal
(optional, if won return to trial or pretrial motions)  Enforcement of Judgment.

12. Define each of the following terms: relief, damages, specific performance, and injunction.
Damages: A court order for one party to pay another a sum of money in compensation for
injuries.

Specific performance: A court order to perform a contract.

Injunction: A court order to do or not to do something except that a court order to pay
money is always damages and a court order to perform a contract is specific performance.

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Chapter 5 Problems

1. Henri has filed a lawsuit against Mucho Taco, Inc. for negligence. Henri wants to find out the names
of the employees who were working on the night he got food poisoning from eating at Mucho Taco.
How can he do this? Hint: there is more than one correct answer to this question.
The fastest and cheapest way would be to send interrogatories to the opposing side. He
could also take a deposition of someone working that day.

2. These questions relate to the above lawsuit between Henri and Mucho Taco.
a. What is the first level of court that will hear this issue? Trial
b. What will that court do? Decide all issues.
c. Assuming one party wants to go to the next level, what is the name of the next level? Appeal
d. What will the court at that level do? It will decide if the trial judge made any errors.
3. True or false: Most states allow appeals to the appeal court as a matter of right but a supreme court
decides which cases it will decide. TRUE
4. Trevor was injured by Lucia, who was driving her car and hit him in the crosswalk. Trevor says he
saw Lucia talking on her cell phone just before she hit him. Lucia says she was not talking on the cell
phone.
a. Is this an issue of law or fact and how do you know?
b. Who will decide if Lucia was talking on her cell phone?
c. Assume that at trial it is determined she was talking on the cell phone. Can Lucia appeal this
decision that is the determination that she was talking on her cell phone?
d. Why or why not?
Issue of fact. We know because it is a question about what happened. It will be decided by
the jury. If the jury decides she was talking on the cell phone she cannot appeal that issue because
decisions of juries are not subject to appeal. Only decisions of trial court judges are subject to
appeal.

5. Go online and find a news article, not more than three months old, about a dispute that has been
mediated or a dispute where mediation is suggested. NOTE: I AM NOT ASKING YOU TO FIND
AN ARTICLE ABOUT MEDIATION. PLEASE LOOK AT WHAT I AM ASKING FOR. Give me
the name of the article, summarize the news article and include the URL where you got the article.

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Appendix: Michigan Court System

See: State Court Structure, http://www.courtstatistics.org/Other-

pages/State_Court_Structure_Charts/Michigan.aspx

See: Michigan’s Current Court System, http://courts.mi.gov/education/learning-

center/Pages/hidden/Michigan's-Current-Court-System.aspx

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