Legal Research and Writing I Fall 2009

Syllabus

Note: By Friday, September 11, please register your Westlaw password and LexisNexis custom ID and password. After you register these passwords, you will be able to access the LR&W web courses. Also, you will be on the course e-mail lists so that you can receive course-related messages. The registration materials were in the check-in folder you received at Orientation.

Note: In accordance with course policies (attached), please contact your teacher in advance if you are going to be absent from class. Whenever possible, please give your teacher at least 24 hours’ advance notice. The University’s Religious Observance Policy (attached) recommends that students give notice during the first two weeks of the semester about absences for religious observances.

Legal Research and Writing I Fall 2009

Course Policies

This class is designed to provide you with the writing and research skills you will need as a lawyer. The following components will be essential to your success: attendance, timeliness, participation, and quality work.

Attendance

If you will be absent because of illness or personal emergency, please contact your teacher in advance and request an excused absence. Contact Mary Ann Polewski about absences from the two classes that will be taught in the computer lab in weeks 8 and 10. Timely arrival for class is also important. If you will not be able to arrive at class on time, please contact your teacher in advance and request that your late arrival be excused. Whenever possible, please give at least 24 hours’ advance notice about absences or late arrivals.

If you will be absent for religious reasons, please see the University=s Religious Observance Policy on page 12 for the procedures for requesting an excused absence. The policy recommends that students give notice during the first two weeks of the semester about absences for religious observances.

Always arrange to make up any work you missed. You are responsible for getting notes from a classmate and getting handouts or other information from your teacher or the Legal Research and Writing Office.

Deadlines

Adherence to deadlines is crucial to the practice of law. For Legal Research and Writing, all assignments, unless otherwise noted, are due at the beginning of the class hour on the due date, even if you do not have class that day. Grades will be lowered one level (e.g., B to B-) for every day or portion of a day that the assignment is late, unless your teacher approves the late submission before the deadline. Your teacher may lower your final grade for late submission of an ungraded assignment or exercise unless he or she approves the late submission in advance.

Avoiding Academic Misconduct

The University of Wisconsin Law School expects students to maintain the same high level of integrity that is expected from a member of the practicing bar. Moreover, students are obligated to conduct their academic work according to the University standards of academic honesty and integrity.

The Legal Research and Writing Program recognizes that the learning experience is enhanced through discussing ideas and strategies. There is, however, a difference between exchanging ideas and exchanging work product. Thus, you may talk to each other about assignments but, outside of the classroom, do not view another student=s written work or allow another individual to review yours. When a student submits assignments as his or her own, the student is stating that he or she has complied with this collaboration policy. Violations of this policy constitute academic misconduct.

Likewise, when a student submits any assignment, the student represents that he or she has complied with the University standards of academic honesty and integrity. Academic misconduct is defined in Chapter 14 of Wisconsin Administrative Code.

Academic misconduct is an act in which a student:

 seeks to claim credit for the work or efforts of another without authorization and citation;

 uses unauthorized materials or fabricated data in any academic exercise;

 intentionally impedes or damages the academic work of others; or

 assists others in any of these acts.

Examples of academic misconduct include, but are not limited to:

 collaborating with others, contrary to the collaboration policy of the course;

 submitting an assignment as one=s own work when a part or all of the assignment is the work of another;

 hiding, removing, destroying, marking in, or otherwise altering research sources;

 assisting another in any of the above, including an arrangement where any work is performed by a student other than the student under whose name the work is submitted; or

 plagiarizing.

Plagiarism is defined as the taking of someone else=s words or ideas and presenting them as one=s own without attribution to the original source. While lawyers in their briefs and memoranda often make reference to other sources, it is critical, from the standpoint of both integrity and style, to document appropriately or otherwise credit any quotations or paraphrase of concepts drawn from another source. A change in language or the order of language does not make the idea one=s own. Attribution is still required.

For further information about avoiding plagiarism, please read the article titled AQuoting, Paraphrasing, and Acknowledging Sources,@ which is attached at the end of this syllabus.

Legal Research and Writing I Fall 2009

Grades

In accordance with the Law School Rules, the Legal Research and Writing course is graded by letter, and the average final grade is a “B.” Grades in Legal Research and Writing are averaged within each section and across all of the Legal Research and Writing sections.

Final grades for the course are computed as follows.

Closed Memo first submission: 35%

Closed Memo second submission: 65%

Although the course grade is based on the two major writing assignments, the teacher has the discretion to lower the final grade if the student’s performance is not adequate in any part of the course.

For example, adherence to deadlines is crucial to the practice of law. For Legal Research and Writing, all assignments, unless otherwise noted, are due at the beginning of the class hour on the due date, even if you do not have class that day. Students must hand in assignments and exercises on time unless they get an extension from the teacher in advance. Graded assignments will be lowered one level (e.g., B to B-) for every day or portion of a day that the assignment is late, unless the teacher approves the late submission before the deadline.

Students must complete all required assignments and exercises, both graded and ungraded. Ungraded assignments and exercises must be of adequate quality.

According to the attendance policy on page 9, students must attend all classes unless the teacher grants an excused absence in advance. Similarly, students must arrive on time unless the teacher excuses the late arrival in advance.

Finally, a student’s final grade may be lowered if he or she engages in any form of academic misconduct. Please see the policy about academic misconduct on pages 9-10.

Legal Research and Writing I Fall 2009

When Classwork and Religious Observances Conflict

We would like to remind you of the faculty policy that mandatory academic requirements should not be scheduled on days when religious observances may cause substantial numbers of students to be absent from the university. It is important to note that some religions mark observances over multiple days, which may begin at sunset on the day preceding the posted date(s) of the holiday. This is the case during the spring semester for the Jewish holiday Passover, the observance of which begins at sunset on Wednesday, 8 April and continues for several days thereafter. Due to our university’s multi-cultural community, there are bound to be conflicts between mandatory academic requirements and religious observances other than those listed. Major religious observances celebrated by Buddhist and Muslim students also occur during the semester, and many of these observances begin at sunset of the day prior. A listing, though not exhaustive, of religious holidays is available on-line at www.interfaithcalendar.org. You also may obtain a copy of the listing from the Office of the Secretary of the Faculty, 262-3958, 130 Bascom Hall.

A student’s claim of a religious conflict, which may include travel time, should be accepted at face value. A great variety of valid claims exist for religious groups, and there is no practical, dignified, and legal means to assess the validity of individual claims. State law mandates that any student with a conflict between an academic requirement and any religious observance must be given an alternative means of meeting the academic requirement. The law also stipulates that students be given means by which they can conveniently and confidentially notify an instructor of the conflict. Please adhere to the following three guidelines that have been developed to provide clarity for both students and instructors: (1) Announce early in the semester that students must notify the instructor within the first two weeks of class of the specific days or dates on which he or she requests relief. Including this information on your course syllabus is another appropriate method to make sure your students are informed of the policy; (2) Make-ups may be scheduled before or after the regularly scheduled requirements; and (3) It is understood that instructors may set reasonable limits on the total number of days claimed by any one student. Occasion-ally, students may not fully understand the necessity for prior notice, and under these circumstances we urge you to be as flexible as possible. Our policy seeks to be sensitive to the needs of individual students. Please advise your teaching assistants of this policy.

Finally, on a different but somewhat parallel topic, we urge fairness, compassion, and sensitivity when you or your TAs are approached by a student requesting class time off due to a family emergency. Demonstration of your understanding in such a circumstance may be important to the student in getting through the crisis. If you have any questions, please do not hesitate to contact us.

(over)

Secretary of the Faculty

133 Bascom Hall University of Wisconsin-Madison 500 Lincoln Drive Madison, Wisconsin 53706-1380

608/262-3956 FAX: 608/265-5728 http://www.secfac.wisc.edu

CALENDAR FOR SPRING SEMESTER 2008-09

Registration begins November 10 (M)

Advising available January 12-16 (M-F)

Martin Luther King Jr. holiday January 19 (M)

Last day to cancel enrollment without transcript record January 19 (M)

Instruction begins January 20 (T)

Last day to drop courses or withdraw without notation on transcript January 28 (W)

Last day to add courses or enroll without department/dean permission January 30 (F)

Spring recess March 14-22 (S-N)

Last day to drop courses March 27 (F)

Passover* (observances begin at sunset on April 8 and at sunset on April 14)

First two days April 9-10 (R-F)

Final two days April 15-16 (W-R)

Good Friday April 10 (F)

Easter April 12 (N)

Last day to withdraw without academic penalty (undergrad, prof, spec) April 17 (F)

Last class day May 8 (F)

Study day May 9 (S)

Summary period May 10-16 (N-S)

Commencement**

Doctoral/professional ceremony May 15 (F)

Master’s and bachelor’s ceremonies May 16-17 (S-N)

Faculty contract year ends May 24 (N)

* Observances of Jewish holidays begin at sunset on the day preceding that which is listed as the holiday.

** The official date of degree conferral on the diploma will be Sunday, May 17, 2009.

OFFICE OF THE SECRETARY OF THE FACULTY

133 Bascom Hall

500 Lincoln Drive

Madison, Wisconsin 53706-1380

Legal Research and Writing I Fall 2009

Qualities of Good Legal Writing [1]

Note: The bulleted sub-points below each heading in this list are representative items. They are not meant to include all the topics a teacher may address in written or oral comments.

Accuracy in Analysis

· Does the document

o discuss the correct issue?

o synthesize the rules of law?

o discuss the law before the rules are applied to the facts of the writer’s case? (rule explanation before rule application)

o use the relevant rules of law?

o reach a conclusion that is supported by the analysis?

· Is the discussion/argument logical?

· Is the discussion/argument supported with legal authority?

· Is the document appropriately analytical (memo) or persuasive (brief)?

Thoroughness

· Does the document

o include all relevant legal authorities?

o include all relevant facts?

o adequately support all legal conclusions drawn?

o explain reasoning adequately?

o address counterarguments, if any?

o distinguish unfavorable law and facts?

Organization

Large-scale organization

· Does the writer

o organize the document around issues?

o use sub-issues when necessary?

Small-scale organization

· Is there generally one idea per paragraph?

· Does the argument move forward?

· Does the writer

o use topic sentences?

o generally avoid one-sentence paragraphs?

o use connecting and transition words that make sense in context?

Use of Facts

·  
Does the Statement of Facts

o contain the relevant facts?

oomit unnecessary facts?

· Does the writer

ouse relevant facts when stating the issue presented?

ouse the facts of a cited case to illustrate the legal rules?

o compare the facts of a cited case to the facts of the client’s case?

oapply the rules of law to the facts of the client’s case to reach an appropriate conclusion?

Precision in Writing

· Does the writer

o Use complete sentences?

o Prefer the active voice?

o Generally use short sentences?

o Omit surplus words?

o Avoid chattiness? [2]

o Write simply – e.g., say “use” instead of “utilize”?

o Avoid sexist language?

o Use a tone that meets the document’s purpose?

o Maintain the tone consistently throughout the document?

· Does the writer use proper

o Grammar?

o Spelling?

o Punctuation?

o Citation?

o Format for the document?

· Does the writer avoid typographical errors in the document?

Legal Research and Writing I & II Fall 2009

Local Rules

These rules apply to all memos and trial level briefs drafted for LR&W classes. Other Law School programs and courses, law firms, courts, etc. may have different requirements.

I. Rules Applying to Both Memos and Trial Level Briefs

Rule 101. Format

Memos and trial level briefs shall have the following format:

a. one-inch top, bottom, and left margins;

b. two-inch right margin;

c. double spaced;

d. font no smaller than 12-point proportional Times New Roman;

e. page numbers at bottom center;

f. stapled in the upper left corner; and

g. justification only on the left.

Rule 102. Length

Unless otherwise permitted by the LRW lecturer:

(1) memos shall not exceed 8 pages and

(2) trial level briefs shall not exceed 12 pages.

Rule 103. Quotations

Quotations should be used sparingly. See rule 5 in The Bluebook for information about formatting quotations, altering quotations, and omitting portions of quotations.

II. Rules Applying to Memos

Rule 201. Memo Headers

All memos shall include a header at the top of the first page that identifies the recipient, drafter, date, and client matter. The LRW lecturer will decide whether the drafter will be identified by name, number, or in some other manner.

Rule 202. Memo Discussion Headings

The discussion of each issue in the Discussion shall be preceded by a brief one-sentence heading that informs the reader of the drafter’s conclusion regarding the issue

Rule 203. File Document Citations in Memos

Citations to documents in client files are not required when facts are discussed in memos. If informative, documents may be identified in text as, for example, “x’s letter,” “the police report,” etc.

Rule 204. Case Citations in Memo Brief Answers

Citations to cases are not required in the Brief Answer.

III. Rules Applying to Trial Level Briefs

Rule 301. Captions for Trial Level Briefs

The hypothetical court record will contain an example of the appropriate caption.

(1) Briefs for a Wisconsin court shall follow the format required in sections 801.095 and 802.04 of the Wisconsin Statutes and shall be captioned State of Wisconsin, Circuit Court, _____ County. Brief captions shall include at a minimum the names of the first party on each side, the case number, and the name of the document (e.g., Brief in Support of Summary Judgment).

(2) Briefs for a federal or other state court shall conform to the format specified in that court’s local or other rules.

Rule 302. Brief Signatures

(1) Every brief shall contain a signature line at the end of the brief including the name or identifying number of the drafter along with the telephone number and address of the drafter’s hypothetical law firm.

(2) A certification of service is not required unless such certification is required by the jurisdiction in which the trial level brief assignment has been placed.

Rule 303. Record Document Citations in Briefs

Citations to documents in the court record are required when facts are discussed in the Statement of Facts or the Argument section.

Rule 304. Brief Cover Pages; Tables

Covers or cover pages, indexes, appendixes, tables of contents, and tables of authorities are not required for LRW trial level briefs.

Your LR&W teacher may recommend the book(s) listed below. During the first class, your teacher will tell you which, if any, additional book(s) he or she will use. All of these books are available on Reserve in the Law Library.

Anne Enquist and Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer (3d ed. 2009).

One copy of this book is on permanent Reserve.

This book may be purchased at the Law School Bookmart.

Mary Barnard Ray & Jill J. Ramsfield, Legal Writing: Getting It Right and Getting It Written (4th ed. 2005).

Two copies of this book are on permanent Reserve.

Richard C. Wydick, Plain English for Lawyers (5th ed. 2005).

One copy of the 5^th edition is on permanent Reserve.

One copy of the 4^th edition is on LR&W Course Reserve.

Ring Binder or Accordion File

Throughout the semester, you will receive handouts that explain various legal research and writing tasks. You will benefit from keeping all of the handouts in a binder or folder. Eventually, this binder or folder will become an extremely useful resource for you to use in later semesters of law school and in your law-related jobs.

The Writing Lab 6171 Helen C. White Hall

Guidelines for Quoting, Paraphrasing, & Acknowledging Sources

College writing often involves integrating information from published sources into your own writing. This means you need to be careful not to plagiarize: “to steal and pass off (the ideas and words of another) as one’s own” and to “present as new and original an idea or product derived from an existing source.” [1] The University of Wisconsin takes very seriously this act of “intellectual burglary,” and the penalties are severe. Paying attention to the following should help keep you honest.

What Must Be Documented

Quotations 1. If you use an author’s specific word or words, you must place those words within quotation marks and you must credit the source.

Ideas 2. If you borrow an author’s specific ideas, you must document their source. As Birk and Birk explain, it is plagiarism

when the writer presents, as his [sic] own, the sequence of ideas, the arrangement of material, the pattern of thought of someone else, even though he expresses it in his own words. The language may be his, but he is presenting as the work of his brain, and taking credit for, the work of another’s brain. He is, therefore, guilty of plagiarism if he fails to give credit to the original author of the pattern of ideas.

This aspect of plagiarism presents difficulties because the line is sometimes unclear between borrowed thinking and thinking that is our own. We all absorb information and ideas from other people. In this way we learn. But in the normal process of learning, new ideas are digested; they enter our minds and are associated and integrated with ideas already there; when they come out again, their original pattern is broken; they are re-formed and rearranged. We have made them our own. Plagiarism occurs when a sequence of ideas is transferred from a source to a paper without the process of digestion, integration, and reordering in the writer’s mind, and without acknowledgment in the paper. [2]

Common Knowledge 3. It is not necessary to document certain factual information considered to be in the public domain: e.g., birth and death dates of well-known figures, generally accepted dates of military, political, literary and other historical events. In general, factual information contained in multiple standard reference works can usually be considered to be in the public domain. If, however, you use the exact words of the reference source, you must credit the source. If in doubt, be cautious and cite the source.

To Create a Successful Summary or Paraphrase

1. When reading source material, treat each passage as a discrete unit of thought to be assimilated into your own thoughts. Try to understand the passage as a whole, rather than pausing to write down ideas or phrases that seem, on first inspection, significant. Read purposefully, with a larger conceptual framework in clear view, and integrate each reading into that controlling purpose.

2. After reaching a clear understanding of the ideas contained in the source, summarize that information in your own words. Remember that you are taking notes, not copying down quotations. Your task is to extract, distill and compress essential content that will be useful in creating a paraphrase. Occasionally you may find it useful to quote words or phrases directly from the source, but limit yourself to very brief quotations, and be sure to use quotation marks and to record page numbers in your notes.

Sample Paraphrases - - Unsuccessful and Successful

Based on paragraph A below, consider two improper ways of handling source material: (B) word–for-word plagiarism and (C) “The Mosaic.” Finally, paragraph D provides a model of a legitimate paraphrase.

A. The Source

“How important is our power of nonanalytical thought to the practice of science? It’s the most important thing we have, declares the Princeton physicist historian Thomas Kuhn who argues that major breakthroughs occur only after scientists finally concede that certain physical phenomena cannot be explained by extending the logic of old theories. Consider the belief that the sun and the planets move around the earth, which reigned prior to 1500. This idea served nicely for a number of centuries, but then became too cumbersome to describe the motions of heavenly bodies. So the Polish astronomer Copernicus invented a new reality that was based on a totally different ‘paradigm’ or model – that the earth and the planets move around the sun” (Hoover, 124).

B. Word-for-word Plagiarism

Non-analytic thought is considered very important to the practice of science by Princeton physicist historian Thomas Kuhn who claims that major breakthroughs happen only when scientists finally concede that some physical phenomena defy explanation by extending the logic of old theories. One idea which served nicely for many centuries but then became too cumbersome was the belief that the sun and planets revolved around the earth. This was held prior to 1500 until Copernicus invented a new reality: the earth and planets move around the sun.

The underlined words are directly copied from the source. Notice that the writer has not only “borrowed” Hoover’s ideas with no acknowledgment, he or she has maintained the author’s method of expression and sentence structure. Even if the student-writer had acknowledged Hoover as the source of these ideas, this passage would still be plagiarized because much of its exact wording comes from Hoover with no quotation marks to indicate that the language is Hoover’s. It’s not that using a single phrase such as “prior to 1500" without quotation marks constitutes plagiarism; it’s the repeated use of exact wording and sentence structure without any quotation marks. If, for example, you used just that one phrase without quotation marks – a phrase whose language isn’t particularly distinctive – and acknowledged the source of the ideas, that would be fine.

If quotation marks were placed around all material taken directly from Hoover, this paragraph would be so cluttered as to be unreadable. If you like the ideas and the wording of the original this much, if it is important to your paper, and if it is stated more concisely in the original than it would be in your paraphrase or summary, then quote the original.

C. The Mosaic

Intuition plays an important role in scientific progress. Thomas Kuhn believes that nonanalytical thought allows scientists to break through the logic of old theories to formulate new paradigms to explain a new reality. Copernicus’ invention of one such model (a reversal of the Ptolemaic view which reigned prior to 1500) claimed that the earth and planets rotate around the sun.

Note the underlined phrases which have been borrowed from the original and shifted around. Hoover’s structure has been modified to a certain extent by the writer, but numerous key phrases have been retained without quotation marks, and the source has not been credited.

D. A Legitimate Paraphrase

In “Zen: Technology and the Split Brain,” Hoover suggests that the power of intuition – that suprarational half of our intelligence – is more important to scientific advancement than the function of the left hemisphere of our brain – the rigidly logical and process-oriented portion. He cites the revolution in thinking created by Copernicus’ new paradigm of cosmic movement, a leap in understanding made possible only by the creative invention of “a new reality” after rational consideration of the old reality had exhausted itself (124).

Hoover’s ideas and specific language have been documented (by direct references to the author, by citations to his article, and by quotation marks where specific language has been used). Notice too that Hoover’s language and structure have been modified to fit this student-writer’s own purpose.

Introducing Quotations

Introduce a quotation by signaling that it is coming and perhaps by indicating your purpose in using it. You may name the title of the source and the author in a signal phrase: In her book Contemporary Feminist Thought, Eisenstein warns against a “false universalism that addresses itself to all women.” Or you may wish to name only the author: In a discussion of Enlightenment political philosophy, Eisenstein asserts that while “liberal theory contested the divine right of monarchs and aristocrats to political rule . . . ,” women questioned the “divine” right of men to deny suffrage to half the population. [3] There are many graceful ways to integrate a quotation into your text, but try to keep in mind that quotations are confusing if they appear to “drop from the sky.”