In Plain English
A Dear John letter ... or how to construct your litigation
documents
The following open letter is written to Professor Emeritus John
Conway, who taught many of you civil procedure at the U.W. Law School,
and who is now retired and frolicking in the sun in Laguna Hills,
Calif.
By Mary Barnard Ray
Dear John,
Remember your final year teaching at the U.W. Law School, when you
were cleaning out your office and had some leftover items? You gave me
three of them. I thought, after all these years, I should confess to
you: Those are the best leftovers I've ever had.
Prof. Emeritus John Conway would like to hear from former students
and colleagues. Please write to him, c/o Ed Reisner, U.W. Law School,
975 Bascom Mall, Madison, WI 53706.
One item was a copy of the booklet you wrote for U.W. Law Extension,
entitled Legal Drafting Manual. It's only 33 pages long. Really, John!
Most books on this topic run about 333 pages these days. I've read most
of those other books by now, John, but I still use your building block
system, the one you referred to rather elliptically in your booklet. But
then you never have been a person to waste words! It only took you a few
pages to get to a real nugget of information: your building block system
for constructing litigation documents in general. It's the most helpful
thing I've found for helping students learn to construct effective
complaints.
I love the way your system begins: identify what the client wants.
For example, you explain, "If the relief you want is ... anything other
than money damages - you ought to block out your judgment at the very
beginning of the action before the summons is served to be sure that,
with the facts you assume you can prove, the law permits the judgment
you want."1 The attorney needs to ask
whether the client wants money, or an injunction, a declaratory
judgment, or something else. This step is so obvious that it can be
easily overlooked, but it is critical to getting a correct answer at the
next step.
That second step, after blocking out the standard parts like the
heading and verification, is determining the legal theory or theories
that will allow the court to grant the result the client wants.
Specifically, you reduce the building blocks of substantive law to two:
the existence of the plaintiff's right and the defendant's violation of
that right. I have found it a little easier to talk about this in terms
of determining the elements needed to establish responsibility under the
legal theory, and then organize the needed allegations for each of those
elements.
What an important basic! For example, it must be exasperating for
judges to get an argument that, even if true, could not legally support
granting an injunction. Yet it is surprisingly easy for beginning
attorneys to get so carried away in the search for that perfect
precedent case that they forget to check whether the theory in that
precedent case allows for the desired result.
Your third step reminds me of geometric proofs: Identify the factual
allegations needed to show sufficient evidence to make your case.
Geometry always required such patience - you would know the answer long
before you had completed all the necessary steps to prove it. Legal
arguments can feel the same. But careful legal thought, like good
mathematical logic, requires adequate proof for every step.
Mary Barnard Ray is a legal writing lecturer and
director of the Legal Writing Individualized Instruction Services at the
U.W. Law School. She coauthored two legal writing books, Getting It
Right and Getting It Written and Beyond the Basics,
published by West Publishing Co.
I've translated this general idea into a more concrete format for my
students. Here it is.
- Identify parties and addresses for jurisdiction.
- State facts sufficient to establish the first element of your first
theory of guilt.
- Plead the ultimate fact that the element has been met.
- Plead facts establishing the second element.
- Plead that the second element has been met.
- Continue pleading facts for each element and pleading that the
element has been met, until all elements are established.
- Plead that the defendant has been shown responsible or guilty under
the law.
- Repeat this process for each theory to be argued.
- Plead your damages.
- Request the reliefs you want and any others the court sees fit.
So what do you think, John? Is this a fair extrapolation of your
building block theory? For me, your system is a lot easier than
geometry.
Oh, and about those other two items. The drawing of the struggling
horse hangs in my office; many students have identified with that horse
over the years. I keep the sheet of 16 four-leaf clovers in my desk or
at home, depending on where I am feeling the most need for luck. Like I
said, all three leftovers have been well used!
Endnotes
1John E. Conway, Legal Drafting
Manual, U.W. Extension Law, 1973, p. 24.
Wisconsin
Lawyer