Citations to New York case law are in New York Law Reports Style Manual form.
Citations to federal case law are in Bluebook form.
When you write a brief to a court you should write and explain your rules persuasively. That means portraying both procedural and substantive legal rules in ways that are helpful to your client’s position. The goal is to foreshadow the client’s argument in the way legal rules are phrased.
The rules should not sound like they do in an objective analysis. Instead, when explaining a rule through key terms, legal writers keep the focus on what does satisfy the rule when arguing that the facts of the case satisfy the rule, and they keep the focus on what does not satisfy the rule when arguing that the facts do not satisfy it. That way, legal writers keep the reader’s focus leaning the same way the rule application will lean.
Similarly, when illustrating a key term, writers focus on precedent, where the rule is satisfied when they argue that the facts of the case satisfy the rule; and they keep the focus on precedent, where the rule is not satisfied when they argue that the facts do not satisfy it. As explained in Chapter 5 (writing rebuttals), you will save case law that favors your adversary for rebuttals, where you will distinguish it.
Assume you represent someone injured when a driver went through a red light, and you have the statement of a witness that “the light was red.” You want the statement admitted, but the lawyer for the driver moves to have it excluded as hearsay. The case is in federal court based on diversity, and you find that the Federal Rules of Evidence provide an exception to the rule against hearsay when the statement is an excited utterance. The rule stated objectively is “A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused” is not excluded as hearsay. Fed. R. Evid. 803(2). You want the statement admitted, so you would focus on when a statement is admissible as an excited utterance.
Thus, you might state the rule as (Note: references to CITE indicate that the writer would add a citation to authority):
The lawyer representing the driver would want the statement excluded and would focus on when hearsay statements are not admissible as excited utterances.
So, the rule might be (CITE indicates that the writer would add a citation to authority to that space):
Instructions: Try your hand at writing a rule persuasively. Advance through the pages below and complete each exercise.
Question: Does the writer of the following rule want the court to find that the privilege applies or does not apply?
Instructions: Let’s try restating an objective rule again, persuasively, from both sides. Advance through the pages below and complete each exercise.
Now that you completed this chapter, you should be able to phrase rules in ways that are helpful to your client’s position. In the next chapter you will read about how to rebut your opponent’s arguments.