Legal Training

Think like a lawyerWrite like an efficient one

Dr. Heba HazzaaDr. Amr Abbas

Oct 11, 2015

RecapGeneral Drafting Tips

• Clear• Avoid legalese and formalistic writing• Writing in the active voice

• Structured• Outline • Use signposts

• Concise• Cut the fat• Short sentences & paragraphs

• Supported by Authority

Part 1: Thinking Like a Lawyer

•What caused the problem/ raised the question?•What are the legal

rules governing the issues?•How does the law

apply to the specific fact pattern?•Distinguishing

Part 2: Writing Like an Efficient Writer

•Deep issue analysis: Q&A then Why• Summarize

efficiently, prioritize and remove non issues•Break down the issue

into multiple sentences

Thinking Like a LawyerThe IRAC method

•Issue

•Rule

•Application

•Conclusion

Facts

IssueRule

Exercise 1: Discerning the factsJam Co., a joint stock company, is a manufacturer of Jams. Jam Co entered into a supply contract

with Strawberry Farm LLC in 2009 whereby Strawberry Farm supplies Jam Co. with a minimum of 200 tons - maximum of 500 tons of strawberries each year at market price -0.1%. Each January, Jam Co. places an order with the estimated tonnage it needs to satisfy forecasted demand. Since 2009, Jam Co.’s orders fell between 200 – 250 tons which Strawberry Farm was able to meet. The spring of 2014 was exceptionally unfavorable for an optimum strawberry crop. Strawberry Farm sent all its buyers notices advising of the potential drop in crop quality and quantity and asking for contract renegotiations. Jam Co. were in talks with Strawberry Farm when Jam Co. placed an order requesting delivery of 400 tons of strawberries at market price – 0.1% to cover its expansion into neighboring markets. Strawberry Farm instead supplied only 200 tons of premium quality and billed Jam Co. at market price. Jam Co. took delivery but refused to pay. Jam Co. bought the extra 200 tons lower quality crop from another supplier at market price + higher than usual markup.

Take 5 minutes to write down your facts

• If you are reading this you already lost six full seconds – get back to your facts!

Jam Co., a joint stock company, is a manufacturer of Jams. Jam Co entered into a supply contract with Strawberry Farm LLC in 2009 whereby Strawberry Farm supplies Jam Co. with a minimum quantity of 200 tons - maximum of 500 tons of strawberries each year at market price - 0.1% . Each January, Jam Co. places an order with the estimated tonnage it needs to satisfy forecasted demand. Since 2009, Jam Co.’s orders fell between 200 – 250 tons which Strawberry Farm was able to meet. The spring of 2014 was exceptionally unfavorable for an optimum strawberry crop. Strawberry Farm sent all it’s buyers notices advising of the potential drop in crop quality and quantity and asking for contract renegotiations. Jam Co. were in talks with Strawberry Farm when Jam Co. placed an order requesting delivery of 400 tons of strawberries at market price – 0.1% to cover its expansion into neighboring markets. Strawberry Farm instead supplied only 200 tons of premium quality and billed Jam Co. at market price. Jam Co. took delivery but refused to pay. Jam Co. bought the extra 200 tons lower quality crop from another supplier at market price + higher than usual markup.

Facts

1. Jam Co. [buyer] has a supply contract with Strawberry Farm [seller]. 2. The contract provides for supply of variable quantities between (200 – 500) tons determined

by the buyer at the time of order for market price -0.1%. 3. For the past 5 years buyer’s demand was consistently at the minimum mark.4. Weather conditions affected crop quality and quantity as a result supplier asked buyers to

renegotiate contracts.5. Talks were ongoing when buyer ordered 400 tons (doubling the usual quantity) to cover its

export operations. 6. Strawberry Farm’s delivered 200 tons of strawberries to Jam Co. and billed at market price.7. Jam Co. procured the remaining quantity from a Third party for market price + markup.

Exercise no. 2: Come up with your own list of issues

Here are mine:

• The seller’s right to claim “unfavorable weather” as a legal cause to relief him from his duties under the contract.• Buyer’s right to specific performance (procuring product from

third parties) and the corresponding right on seller to mitigate losses.

Exercise 3Applying the Rule to the facts

• Having done your own investigation you found out the following:1. Similar weather conditions, however not as severe, have took place 6

years ago affecting all growers in the region. 2. After the heat wave started, Strawberry Farm installed special coolers

in their green houses to ward off the heat wave. 3. Strawberry Farm’s loss due to weather conditions is estimated at

35%.

The rule:

و ترت-ب عل-ى حدوثه-ا أ-ن تنفي-ذ توقعه-ال-م يك-ن ف-ي الوس-ع حوادث إس-تثنائية عام-ة »إذا طرأ-ت 147/2•جاز بخس--ارة فادح--ة بحي--ث يهدده ل--م يص--بح مس--تحيالً ص--ار مرهقاً للمدي--ن اإللتزام التعاقدى و إ--ن

الح--د اإللتزام المره--ق إل--ى يردبي--ن مص--لحة الطرفي--ن أ--ن تبًع--ا للظروف وبع--د الموازن--ة للقاض--ى.«المعقول

م-ن القانون المدن--ى ه-و أ--ن يكون الحادث 147»قوام نظري-ة الحوادث الطارئ-ة ف--ي معن--ى المادة •، و المعيار ف--ي تواف--ر هذا الشرط - و عل--ى وق--ت إنعقاد العق--د إس--تثنائياً و غي--ر متوق--ع الحص--ول

أ-ن يتوق-ع حص-وله أال يكون ف-ي مقدور الشخ-ص مجرد مناط-ه معيارماجرى ب-ه قضاء هذه المحكم-ة - م-ن توق-ع دون إعتداد بم-ا وق-ر ف-ي ذه-ن هذا المدي-ن بالذات ل-و وج-د ف-ي ذات الظروف عن-د التعاق-د ،

وس-ع الشخ-ص العادى الحص-ول أ-و عدم توقع-ه و البح-ث فيم-ا إذا كان الحادث الطارئ ه-و مم-ا ف-ي مم-ا يدخ-ل ف-ي نطاق س-لطة قاض-ى الموضوع طالم-ا أقامه-ا عل-ى توقع-ه أ-و أن-ه م-ن الحوادث الطارئ-ة

بتاريخ 152صفحة رقم 29 مكتب فنى 43 لسنة 0448أسباب مؤدية إلى ما إنتهى إليه« الطعن رقم 11-01-1978

Thinking Like a Lawyer•What caused the

problem/ raised the question?•What are the legal

rules governing the issues?•How does the law apply

to the specific fact pattern?•Distinguishing

Writing Like an Efficient Writer•Deep issue analysis:

Q&A then Why• Summarize

efficiently, prioritize and remove non issues•Break down the issue

into multiple sentences

Writing like an “efficient” lawyer

“If you take too long to reach your point, you might as well have no point at all”

B. Garner, Legal Writing, p.2

Writing like an efficient lawyer1. Use “Deep Issue” Analysis

• Cultural differences affect writing styles• Forthcoming and straight forward

Which writing style is more efficient?

A.• Strawberry Farm’s attempts to foresee and

guard against the effects of weather changes fell below/ satisfied the legally enforceable standard under the law

• The standard according to the rule is “ يكن لمتوقعه العادي الشخص مقدور By installing .”فى

coolers in their green houses after the heat wave started, Strawberry Farm acted as any ordinary person would act

B.• The questions is whether Strawberry

Farm’s conduct satisfies the applicable rules?

• The rule adopted an objective standard in defining the duty of care owed to the plaintiff. Whether Strawberry Farm’s conduct can be deemed to satisfy the rule depends on what an ordinary person would have done in a similar situation.

Writing like an efficient lawyer2. Headings and Subheadings

• Headings and subheadings• Avoid open ended questions• Simple informative structure

Writing like an efficient lawyer: The Process

1. The Madman

• At the beginning of a project• This is only for your own eyes• Do not let a blank page scare your ideas• Incomplete – but not contradictory • Product: Non linear outline

The journey of an outline

2. The Architect

• Complete the incomplete sentences• Organize your Madman’s ideas into structure• Product: Linear outline

3. The Carpenter

• Gap filler - linking ideas in Architect’s outline • Turn sentences into paragraphs• Expanding and supporting the arguments made by Madman• Product: Paragraphs

4. Finally, the Judge

• The easiest most fulfilling • Cleans up text• Insures consistency and coherence• Products: First draft

Food for thought“Thinking like a lawyer also means that you can make arguments on any side of any question. Many of you resist that teaching, thinking that we are stripping you of your personal principles and convictions, transforming you into a hired gun. On the contrary, learning how to make arguments on different sides of a question is learning that there are arguments on both sides, and learning how to hear them. That is the core of the liberal value of tolerance, but also the precondition for order in a society that chooses to engage in conflict with words rather than guns. It is our best hope for rational deliberation, for solving problems together not based on eradicating conflict, but for channeling it productively and cooperating where possible.”

Anne Marie Slaughter, “On Thinking Like A Lawyer”, 2002