Framing legal issues in informal legal writing

Writing in law school is a challenge for many students. This challenge is amplified by the fact that the courses teaching legal writing focus on how to handle situations where formal legal writing is required, such as memos and briefs and motions to file in court, whereas students earn grades in their other courses through informal forms of legal writing.

A number of my legal writing colleagues across the country teach students a four-part formula for crafting issue statements in formal legal documents. (My apologies for the lack of attribution, I’ve learned from so many different talented educators over my career that I can’t remember everyone who engaged with me on this group of concepts).

The formula resembles something like:

“{Part 1} Under [jurisdiction and/or name of law], {Part 2} whether [name of legal issue] exists when {Part 3} [characterization of wrongdoing party] does {Part 4} [provide critical facts that triggered legal issue].”

Here are some examples where this formula has been used:

Under Franklin law, is it adverse possession when an occupier is only present at a lake house during the summer?
- **I haven’t lost my mind, I know there is no “Franklin,” but it is the fictional state that the National Conference of Bar Examiners use, so I’m co-opting it for some of my examples.**
Under HIPAA’s Privacy Rule, whether a healthcare provider can provide information about a patient who poses a risk to self or others to law enforcement.
Under the Fourth Amendment, whether an unreasonable search has been performed when law enforcement uses facial recognition to unlock a cell phone against a detained person’s express wishes.

Depending on context and subject matter, it may be appropriate to change the order in which these four parts are assembled.

This formula also gives us some useful information in terms of assessing our capabilities as individual learners. In formal legal writing, there are four pieces of information that must be assembled according to the rules of grammar and logic to create a high-quality issue statement.

Identify the governing law or legal standards
The technical name of the legal issue under discussion
The critical facts that triggered the legal issue, and
The relationship of the parties to each other with respect to the legal issue and the triggering facts

If this conforms to what your professor is teaching you, you can take that list and cut and paste it into your master list of editing tasks for your legal writing class. If it doesn’t, create the list that does and put it into your master list of editing tasks for your legal writing class.

Now that we have the framework for what is expected in formal legal writing, let’s move to what is required in informal legal writing. Informal legal writing is basically any writing where you are expected to conduct legal analysis, but you aren’t provided time for editing. So, exams, and other things.

In informal legal writing, the strongest answers will provide three pieces of information to the reader:

The name of the legal issue under discussion
The critical facts that triggered discussion of this legal issue
The relationship between the parties with respect to the legal issue and the triggering facts.

To the extent that an examinee needs to identify the governing law or legal standards, that information can be incorporated into the rule statements, or the analysis sections, depending on other contextual matters that I’ll discuss in a future post.

In the informal setting of exams, there are three classic ways to communicate this information to your grader:

A declarative sentence beginning with the word “whether”
As a question, or
Through headings.

If you like the first choice then issue statements will look something like:

Whether occupier who was only present at a lake house during the summer will succeed in adverse posession claim.
Whether Healthcare Provider was permitted to provide information about a patient who posed a risk to self or others to law enforcement.
Whether law enforcement performed a reasonable search when facial recognition was used to unlock a cell phone against a detained person’s express wishes.

If you prefer the second, then your issues statements will look more like:

Did occupier adversely possess the lake house through summer-only occupancy?
Did Healthcare Provider have a valid exception of the privacy rule to permit disclosing patient information to law enforcement?
Can law enforcement use facial recognition to unlock a detainee’s cell phone without a warrant under the Fourth Amendment?

And in some classes, or for some professors, judicious use of headings can carry a lot of the weight of framing legal issues. Here are screenshots using the above examples with an underlined heading to establish party relationship and a parenthetical naming the legal issue, a numbered subheading to establish triggering facts, and a generalized rule statement to anchor forthcoming analysis.

This image displays a document with an underlined heading that reads"Landowner v. Occupier (Ejection or quiet title due to Adverse Possession)" a numbered subheading that reads "Seasonal use of lake house," and a sentence that says, "Adverse possession requires an occupier to openly, continuously for the statutory period, exclusively, actually, and hostilely use land in the same manner that the owner of record would." — The adverse possession example in heading form

This image displays a document with an underlined heading that reads"DHHS Office of Civil Rights v. Healthcare Provider (Privacy Rights Violation)" a numbered subheading that reads "Disclosure of Patient information to law enforcement
," and a sentence that says, "A recognized exception to the privacy rule of HIPAA is when a patient poses a risk to self or others." — The HIPAA privacy rule example in heading form

This image displays a document with an underlined heading that reads"Detainee v. State (Motion to Suppress Evidence due to 4A violation)" a numbered subheading that reads "Unlocking cell phone with facial recognition during stop and frisk," and a sentence that says, "The Fourth Amendment prohibits the state from using unreasonable searches and seizures to accumulate evidence of crimes.." — The Fourth Amendment search example in heading form

These are simply the classic ways of providing this information to professors grading exams. There are other valid ways to communicate this information that I haven’t touched on.

For students who are studying for exams and trying to improve their exam-writing skills, I hope this information helps you analyze your work-product with a better sense of one set of objective anchors that law faculty use to assess whether an answer is a strong answer, an adequate answer, or something else altogether.