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Overview

1. Presentations: Amnesty/Politico

2. Discussion/presentation: what makes legal writing good?

3. Scoping document: introduction

4. Client call: WWF/TI

5. Next week

6. Guest speaker

EU Public Interest Clinic 2016 - Week 3 - Legal Writing

Clarity and Brevity

Guiding principles

What do they mean in practice?

Be clear, so the audience will understand.

Be interesting, so the audience will listen.

Be persuasive, so the audience will agree.

Be brief, so the audience will remember.

Clarity

Brevity

Example 2 – clarity and brevity

Example 1 – clarity and brevity

The principle of subsidiarity determines whether the EU is competent to legislate on a given issue.

Under this principle, decisions should be taken as closely as possible to the citizen. For example, decisions about local transport regulation should be left to municipal governments rather than the EU.

The principle applies to issues, such as transport, that do not fall within the exclusive competence of the EU.

Simple words are most clear and least confusing

Always have a point (a thesis) and make it crystal clear (don’t have too many)

“When I sit down to write ..., I do not say to myself, 'I am going to produce a work of art.' I write ... because there is some lie that I want to expose, some fact to which I want to draw attention, and my initial concern is to get a hearing.”

- George Orwell

Write in English — not legalese, not jargon

Make heavy use of signposting (reader should never be in doubt as to the point you are making)

The principle of subsidiarity is promulgated by way of Article 5 of the Treaty on the European Union which stipulates that, “under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”. Consequently, as a result of this provision it is the case that the Union should not take action to legislate in a particular area except in the areas that fall within its exclusive competence unless, of course, it is more effective than action taken at national, regional or local level.

A legal memo should get to the point (early)

Concise writing advances clarity. The average sentence

has 17 words — make that a ceiling, not a floor.

“It is my ambition to say in ten sentences what others say in a whole book.”

- Friedrich Nietzsche

Concise writing should strive to eliminate redundancy, exaggeration, verbosity and hyperbole.

Legal Writing

What makes it good?

Four stages of drafting

Interest and persuasiveness

Madman

Architect

Carpenter

Judge

What do they mean in practice?

Example 2 – interest

Example 1 – interest

Persuasiveness

Interest

Know the audience

"The more informative your advertising, the more persuasive it will be."

- David Ogilvy

Adopt a suitable structure (state your main arguments early)

  • Be like a detective leading the audience to an undeniable conclusion – in reverse)

Ideally, no more than three basic elements to an argument

Repeat key words and sentences to create rhythm:

“the provision is fundamentally unfair, unfair in its intention and unfair in its application”

Place key phrases at the beginning or end of a paragraph or a sentence

Ethnic Profiling in Europe: No Equality without Data

How many times have you been stopped and searched by the police? In Europe, the answer to that question is too often determined by the color of your skin. And how does that feel? We all need to know.

Police ethnic profiling involves singling out people for checks because of their race, ethnicity, or religion. Ethnic profiling is unfair and discriminatory. It is also an inefficient way of fighting crime. We are working with communities to document the problem and working with police to find solutions.

Borrow from journalism

  • "inverted pyramid" approach

Master the first one or two (“lead”) paragraphs and sentences

  • Anecdote or a story
  • A question posed to the reader
  • Sales pitch
  • Should set the scene for the what will follow
  • Should draw the reader in

"We’re past the age of heroes and hero kings. … Most of our lives are basically mundane and dull, and it’s up to the writer to find ways to make them interesting.”

—John Updike

Preventing discriminatory ethnic profiling in the EU

The European Union Agency for Fundamental Rights (FRA) is publishing today, at a Symposium of the European Police College (CEPOL), results from the first ever EU-wide survey on police stops and minorities. The findings show that minorities who perceive they are stopped because of their minority background have a lower level of trust in the police. The results from the FRA's survey are launched together with the FRA Guide on discriminatory ethnic profiling.

 

FRA Director Morten Kjaerum: "Evidence shows that in a number of EU Member States a person belonging to a minority is more likely to be stopped by the police than a person belonging to the majority population. This finding highlights the problem of potentially discriminatory ethnic profiling practices, which can be in conflict with laws relating to discrimination. At the same time, discriminatory profiling has a damaging social effect, as it may destroy minorities' trust in the police, and in fair treatment. The Agency's reports can be used as a tool to support law enforcement in the prevention of discriminatory ethnic profiling."

Scoping document

Four stages

Develop idea (Madman)

Brainstorm ideas and then identify key points

Create new legal arguments:

  • By analogy from other issue
  • Transfer from other jurisdiction
  • Develop from A.G. opinions
  • Extract from academic commentary

“Nothing is original. Steal from anywhere"

- Somebody

“It’s not where you take things from - it’s where you take them to."

- Jean Luc Godard

Create structure

(Architect)

Edit the draft (Judge)

Select your best argument

Clear roadmap/plan before drafting

Break into components (issues, positions, arguments, propositions and obstacles)

Logical structure

  • Most important issues and strongest arguments first

“Each move is dictated by the previous one--that is the meaning of order”

-Tom Stoppard

Use headings to allow for skim-reading – so reader can easily go to main areas of interest

Divide task between team members

Read for sense

  • Identify weak arguments
  • Identify redundant repetition
  • Make more compelling
  • Identify confusing/ opaque passages

Read for structure and length

  • Spot gaps
  • Reorder structure
  • Cut out all that is unnecessary

Read for typos, spelling and grammar

Check citations and footnotes

People: whom you will need to consult with and what about in order to progress with your project.

Product: early ideas as to what you will aim to produce for your first and second substantial legal documents (which need to be handed in on 22 February 2015 and 22 March 2015). You may want to indicate the contents that you intend to cover in each of them.

Tasks: What needs to happen next in order for your group to move towards producing your first substantial legal document in time for the deadline.

The scoping document should be no more that 10 pages max.

Draft substance (Carpenter)

Develop, narrow down and build upon the background document

Introduction: on the basis of your research to date explain, briefly, your project (as you understand it).

Factual, legal and policy background context: a brief overview of only the most relevant aspects of the law/policy/factual background context to your project.

Questions: the central research questions/topics you will need to consider/investigate to produce your final deliverable(s) as requested by your client.

Positions: your initial ideas (or early hypothesis) as to the core positions/arguments you want to make. Or if you are drafting legislation, what exactly your legislation hopes to achieve and (at a high level) how.

Don’t use facts, cases etc. that are not used for the purpose of the memo:

“Remove everything that has no relevance to the story. If you say in the first chapter that there is a rifle hanging on the wall, in the second or third chapter it absolutely must go off. If it's not going to be fired, it shouldn't be hanging there.”

- Chekov

  • A mini-lead paragraph for every section
  • Signpost what the section will address
  • Present the conclusion first
  • Provide the context
  • One point per paragraph

Next week?

Hand in scoping documents (WWF/Amnesty/TI)

Presentations (WWF/TI)

Group work

Clinic quiz

Make sure to read:

- Project reading pack

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