Week Seven, Part 7 - Legal Writing: Distant Thunder

As we wait for Legal Writing to begin, the buzz is all about the First Couple of Notre Dame.

It’s only hearsay, but sources say Professor Teresa Godwin Phelps is getting divorced from husband Digger, now a basketball analyst for ESPN. Comments range from “ain’t no fun being married to a feminist” to “he says she hit him with a fry pan.”

Too bad, I think. Perhaps the break-up is why Professor Phelps neglected to mention Digger in her self-introduction on the first day of class.

There’s no official comment on the dissolution action. I do notice that Phelps’s memoir, The Coach’s Wife, has disappeared from the display case on the first floor.

Perhaps she’s writing a sequel: The Coach’s Ex-Wife.

In class, Phelps begins a new section: “opinion letters.” This phrase is a term of art. It refers to written correspondence by the lawyer to a client answering specific legal questions.

“Be careful,” Phelps says. “There are some cover-your-butt things in case this letter is entered as evidence.”

The opinion letter has four elements. First is context. “Let the client know what you're talking about,” Phelps says. Second is a recitation of operative facts. “If there’s been a misunderstanding, you'll need to know right now rather than at trial.” Third is an explanation of the law in terms the client can understand. “Here you’ve changed roles, from legal analyst to counsel.” The fourth element is “a list of anything the lawyer needs from his or her client.”

Phelps adds, “If your office memo is well done, you can just translate it into an opinion letter.”

I smile. It’s the first time all semester that a prof has indicated something might be easier than we expect.

At the end of class, Phelps mentions that next week there will be mock mid-terms in Torts, CivPro, Crim, and Contracts.

Normally in Legal Writing lectures, there’s a handful of students reading the Observer or dozing off. At the mention of exams, though, we all perk up.

Phelps encourages us to use CRAC (Context-Rule-Application-Conclusion) on any legal issues we spot. It’s the same approach we employed on our office memo.

“What’s different about law school exams is the fact patterns,” Phelps says. “It’s not like undergrad where you only have to state the elements of battery. Answering a fact pattern goes far beyond grocery lists. And well it should. I don't want to hire a lawyer who has memorized the laws but can’t apply them.”

Phelps tells us that her colleagues will give too many facts on the mock exams, and we should be suspicious. “Separate the material from the immaterial. ‘It was a blue truck’ is probably a red herring. But for the most part, a professor puts a fact in the pattern because there's some weird little rule out there.”

She adds. “Now what I’ve just told you is deceptive – because there is a boatload to memorize. The difference is, rote memory is only half the battle. And finally, because of the time constraints, there’s a huge chasm between knowing the material and getting it down on paper.”

Phelps smiles at us like we're all freshman point guards about to face a full-court press. “Law school exams are unto themselves,” she says. “There's nothing else like ‘em.”

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