Step One: Finding A Topic:
The first step is to find a topic. Your paper should analyze a legal issue prominent in the area of law with which the course concerns itself. This means a point of uncertainty; a conflict between or among various courts; or an aspect of the law that you find unjust, outmoded, contradictory, or nonsensical. The corollary of this comment is that your paper should not be a mere discussion of a legal rule or legal history; such a discussion rarely satisfies most professors.
How do you find such an issue? Look at the cases first-not at the law reviews or other articles. And how do you find promising cases? Examine a newsletter or bulletin dealing with the subject matter of the course. Preferably, such a publication should include a small digest of recent cases. Make sure that the topic pertains to current federal cases. "Current" is important because it suggests that the literature has not yet exhausted the topic; "federal" is perhaps more important because it is to your advantage to write about a federal issue, in contrast to a state one, because a federal law topic involves the cases in only one court system whereas a state topic could very well send you roaming through the various laws in a number of states.
Once you have found an issue on which perhaps two circuit courts of appeals have rendered different decisions dealing with essentially the same factual setting or found a single federal case by the Supreme Court or a court of appeals that you feel is subject to intelligent criticism, you have a potential issue.
Next, go to the literature-law review articles, primarily-to see if the topic has been preempted, that is, if an article already deals adequately with what you with to say. Those students or professors writing law review articles live in constant fear that, prior to the publication of their article, another author will beat them to the draw and publish an article covering the same topic.
For the purposes of a course paper, you don't need to be too paranoid. But if you find an article that takes your position and you write yours anyway, you'll be forced to make a prickly choice. If you don't cite the article and if the professor learns of its existence (and some professors do check sources), you may be suspected of plagiarism. Yet, if you cite the article and the professor looks it up, you won't score very high on originality. Best to pick a new topic if you can't find a different approach or can't take the opposite position from that of the earlier article.
Step Two: Selecting A Format:
You can approach the paper in one of two ways. First, you can use the format that a law review would call a "case note" or "case comment," in which you deal primarily with a single decision that you feel is representative of an overall issue. This tack is best if the professor has set a ceiling on paper length; this case-oriented approach is more conducive to shorter papers.
Second, you might take the broader "note" or "comment" approach. The focus of such papers is the whole area of law, larger than an examination of one or two cases. You will discuss the important cases, of course, but will do so in a larger context-there will be perhaps five or six major decisions in your analysis. Moreover, you will research and cite more material from law review articles and outside sources, such as business publications and newspapers, than you would in a case-oriented paper.
Step Three: Researching And Assembling Sources:
Armed with your topic and the particular approach you wish to take toward it, buy a large package of four-by-six-inch or five-by-seven-inch lined index cards and a box to hold them in. From your initial research, you will have gleaned a number of case names and articles that deal with this subject.
Write each case name, book, article, and the like on a separate card, using the style of the Uniform System of Citation, which you will have bought for your legal research and writing course. In the bottom left-hand corner, write R/S/O, as you peruse the article you will know what these abbreviations stand for.
Extracting Sources:
Take the first case and read it quickly, indicating either on the card by way of page notation (if you haven't made a photocopy of the case) or circling or underlining (if you have copied the case) any good quotations or portions of the article you find to be of particular relevance to your topic. As you go through each source, you will find other cases and articles cited by the court or author either as support or as back ground. Some of them will be relevant for your paper. When you come to such a citation, write it down in proper citation form on a new card. When you have finished reading the case, put a mark through the R (for having "read" it), and if you have finished extracting all of the citations within the case and marked them down on separate cards, put a mark through the S (for having extracted all the "source" material).
Then write a very brief synopsis of the thesis of the article, case, or book on the card. In theory this process could go on forever, for each source will, in turn, lead to many others, but after a time you will find certain cases, articles, and books that keep recurring, and the new references and citations you find won't be relevant to your topic. At this point, you can probably rest assured that you've found the most important material.
As a final check, you should take every case that you consider to be of primary importance and "Shepardize" it. (The word "Shepardize" is a reference to Shepard's Citator, a listing of all legal decisions in the United States that have been affirmed, overruled, or modified by higher courts and what the citation of the subsequent case is. Shepard's and similar citation-checking services are now available both in written booklet form and on-line as a computer database.) Moreover, Shepardizing will let you locate recent decisions that very likely might be relevant to your theme. This procedure will be taught to you in your legal writing and research class.
As you engage in this source-extracting process, keep a pad of paper in front of you on which to jot down strategies for approaching your article, organizational outlines or suggestions that might occur to you and any other ideas about material to add or approaches to take.
Step Four: Outlining Your Paper:
Once you have read through all your material quickly, you will know in general terms what you want to say in your paper. Refer to the notes you took while reading the material and make a very broad, general outline.
Under the outline headings fill in your sources, using some sort of shorthand notation to avoid having to write the entire case names or names of the articles (much like the shorthand you used for your source outline). Read your source materials once again, more carefully this time. Take notes and circle passages as before to pick up thoughts that you missed the first time through. Insert the particular page citations that support your proposition into the outline. When the source is added, mark through the O on the index card's R/S/0 legend (to indicate that the source has been included in the "outline"). This will indicate that you have included the source at least once in your paper. In this way, you can easily find out if you have forgotten to include one of your major sources.
Step Five: Writing Your Paper:
Now begin to write. A tip for all writers: Don't start with the introduction; there is an urge to say too much and to be too "creative." Start with the main body and use the most unadorned, straightforward prose you can muster. Follow your outline and incorporate material from your assembled sources.
Write footnotes on a separate sheet of paper as you go. You need not write out the footnotes fully, just a word or two to identify the source you're citing and any text you wish to include in the note itself Every statement, whether paraphrased or directly quoted, that is not your own must be attributed. It is not unusual to have three or four footnotes per paragraph in legal writing. When you have worked your way through your outline, finish with a brief conclusion.
The Paper's Length:
The standard line from your professor is: "Why, as long as necessary." Length never makes up for sloppy thinking (writing economically is vastly harder than writing volumes). But given a good topic and a functional writing style, my advice is to write long.
The Introduction:
Next, write the introduction, which should be no more than one or two paragraphs. The introduction states the issue or problem and your solution to it. Avoid quotations, poetry, and other flourishes. Simply state the point you intend to make and be done with it.
Footnotes:
Put all the footnotes in proper form, following the Uniform System of Citation style. If you've been indicating citations in this form on your index cards, you can simply copy the reference as it appears there into the footnote. Be sure, however, to include what is called a "jump" citation-the specific page on which the material you cite discusses the point you use for support.
Reread And Rewrite:
Once you've completed your first draft, read through it and sand down the rough edges. Then put aside the document for as long as you can-at least one or two days, preferably a week. Then read it again, aloud if possible. Do a major rewrite at this point. Question everything. Pretend you know nothing about the subject. Do you successfully explain yourself? Do your words say what you want them to say? Is your syntax awkward?
Be cruel in your critique, and prune, discard and edit wherever you think you need to. Change your entire organization if you must. Recast the sentences that are clumsy. Smooth the transitions between paragraphs and add or delete subheads if you need to.
When the typing is complete, proofread the paper at least two or three times; careless form implies careless content. Make several copies of your opus for security's sake, and ship it off to your professor.
Publication, Anyone?
If you do, in fact, follow the techniques suggested here for writing a paper, and if you write a detailed, well-reasoned article on an important topic, you might want to consider submitting it for publication in a journal dealing with the topic of law in question. Many law reviews restrict access to their pages to their own members, but there are other avenues available for students who have written high-quality papers. You should know that an actual published writing sample can greatly impress future employers.
