How to Write Analytically in a Legal Setting

--The purpose of analytical writing in a legal setting is to clearly define the legal issue(s) you are
analyzing, and then to provide the reader with a clear, succinct analysis of the legal issue(s).
--In a legal analysis piece, you are the writer are not necessarily trying to persuade the reader to
adopt a certain view of the legal issue(s). Rather, you are trying to do a logical, dispassionate
legal analysis that will allow the reader to come to his or her own conclusion about how the legal
issue(s) ought to be resolved. You may also, in some circumstances, be asked to propose a
course of conduct based on your legal analysis.
--A typical example of legal analysis writing is a legal memorandum.
--In the U.S., law clerks are often asked by their employers to write legal memoranda that
lay out the law or legal procedure, or analyze competing legal doctrines.
--One type of legal memorandum is simply an overview of the legal authority and a
description of how that legal authority will operate in a particular case. An example of
this type of memorandum is attached that analyzes how one can use a learned treatise
at trial in Nebraska.
--The purpose of another type of legal memorandum is to define clearly the legal question
being analyzed, look at the lines of authority on both sides of the issue, and then provide
a prediction of how a court might decide the legal issue or a recommendation of how to
proceed to further a clients interests. An example of this type of memorandum is
attached that analyzes what is a crime involving moral turpitude for immigration
purposes and proposing a possible plea deal for our client that would avoid a ground of
deportation.
--Normally, a legal memorandum has the following sections, but the exact layout of a memo will
depend on the goal of the memo:
1.
2.
3.
4.
5.

Issue being analyzed

Facts of the case
Discussion and analysis of legal authorities (perhaps statutes or cases)
Prediction of how a court might rule, given the facts of the clients case
Recommendation of how to proceed in the clients case (this section may not appear
in all legal memos)

--For this weeks assignment, we are asking you to write an analysis memo that is not legal in
nature. The idea is to give you practice creating an analytical piece of writing that does not

depend on any legal analysis. We want you to focus on articulating the issue, describing the
works of art you are being asked to analyze, and laying out the arguments on each side of the
issue.
--What we are looking for is a clear definition of the issue (i.e., which piece of art is important
to, or reflective of, Albanian culture), an analysis of the positive and negative features of each
piece of art as they relate to the issue youre discussing, and a conclusion on your part as to
which piece is more significant, and the reasons that you come to that conclusion.
--Email your paper to Sara no later than Monday (January 5) at midnight Kosovo time
--Next week we will discuss your papers and give you the next assignment

Memo
To: Kevin Ruser; Ryan Sullivan
From: Brock Hubert
RE: Using a learned treatise as evidence at trial
Factual Background
Our client is seeking court ordered visitation / parenting time of his daughter. This matter
is being contested by the childs mother. The mother believes that it would not be in the childs
best interest to have visitation with our client because of his criminal history and her perception
of our clients history of social instability. In order to support her claims, the mother has hired a
mental health expert to interview the child and make a determination if it would be in her best
interest to allow visitation with our client.
Dr. Smith, the mental health expert hired by the mother, made a determination that
visitation with our client would not be in the childs best interest. He made this determination
without ever meeting with our client. Dr. Smith felt he could gather sufficient information only
through the review of our clients police record and by speaking with the mother and members of
her family about our clients social life and past. At trial, we would like to undermine Dr.
Smiths methodology by using either expert testimony or a well known psychological learned
treatise. The question presented in this memo is how the learned treatise can be entered into
evidence if we are unable to procure our own witness for trial.
Analysis
There are two potential ways for a learned treatise to be entered into evidence in
Nebraska District Court. The first is to have a witness who has been properly established as an

expert testify upon direct or cross examination that the treatise is a reliable authority. Neb. Rev.
Stat. 27-803(17) (1999). Once a treatises reliability is established, any statements in the treatise
that will be relied upon by the expert can be read into evidence, but cannot be received as
exhibits. Id. Generally outside evidence is treated as inadmissible hearsay, but a correctly
entered treatise is excluded from this rule by statute. Id.
If an expert witness is unable to be retained to appear at trial, a treatise may still be
entered into evidence by asking the court to take judicial notice that the treatise is a reliable
authority. Neb. Rev. Stat. 27-803. This is done by first calling the treatise to the attention of the
opposing partys expert on either cross examination, and then by asking the court to take judicial
notice of the theories contained within the treatise. Id. A court will only take judicial notice of a
fact if it is generally known within the territory, or is found to be capable of being accurate by a
source whose accuracy cannot be reasonably questioned. Neb. Rev. Stat. 27-201. A learned
treatise on clinic psychology is likely not a known fact in the jurisdiction, but can be determined
to be accurate by informing the court through the use of an affidavit of an expert in physiology.
Any such affidavit should state the credentials of the expert, the librarian, the treatise and the
author. 3 Neb. Prac., Mangrum Neb. Evid. Section 27-702 (2014 ed.)
An affidavit would normally be considered outside hearsay evidence and therefore
inadmissible, but a court may use inadmissible evidence to make a determination of the
admissibility of other evidence. Neb. Rev. Stat. 27-104. Although the federal rules of evidence
make it explicitly clear that inadmissible evidence may be used to make a determination of
preliminary fact, the Nebraska rules of evidence do not. However, the Nebraska Supreme Court
has made it clear that rule 27-104 is in-line with the federal rules and therefore allows

inadmissible evidence to be used to make a determination of a preliminary issue of fact. State v.

Pullens, 281 Neb. 828 (2011).
Steps to Enter Treatise Into Evidence Using Opposing Parties Expert

Call the treatise to the attention of the expert on cross examination

Ask to Court to Take Judicial Notice of a theory in the treatise
Use 102 to allow the judge to view an affidavit from a mental health expert to make a

determination if judicial notice can be taken

If notice taken, read theory into evidence.

To:

Kevin Ruser

From: Greg McLawsen

Date: March 26, 2009
Re:

Advice on plea deal for our client

I spoke this morning with Jeff Wightman, criminal defense counsel for our client. Mr.
Wightman said that the county has offered to allow our client to plead to Third
Degree Domestic Assault. Mr. Wightman also said that it is possible though not
certain that the county would allow our client to plead to straight Third Degree
assault. This memo provides my analysis of the immigration consequences of those
possible plea deals, and suggests how Mr. Wightman might structure the plea
arrangement to minimize immigration risks.

Facts of offense

The following are excerpts taken from the police report in the present matter. The
victim was deposed by Mr. Wightman two Fridays ago and it is certainly possible
that there are substantial factual issues with the following narrative.

I found xxxxxxxx in the bedroom and Ofc. Saldivar talked with our
client, who stated that he had'gotten in argument with his girlfriendbccause she was having sex with a female at the residence. This
argument started a couple days ago and yesterday 11-27-2008 around
16:00 Our client told his girlfriend she could
not leave the bedroom or the apartment or she would die. Our client
also made the statement that if either one of us leaves the residence
someone would die. Our client took his girlfriends cell phone and kept
it. She tried several times to leave the bedroom to go to the ba1hroom
and he shoved her back in the room and told her not to leave.

The girlfriend is bi-polar and our client uses that against her to control
her. Our client has wanted girlfriend to marry him so he can become a
U.S- Citizen. She will not because our client does not treat her right.
Girlfriend and client have had sexual relations in the past. Girlfriend
advised that client and she have had several arguments about
marriage.

Analysis of plea options

1. Third Degree Domestic assault does not constitute a crime of moral

turpitude if committed without actual physical injury and absent
extrinsic evidence of exacerbating underlying conduct.
Third Degree Domestic assault is accomplished if a person: (a) Intentionally and
knowingly causes bodily injury to his or her intimate partner; or (b) Places, by
physical menace, his or her intimate partner in fear of imminent bodily injury.
Neb. St. 28-323.

In Matter of Tran the BIA held that it constitutes a crime of moral turpitude (CMT) to
willfully inflict a corporeal injury upon a domestic partner. 21 I&N Dec. 291 (BIA
1996). However, domestic assault does not amount to a CMT if it may be
accomplished by merely offensive touching. In re Sanudo, 23 I&N Dec. 968 (BIA
2006). Thus a conviction under 323(a) would amount to a CMT if it involved a
sufficient quantum of violence, but not if it was accomplished by largely
psychological harm. The present criminal complaint parrots the full language of the
statute and does not specify whether client committed acts satisfying both (a) and
(b) or only one. Thus an Immigration Judge would look to the record of conviction to
decipher which statutory prong client accomplished. In re Ajami, 22 I&N Dec. 949,
950 (BIA 1999). My sense from reading the police report, and Mr. Wightman agrees
with this, is that the county DA views the conduct as under prong (b).

The decisional law concerning threats of harm turn wholly on the offenders state of
mind. In In re Ajami the BIA held that a conviction under a Michigan aggravated
stalking statute constituted a CMT. 22 I&N Dec. 949 (BIA 1999). There, looking at
the face of the statute, the offense could have been accomplished by a pattern of
conduct composed of a series of 2 or more separate noncontinuous acts which
included a threat to inflict physical injury against an individual. Id. at 951. Such
conduct was required to be willful. Id. The Board held that the conviction
constituted a CMT, since the intentional transmission of threats is evidence of a
vicious motive or a corrupt mind. Id. at 952.

The Eighth Circuit has applied Ajami to hold that a Minnesota conviction for
terroristic threats constituted a CMT. 376 F.3d 810 (8th Cir. 2004). The respondent
argued that the information charged reckless conduct, which fell short of the
required mens rea under Ajami. Id. at 813. The Court rejected this by looking to the
plea colloquy to show the purpose of terrorizing:
Q: And at that time you got into an argument with [complainant]?
A: Yes.
Q: And you got from the kitchen a meat cleaver?
A: Yes.
Q: And while you were yelling at her, you had the meat cleaver in your
hand?
A: Yes, Your Honor.
Q: And it was your intention to scare her with that meat cleaver?
A: Yes.
Q: But you didn't intend to actually hurt her?
A: No.
Q: And you agree that would be a threat, the way you were working
things?
A: Yes.

...
Q: You agree that you did this to terrorize her?
A: Yes.
Id. at 814. The admission that respondent had the intention to scare the victim
showed that he had acted with the purpose to terrorize rather than with mere
negligence. Id.

By contrast, in Reyes-Morales v. Gonzales, the Eighth Circuit held that a conviction

for phone harassment under a Minnesota statute was not a CMT, overruling the IJ
and BIA. 1 435 F.3d 937 (8th Cir. 2006). That offense could be accomplished by
intentional conduct which the actor knows or has reason to know would cause
the victim under the circumstances to feel frightened, threatened, oppressed,
persecuted, or intimidated. Id., at 943 (citing M.S.A. 609.749).

First, the Eighth

Circuit distinguished Ajami, since the present phone harassment statute did not
require the intentional transmission of threats. Id. at 944. Second, the Court
rejected the notion that an adequate mens rea could be inferred from the fact that
the respondent engaged in behavior perceived as threatening. Id. (no court, in any
jurisdiction, has gone so far as to rule that threatening behavior alone suffices to
show the existence of a vicious motive or corrupt mind).

Turning to clients case, it is possible that a plea to 323(b) would be viewed as other
than a crime of moral turpitude, but only if there is no evidence of an sufficiently
culpable state of mind on his part. The most serious difficulty is that client may
have threatened to kill the victim. If he made this statement with the intent to
scare the victim it almost certainly constitutes a CMT. See, e.g., Manzar v. Mukasey,
266 Fed. Appx. 656 (9th Cir. 2008) (unpublished) (holding that respondent was
1 Note that the Eighth Circuit overruled the BIA despite applying the deferential standard of
review articulated in Franklin v. INS, 72 F.3d 571, 572 (8th Cir.1995), whereby the Boards
CMT determination is upheld so long as it is reasonable. In contrast, at least four other
Circuits view such determinations de novo. See Reyes-Morales 435 F.3d at 944, n. 4.

removable under Ajami where he knowingly made a threat to kill [the victim] and
[respondents] conduct did place him in reasonable fear that the threat would be
carried out). Yet the statement would not constitute a CMT if it was made as an
expression of anger; that is, with disregard for whether it would have caused fear,
but without the purpose that the statement cause such fear.

Thus, an ideal plea colloquy would make clear that client made the threat to kill
recklessly:
Q: Did you state that you would kill girlfriend?
A:

Yes.

Q:
Did you contemplate that you might kill her if she didnt do what you
wanted?
A:

No.

Q:

Did you want her to think that she was going to die?

A:

No.

Q:

Did you care if you scared her?

A:

No.

Q:

Did you make that statement because you were angry?

A:

Yes.

Q:

And because you were mad at girlfriend?

A:

Yes

Q:

But you didnt want her to fear for her life?

A:

No.

Further, an ideal plea colloquy would emphasize facts concerning the victims
fragility; that she was in fact placed in a state of fear by clients conduct but that he
didnt intend to produce the full extent of her fear.
Q:

Did you know at the time that girlfriend is bipolar?

A:

Yes.

Q:

And does this make her emotionally fragile at time?

A:

Yes.

Q:
Does she sometimes gets scared when you two get in
arguments?
A:

Yes.

Q:

And you should have known, shouldnt you, that your statement
to girlfriend might make her very afraid?

A:

Yes.

Q:

But you didnt stop to think about that did you?

A:

No.

Q:

Because you were angry and lashing out?

A:

Right.

Finally, in a best case scenario, it would be clear from the face of the final judgment
that client pled to 323(b) rather than 323(a). I dont know what the procedure
would be in Lexington does the prosecutor just move to dismiss the first two
counts? but it would be ideal if the complaint could be amended to show that
client was charged with only 323(b).

2. Third Degree assault is even less likely to be found a crime involving

moral turpitude.
Third Degree assault is committed if a person: (a) Intentionally, knowingly, or
recklessly causes bodily injury to another person; or (b) Threatens another in a
menacing manner. Neb. St. 28-310.

My analysis of 310(b) is essentially identical to 323(b). On its face 323(b) appears

to require more egregious conduct (placing the victim in fear of imminent harm)

than does 310(b) (merely threatening in a menacing matter). Here, however, the
most important factor is what comes in through the record of conviction. A plea to
310(b) would constitute a CMT if the record evinced an adequately culpable state of
mind, and my advice for how to approach the plea would be identical to above. The
important difference is that courts are more inclined to determine that a crime is a
CMT when perpetrated against a domestic partner. See Sanudo, 23 I&N Dec. at
972. It is unclear precisely how this would change the legal analysis of whether an
offense was a CMT, but it is clear that all other things being equal offenses
against domestic partners are more problematic.

There are strategic considerations, however, about whether to ask the county DA to
amend from 323 to 310. On the one hand, it is certainly preferable for client to
have a conviction under 310(b) than 323(b). On the other hand, the most
important consideration regardless of whether the conviction is for 310 or 323 is
the documentation of clients state of mind when he committed the offense. In
other words, the most helpful concession to get from the DA would be cooperation
in producing a plea that minimizes the culpability with which client placed girlfriend
in fear (see analysis above in (1)). So if we have limited capital with the DA, this
might be best used to arrange a favorable plea hearing, rather than amending to
310.