Legal Writing Prof Blog

A New Take on the Skills v. Doctrine Debate

The WSJ Law Blog recently featured an article by Professor Paula Franzese, Seton Hall, contending that framing curricular issues as skills v. doctrinal misses the mark.  Instead, Franzese contends that we should focus on right v. left brain.  From the WSJ blog:

The notion that law schools should teach more practical skills and hands-on training is in vogue these days.

But Paula A. Franzese, a property and government ethics professor at Seton Hall University School of Law, thinks that the theory v. practice debate needs to be reframed. The more important divide, she says, is between the two sides of the brain.

“Much of what we tend to do in the law school classroom is aimed at honing left-brain thinking,” writes Ms. Franzese in a forthcoming essay in Seton Hall Law Review.

The left-brain approach emphasizes “reasoning through precedent.” Students are taught the facts of a case; the strengths and holes in the arguments; how and why a court ruled a certain way; how it was different from what came before.

That kind of training often misses the bigger picture of things — a conceptual, contextual and empathetic understanding that gives the other side of the brain a workout, says Ms. Franzese.

“It behooves us to give those metaphorically “right hemisphere” abilities…their due in the law school classroom,” she writes.

 (dbb)

 

Attention, word lovers

The numerous names for linguistic phenomena may interest only word lovers—but there are many of those among this blog’s followers. Legal writing expert Bryan Garner, who counts himself among the word lovers, presents a passel of arcane but interesting tags in the May ABA Journal. For instance, synecdoche is a metaphor that uses a part to represent the whole: you drive your wheels. And metonymy refers to a thing with the name of something related: you see a play on Broadway, and the bench may issue a ruling. A zeugma combines terms in an unexpected way for humorous or dramatic effect: “I lost my wallet and my temper.” See Garner’s article for more fascinating terminology. (Yes, I am a word lover who finds these terms fascinating!)

(jdf)

Notification of Conference and Call for Proposals - Psychology & Lawyering: Coalescing the Field

The University of Nevada, Las Vegas - William S. Boyd School of Law will be hosting an upcoming conference which may be of interest to legal writing professors, as it deals with the intersection of psychology and lawyering skills.  More info below:

In recent years both academics and practitioners have increasingly begun to recognize that the field of psychology has a tremendous amount to offer practicing attorneys. Traditionally, those who connected law and psychology focused primarily on juries, trials, and criminals’ states of mind. But today, researchers are broadening their focus to examine the ways in which psychology can be of use to a wide variety of common lawyering practices, including interviewing, counseling, writing, negotiation, and ethical conduct as well as attorney satisfaction and business success.

We welcome proposals (250 words or less) from prospective presenters from law, psychology, or other disciplines who wish to present on how insights drawn from psychological research can be applied to help lawyers better represent their clients. (Presenters will be expected to pay their own expenses, except that UNLV will provide some nice meals.) Please submit your abstract electronically as a Word document or PDF to Jean.Sternlight@unlv.edu by July 15, 2013. Include a title and your contact information as well. The Nevada Law Journal has offered to publish approximately ten papers arising out of this conference. Please let us know if you think you might be interested in this publication opportunity. Final papers would be due in the summer of 2014. Finally, if you are interested in attending the conference but prefer not to make a presentation, please let us know that as well. We will need panel chairs, attendees, and quite likely commentators. While there is no conference registration fee, attendance will be limited. You can reserve a spot by registering here: http://law.unlv.edu/registration-LawPsych2014. We will be providing more details on the conference, accommodations and other matters closer to the date. If you have questions or would like further information please contact: Jean R. Sternlight Saltman Professor of Law & Director Saltman Center for Conflict Resolution University of  Nevada, Las Vegas Boyd School of Law Jean.Sternlight@unlv.edu  (702) 895-2358

(ldj)

brief right

If you're looking for some inspiration for staying the course as you grade a stack of 1L papers, you may appreciate brief right, a blog written by Kirby Griffis, a Washington, D.C., litigator. After marking the umpteenth misplaced apostrophe, it can be reassuring to see that you're not the last person on the planet who knows the difference.

(spl)

 

our texting students

We're now teaching students who enter law school used to texting all day long. In an interesting article on "Texting and the Friction of Writing", Lindsey Gustafson looks at the implications.  Here's her abstract: 

"This article begins with a picture of a moving target: a summary of the current state of mobile phone use, with an emphasis on how frequently young people text. The article then covers law teachers’ first obvious concern with texting’s impact on more formal writing: whether frequent exposure to and use of text speak weakens general language acquisition and students’ growth as expert legal writers and readers.

"A deeper concern is addressed next: whether the ease of texting will make students accustomed to quick, easy writing, and will thereby compromise students’ ability to use writing to work through and solve problems. Finally, the article closes with a reason to show students that they are already part of a community of writers: it not only may relieve students’ anxiety about learning a new form of writing, it may also give them a greater awareness of their linguistic options and how to use them to meet the needs of their new, law-trained audience."

(spl)

registered for the ALWD conference yet?

It's already the middle of May, and then June will follow, and then it will be time for the ALWD conference. If you plan to attend and haven’t yet registered, note that the conference fee is $400 if paid by Sunday, May 26th, and $450 after that date. You can register on the conference website.

The conference will be held at Marquette Law School from Wednesday, June 26th through Friday, June 28th. It begins with an opening reception at the law school on Wednesday evening. Presentations will run throughout the days on Thursday and Friday, with an ALWD membership meeting and ABA standards update during lunch on Thursday and a plenary presentation during lunch on Friday. And there will be a  fun fish-fry polka dinner on Thursday evening and an ice cream custard social and trip to Summerfest on Friday evening.

(What's that you say? Don't know how to polka? Can you count to three? Well then, you can polka.)

hat tip: Susan Bay

(spl)

Shhhh! Don't Tell Anybody! Here's a Secret Link . . . .

. . . to the 4th edition (2012) of the Style Manual for the Supreme and Appellate Courts of Illinois.  Go ahead, have a look by clicking here.

(mew)

Do law students become worse writers?

Fifty percent of Bryan Garner’s students believe their writing has gotten worse since they started law school. To explore that belief further, Garner asked to see the previous writing of one honors English major who thought his writing had declined. The introduction to his moot-court brief contained a misplaced modifier, verbose and flowery writing, and a hyperbolic tone; Garner agreed that the brief’s low grade was warranted. But the student’s senior thesis was no better: its beginning was “empty and confused,” with "roundabout wording" and flawed sentence structure. Garner’s speculates that the paper's grader may have been “so jaded by rampant illiteracy” that “plausibly formed English sentences” were enough to summon an A.

What causes the incongruity between the students’ confidence and their actual performance?  Garner explained in the May Student Lawyer that many students’ writing has been so overpraised that they’ve never developed the skills necessary to do good persuasive writing. “[M]any who think they’ve lost skills they once possessed,” Garner writes, “never really had them at all.”

(jdf)

an opinion that covers the gamut . . .

The U.S. District Court for the Central District of California, in a somewhat curious use of Star Trek references, offered an opinion that addressed a pornography downloading issue and included a Google maps screenshot and an elaborate chart (see pages 7 and 9 of the opinion) to aid understanding.  Read the first paragraphs below (highlighted language added)--or read the entire opinion.

 The judge started with a quote from Star Trek II: The Wrath of Khan, and then said, "Plaintiffs have outmaneuvered the legal system.They’ve discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle—for a sum calculated to be just below the cost of a bare-bones defense. For these individuals, resistance is futile; most reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry. Plaintiffs do have a right to assert their intellectual-property rights, so long as they do it right. But Plaintiffs’ filing of cases using the same boilerplate complaint against dozens of defendants raised the Court’s alert. It was when the Court realized Plaintiffs engaged their cloak of shell companies and fraud that the Court went to battlestations."

(njs)

Lisa McElroy is awarded tenure

Lisa McElroy of Drexel University has been awarded tenure. An active member of the legal writing community, Lisa has been on the boards of directors of both LWI and ALWD. She has also written about Supreme Court practice, contributed op-ed pieces in the national media, and written for the Plain English section of SCOTUS blog. Congratulations, Lisa!

Hat tip: Terry Seligmann

(jdf)

Amy Sloan is appointed associate dean

Amy Sloan of has been appointed Associate Dean for Academic Affairs at the University of Baltimore School of Law. Amy's dedicated involvement in the legal writing community is legendary--she is a past president of the Association of Legal Writing Directors, and among her many publications is a book on legal research. Now she continues a trend of legal writing professors assuming positions of leadership in law schools. Congratulations, Amy!

hat tip: Eric Easton

(jdf)

The pitfalls of digitization of legal materials

Digitization of legal materials has its pitfalls, as West Virginia’s legal writing director Hollee Schwartz Temple explains in the May ABA Journal. Contrary to popular belief, not everything is available in digital form—and budget cuts are exacerbating that situation. And uniformity is a continuing problem as librarians grapple with how to ensure perpetual access to legal materials. Read more in Temple’s article, Fading Fast.

(jdf)

Comments Sought on Federal Student Aid Application

The U.S. Department of Education seeks comments on the Federal Student Aid application. Comments are due by July 5, 2013.  Click here for more information. 

(mew)

 

The scoop on federal court opinions and advocacy from Judge Posner

Judge Richard A. Posner offers insights on federal court opinions and advocacy in his recent article Judicial Opinions and Appellate Advocacy in Federal Courts—One Judge’s Views. His observations about how judges decide cases and write opinions will be of particular interest to law graduates who are about to start judicial clerkships. Posner criticizes typical “formalist” case opinions, often drafted by law clerks, as including useless facts, unhelpful bromides, and uninformative string citations. Such opinions display “a tendency to overkill, to repetition, to tedium, and the clutter of citations, facts, quotations, and boilerplate . . . .”  Posner’s antidote for these flaws is “economy of expression.”

In his advice for advocates, Posner advises that they put themselves in the judge’s place. Because the typical judge has little time for each case and is seldom an expert in the subject matter, the judge “is badly in need of advocates’ help.” And at oral argument, the advocate should be ready with “simple, common-sensical points.”

In one particularly interesting section, Posner criticizes the Supreme Court for referring to dissenting opinions in majority opinions and for displaying “pseudo-learning[ ] and uncontrolled verbosity” that make many of its opinions “extremely painful to read.”

For more of Posner’s inside information, read the full article at 51 Duquesne Law Review 3 (2013).

(jdf)

Rules to Forget

The Lawyerist has a nice post on three grammar rules that you ought to forget.  It turns out that your grade school grammar teacher may have perpetuated some bad, or at least unnecessary, habits. 

First, you should use “and” and “but” to begin a sentence.  From the post:

Using “and” to start a sentence is not only grammatically correct, it’s often the best choice. Compare this:

The defendant had a loaded pistol in his jacket. And he was high on methamphetamine.

to this:

The defendant had a pistol in his jacket. Additionally, he was high on methamphetamine.

Which sentence has a greater impact?

And (see, I’m already catching on) you should use prepositions at the end of some sentences:

[The preposition] rule comes from a few Latin-obsessed writers in the 19th century. But English sentences are not structured like Latin. Forcing the preposition into the sentence leads to bad results:

What is the new tool used for?

or:

For what purpose is the new tool used?

Head over to the original post for the third rule that your elementary school teacher misled you with. The fall will be here before we all know it (gasp), and this piece might make a good starting point for a sentence-level writing discussion with your 1Ls.

(dbb)

funny or not?

A federal judge in San Antonio, Texas, wrote an opinion in a strip-club case that, ah, got into the spirit of the situation:  he chose words such as naked, clothe, erection, impacting, bottom, and girdled--and that's in the first four paragraphs of the opinion.  He also cited to the 60's song "Itsy Bitsy Teeny Weeny Yellow Polka Dot Bikini."

Read it for yourself, and decide:  funny . . . or something else?

(njs)

Zinsser still going strong at 90

William Zinsser, author of the respected On Writing Well, is still going strong at 90. A recent New York Times article reports that he holds one-on-one counseling sessions for writers. The article reiterates two well known pieces of Zinsser's advice: “'Clutter is the disease of American writing,'” and “'We are a society strangling in unnecessary words, circular constructions, pompous frills and meaningless jargon.'”

hat tip: Jean Sbarge

(jdf)

insightful post from The Faculty Lounge

I think this post speaks for itself:

We Were Not Equals

You can prep a dean all you want for his deposition in a lawsuit regarding a faculty firing, but sometimes he'll still answer entirely candidly.  Background on the case is here.

Buffalo Law Dean Makau Mutua  was asked by Jeffrey Malkan's attorney about events that occurred before Mutua was dean...

Dean: I wanted to educate myself more about the various staffing models of the programs and I asked Jeff [Malkan] to provide me with a summary of the various models used by various schools to staff their research and writing programs.

Attorney: And he complied with your request even though he technically wasn't bound to do that for you?  You were equals, right?

Dean: No.  We were not equals.

Attorney: You were not both --

Dean: We were not equals.  This is again, you are coming back to the same problem.  Jeff Malkan, you know, was a research and writing instructor.  I was a professor of law.

More text of the exchange is here.  

Yes, I understand precisely what the dean was saying about faculty status.  But I think plenty of tenured faculty would never imagine that they were anything other than equals of their contract faculty colleagues.  ABA standard 405(c) may (or may not) protect jobs, but it has nothing to say about  respect. 

(from http://www.thefacultylounge.org/)

hat tip:  Mark Burge, Texas Wesleyan

njs

Do judges expect lawyers to say “May it please the Court”?

Beginning an oral argument with the phrase “May it please the Court” is a well-entrenched tradition: Bryan Garner reported in the April ABA Journal that he found uses of it going back to Shakespeare’s time. When Garner asked several judges what they think of the phrase, one judge said it’s better than an informal “Hi,” another said he doesn’t care whether lawyers use it, and a third said she always notes its absence. Overall, Garner concluded, “The consensus seems to be that it won’t really help, but it certainly can’t hurt.”

When I practiced law in Los Angeles, our senior partner thought "May it please the court" was pompous, and he began his arguments, "Good morning, your honor." And he did pretty well.

(jdf)

positions at University of Idaho

The University of Idaho College of Law invites applications for two faculty positions: a Legal Research and Writing Assistant Clinical Professor and a Director of Externship and Pro Bono Programs.  More information on both positions and the application process is available on the University’s faculty hiring website.

Disclosure Form for LRW position: 

1. The position advertised: 

__ a. is a tenure-track appointment.

__ b. may lead to successive long-term contracts of five or more years.

_X_ c. may lead only to successive short-term contracts of one to four years.

__ d. has an upper-limit on the number of years a teacher may be appointed.

__ e. is part of a fellowship program for one or two years.

__ f. is a part-time appointment, or a year-to-year adjunct appointment. 

Additional information about job security or terms of employment, any applicable

term limits, and whether the position complies with ABA Standard 405(c):

 

2. The professor hired: 

_X_ a. will be permitted to vote in faculty meetings.

__ b. will not be permitted to vote in faculty meetings. 

 

3. The school anticipates paying an annual academic year base salary in the range checked

below. (A base salary does not include stipends for coaching moot court teams, teaching other

courses, or teaching in summer school; nor does a base salary include conference travel or other

professional development funds.) 

__ a. $90,000 or more

__ b. $80,000 to $89,999

__ c. $70,000 to $79,999

_X_ d. $60,000 to $69,999

__ e. $50,000 to $59,999

__ f. $40,000 to $49,999

__ g. $30,000 to $39,999

__ h. this is a part-time appointment paying less than $30,000

__ i. this is an adjunct appointment paying less than $10,000

 

4. The number of students enrolled in each semester of the courses taught by the legal research

& writing professor will be: 

__ a. 30 or fewer

__ b. 31 - 35

_X_ c. 36 - 40

__ d. 41 - 45

__ e. 46 - 50

__ f. 51 - 55

__ g. 56 - 60

__ h. more than 60

Additional information about teaching load, including required or permitted

teaching outside of the legal research and writing program:  Included in the position description.  Faculty member may teach an additional 2 credit course.

hat tip:  Jeffrey Dodge, University of Idaho College of Law, Associate Dean of Students & Administration

(njs)