Saturday, October 18, 2008

more new legal writing scholarship

Thanks to the LSN division of SSRN, and the sponsorship of Legal Writing Abstracts by LWI, below are more abstracts of and links to scholarship of potential interest to legal writing professionals.  Some of these you may have heard tell of before, but on the theory it's easy to blip over something of interest in the busy middle of the semester, this week's whole list is offfered here:

"From Snail Mail to E-Mail: The Traditional Legal Memorandum in the Twenty-First Century"
KRISTEN K. ROBBINS-TISCIONE, Georgetown University Law Center
     Traditional legal memoranda have been used to teach objective analysis since the inception of legal writing programs in the 1970's. The continued use of these memoranda in the legal writing classroom leads law students to believe that traditional memoranda are still the primary form of communication between attorney and client. A 2006 survey of Georgetown University Law Center graduates, however, suggests that the traditional legal memorandum is all but dead in law practice. Seventy-five percent of the graduates surveyed said they write no more than three traditional memoranda per year. Instead, these graduates are more likely to communicate with clients about their research results by e-mail, telephone, face-to-face discussion, informal memorandum, or a letter, and in that order of preference. Ninety-two percent of the graduates indicated they use "substantive e-mail" to communicate with clients. The e-mail formats differ, but the goal is always the same: simplicity. E-mail gives attorneys the flexibility to compose their messages based on the particular issues presented and not some predetermined format. Whether or not legal writing courses continue to teach objective legal analysis through the traditional memorandum format, the survey suggests that, at a minimum, they acknowledge newer modes of composition being used by practicing attorneys.

"A Shot Across the Bow: How to Write an Effective Demand Letter"
BRET RAPPAPORT, DePaul University - College of Law
     Litigators should give the opposing party options by which it can avoid a full-scale legal battle. Such options are provided through the pre-litigation process of negotiated settlement.
     It is curious why so much time, training and effort goes into teaching law students and lawyers how to litigate, and so little into how to efficiently achieve as much of a client's goal as possible through the process of negotiated settlement. The process of dispute resolution through effective negotiated settlement involves carefully crafted strategies. What's more, settlement negotiations typically begin with a strategy that is the legal equivalent of a shot across the bow - a demand letter.
     In this article, I argue that writing an effective Shot Across the Bow letter requires the attorney to engage in specific analytical writing, and tactical strategies. I also propose a methodology for the preparation and execution of such a letter. By breaking down the steps and providing an example, I contend that a well-conceived, well-written, and well-sent Shot Across the Bow letter can increase the likelihood of a prompt, efficient, and satisfactory end to a civil dispute.

"A Checklist for Drafting Good Contracts"
SAM JACOBSON, Willamette University - College of Law
     The drafter of a contract wants to craft a document that accomplishes the objectives of the parties while protecting the interests of the client. To accomplish this, the drafter must be able to predict what may happen between the parties, to provide for each contingency, and to protect the client with a remedy. Often the drafter must do this quickly. While each contract involves different concerns, depending on the subject and the context, all contracts involve common requirements and considerations. With a thorough checklist of these requirements and considerations, a drafter need not reinvent the wheel with each contract. Instead, with the use of a checklist, drafters of contracts can ensure that their contracts are complete and effective.
     Like any legal writing, good drafting requires knowing the law and the substance first, followed by clear organization and by writing appropriate to the audience. It also requires an artist's touch, to ensure that the design of the contract document will aid in its usability and clarity. Finally, good drafting requires critical evaluation, reading the document through the eyes of bad faith or hostile readers, and periodic review to assure that the document continues to meet the parties' needs.

"What a Transactional Lawyer Needs to Know: Identifying and Implementing Competencies for Transactional Lawyers"
LISA PENLAND, Drake University - Law School
     While many law schools are beginning to teach transactional skills to train transactional lawyers for the practice of law, a gap remains between the minimal transactional skills a young lawyer should have and those that the recent law school graduate actually possesses. The primary purpose of this article is to identify basic transactional competencies for transactional lawyers and provide resources and direction for obtaining those transactional competencies. The article will take a brief look at the history of formal transactional training in law school; identify basic transactional skills necessary to prepare a lawyer for transactional practice; and provide insight into attaining transactional competency.
     Both the MacCrate Report and available statistics support the assertion that transactional practice is more than alive and well; it is equal and perhaps dominant to litigation practice. Additionally, even those litigation attorneys who proclaim they have never engaged in transactional practice have undoubtedly drafted the most basic of transactional documents - a settlement agreement. So, indeed, transactional competency is a must. However, while law schools are beginning to meet this real need, there is still a gap between what a transactional lawyer needs to know and what a law student learns in law school.


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