Saturday, March 22, 2008
Carrie Sperling (Sandra Day O'Connor College of Law, Arizona State University) spoke on "Using Psychology to Inform What We Teach Students to Write." She discussed research in the behavioral sciences and how it should influence how we think about writing persuasively, especially demand letters, and negotiating effectively.
Specifically, she discussed research on the concept of "priming"--that exposure to certain words influences people's mood and behavior. Experiments demonstrate that subjects exposed to words associated with politeness behave accordingly, words associated with old age move more slowly, etc. She therefore suggests that when drafting demand letters and broaching negotiation, a writer should choose words that suggest cooperation and collaboration because doing so can prime opposing counsel to act accordingly. Conversely, drafting demand letters that cast blame and focus on losses prime opposing counsel to behave negatively.
She also discussed the psychological effect of people "tilting" towards an established number. Subjects who were primed with high numbers subsequently guessed a higher average temperature for Las Vegas than those who were primed with low numbers. Students who were assigned to represent either the plaintiff or the defendant then read a case and tended to report that it favored whichever side they had been assigned.
Therefore, she argues, in the "parallel procedural world" of ADR and non-litigation lawyering, the concept of priming can produce more cooperative processes and more favorable results.
March 31 is the deadline for applications to participate in the annual summer workshop sponsored by the Society for Values in Higher Education. The summer workshop will be held in July at the College of Notre Dame. Click here for more information.
Friday, March 21, 2008
I started the afternoon with a session on "Getting Past Google: Tips for Teaching Electronic Legal Research" by Shawn Nevers, from BYU. He spoke about the difficulty of teaching e-research effectively. He offered a telling comparison of the change in students' perception of their e-research skills versus the reality of their skill level: ten years ago, their perception and reality were similar; today, their perception of their skill level far exceeds the reality of those same skills, resulting in overconfidence.
He offered some tips for teaching e-research:
First, get involved with teaching e-research; don't leave it to vendor reps.
Second, meet your students where they're at--connect with how they use the internet for research by comparing Google searching with legal research.
Third, teach them the weaknesses as well as the strengths of e-research--they may never have heard anything negative about e-research or about its limitations.
Finally, offer practice and feedback both inside and outside of class. Lecture and examples are not enough; students need hands-on practice, preferably guided or with feedback.
The New York Times published a story yesterday on The Professor as Open Book, noting that professors of all ranks and disciplines are revealing a great deal of personal information on blogs, web pages, Facebook and other social networking sites, and even campus television. The story, written by Stephanie Rosenbloom, describes how some professors have created video responses to postings from students, such as that a professor is "boring beyond belief." The print version of the story (appearing on page E1 of my edition in Chicago) features a photograph Professor Kingsfield (John Houseman) from the movie, The Paper Chase.
The story raises questions about how much personal information professors should share with students. There are certainly arguments in favor of making the law professor "more human," and sharing personal information or photographs on a personal webpage can certainly do that. But there are also many other ways to accomplish that same goal without relying on electronic disclosures such as MySpace or Facebook.
Some will ask whether law professors (as opposed to professors in other disciplines) should be more aloof? I've known colleagues who pride themselves on keeping great distances between themselves and their students, at least when the students are taking classes. They might loosen up a bit when the semester is over, or after the students graduate. But in the field of legal writing, my experience has been that the most successful (and happy) professors would not be bothered if students knew something about their personal lives, or about what books they read or which movies they enjoy.
Obviously the debate is not one that will be solved by a newspaper article. But the debate does raise interesting issues of professionalism, communication, and effective teaching.
I have a Facebook page on which I post warnings to students about what they put on their Facebook pages. Many students do not realize that employers will look at their Facebook pages, and at the pages (and photos) on the "friends" identified on those pages. My facebook page does not contain so much personal information about me, but it does contain some things that are not (for example) on the faculty bio on the website for The John Marshall Law School. I know that students look at the page (they tell me so in the halls here from time to time), and I hope that they read the warnings about cleaning up their own webpages so that they won't be used against them later in job searches.
An interesting debate indeed. Thanks for the story, Stephanie!
The Law Librarian Blog posts news about an upcoming disability law seminar in Baltimore, Maryland. A featured day-long workshop on April 10, 2008, is for visually impaired lawyers and law students, covering research using Westlaw and assistive technologies. Scholarships to attend the seminar are available, but the registration deadline is coming up fast--April 1.
In a new post to his legal writing blog, University of Texas prof Wayne Schiess has thrown down the gauntlet, asking for defenders of the single-sentence Question Presented to demonstrate why that traditional form of issue statement is better than a multi-sentence construction. David Sorkin has responded, and so can you.
I had to laugh when I read the West Headnote of the Day from Gardner v. First American Title Ins. Co., 218 F.R.D. 216 (D. Minn. 2003):
Judges are not like pigs, hunting for truffles buried in briefs, and judges need not excavate masses of papers in search of revealing tidbits in support of litigants' motion, not only because rules of procedure place burden on litigants, but also because their time is scarce.
Although the headnote suggests that this district court opinion was the original source of this amusing comparison, the judge who wrote it in fact quotes and cites two circuit court cases as his sources:
While Plaintiffs seem to imply that the Court should have helped them carry their burden, “[j]udges are not like pigs, hunting for truffles buried in briefs,” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (per curium), and “need not excavate masses of papers in search of revealing tidbits--not only because the rules of procedure place the burden on the litigants, but also because their time is scarce.” Northwestern Nat'l Ins. Co. v. Baltes, 15 F.3d 660, 662-63 (7th Cir.1994) (Easterbrook, J.) (emphasis added).
Gardner, 218 F.R.D. at 218 n. 2.
Thursday, March 20, 2008
With the coming of spring, first-year law students around the country will soon blossom into appellate advocates arguing their first appeals. Much good advice for oral argument resides on the Internet, and we've provided links to many good sites around the country:
- Ten Tips for Presenting Better Oral Argument, by Judge Loren McMaster (although aimed at lawyers making motion arguments, the judge's advice is equally applicable to appellate arguments).
- Appellate Practice Tips, from the North Dakota Supreme Court (in addition to oral argument, including tips on preparing the record and brief)
- Making the Most of Appellate Oral Argument, by Howard Bashman (appellate litigator and author of How Appealing blog)
- Making the Oral Argument, by Jeffrey Batchelor (includes a downloadable .pdf booklet)
- Oral Argument in Criminal Cases: 10 Tips for Winning the Moot Court Round, by Brian Wice (published in the Texas Bar Journal)
- Legal Writing Tip - Answering Questions at Oral Argument, by Ariana Levinson (U of Louisville prof's practical advice to students)
Wednesday, March 19, 2008
Larry L. Teply of Creighton University School of Law in Omaha, Nebraska has published a new book on legal citation for the Thomson Nutshell Series. Legal Writing Citation in a Nutshell covers ALWD and Bluebook formats. The book includes appendices that many students will find to be quite useful.
Mark E. Wojcik, The John Marshall Law School-Chicago
Tuesday, March 18, 2008
Professor David Sorkin of The John Marshall Law School observes that "[i]n the practice of law, the wholesale copying of others' words and ideas seems to happen all the time." But he notes that lawyers have an ethical responsibility to "recognize plagiarism, understand it, and learn how to avoid it." And as teachers, we have a responsibility to teach it in a way that will be meaningful for our students.
So here's another great, short article that you can use as a handout for your writing classes. Professor Sorkin wrote Practicing Plagiarism for the Illinois Bar Journal. It was written for practicing lawyers, but as a handout it will work quite well with your students. You can download a copy of the article by clicking here or by going to http://ssrn.com/abstract=1100323. (You can also give the link to your students if you want to save on the amount of copying you have to do.)
The article discusses definitions of plagiarism, questions of intent, copying from cases versus copying commentary from treatises and other secondary sources, using form books, and knowing when to cite.
Here's a sample quote (from the conclusion of the article):
Plagiarism is something lawyers must take seriously. Passing off others' words or ideas as one's own work is unethical and potentially dangerous, even if it's merely the result of carelessness. Understanding and avoiding plagiarism are therefore essential skills for every lawyer.
Monday, March 17, 2008
In January 2007, Senator Arlen Specter (R-Pennsylvania) co-sponsored a bi-partisan bill aimed at requiring the Supreme Court to televise oral arguments. See Sen. 344, 110th Cong. (Jan. 25, 2007). (Co-sponsors were Senators Grassley, Durbin, Schumer, Feingold, and Cornyn.) An identical proposal was introduced in the House by Representative Ted Poe (R-Texas) (co-sponsored by Representatives Baird, Davis, Frank, Gillibrand, McCotter, Paul, and Pearce.) See H.R. 1299, 110th Cong. (Mar. 1, 2007).
Following initial hearings in February 2007, Senate Bill 344 was referred to the Senate Judiciary Committee, and the bill was placed on that committee's agenda for December 13, 2007; no action has been reported from that meeting. Although the House bill was similarly referred to that body's judiciary committee, nothing has been scheduled to date.
Should Supreme Court arguments be televised? Many think so, and they point to the success of a number of state court initiatives as evidence that the proposal would work well at the nation's highest court, notwithstanding some justices' objections.
- Justice Kennedy spoke against the bill at the February 2007 hearing, arguing in particular that "televised oral arguments would change the collegial dynamic between the Court and counsel." Robert L. Brown, Just a Matter of Time? Video Cameras at the United States Supreme Court and the State Supreme Courts, 9 J. App. Prac. & Process 1, 7 (2007) (quoting Joan Biskupic, Justice Pleads with Senate: No Cameras in High Court, USA Today 8A (Feb. 15, 2007)).
- Justice David Souter has been quoted as saying that "the day you see a [television] camera come into our courtroom, it's going to roll over my dead body." Id. at 4 (quoting Assoc. Press, On Cameras in Supreme Court, Souter Says, "Over My Dead Body," 155 N.Y. Times 24 (Mar. 30, 1996)).
Similar proposals in the 109th Congress (Sen. 1768) and 106th Congress (Sen. 3086) went nowhere. Will these bills meet a similar fate?
In observance of St. Patrick's Day, let's visit the National University of Ireland, Galway, whose website features an interesting legal writing style sheet. Intended for writers of essays on legal topics, the style sheet discusses topics such as structure, citation, footnoting, bibliography, and plagiarism. Note this reference to one well-known American writer's text:
Every lawyer and law student should have Garner's A dictionary of Modern Legal Usage (New York & Oxford): Oxford U.P., 1987). This 587-page book costs only #11.00 or so, and is a truly excellent piece of work. It is arranged in alphabetical order, giving the etymological and legal meaning of words, and the correct use of words and phrases. It is a legal encyclopaedia and a writing handbook in one and is almost worth buying for its entry under 'Law Reviews' which is a scathing attack on some of the writing in American law journals.