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:
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.
October 17, 2008
a lesson on the passive voice
A law student's blog complains of feedback concerning an alleged instance of passive voice in the student's writing. The student wrote, "This memo addresses the issue of whether [the client's] claim meets the standard of willful detention," to which the legal writing teacher commented, "Passive."
Not sure why the teacher had criticized the sentence, the student asked for clarification. The teacher's response was, "I marked that sentence b/c you used passive voice. To use active voice, you would say something like 'this memo WILL address' rather than putting it in terms of 'addresses.'"
I don't blame the student for being angry. First, the passive voice--which the student's sentence did not use--is not a grammatical mistake. It may not be the best stylistic choice, as it usually creates a wordier sentence whose subject is not identified, but it's not wrong.
Second, and more importantly, if this legal writing professor does prefer for students to write in the active voice instead of the passive voice, it would be good for him or her to learn how to recognize a passive construction.
Look for a form of the verb "to be" (am, is, are, was, were, be, being, been) + a past participle (that form of a verb that--for regular verbs--ends in -ed; irregular past participles are verbs such as written, gone, spoken, thought).
This lesson on the passive voice is now concluded.
teaching professionalism through legal writing assignments
Take a look at the new article by Prof. Ben Bratman (Pittsburgh), Toward a Deeper Understanding of Professionalism: Learning to Write and Writing to Learn during the First Two Weeks of Law School, 32 J. Legal Prof. 115 (2008).
From the abstract:
Law schools are under pressure to instill in their students a sense of professionalism, but what exactly does “professionalism” mean? And what can professors of legal writing do to lay an educational foundation of professionalism? They are, after all, the teachers who at most schools have the greatest interaction with the impressionable first-year students.
Professionalism is frequently used to mean a variety of behaviors that are important for lawyers to exhibit, but that are also important for those in business—outside the traditional professions—to exhibit. In the context of legal education, professionalism is better understood to mean those characteristics of a profession that distinguish it from a business. The most important distinguishing characteristic of a profession is that its essence and primary imperative are public service. The notion that lawyers, as professionals, must prioritize public service over profits is a romantic one, but an essential one for law students to understand.
As a professor of legal writing, my first of what I hope will become many steps in conveying this sense of professionalism to my first-year students is a writing assignment to be completed during the first two weeks of law school. The assignment asks students to analyze whether a fictional personal injury attorney is running a permitted “professional office” or a prohibited “business office” under a zoning ordinance. The students write a short inter-office memo applying a real precedent case in which a court ruled an insurance agent ran a “business office.” In crafting and using this memo assignment, I have dual goals—ensuring my students learn to write and also write to learn (about professionalism).
case dismissed for lack of service . . . on God
A Nebraska state senator has seen his lawsuit against God dismissed for lack of service. Suing the Almighty in September 2007, Senator Ernie Chambers sought a permanent injunction against such acts of God as earthquakes and tornadoes. Although God made a special appearance to respond to the suit, Chambers still asked the trial court to take judicial notice of God's omnipresence; the court was not persuaded: "Given that this Court finds that there can never be service effectuated on the named Defendant this action will dismissed [sic] with prejudice."
Here's a link for those who'd like to download and read the order itself:
Ilya Somin at the Volokh Conspiracy is "not entirely convinced" that the ruling is correct, offering a "better technical legal ground" for dismissing the suit, an argument based on lack of standing: "If the plaintiff's injury can't be redressed by a judicial ruling, he doesn't have standing to file a suit. Since God is omnipotent, the judicial injunction Chambers seeks can't possibly force him to do anything he doesn't want to do anyway."
P.S. This is probably not a good topic for your students' next memo or brief assignment. But it may make for some interesting class discussion in Civ Pro.
October 16, 2008
nailing Jell-O to the wall . . . literally
Maybe it's the political discourse that's bombarding us, maybe it's Justice Roberts's foray into noir fiction, maybe it's the stress levels of 1Ls causing weird vibes around the building, but I seem to be noticing a lot more figurative language these days.
Case in point -- the phrase "impossible as nailing Jell-O to the wall." I've always found that an intriguing simile. I've tried to picture it. And now, it turns out, someone has actually done a "mythbusters"-type experimentation to test the theory.
Is it possible to nail Jell-O to the wall? Well, yes, but not your typical Jell-O. Your kids would find it more than a little chewy.
Who Should Teach LRW?
Professor Hillel Levin has put a post up on the PrawfsBlog on the subject of "Who should teach LRW?" He goes through pros and cons of various models of legal writing programs (or as best as one could in a short blog post). There are already some comments following that post, so scroll down to see them.
Meanwhile, our friends at the Law Librarians Blog noted that he didn't have anything to say about the role of law librarians in teaching LRW. Click here to read what the Law Librarians Blog has to say.
Chief Justice Roberts. Dissents. Mixed Reviews.
John Roberts, Chief Justice, was working the late shift. Reviewing petitions for certiorari. The Court? As high as it gets. No further chance for review. The stakes? For the killers, it could be life or death. For drug pushers, it could mean a chance to fly free like a bird. Or get sent up the river.
Roberts had only been on the job a couple of years, but he already had read hundreds of these petitions. Maybe thousands. Who gets heard, who doesn't -- might as well flip a coin.
He spots a petition about a certain Nathan Dunlap. It's a case brought against Dunlap by the Commonwealth of Pennsylvania. Roberts wants to hear the case. So does one of his buddies on the court, Tony Kennedy. But the others don't go along. How can that happen? He's supposed to be in charge of this joint. He's the Chief. They should follow his lead and vote to hear the case.
Roberts writes a dissent. Tony joins him. Click here to read the dissenting opinion. The legal writing professors discuss it on their secret listserve. We can't tell you what they said. It would break the code of silence. But basically some think it's great, because it makes the law accessible. Others think it's ok, because it was a dissent rather than a majority opinion. And others think it is terrible, and that judges should avoid such writing in opinions. One thing's for sure. Roberts won't get the LWI Golden Pen Award.
Click here to read more about the mixed reviews for Roberts' dissent. And feel free to post your comments here on this blog too.
(mew, who is keeping his day job and not going into writing movie scripts)
October 15, 2008
Are You a Member of Clarity?
Clarity is an international organization promoting plain legal language. There are 1,019 members in 52 countries and jurisdictions (depending on how you count the Isle of Man, but there is only one member there).
Most (but not all) readers of this blog are in the United States. Professor Joseph Kimble is the USA representative for Clarity. Click here to send him a message about how to join Clarity. (Joe is also the main guy pushing membership in Scribes-- another great organization you should join--but in this post we're talking about Clarity).
If you live or work outside the United States, you can find other country representatives in Argentina, Australia, Bangladesh, Brazil, Canada, China, Finland, Hong Kong, India, Israel, Italy, Japan, Lesotho, Malaysia, Mexico, New Zealand, Nigeria, Philippines, Portugal, Singapore, Slovakia, South Africa, Spain, Sweden, the United Kingdom, and Zimbabwe. If you live or work in one of those countries, send a note to Joe and he'll pass it along to your country representative. You can also visit their website by clicking here. The website has a number of great resoruces.
You get a great magazine when you join -- I have been enjoying it for many years now. Each issue expands my understanding of how we as teachers in the U.S. are connected to a global community of educators, practitioners, and jurists who are interested in the same goal of clear communication. I'm just looking at issue number 58, which has articles such as "What Makes a Document Readable?" I believe that the magazine started 1n 1983, so it should be celbrating its 25th anniversary right about now.
I urge you to join. Really, I do. It's US $35 a year if you're living in the United States, and similar fees for other countries. But join for more than a magazine. There are 205 members of Clarity in the United States (more members than in Australia or South Africa, but fewer than England). That number should increase, and Clarity should hold more functions and meetings in the United States. We'll all benefit.
As for upcoming events, Clarity will hold its third international conference in Mexico City from November 20-23, 2008. It will be co-hosted by Clarity and the Mexican Government Underministry of Public Administration, which is responsible for Mexico's plain-language project. More information on this is at the website listed above.
October 14, 2008
job opening at Maryland
The University of Maryland School of Law solicits applicants for a full-time, non-tenure-track faculty position as Director for Academic Achievement to begin in Summer 2009. Responsibilities include coordinating an academic skills program for all first-year students that begins during orientation and continues throughout the fall semester; teaching a first-year elective and a second-year course designed to help low-performing students improve their analytical and writing skills; training and supervising upper-level teaching fellows; counseling and tutoring students to improve academic success throughout law school; acting as a resource for faculty, including assisting teachers of first-year subjects to integrate legal skills instruction into their courses; and coordinating the delivery of services with the school’s Writing Center and with the Office of Student Affairs. The Director for Academic Achievement will work closely with the Director and Associate Director of Legal Writing and with the Assistant Dean of Students.
Applicants need a strong law school record, excellent interpersonal and program administration skills, and the ability to understand student learning challenges and to provide innovative approaches to meeting those challenges. Prior experience with academic support and law school teaching is highly preferred. The position, although not tenure track, has full faculty status and voting rights. Salary is competitive and commensurate with experience. There are opportunities for additional teaching responsibilities and for summer research funding.
To apply, send a resume and cover letter by November 15, 2008, to Professor Jana Singer, Faculty Appointments Committee, University of Maryland School of Law, 500 West Baltimore Street, Baltimore, MD 21201.
books we can't live without
Joseph Bazan (Minnesota School of Business) recently polled legal writing teachers to discover the books we most rely upon and recommend to others. He has graciously granted us permission to share the results with you. Here are the top ten (which add up to even more, due to ties):
- William Strunk & E.B. White, The Elements of Style
- Anne Lamott, Bird by Bird: Some Instructions on Writing and Life
Bryan A. Garner, The Redbook: A Manual on Legal Style
- Richard C. Wydick, Plain English for Lawyers
Joseph M. Williams, Style: Ten Lessons in Clarity and Grace
- Mary Barnard Ray & Jill J. Ramsfield, Legal Writing: Getting it Right and Getting It Written
- Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer
- Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing
- Mary Beth Beazley, A Practical Guide to Appellate Advocacy
The Chicago Manual of Style
- Marjorie E. Skillin & Robert Malcolm Gay, Words into Type
- Alan L. Dworsky, The Little Book on Legal Writing
Linda Holdeman Edwards, Legal Writing and Analysis
- Any good unabridged dictionary
Other titles named in the poll include these (listed alphabetically):
- Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing
- ALWD Citation Manual: A Professional System of Citation
- Deborah E. Bouchoux, Aspen Handbook for Legal Writers: A Practical Reference
- Black’s Legal Dictionary
- The Bluebook: A Uniform System of Citation
- Joseph M. Williams & Gregory G. Colomb, The Craft of Argument
- Bergen Evans & Cornelia Evans, A Dictionary of Contemporary American Usage
- Bryan A. Garner, A Dictionary of Modern Legal Usage (Oxford Dictionary of Modern Legal Usage)
- George Gopen, Expectations: Teaching Writing from the Reader’s Perspective
- Terri LeClercq & Thomas R. Phillips, Expert Legal Writing
- Fowler’s Modern English Usage (2d ed. or Burchfield’s revision)
- Doris Lessing, Golden Notebook
job opening at Berkeley
The University of California, Berkeley School of Law seeks to fill the new full-time position of Director of Professional Skills starting July 1, 2009. The position is an academic appointment requiring teaching, administrative and leadership abilities. The director will be responsible for managing and participating in the law school’s Professional Skills program, currently comprised of a first-year legal writing and oral advocacy program taught by full-time instructors and upper-level advocacy, negotiation, and transactional courses taught primarily by part-time adjunct lecturers.
Applicants should demonstrate excellent academic credentials, substantial teaching and practice
experience, demonstrated administrative ability, and high-quality writing. Salary is commensurate with experience. A description of UC benefits is available at the University of California, Berkeley, Office of Human Resources website.
To apply, send a cover letter describing qualifications and interest in the position, as well as a resume and references via email to Sheri Showalter, Director, Human Resources, Room 315 Boalt Hall, University of California, Berkeley, School of Law, Berkeley, CA 94720-7200. The deadline to apply is November 15, 2008.
first colorful (or is it "noir"?) dissent of the new term
North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He's made fifteen, twenty drug busts in the neighborhood.
Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.
From Pennsylvania v. Dunlap, No. 07-1486 (Oct. 14, 2008) (joined in the dissent by Justice Kennedy).
hat tip: Chris Wren
Suffolk Journal of Trial and Appellate Advocacy is currently soliciting articles for the 2009 volume.
Your favorite scholarship dude (none other than "moi"), just received in his mailbox (the kind made out of wood, not electrons) a general solicitation for articles for Volume 14 of the Suffolk Journal of Trial and Appellate Advocacy, to be published in 2009. The Journal is published by student members of the Suffolk University School of Law Moot Court Board and is devoted to articles focusing on "current trial and appellate practice issues." Readers include professors, practitioners and judges interested in scholarly articles analyzing issues arising in trial and appellate practice making it a particularly appropriate forum for legal writing professors interested in writing practice oriented pieces.
Information on submitting your manuscript is available by clicking on the link above.
I am, humbly, the scholarship dude.
wiki for law journal authors
There's a wiki where law professors who are authors can share their Copyright Experiences. It was started as a place for law professors to post about their experiences negotiating copyright with law journals. The journals are able to post their policies there, too. If you're submitting an article to journals, you can see ahead of time which ones do not let authors retain copyright. Or, if you've had a bad experience with a journal, you can contribute to the wiki. Of course, if you've had a good experience with a journal, you can contribute that story, too.
October 12, 2008
Among her new blog entries on how language relates to women's issues, Judy offers an interesting look at the gendered language used in the Biden-Palin debate.
$154,000 worth of typos
An attorney had his fees cut by $154,000 for typos and errors in a court filing. Here's a link to the ABA story Irate Judge Blasts Typos and Errors in Filing, Slashes Fees by $154K. Some of you may recall the name of the attorney thus sanctioned, as this is not the first time a court reduced his fees due to sloppy written work.
hat tip: Professor R.J. Robertson, Southern Illinois University
New Article on Helping Students at Risk
Sonia Bychkov Green, Maureen Straub Kordesh, and Julie Spanbauer, all of The John Marshall Law School in Chicago, have written a paper called "Sailing Against the Wind: How a Pre-Admission Program Can Prepare At-Risk Students for Success in the Journey Through Law School and Beyond." Click here to download the paper. It will also be published in the University of Memphis Law Review, but why wait?
SEALS - Call for Papers to be Presented at Annual Meeting
The Southeastern Association of Law Schools (SEALS) invites the submission of papers in response to its annual Call for Papers. Those who submit the best papers will be asked to present them at the next annual meeting of SEALS, which is scheduled for August 2 - 8, 2009 at The Ritz-Carlton, Palm Beach, Florida. Winners will also receive a plaque commemorating their achievement.
Submissions may be on any topic related to law and may involve either an unpublished paper or an abstract. (FYI, in the past, the panel of judges has tended to favor completed papers over promising abstracts.) The submission deadline is December 1, 2008, and notifications will be made by February 1, 2009.
Questions about the call for papers (or about SEALS generally) can be directed to Russell Weaver, the Executive Director of the Souteastern Association of Law Schools, by clicking here.
Legal Research, Legal Writing, and Moot Court: Pink Ink and Beyond
Some of the most interesting cases for legal writing assignments and moot court competitions involve issues of sexual orientation and gender identity. Many professors may be reluctant to use these issues in appellate brief or legal memorandum assignments. A session at the Annual Meeting of the Association of American Law Schools annual meeting in San Diegot will discuss guidelines for using sexual orientation and gender identity issues in legal writing problems, and examine specific topics (such as criminal and civil actions for hate crimes) that have made for particularly effective legal writing assignments. The session will also provide information on the sexual orientation moot court competition, and on using past problems from that competition as the basis for future moot court problems and legal writing assignments.
Speakers/presenters on the panel include:
James G. Durham, Touro College, Jacob D. Fuchsberg Law Center
Greg Johnson, Vermont Law School
Lyonette Louis-Jacques, The University of Chicago Law School
Anthony S. Niedwiecki, Nova Southeastern University, Shepard Broad Law Center
Robert Bradley Sears, Executive Director, The Charles R. Williams Institute on
Sexual Orientation Law and Public Policy, Los Angeles, California
Robert Volk, Boston University School of Law
Nancy A. Wanderer, University of Maine School of Law