Thursday, April 17, 2014
Lawyers are often told that the word shall is prescriptive, meaning that something is required. But as NKU Chase Professor Phillip Sparks pointed out in a recent Kentucky Bench and Bar column, shall can actually have several meanings and may be more confusing than helpful. Sparkes points out that England, Scotland, Australia, and New Zealand have largely eliminated shall from legal writing. Often the simple present tense will suffice: in a definition, instead of "the chief executive officer shall mean . . . ," the drafter can write, " The chief executive officer means . . . " Sparkes concludes, "Shall is disappearing from standard English. Let's not rescue it for legal English, shall we?" Read the full column at page 26 of the March 2014 Bench and Bar Magazine.
Tuesday, April 15, 2014
U.S. District Judge Matthew F. Kennelly of the Northern District of Illinois recently advised lawyers to winnow their arguments down to the most effective ones. His article in the winter issue of Litigation quotes Judge Richard Prosser to caution against a "frivolous scattershot" approach to briefing. Kennelly explains that a litigant has the judge's attention only briefly and should make the most of that time. Moreover, due to page or word limits, "weak arguments physically drive out better arguments." Kennelly's other advice on brief writing includes leaving out hyperbole and not making an argument that you are unwilling or unable to develop.
Saturday, April 12, 2014
In a recent Chronicle of Higher Education article titled "Bad Writing and Bad Thinking," author Rachel Toor argues that some problems with students’ writing arise from their belief that they must write like others in their fields—even when that writing is clumsy. Instead, Toor says, students should follow George Orwell’s and Strunk and White’s advice about thinking and writing clearly. She adds, “Call me simple-minded, call me anti-intellectual, but I believe that most poor scholarly writing is a result of bad habits, of learning tricks of the academic trade as a way to try to fit in. And it's a result of lazy thinking.” Law students’ exposure turgid judicial opinions may explain some of the problems they face in learning legal writing.
Hat tip: Faisal Kutty
Wednesday, April 9, 2014
Southern California lawyer William Domnarski raises some provocative points about legal writing in his new book, Swimming in Deep Water: Lawyers, Judges, and Our Troubled Legal Profession, published by the ABA. In an essay titled Lawyers Writing, Domnarski argues that legal writing is not a separate genre, but that good legal writing is just good writing, a point he says law schools don’t acknowledge. But legal writing professors may be closer to his view than he realizes. For years, I have quoted to my students Justice Scalia’s statement (which Domnarski references) that legal writing doesn’t exist as a separate genre. I point out that good legal writing has much in common with any good expository writing. But I also alert the students that they need to be attuned to legal terminology. No, I don’t mean they should start using legalese like aforesaid, which Domnarski rightly condemns. Instead I mean that students must understand and correctly use terms like battery and strict scrutiny.
I find more to disagree with in another essay, Legal Writing Instruction Misunderstood. There Domnarski argues that legal writing professors should teach grammar and usage, not legal analysis: “Language skills taught in legal writing classes have nothing to do with legal reasoning or knowledge of the law.” On that point Domnarski is wrong. Our AALS section is named “The AALS Section on Legal Writing, Reasoning, and Research” because experts in the field recognize the connection between legal reasoning and legal writing. Domnarski himself seems to acknowledge this when he writes in the same essay, “What the lawyer writes is determined by the facts and the law, both of which the lawyer has almost no control over. Presenting whatever best commends an argument is the challenge for the lawyer in his writing.” In short, legal analysis is an integral part of legal writing.
Domnarski also bluntly advises, “Burn anything that Bryan Garner has written,” on the ground that Garner “perpetuates the idea that legal writing is somehow special.” I don’t think that’s Garner’s purpose, and I recognize his important contributions to the field. His Redbook on legal style is an invaluable reference on, among other things, English usage—which Domnarski agrees lawyers need to brush up on.
Tuesday, April 8, 2014
In his latest ABA Journal column, Bryan Garner urges legal writers to ax certain words from their writing. He explains that and/or is not a word, and that you can write perfectly well without it. He also lists the stuffy legalese words herein, pursuant to, whereas, witnesseth, same when it means it, and said when it's "a fancy-pants substitute for the." See Garner's April column for his complete list of words and explanations of why you should eliminate them.
Saturday, March 29, 2014
In addition to the Legal Writing Memes that we told you about a couple of days ago, the Internationally Wrongful Memes Tumbler site will be a great source of amusement for Jessup Teams and their coaches. The Philip C. Jessup International Law Moot Court Competition is the largest moot court competition in the world, and many team coaches (like me!) are legal writing professors. Click here for a quick visit.
Friday, March 28, 2014
Professor Mark Cooney of the Thomas Cooley Law School has published a new book called "Sketches on Legal Style." It's published by Carolina Academic Press.
Thursday, March 27, 2014
More Friday Fun! Need a quick laugh? Click here for the latest Legal Writing Memes. Here's a sample:
Blame for this grading distraction goes to Jennifer Murphy Romig, Instructor of Legal Writing, Research, and Advocacy (and now add Memes too) at Emory University School of Law.
But far from being just a grading distraction, we know that some professors have used these in their legal writing classes, so DO take a look in case you find something useful for your class.
Tuesday, March 25, 2014
North Carolina attorney Stephen Feldman recently advised lawyers that to be persuasive, their writing must be clear, and to be clear, it must be purposeful. His article in the Jaunary 2014 issue of For the Defense stresses that every word and every sentence needs a purpose. As an example, he offers a 44-word sentence whose purpose is unclear:
Plaintiff’s characterizations of the financial information provided by Defendants do not change the undisputed facts that Defendants never held out the financial information as being anything other than estimates of expenses and net income for commercial property to be constructed in the future.
To fix the sentence, he divides it and includes several pauses, creating stress positions that focus attention on the key points:
Here, summary judgment is warranted based on an undisputed fact: the defendants told the plaintiff that the relevant financial information was an estimate. The plaintiff’s characterization of this fact does not change its undisputed nature.
Feldman recognizes that writing purposefully takes time. But it’s time well spent, he says, because “Clear writing makes winning more likely.”
The For the Defense version is not yet on line, but Feldman's article can be accessed at his law firm's website.
Saturday, March 22, 2014
Friday, March 21, 2014
Rhetorician George Gopen recently wrote an article titled Why the Passive Voice Should Be Used and Appreciated—Not Avoided. Gopen’s argument is that the passive “moves the furniture around” as “the feng shui of grammar.” For example, the passive voice can put information in a desired stress position. If your writing has focused on Smith, you can continue that focus with the passive voice: “Smith was convinced to cede his interest in the property by the false representations of Jones.” Banning the passive voice, Gopen says, is “perhaps the single worst idea we teach about the English language.” His article in the winter 2014 Litigation journal contains other examples of the effective passive voice.
Gopen is the 2011 recipient of Legal Writing Institute's Golden Pen Award.
Thursday, March 20, 2014
A new Tumblr account has photos of . . . yes, can it be true . . . law prof grading! The excitement! The thrills! Have a look!
Actually it seems that cats and dogs are doing more grading than professors, but you'll have to be the judge of that yourself.
Blame this distraction on Professor Emily Grant, Co-Director, Institute for Law Teaching and Learning (and now Grading too) at Washburn University School of Law. And while we're at it, blame my colleague Professor Maureen Collins at The John Marshall Law School, who is one of the contributors to this new collection of photos. Your own photographs are welcome as well -- send them to Emily Grant, if you dare.
Tuesday, March 18, 2014
In his March ABA Journal column, Bryan Garner quoted this quip by Justice Oliver Wendell Homes: "Lawyers spend a great deal of time shoveling smoke." Garner also cited nineteenth-century English barrister F.C. Moncreiff, who advised lawyers to obfuscate when they have a weak case. But Garner says that's bad advice. Of his mentor, a renowned lawyer, Garner says, "I never heard him try to confuse a court." Garner concludes, "If you want to win, you can't write a 'hide-the-ball brief' or make a 'hide-the-ball' argument. That goes nowhere. You must make clear points and hope the scales weigh in their favor."
Saturday, March 15, 2014
Junior legal writing scholars can receive critiques from experts at a workshop on July 25-26, 2014. The Washburn Junior Legal Writing Scholars Workshop will provide a collaborative environment for current and aspiring legal writing professors to receive feedback from other legal writing professors on their scholarly projects. Washburn will fund lodging for one night along with all meals during the workshop. The workshop organizers, Emily Grant and Joseph Mastrosimone, strongly encourage scholarship submissions that are in any stage – idea outline, work-in-progress, or nearly complete and ready to submit.
Proposals for are due by April 15, 2014. For more information about the workshop and how to apply for it, see http://washburnlaw.edu/facultystaff/juniorlegalwritingworkshop/.
Hat tip: Joseph Mastrosimone
Friday, March 14, 2014
In a good reminder about the importance of legal analysis, Judge Posner had some choice words for the attorneys who filed the opening brief in the case of Central States v. Lewis and Lashgari. In the opinon, which can be found here, Posner criticizes the "tiny" 118 word argument as "gaunt" and "pathetic." All the more reason to emphasize deep legal analysis to our brief-writing students this time of year!
Hat tip: Ralph Brill & ABA Journal
Wednesday, March 12, 2014
Professor Elizabeth De Armond has been named as the new director of the Legal Research and Writing Program at Chicago-Kent College of Law.
Professor De Armond earned her undergraduate degree in information and computer science from Georgia Tech. She graduated magna cum laude from Notre Dame Law School, where she served as articles editor for the Notre Dame Law Review. After law school she clerked for the Honorable Cornelia G. Kennedy of the U.S. Court of Appeals for the Sixth Circuit. Following her clerkship, Professor De Armond practiced in Dallas, where she concentrated in real estate and lending transactions. She also represented battered women in family court on behalf of North Texas Legal Services. Professor De Armond later moved to Boston, where she earned an LL.M. from Harvard Law School.
Tuesday, March 11, 2014
The magazine U.S. News and World Report ranks colleges and graduate schools, including law schools. They also rank legal writing programs and a handful of other specialities. Here's the 2014 rankings for Legal Writing. Seattle University and The John Marshall Law School of Chicago are again ranked first and second.
1 - Seattle University
2 - The John Marshall Law School--Chicago
3 - University of Nevada at Las Vegas
4 - Mercer University
4 - University of Oregon
6 - Stetson University College of Law
7 - Suffolk University College of Law
8 - Arizona State Univeristy Sandra Day O'Connor College of Law
8 - Indiana University at Indianapolis McKinney School of Law
8 - Univeristy of Arkansas at Little Rock Bowen School of Law
8 - University of Denver Sturm College of Law
12 - Duquesne Univesity
13 - Drexel University
14 - Brooklyn
14 - University of Wyoming
Professor Anne Enquist of Seattle University School of Law has been announced as the 2014 recipient of the Burton Award for Outstanding Contributions to Legal Writing Education. She will receive her award at the Library of Congress in Washington D.C. on June 9, 2014, during the prestigious Burton Awards for Achievement in Legal Writing.
The Burton Awards are widely known as the most elegant evening in legal writing. The actual awards presentation is followed by a black tie dinner and outstanding entertainment. Legal writing awards are given to law firms, law students, and for contributions to legal writing education. Awards are also given for Regulatory Innovation, Public Service, Public Interest, and, in 2014, a National Award for Reform in Law.
Professor Enquist joined the LRW community in 1980. She is the co-author of five legal writing books and authored many articles in the field. She served on the Editorial Board for Legal Writing: The Journal of the Legal Writing Institute from 1994-2002 and chaired the Program Committee for the national conference of the Legal Writing Institute in 1994. She also served as a director of LWI for more than 2o years. She was described by multiple nominators as "an innovator," a "workhorse," an “outstanding teacher,” and an “established leader.”
Hat tip to Noah A. Messing