Legal Writing Prof Blog

So simple a caveman could do it - but will you?

Professor Mitch Rubinstein at the Adjunct Law Prof Blog has posted this impotant piece of advice about the desireability of professor's insurance.  As he points out, profs are probably already covered by their employers for most claims - like defamation - arising out of their publications.  But sexual harassment claims?  Not so much.

Peter Schmidt wrote an excellent Oct. 2, 2009 article for The Chronicle Of Higher Education entitled "Professors Are Pitched Lawsuit Protection." (registration required). It discusses an issue that professors do not like to talk about - being sued. Professors can be sued for defamation or worse yet for sexual harassment. Fortunately, as the article states, insurance can be purchased at very affordable rates. Unfortunately, most profs do not take advantage of this

The article features a law professor who was threatened with a defamation lawsuit for something she wrote in a law review article. As the article states:

Merle H. Weiner, a professor of law at the University of Oregon, received two rude surprises after the University of San Francisco Law Review published her article about how international courts treat domestic-violence victims.

The first was that the plaintiff in a case she had cited in her footnotes accused her of defamation and threatened to sue her if she did not remove a reference to him in versions published online.

The article is not written for lawyers. Therefore, we do not why the university was not responsible. Seems to me that with respect to scholarship, the university is generally responsible because the prof is working within the scope of his or her employment. Sexual harassment cases are a bit different, but I am even aware of cases on the secondary level holding that school districts have a duty to defend such suits.

Check out Professor Rubinstein's wonderful blog here when you a get chance.

I am the scholarship dude.

(jbl)

Scholarship alert: "The Cartography of Legal Inquiry"

Washburn Professor Tonya Kowalski is on fire lately.  As we reported a few days ago, she recently published this article.  Now she's got a second article in the chute and ready to go.  This was, called "The Cartography of Legal Inquiry" is based on a very well received joint presentation with Aida Alaka at this summer's ALWD conference.  The article is available here on SSRN and the abstract is as follows:

As lifelong learners, we all know the feelings of discomfort and bewilderment that can come from being asked to apply existing skills in a completely new situation. As legal educators, we have also experienced the frustration that comes from watching our students struggle to identify and transfer skills from one learning environment to another. For example, a first-semester law student who learns to analogize case law to a fact pattern in a legal writing problem typically will not see the deeper applications for those skills in a law school essay exam several weeks later. Similarly, when law students learn how an equitable doctrine like "unclean hands" applies to a particular torts problem in one class, only the smallest percentage will then see the potential application for the doctrine in a contracts course with another professor. Fortunately, research in “transfer of learning” offers the legal academy tools to help students encode knowledge - whether doctrine or skills - in such a way that they know better when and how to retrieve it for later use.

This Article-in-Progress is the first to offer legal educators a comprehensive approach to the transfer of learning across the entire curriculum. It is also the first to propose that law schools employ schema theory to help students encode knowledge and skills for future transfer, as well as to conceptually integrate their courses. In the sample schema provided, students can use four categories of specific core lawyering skills as “constants” for navigating their coursework and employment. Finally, the author details a four-step “core skills approach” for aiding transfer, including the core skills schema; charts that show how various skill sets apply across the curriculum; a universal metacognitive reflection exercise; and additional sample exercises tailored to cue previous knowledge across conceptual bridges, such as the one that spans the distance from legal writing courses into clinic.

 

 I am the scholarship dude.

(jbl)

Joe Kimble Wins AALS Legal Writing Section Award

The Association of American Law Schools Section on Legal Writing, Reasoning, and Research has just announced the winner of its annual award.

Section Chair Rachel Croskery-Roberts announced today that the recipient of the 2010 AALS Section Award will be Professor Joseph Kimble, Chair of the Legal Research and Writing Faculty at Thomas M. Cooley Law School in Michigan.  This award is made periodically to an individual who has made a significant lifetime contribution to the field of legal writing and research.

Joe is pictured here with U.S. Supreme Court Justice Antonin Scalia, who is holding a copy of Joe's Book, Lifting the Fog of Legalese-- Essays on Plain Language published by Carolina Academic Press.

Professor Croskery-Roberts noted that Professor Kimble's achievements are too numerous to mention but include these highlights:

• His work in redrafting the Federal Rules of Civil Procedure
• His work in redraftinig the Federal Rules of Evidence
• His work with Scribes -- The American Society of Legal Writers
• His work with Clarity, an international organization to promote plain legal language
• His work with the Legal Writing Institute (especially its Outreach Committee)

Joe has been "a leader among leaders in the plain language movement." In the words of those individuals who nominated Joe, "Joe has lived, breathed, and dreamed plain language his entire professional lifetime, promoting good writing and research at every turn. He is truly a visionary - a champion."

Professor Kimble will receive the AALS Section Award (formally) at the beginning of the Legal Writing Section's extended program (!) at the AALS Annual Meeting in New Orleans on January 7, 2010 at 2:00 p.m. Professor Kimble will be invited to make brief remarks at the Friends of Legal Writing Luncheon just before the section program.

In receiving this award, Joe Kimble joins the following list of past winners: Richard Neumann, Anne Enquist, Ralph Brill, Mary Lawrence, Helene Shapo, Laurel Oates, Marjorie Rombauer, Marilyn Walter, and Terri LeClercq. 

Hat tips to Rachel Croskery-Roberts, AALS Section Chair, to the AALS Section Awards Committee Chair Kathy Stanchi, and to Awards Committee Members Mary Alegro, Helen Shapo, Emily Zimmerman, Eric Easton, Scott Fruehwald, Nancy Schultz, and Samantha Moppett

(mew)

binding briefs

There are many methods of binding a brief, but not all meet with the approval of the court.

Some courts allow stapling, but others do not, worrying about judges' and clerks' pricked fingertips, the result of handling briefs that are improperly stapled. In New York, a judge recently dismissed a motion for default judgment because the brief was "negligently stapled" and drew blood from those who handled it.

In Arkansas, appellate counsel must cover staples with tape. What kind of tape? The rules don't say, but we can assume that duct tape is not what the court has in mind, even though one can now buy it in colors to match the customary blue and red covers sported by appellate briefs.

Many courts are fond of spiral binding because it permits the open document to lie flat. Similarly, comb-style binding--if the comb is the right size--makes for an attractive and non-lethal binding.

In Minnesota, approved methods include "Velo-Bind or 3M Clincher Model 1000 Binding" (the latter of which is apparently obsolete, it being found nowhere on the Interweb).

Running a web search for brief bindings is more likely to turn up an image like this one.

What do the courts in your practice area require--or forbid?

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job opening at North Carolina

The University of North Carolina at Chapel Hill, School of Law invites applications for a full-time faculty position beginning Fall 2010 in the area of Academic Support/Legal Writing. Beginning and experienced teachers will be considered. Scholarship in areas related to legal education and/or research and writing pedagogy is strongly encouraged, as is leadership in state and national professional associations. The successful candidate will receive a twelve-month, non-tenure-track clinical faculty appointment subject to long-term contract renewal. Candidates should have outstanding academic records, as well as experience and demonstrated excellence in teaching, leadership, administrative skills, and legal research and writing. Membership in the North Carolina State Bar, or the ability to attain membership by the Fall of 2010, is preferred.

Applications will be accepted until the position is filled. The University of North Carolina at Chapel Hill is an Equal Opportunity Employer. Applications may be sent by mail or e-mail to Ms. Alice Girod, UNC-CH School of Law, 160 Ridge Road, Campus Box #3380, Chapel Hill, NC 27599-3380. Applications should include a cover letter, a current curriculum vitae, and contact information for four references. Confidential inquiries are welcome and should be made to Professor Charles E. Daye, Faculty Appointments Committee Chair, telephone (919) 962-7004 or to Professor Ruth Ann McKinney, Assistant Dean for Legal Writing & Academic Success. For more information about the UNC-CH School of Law, please visit its website.

ALWD/LWI required disclosures: The position advertised may lead to successive long-term contracts of five or more years. The professor hired will be permitted to vote in faculty meetings on all but personnel matters. The school anticipates paying an annual academic year base salary in the range $60,000-$109,999 range. (A base salary does not include stipends for coaching moot court teams, teaching other courses, or teaching in summer school; a base salary does not include conference travel or other professional development funds.) The Dean will set the salary at the time the offer is made, consistent with the selected individual’s skills and experience. This position is a twelve-month appointment and includes the responsibility of running the summer bar success program.

The number of students enrolled in each semester of the courses taught by the legal research & writing professor will be 30 or fewer or 36 - 40. At the University of North Carolina, the first-year legal writing program and the academic success program are intermingled.  The individual in this position will be responsible for teaching a 3L bar success program with a heavy writing component in the fall and spring and may also be responsible for teaching first-year or advanced legal writing, as appropriate and as time allows.

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California Judge Laments That There Is No Rehab Clinic for Acronym Addicts

It seems that judges have had enough of bad writing, improper punctuation, dangerous staples, and now overuse of acronyms. 

An appellate court justice in California wrote a 27-page opinion that criticized lawyers for "descending into an alphabet soup of jargon-based acronyms."  He wrote his opinion (without using acronyms) as a "small protest against the further uglification of the English langauge."  Click here to read more.

No reaction yet from the legal-political community in Washington DC, where many lawyers speak only by using acronyms.

Hat tip to Peter Friedman, Assistant Visiting Professor at the University of Detroit Mercy School of Law

(mew)

job opening at Marquette Law School

Marquette University Law School (Milwaukee, Wisconsin) invites applications for a position as a full-time, non-tenure track legal writing and research faculty member beginning in either the 2010 Spring semester or in the Fall 2010 semester.
 
Candidates should have distinguished records of academic and professional achievement as well as the commitment to, and potential for, excellence in teaching legal writing and research.  Legal writing and research faculty members teach in the first-year as well as in the upper-level curriculum.
 
The Law School encourages and supports academic, scholarly, and professional engagement by its writing and research faculty. To apply, please use this online link.
 
 
ALWD-LWI required disclosures: The position advertised may lead only to successive short-term contracts of one to four years. The professor hired will be permitted to vote in faculty meetings on all matters but faculty tenure. The school anticipates paying an annual academic year base salary in the $60,000-$69,999 range.  (A base salary does not include stipends for coaching moot court teams, teaching other courses, or teaching in summer school; a base salary does not include conference travel or other professional development funds.) The number of students enrolled in each semester of the courses taught by the legal research & writing professor will be from 36-50. 

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job openings at New York Law School

New York Law School is beginning a new first-year Legal Writing/Skills Program to be taught by full-time faculty. The Law School plans to hire three full-time professors for the 2010-2011 school year to collaborate on the phase-in of a first-year, eight-credit, two-semester program. The professors will be expected to work together with the program director to develop the curriculum and course materials. The school's goal is to develop a cadre of professional legal writing/skills teachers to assure the best possible training for its students. The legal writing/skills professors will be expected to teach legal writing, research and a range of clinical legal skills, including interviewing, counseling, and oral advocacy. 

Applicants must have a J.D. degree, strong academic credentials, and excellent analytical, writing, and research skills, as well as a demonstrable interest in teaching. The school prefers applicants with demonstrated commitment to legal writing and clinical skills instruction as a discipline and career path, as well as those who have prior practice and teaching experience.

Candidates with the appropriate qualifications and experience will be considered for appointment to the Law School's long-term contract system. Salary will be commensurate with qualifications and experience.

Applicants should send a cover letter and resume by November 15, 2009, to the Appointments Committee, Attention: Professor Anne Goldstein <[email protected]>, New York Law School, 185 West Broadway, New York, N.Y. 10013. Review of applications will begin upon receipt. Electronic submissions are preferred. 

ALWD-LWI required disclosures: The position advertised may lead to successive long-term contracts of five or more years. The professor hired will be permitted to vote in faculty meetings. (Faculty members in the long term contract system may participate in all faculty meetings and may vote on all matters of business other than faculty tenure matters.) The school anticipates paying an annual academic year base salary in the $100,000 - $109,999 range. (A base salary does not include stipends for coaching moot court teams, teaching other courses, or teaching in summer school; a base salary does not include conference travel or other professional development funds.) The number of students enrolled in each semester of the courses taught by the legal research & writing professor will be 36 - 45. (Professors teach two sections, total  number of students (36-45) varying with enrollment.)

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history of The Bluebook

Some legal writing profs have been reminiscing about the days when they learned to use The Bluebook--back when that wasn't its official name, back when it was shorter, back when it wasn't even blue.

For you young'uns who want to see a bit of history, or for you old-timers who simply want to relive your glory days, click here to view (or download) PDFs of the first 15 editions, courtesy of the The Bluebook Online.

Twenty-six pages from beginning to end, the first edition (1926) begins with these words: "This pamphlet does not pretend to include a complete list of abbreviations or all the necessary data as to form." Italics were to be used "as little as possible." Writers were admonished, however, to italicize "maxims composed of foreign words" and the following words, phrases, and abbreviations: aff'd, cf., contra, e.g., et seq., ex parte, i.e., ibid., in re, infra, loc. cit., op. cit., rev'd, and supra.

The tenth edition (1958) begins by explaining that "[t]he primary purpose of a citation is to facilitate finding and identifying the authority cited. The rules set forth in this booklet should not be considered invariable. Whenever clarity will be served, the citation form should be altered without hesitation; whenever a citation would not amplify the identification of the authority referred to, no citation should be given."

Editors of the eleventh edition (1967) rejected the third edition of the Merriam-Webster New International Dictionary as authority for definitions and italicization because it "fail[ed] to distinguish those foreign words which should be italicized in English writing, and is in general insufficiently prescriptive."

Prescription as a policy continued to influence the editors. By the time the fifteenth edition (1991) came out, Bluebook editors were admonishing their readers that "to ensure accurate citation, . . . it is important to consult the applicable rule or rules in the body of the book and the tables found in the back of the book because they offer . . . detailed guidance as to the particulars of various citation forms."

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"On Language" columnist William Safire died Sunday at 79

A Pulitzer Prize winning columnist, author, political pundit and college drop-out (who was damn proud of it), many readers of this blog may know his work best from his syndicated New York Times column called "On Language."  From the NYT obit:

[F]rom 1979 until earlier this month, he wrote “On Language,” a New York Times Magazine column that explored written and oral trends, plumbed the origins and meanings of words and phrases, and drew a devoted following, including a stable of correspondents he called his Lexicographic Irregulars.

The columns, many collected in books, made him an unofficial arbiter of usage and one of the most widely read writers on language. It also tapped into the lighter side of the dour-looking Mr. Safire: a Pickwickian quibbler who gleefully pounced on gaffes, inexactitudes, neologisms, misnomers, solecisms and perversely peccant puns, like “the president’s populism” and “the first lady’s momulism,” written during the Carter presidency.

There were columns on blogosphere blargon, tarnation-heck euphemisms, dastardly subjunctives and even Barack and Michelle Obama’s fist bumps. And there were Safire “rules for writers”: Remember to never split an infinitive. Take the bull by the hand and avoid mixing metaphors. Proofread carefully to see if you words out. Avoid clichés like the plague. And don’t overuse exclamation marks!!

Behind the fun, readers said, was a talented linguist with an addiction to alliterative allusions. There was a consensus, too, that his Op-Ed essays, mostly written in Washington and syndicated in hundreds of newspapers, were the work of a sophisticated analyst with voluminous contacts and insights into the way things worked in Washington.

R.I.P. big guy.

I am the scholarship dude.

(jbl)

becoming a legal writing professor

I recently received an e-mail from a reader of this blog, inquiring how one goes about becoming a legal writing professor.  My response was to highly recommend she read two relevant articles, and then she would know what more specific questions to ask.  The articles are:

Jan Levine, Leveling the Hill of Sisyphus: Becoming Professor of Legal Writing, 26 Fla. St. U. L. Rev. 1067 (1999).

Ilhyung Lee, The Rookie Season, 39 Santa Clara L. Rev. 473 (1999).

This is the time of year that U.S. law schools are working on hiring decisions for jobs that begin in August 2010, so if you are interested in teaching at a U.S. law school, don't delay getting started on a job search.

(spl)

May my clothes please the court . . .

If you are appearing before U.S. District Judge Nicholas Garaufis (E.D.N.Y.) or Queens County housing court Judge Anne Katz (and probably a lot of other judges), you need to dress appropriately.

A lawyer who wore jeans and a baseball cap to Katz's courtroom filed a federal suit after he was told his attire was inappropriate, alleging violations of his 1st and 14th Amendment rights. The federal judge did not see it that way. A courtroom is a "staid environment," said Judge Garaufis, and a judge can enforce "commonly shared mores of courtroom civility."  But the judge acknowledged that when the attorney is not in court, he "is free to express the ideas he wishes to express, and to wear the attire he chooses to wear."

The case is Bank v. Katz, U.S. District Court, Eastern District of New York (Brooklyn), No. 08-1033. Here is a more detailed account on Law.com.

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driven to writing poems

Like many of us, legal writing professsor John Murphy is in the middle of grading 1L memos.  Unlike the rest of us, he was inspired to write a poem:

Ode to the Author of Memo No. 36.

Your memo is dull and pointless.

My pencil is dull and pointless, too.

I can sharpen my pencil;

But what can I do about you?

(spl)

 

Comment alert: "Bringing life to legal writing: how to use literary journalism in capital litigation"

The above comment by UMKC law student Kate Paulman appears in 77 UMKC L. Rev. 1147 (2009).  From the abstract:

Elements and Guidelines of Literary Journalism What will make Literary Journalism an easy style for capital litigators to employ is its basic set of elements and guidelines. ... Readers do expect writers to be true to something-true to memory, true to remembered speaking styles (if not exact words), true to what I'll call the encyclopedia of self, true, most of all, to great-grandma, and thus true to writer and reader alike. ... Roorbach was not suggesting that Literary Journalism must have some sort of James Joyce-styled epiphany at the final sentence, instead he was calling for authors to work to make their readers come to a greater understanding of an important principle without forcing that principle on their readers. ... Hill created this surprise - and change of heart for the jurors - by turning Jeremy into a character, creating scenes and becoming the narrator of his client's story. ... And just as in Literary Journalism and other forms of nonfiction, lawyers are not at liberty to invent facts to make their stories more interesting - they must live with the facts at hand, a disadvantage compared to traditional storytellers. ... Opening and Closing Arguments Just as capital litigators can employ Literary Journalism techniques during the penalty and brief writing phases, so too can they use the techniques during opening and closing statements of the criminal trial.

Well played, Ms. Paulman.

I am the scholarship dude.

(jbl)

Update on legal research developments

If you're not already subscribing to the Law Librarian Blog as part of your daily feed, you should be.  Each day usually brings at least one story highly relevant to legal writing profs.  Here are a few posts from the last week or so that you may find helpful.

1.  The results of a survey on the law librarian listserv compiling information on how schools handle the teaching of legal research.

2.  West's "Word and Phrases" goes online with an expanded database (contrary to JH's experience, I've found this tool to be extremely helpful in certain, limited instances).

3.  A fascinating video showing how West creates headnotes and key numbers in real time.

4.  New social networking sites for law students.

5.  Fastcase teams with Oregon bar to provide subscription online legal research services- if the trend continues, will law schools have to teach Fastcase in addition to Wexis?

6.  Putting Westlaw and LexisNexis case law digesting systems to the relevancy test.

7.  The latest in librarian haute couture.

Now that you're done reading, go get your research on.

I am the scholarship dude.

(jbl)

Remember to mind your P's, Q's and . . . staples

After the story earlier this week about a federal district court judge in Florida who dismissed the plaintiff's filing because it was so "riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible," this next story doesn't seem so aberrant.  The New York Law Journal is reporting (subscription only) that a New York state judge dismissed the plaintiff's complaint because it was stapled in such a negligent manner that it caused physical injury to all who handled it.

"[T]he poor stapling of the papers was so negligent as to inflict, and did inflict repeatedly, physical injury to the court personnel handling them," Supreme Court Justice Charles J. Markey wrote in Jones v. Fuentes, 29865/2008. "Such negligence on the part of counsel shows a lack of consideration."

Long Island plaintiff's attorney Jeffrey Hirsch told the NYLJ that in the more than 5,000 cases he has handled, the court has never before criticized his stapling skills.  However, a spokesperson for the judge said that the staple in question was dangerous enough to draw blood, twice.   Must have been a helluva staple.

Hat tip to Law.com.

I am the scholarship dude.

(jbl)

Global Legal Skills Conference

Please click here for more information about the call for papers for the Global Legal Skills Conference in Monterrey, Mexico, February 25-27, 2010.

(mew)

one reason why writing professors should write

At some U.S. law schools, legal writing professors receive no support to pursue scholarship, neither time nor compensation nor encouragement.  Of course it makes little sense to hire a professional to teach writing and then make it almost impossible for them to write.  I once wrote an article about this nonsense:  The Quest for Scholarship:  The Legal Writing Professor's Paradox, 80 Oregon Law Review 1007 (2002). 

This week I was reminded of one reason why it's important for legal writing professors to write, when my students handed in a paper at the beginning of a class session.  I was facing a writing deadline myself this week, so I had total cred when I told them that I was as tired as they were and knew how they felt.  Now I have just clicked "send" and someone else will soon be reading what I have been toiling away at.  Again, I share my students' mixture of relief for having the work done and anticipation about the feedback I'll receive.  I don't know what they did after class, but I know what I'm going to do: sleep.

(spl)

Scholarship alert part II: "The Forgotten Sovereigns"

Professor Tonya Kowalski of Washburn has just had the above article accepted for publication in Volume 36 of the Florida State Law Review.  At present, it's available here on SSRN.  We thought you might be interested because her topic is also the subject of a panel presentation at next summer's LWI conference on Marco Island.  From the abstract:

Our federal system includes 562 federally-recognized American Indian nations, most of whom have their own sovereign lands, governments, and court systems, and who interact every day with the state and federal systems. Yet most legal thought overlooks our sovereign Native American nations and legal heritage. Although much of American law and policy intersects Tribal jurisdictions, such issues generally appear in the law school curriculum only in specialized, upper-level courses. This Article argues that the three-sovereign system should provide the fundamental framework for the United States legal system across the legal curriculum, and provides several concrete examples for how to do so. It also argues that many law courses should touch upon how their disciplines impact Tribal jurisdictions and their citizens.

By changing our fundamental orientation toward the role of Tribal sovereigns in the U.S. system, we will advance the academy’s goals of scholarship, teaching, and service. First, we will accurately represent the true structure and diversity of our tripartite federal system. Second, we can improve learning by using direct and comparative Tribal perspectives for fundamental legal principles and methods. Third, we can further the social justice mission by raising awareness of Tribal sovereignty among future advocates and lawmakers.

I am the scholarship dude.

(jbl)

Scholarship alert: "Judging by the Numbers: An Empirical Study of the Power of Story"

A new article by Professor Ken Chestek is available on SSRN here.  From the abstract:

The recent debate about whether 'empathy' is a desirable trait in Supreme Court Justices begs a more fundamental question: are appellate court judges in fact persuaded by appeals to pathos? This article attempts to answer that question by reporting the results of an empirical study the author conducted that investigates whether narrative reasoning, or 'stories,' are persuasive to appellate judges. It is the first rigorous study to ever confront this issue directly. The article first describes how the author wrote four test briefs, two on each side of a hypothetical lawsuit. One brief on each side was written as a 'pure logic' brief, while the other brief on each side made the same logical argument but also included a great deal more context and interesting, but legally irrelevant, background details to tell a more complete story. Groups of appellate judges, law clerks, appellate court staff attorneys, practicing lawyers and law professors were then asked to read two briefs on a randomly-assigned side of the case (either Petitioner or Respondent), and then report which of the two briefs was more persuasive.

The key findings of the study were that appellate judges, along with most other groups, indeed found the 'story' briefs more persuasive. The exception was the law clerk group, which found the logic and the story briefs equally persuasive. The author then speculates as to why the clerks reacted differently, and considers the implications of this finding on law school curricula.

I am the scholarship dude.

(jbl)