Thursday, July 31, 2008

Teaching Fellows as legal-writing teachers

At the (new) legal writer, Raymond Ward posted about law schools that use aspiring young legal scholars to teach legal writing. I posted the following comment.

Yes, a few law schools still do this. It is not so much an initiation for the fellows to pass through. It's more like this:
Gosh, here we have aspiring young legal scholars. It sure would be great if our law school could help them get started in academia; then we'd be known as a feeder school for young legal scholars. But these folks are young and inexperienced. What can we have them do to justify a salary while their main focus is writing that first article, networking, and defining their scholarly interests? I know. They can teach legal writing!
Of course, these fellows are smart, and most probably could teach legal writing. But there are three main problems:
  1. Their hearts aren't in it. It's not what they want to do, ultimately.
  2. Their focus, naturally, is on their own (scholarly) writing, not on teaching legal writing.
  3. They turn over every year or two.
I once applied for a job as director of legal writing, and in one interview a professor told me he wanted to start a fellows program like the one described here. He asked me what I thought. I swallowed hard and said "It's a good way to develop young scholars, but it's not a good way to teach legal writing."

For an insider's view of exactly what the post and my comment are talking about, read this article:

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

My abstract of the article:

Story of a job as a legal-writing instructor for one year. This author had practiced law and was trying to enter legal academia. The job was in a "fellows" program, and the author did get a faculty appointment at another school after one year. As a fellow, the author had 75 students. Particular points: overwhelmed by the work load, especially critiquing papers; a bit surprised at the disdain for the subject of legal writing. Upon getting a doctrinal job, was told "welcome to the academy." But remembers thinking, "I thought I was in the academy already." No. It was only legal writing.

Wednesday, July 30, 2008

Citation percolation

The citation discussion has percolated nicely, with lots of good comments. Before I chime in with my take, I'd like to ask a question:

In judicial opinions, the citation form is almost always wrong. Why?

Because judges often have their own idiosyncratic preferences that do not match the current Bluebook?

Because judges and their clerks are only human and are no better than the practicing bar at citation form?

Because the publishers of judicial opinions alter the form before we see it?

Why? Send your answers to me or post a comment.

Thursday, July 24, 2008

Role of citations in legal writing--responses

The student essay about citations and their importance or lack of importance prompted three thoughtful responses:

Commenter #1:
This is a great essay and it perfectly illustrates what you've called the "tyranny of the inconsequential." But looking at the other side of the issue, though, the lesson here is that legal employers have high standards for substance and form. Hey, maybe that's why the top firms are willing to pay over $160,000/year to first-year associates! The citation-fixated associate in the story may have needed perfect citations because judges and clerks make a big deal out of it, and he was going to cut and paste the citations from the memo into a brief or other court document. So long as judges and other important legal audiences put a high premium on citation form, I don't think legal employers are so unreasonable to expect proper citations.

Commenter #2:
I've been writing briefs, trial court and appellate, since 1977. I started very early in my career not worrying about citation style. In my mind, the purpose of a brief or a memo is to communicate and persuade. If the writing accomplishes that function, then it has done its job.

The "elephant in the room" question is whether "bad" (really just non-standard) citation format distracts from the communication/persuasion function. I suppose that it could get so bad that it becomes a distraction and must be dealt with. However, short of that, I've never seen it as a problem. In 30 years of writing briefs and doing oral arguments, I have never had a judge, trial or appellate, say one word about citation format. This is a business of ideas. Communicate those, and you've got it made in the shade.

Commenter #3:
For what it's worth, I think the essay would have been more valuable if the student realized that legal writing is about both form and substance--that's why old briefs and motions contained the heading "Arguments and Authorities." If your substance cannot be independently verified through the citations, it's not worth much. This is especially so when you are arguing a tough position for a tough client. As a law clerk, I read the cases cited by each side in evaluating the merits of their arguments. And I especially scrutinized the arguments made in a sloppy brief with sloppy citations.

What's interesting here is that neither associate grasped the duality of legal writing. I wonder what practice fields they were in and if that made a difference.

Guest blogger--Cheryl Stephens

Cheryl Stephens, of Building Rapport, the plain language blog, is a leader in the field of plain language communication, and provides training and workshops to clients all over North America. She is making a guest appearance today promoting her new book, Plain Language Legal Writing.

Wayne, a few days ago you wrote about being a professional writer. I'd suggest you are not just a professional writer, but a writing expert. Same for the others who write and blog about legal writing.

I want to make that point because I believe every lawyer should see himself or herself as a professional writer and problem solver.

I am sure that your students do not see themselves as preparing for careers as professional writers -- but they are. Lawyers in practice areas that are heavily paper-based are writing (or signing off on) more pages in a day that a novelist hones in a week.

The Legal Writing Prof Blog reported on a presentation to the Legal Writing Institute about the skills training gap between law school education and real-world practice needs.

One presenter, Mr. Mike Cavanaugh, despaired of new associates who lack competent writing skills and those who also lack in basic English skills. Another, Professor Kathleen Dillon Narko, spoke of meeting the needs of the client receiving the memo or client letter. Ms. Kris Butler spoke about clients' expectations of lawyers: to get to the conclusion right away, and to edit a document for conciseness.

Young lawyers ought to think about the physical product they deliver to clients -- the letters and other paperwork. This stuff is kept, circulated, and even shown to other lawyers who form their opinions on the quality of it.

Recognizing themselves as professionals, writers, and "published" authors of legal paperwork, young lawyers and law students might take their writing skills a little more seriously.

Then, they will see that plain language sets a standard for their writing. We ask that they use good grammar, standard English, no jargon, and well-formed sentences expressing well-formed thoughts.

The best legal-writing sources--a series #3

Your indoctrination into the movement for plain legal writing could begin here:

Lifting the Fog of Legalese: Essays on Plain Language by Joseph Kimble

Professor Kimble is the foremost expert on plain legal writing in the United States, and this book collects his best writing. All of us would do well to follow his advice and mimic his clear, direct, and readable writing style.

Student essay--role of citations in legal writing

“I don't even know where my Bluebook is,” the young associate told me as she looked over the sea of red ink on the motion she had asked me to “proofread.” “Really?” I asked, quite perplexed as I tried to cover up my carefully tabbed and slightly tattered Bluebook. I thought legal writing was all about the citations.

I had always considered myself a good writer, even a great writer at times. So when it came to legal writing, I focused almost completely on having correct citations after each and every sentence. I was already a good writer--all I needed to make it good legal writing was citations, right? Apparently I was wrong.

The next day the young associate called me into her office to go over a memo I had drafted a few days earlier (before I realized she didn't care about citations). When we sat down to discuss it, she actually had concerns about my legal analysis. This had never happened to me before--not in my legal-research-and-writing class, not in my brief-writing class, not when I was working on my student note. My analysis was always sufficient--it was those pesky citations (or lack thereof) that got all of the comments. Evidently “sufficient” analysis was not good enough anymore. The young associate was able to look past the citation game I had been playing and actually read the words I put down on the paper.

This realization lifted quite a burden, permitting me to focus on analysis and clear writing rather than on the tedious work of citation checking. The results were amazing! The next memo I turned in to the young associate had flawless legal analysis. It had citations where necessary for my analysis, but I didn't waste time checking every abbreviation or en-dash. She was impressed, quickly passing on the results of my research to a partner working on the same issue. Forgetting citation form was the best thing that had ever happened to my legal writing.

About a week later, I turned in a short memo to another associate. This time, I did not waste any time checking my citations. When I went to the associate's office to go over his comments, I was surprised to see a sea of red on my memo. It was clear that he was not impressed with my new and improved focus on legal analysis or my careful synthesis of the relevant case law. He did not have any substantive changes or comments about my analysis or legal conclusion. However, he had gone through, Bluebook close at hand, and checked every single citation in the entire memo, carefully marking it up as if he were a law review editor. After going through and explaining every single place where I had failed to use small caps or had an incorrect abbreviation, he gave me an “important” piece of advice. “Legal writing is all about citations.”

Wednesday, July 23, 2008

All comments will be moderated

As some of you are realizing, I have changed the settings for this blog so that all comments must be moderated before they can be posted. I had to do this because of the high volume of "comment spam" I was getting. This site is hosted on a university server, and the computer people insisted that I find a way to cut down the spam.

I will moderate your comments, of course, but feel free to email me here:

Underlining: a postscript

A reader adds:
One thing to consider (and I find this reason compelling) is that a lot of text is being published on the Internet. Underlining text on Web pages is always a no-no since underlining signifies a hyperlink. When documents are published on the Internet (which they almost always are these days), existing underlined words will only cause confusion since they are not hyperlinks.
A good point.

In favor of the serial comma

I favor using a full complement of serial commas:
The flag is red, white, and blue.
I put a comma before the conjunction in a series of three or more items. I haven't found any legal-writing source that says you can omit that comma. And I haven't yet been persuaded that including that comma ever causes a problem, though some have tried to persuade me.

Here's an example in which omitting it causes a miscue:
For property owners to be liable, they must know of a danger, the danger must not be apparent to the public and the owner must chose not to warn others of the danger.
Did you catch the miscue?

In defense of underlining

A reader writes:
Regarding the emphasis of words as a matter of document design, what’s so bad about underlining? Surely the fact that underlining happened to be possible with a typewriter does not by itself warrant exile to realm of “witnesseth” and all caps. In my experience, underlining stands out more than boldface and far more than italicizing--especially when we’re talking about shorter phrases (I don’t think I’d use it for an entire section). Perhaps I am unique or in the minority on this. Any thoughts on this weighty issue?

First, that it was available on a typewriter is not the problem. The problem is that it was used on a typewriter to simulate italics, which is what professional printers used. It was a second-best make-do.

Second, it does add clutter to the text--another element for the eye to deal with--and it partly obscures any descending letter, like this: g, j, p, q, y.

Still, the reader has a point: it isn't so bad, and there are far worse writing faults.

Tuesday, July 22, 2008

Response: problems with collaboration in law school

A practicing lawyer has responded to the student essay about collaboration:

My worst experiences in law school and in college involved group projects. There is always someone who does not pull their weight. Or worse, someone who drops a class rather than pull their weight for the group. The grading schemes never seemed to account for this. I remember a classmate who was supposed to present for 15 minutes of a 60-minute presentation. She finished in 5.

In the real world, by contrast, people pull their weight (more often) because failure to do so means firing or demotion. I admit, though, that most lawyers I know prefer solo projects to group projects.

Is there some way to simulate the "group product" experience without penalizing those who have poor luck (or choice) as to their group?

The best sources on legal writing--a series #2

I recommend A Dictionary of Modern Legal Usage by Bryan A. Garner.

Garner needs no introduction to those who read this blog. But this book, one of his first, may still not be on your shelf. It should be. I state it rather categorically: if you are serious about legal writing, you must have this book. It is 1000 pages of great legal-writing advice.

Student essay--law school should simulate law-practice collaboration

In this essay, one of my students writes about a truth we all know but that is hard to accommodate in an academic setting:

In this essay I will argue that the final graded assignments in the first-year legal writing courses should be group projects, rather than individual assignments. I proffer four reasons: first, individual assignments are unrealistic simulations of what a new lawyer will experience; second, individual assignments fail to develop key skills; third, the grading of individual assignments can be based on minute errors that would be caught by a group; and fourth, individual projects are an unnecessary use of professorial resources.

First, the final assignment is an unrealistic simulation of what a new lawyer will experience in the workplace because, with rare exception, no new lawyer will work by himself. Many law school graduates will work for large firms or for the government, where they will have a supervising attorney, several other junior attorneys who work alongside that attorney, as well as support staff. Even those who become solo practitioners usually have support staff. These other attorneys and support staff will be able to assist the new attorney in creating any given document.

Second, because the final assignment is an unrealistic simulation of law-firm life, it fails to develop key writing skills. Writing a paper as a team is a far different exercise from writing a paper by oneself. Writing as a team involves delegation of duties, communication of strategy, and, perhaps most importantly, an effort to synthesize the paper so that it speaks as one document. I speak from personal experience (having been a paralegal) when I say that these skills are rarely present in graduating lawyers (or senior lawyers for that matter).

Third, the grade a student receives on a legal writing assignment might arbitrarily relate to problems that could be corrected in a group. For example, suppose a student cites the publication date of a statute from Westlaw instead of its hard copy counterpart. If the two dates are not a match, the student will be downgraded. In a group setting, this sort of error could be easily caught by another team member. Thus, group assignments would prevent students from being downgraded on the basis of minutiae that they were not fortunate enough to catch.

Fourth, individual assignments are a waste of professorial resources. Currently at the University of Texas School of Law each legal writing professor must grade approximately one hundred papers. However, if we, hypothetically, divided the class into groups of four, then each professor would have to grade only twenty five papers. Moreover, because individuals are less able to catch small mistakes in citation or grammar, professors are spending time correcting these issues. That would not be necessary in a group setting, as the additional proofreaders would better identify these mistakes in the drafting of their project before it was ever submitted.

Based on these four reasons, I conclude that the first-year legal writing assignments should be group projects.

Monday, July 21, 2008

The best sources on legal writing--a series

This is, if not the best, certainly one of the best books on legal writing:

The Lawyer's Guide to Writing Well by Goldstein and Lieberman

It changed the way I think about lawyers as writers. It made me realize that lawyers are professional writers and that as a professional writer, I should take the craft of writing more seriously.

That I now read everything I can about legal writing, that I now look things up instead of relying on what I learned in 8th grade, and that I now view legal writing as an independent field of study and not just a "skill," all these I owe to this book.

More on document design

You can read more on document design in chapter 3 of my book, Better Legal Writing, and in this excellent article:

Ruth Anne Robbins, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, 2 J. ALWD 108 (2004).

Friday, July 18, 2008

Schiess's basic document design for lawyers

Schiess's basic document design for lawyers

Main text
Use a serifed font for the main text of your document. Serifed fonts look more professional and are easier to read when printed on paper. I like Constantia, Georgia, and Century Schoolbook. This blog is in Georgia.

Use a boldface sans serif font for headings; the contrast with the serifed main text makes the headings stand out and makes the document easier to skim. I like the boldface versions of Corbel, Arial, and Verdana. These headings are in Verdana.

If you like the look of full justification--neat vertical lines on each margin--then turn on the hyphenation function to reduce odd gaps and spaces between words. But it is fine to left justify any legal document.

Unless required by rule or your boss, avoid double-spaced text. It takes up space, wastes paper, and is hard to skim.

Type size
Using Times New Roman 12-point type is less than ideal. It is too dense, and with 1-inch margins, it makes the text look crowded. Either increase the size to 13 points or use one of the serifed fonts I recommended; they are all more readable in 12-point than Times New Roman.

No matter what font or point size you use, push your margins to 1.25 inches. The document will be less crowded.

Left alignment
Try to avoid centered headings. Left-aligned headings look neater and are easier to skim.

Do not use ALL CAPS or underlining. They are vestiges of the typewriter. In their places, use boldface and italics.

Wednesday, July 16, 2008

What first-year LRLW can do

The first-year legal-writing course on objective legal analysis (memos) can teach students--
  • How to determine the issue raised in a legal problem and express that issue effectively in writing.
  • How to determine the legally and contextually relevant facts of a legal problem and express them effectively in writing.
  • How to determine the best course of research for a legal problem.
  • How to find relevant authorities to analyze a legal problem.
  • How to choose the appropriate authorities to use in analyzing a legal problem.
  • How to derive a legal rule from a set of authorities.
  • How to present legal authorities effectively in writing.
  • How to analyze a legal question in light of the authorities and express that analysis in writing.
  • How to recognize possible counter-analyses and express them effectively in writing.
  • How to predict a result for a legal problem and state it effectively in writing.
It must also teach
  • Correct citation form and placement.
  • Legal-writing conventions for a legal memorandum.
  • The traditional format of a legal memorandum.

What the first-year LRLW course can can't do

Every lawyer, law professor, and legal-writing teacher should read Douglas Laycock's article:

Douglas Laycock, Why the First-year Legal-writing Course Cannot Do Much about Bad Legal Writing, 1 Scribes J. of Legal Writing 83 (1990).

His point: when lawyers complain about poor writing by young lawyers, they are usually referring to style, rhetorical force, and essentials of grammar and punctuation; but the first-year legal-writing course does not teach those things at all or very much--and can't.

The first-year legal-writing course does not prepare students to do the kind of writing lawyers do. That is not its purpose. Its purpose is to acquaint students with the basics of written legal analysis, the conventions of legal discourse, and the form of some basic legal documents. Those are big jobs all by themselves, as any legal-writing teacher will tell you.

To expect the first-year legal-writing course to prepare students to do the kind of writing lawyers do is like expecting the civil procedure course to prepare students to try a federal case. It's like expecting the contracts course to prepare students to draft contracts and close deals.

Wednesday, July 02, 2008

Another new book

I'm pleased to announce that my fourth book will be out this fall:

Preparing Legal Documents Nonlawyers Can Read and Understand (ABA 2008)

is my attempt to explain how to convert legalese into plain English and why you should do it.

Tuesday, July 01, 2008

My new book: The Legal Memo

I'm pleased to announce that my latest book will be out this summer and available for my students this fall:

The Legal Memo: A Basic Guide (Kendall Hunt 2008)

is my attempt to put into a readable and practical text everything I know about basic legal memos. It's aimed at beginners and uses oodles of examples to show what I'm looking for in a traditional legal memo.