I encourage students to follow in Doug’s footsteps and enter national writing competitions.  Many competitions award cash prizes and give students publication opportunities.  A link that contains information about student writing competitions is here.

Congratulations, Doug!

Professor Alison Julien took the lead in organizing this conference, and several participants (including Mark Wojcik at the Legal Writing Prof Blog) remarked upon how well the event was organized and run.  The biggest testament to its success, I think, is that conference participants have encouraged Marquette to serve as the host school again.

The conference featured a diverse range of interesting topics, and though I was unable to attend every session, the six I attended are representative:  Collaboration in Teaching and Scholarship; Update on Interdisciplinary Skills Scholarship (presented by our visiting Boden Professor of Legal Writing, Michael Smith); The Six Things You Can Do in a Contract; Assigning Clients in Persuasive Writing Assignments; Using Literature to Teach Theme Development in Persuasive Writing, and How to Identify and Counter Logical Fallacies (presented by Prof. Melissa Greipp).  The sessions were informative and thought-provoking, and I left the conference thinking of ways I can improve my teaching and engage in scholarship.

Many thanks to everyone who made the event a success, including, especially, Dean Kearney, Prof. Julien, Sharon Hill, Beverly Franklin, Carol Dufek, and many student volunteers.

I’ve been thinking about professionalism lately.  Two discussions in the past week or so have stuck with me.

The first discussion appeared in the Law Librarian Blog (thank you, Professor O’Brien, for forwarding it.)  In Florida, U.S. District Court Judge Gregory Presnell issued an order denying a plaintiff’s motion for voluntary dismissal for

Failing to comply with Local Rule 3.01(g), for failing to secure a stipulation of dismissal from Defendant pursuant to FED. R. CIV. 41 (a)(ii), and for otherwise being riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible.

Over the years, I’ve collected accounts of judges reprimanding lawyers for unprofessional conduct related to research and writing.  This one stands out because the judge went several steps beyond chastising the attorney for poor writing.  The judge

• hand-wrote comments and corrections on the motion;
• ordered the attorney to hand-deliver the order personally, along with the marked-up motion, to the client
• ordered the attorney to read local court rules and the Federal Rules of Civil Procedure, and
• ordered the attorney to file with the court a certificate of compliance when he had completed these tasks.

(A note to my first-year students:   I know that getting back marked-up copies of your memos this week is painful.  It would be more painful to have a judge mark-up your writing and then order you to show it to your client.)

I wonder how the client feels in this situation.  I worry about how difficult it is for layperson clients to know which lawyers are worthy of their trust and worth the fees.   Often clients choose among lawyers on the basis of advertising, which leads into the second professionalism discussion that has stuck with me this week, lawyer solicitation letters to individuals involved in car accidents.

In New Jersey, an attorney organization composed primarily of personal injury attorneys requested that the state completely prohibit attorney solicitation letters to accident victims, except in cases where an attorney already had a business relationship or close personal relationship with the person involved in the accident.  Ultimately, the New Jersey Supreme Court Professional Responsibility Rules Committee recommended a waiting period of 30-days for such letters.

Wisconsin has no ban on solicitation letters and no waiting period.  When an individual in Wisconsin is involved in a car accident for which an accident report is generated, that individual will likely receive a solicitation letter from an attorney, even when the accident report states that there were no injuries.  This attorney advertising does not violate Wisconsin ethical rules on advertising, SCR 20:7.1 and 20:7.2, as long as the solicitation letter is not false or misleading and does not create unjustified expectations of the results the attorney can achieve.

My question is whether this type of solicitation via letter, though not unethical, is somehow unprofessional.  I’ve certainly heard from individuals who believe the solicitation tarnishes the reputation of the legal profession.   Some believe the solicitation may manipulate people in a vulnerable position.  On the other hand, individuals involved in car accidents may benefit from immediate assistance from a lawyer because they are in a vulnerable position and need to take steps to protect their rights.

This dilemma is not new.  In reading about client solicitation, I ran across these words from Justice Blackmun:

In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind.  Since the belief that lawyers are somehow ‘above’ trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.

Bates v. State Bar of Arizona, 433 U.S. 350, 371-72 (1977).   I also learned that Abraham Lincoln solicited three different potential clients  by letter in a railroad taxation dispute in Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291 (1855).  These potential clients had adverse interests.  (If you want to read more about Lincoln’s solicitation letters in that case, I suggest Robert F. Boden, Five Years After Bates: Lawyer Advertising in Legal And Ethical Perspective, 65 Marq. L. Rev. 547 (1982)).

Is there something unprofessional about lawyer solicitation letters after accidents?  I wonder what other Wisconsin lawyers think.

(Editor’s note: The nice photo of a mosaic representation of Justice, inside the Wisconsin State Capitol, was found here.)

Lynne Truss, the author of the best-selling book Eats, Shoots & Leaves:  The Zero Tolerance Approach to Punctuation, says that “[P]unctuation is a courtesy designed to help readers understand a story without stumbling.”  It’s a courtesy that applies not only to stories, of course, but to any written product – letters, articles, memos, briefs, and emails.  Punctuation clarifies the writer’s meaning.  Take these seven words:  A woman without her man is nothing.  There are two very different readings of this sentence, depending on how it is punctuated.  It could be:  A woman, without her man, is nothing.  Or it could be:  A woman:  without her, man is nothing.  What a difference punctuation makes!

What’s your favorite punctuation mark?

One of my favorite scenes was when Julie pulled her first roasted whole chicken out of the oven.  I roasted my first whole chicken this summer.  Like Julie, who felt like a “lobster killer” when she boiled three live lobsters for Lobster Thermidor, I must admit that I felt a bit like an executioner when I ordered my organic hand-fed chicken through our CSA, Backyard Bounty.  Guiltily, I asked Farmer Laura how she knows which chickens are ready for slaughter.  She said she knows it’s time when the chickens start to bite her.  (I guess the lesson there is “don’t bite the hand that feeds you.”)  At home with my chicken, I tried to do the chicken justice by dressing it with olive oil and sprigs of thyme and rosemary from our garden.  I felt Julie’s same sense of pride and excitement when I opened the oven door and a perfect golden-brown roast chicken appeared from the oven.

Watching the movie reminded me of how students develop in their legal writing classes. 

Legal writing is, in part, a skills course.  Learning how to cook and learning how to write are both skills to be developed.  And they both can be learned.  No one is hatched from the egg with writing skills.  Writing skills, much like chopping an onion (Julia discovered), greatly improve when a person employs easy-to-use techniques.  Mastering the art of legal “writing” also includes mastering the art of legal analysis and research, which is why our first-year course is called Legal Analysis, Writing & Research.  To that, I would also add mastering the art of legal reading, which calls for close reading and critical thinking skills.

At Marquette, we have a number of opportunities for students to take advanced legal writing courses and to practice their legal writing skills in competitions such as moot court. 

This week at the fall Moot Court Program reception, we recognized two outstanding appellate briefs written by our students in national moot court competitions this past year.  Jon Fritz and Dale Johnson wrote the best petitioner’s brief.  Their brief was submitted in the August A. Rendigs, Jr. National Products Liability Moot Court Competition, where the team advanced to the semi-final round and won the best petitioner’s brief at competition.  Stephen Boyett, Carrie Devitt, and Jessica Franklin wrote the best respondent’s brief.  They competed in the ABA’s National Appellate Advocacy Competition, where they advanced to the national finals and placed among the top four teams at the Boston regional competition.

Congratulations to these students for mastering the art of appellate brief writing and appellate advocacy.  As Julia might say, “Bien Écrit!”

One of the most intriguing presentations was Professor Kenneth Chestek’s talk “Judging by the Numbers:  an Empirical Study of the Power of Story.”  Professor Chestek conducted a study where he wrote four fictional test briefs:  two that focused heavily on stating the law and applying it (the “pure logos” briefs), and two that focused on creating a narrative story into which the law was inserted and applied (the “story” briefs).  (He wrote a logos brief and a story brief for both the petitioner and respondent.)  Professor Chestek solicited appellate practitioners, appellate judges, appellate judicial law clerks, appellate court staff attorneys, and legal writing professors to read these briefs and rate their strength of persuasion.  The participants knew they were taking part in a study, but they did not know who was conducting the study or what the purpose of the study was.

The results showed that overall, as judges and lawyers advance in their careers and gain more experience, they increasingly value the story in the case as a matter of persuasion.  For instance, judicial law clerks (with generally less experience) were more likely to focus on the strength of the law, while judges and practitioners (with more experience) found the briefs featuring a narrative storyline to be more persuasive.  Another breakdown of the numbers showed that of those practicing for zero to four years, 45.8% of the participants found the logos brief more persuasive, while 54.2% found the story brief more persuasive.  In contrast, of those participants practicing for twenty-five years or more, 14.3% found the logos brief more persuasive, while 78.6% found the story brief more persuasive.  7.1% of the twenty-five plus year group found neither more persuasive.

At the conference, Professor Chestek and the attendees considered theories for these results.  One idea is that less experienced lawyers are more likely to gravitate to the strength of precedent, while those judges and lawyers may more highly regard the value of the facts of a case.  Those judges and lawyers may also value reasoning by analogy more, instead of relying strictly on black letter law.

Professor Chestek is currently writing about his findings in a law review article.

He has written numerous articles, including Levels of Metaphor in Persuasive Legal Writing, 58 Mercer L. Rev. 919 (2007).  Another article that is useful to any rhetoric scholar is Rhetoric Theory and Legal Writing: An Annotated Bibliography, 3 J. Assoc. Legal Writing Directors 129 (2006).  He has also presented often, most recently at the international Applied Storytelling in the Law Conference held this summer at Lewis & Clark Law School in Portland, Oregon.  The title of his presentation was “Reconciling Colliding Images: Overcoming Adverse Stock Structures in Statutory Interpretation.”

This semester Professor Smith is teaching Advanced Persuasive Writing and a section of the Legal Analysis, Writing, and Research 1 course.

I had a chance to chat at length with Professor Smith about his interest in advocacy, persuasion, and classical and modern rhetoric.  We are very excited to engage in further dialogue with Professor Smith on these topics.  We encourage you to stop by Professor Smith’s office and meet him.

This is Professor Smith’s first visit to Wisconsin.  I thought I would end this blog by suggesting a few favorite places to visit in Wisconsin.  Add your favorites to the list!

• Hike the Wisconsin Ice Age Trail
• Enjoy a local Wisconsin fish fry
• Spend a few hours with the original manuscript J.R.R. Tolkien collection at Marquette

Professor Mazzie contributed another column, in June of this year, entitled, “Conciseness in Legal Writing.” Past legal writing columns from Marquette’s legal writing faculty also included Jill Koch Hayford’s November 2008 piece, “Style Books, Websites, and Podcasts:  A Lawyer’s Guide to the Guides,” as well her March 2009 advice, “Update Contract Language to Meet 21st Century Readers.” A column about split infinitives, “Dispelling Grammar Myths:  ’To Split’ or ‘Not to Split’ the Infinitive,” by Rebecca K. Blemberg, appeared in the December 2008 issue.

The legal writing faculty will continue to write about legal writing for Wisconsin Lawyer magazine during the coming year.

Gould explains how both of these stories have often been patterned into the form of a canonical story.  In the Alamo story, the canon focuses on the Alamo defenders’ valor and honorable death.  William B. Travis, a young commander at the Alamo, wrote a letter describing the siege, which ends with the phrase “VICTORY OR DEATH.”  (60)  This famous letter is often cited in Alamo legend, but Gould points out that Bowie also wrote a letter, which fails to get mentioned because it does not fit with the canon.  (60)  He goes so far as to say Bowie’s letter is “hidden in plain” sight, ignored in a glass case at the Alamo museum.  (60-61)  Bowie thought that Santa Anna was willing to negotiate, and he wrote in Spanish to Santa Anna asking whether Santa Anna had called for a parley.  (61-62)  Santa Anna responded that he would have no mercy without unconditional surrender.  (62)

Gould then surmises that even with this response, had Bowie been less ill, “some honorable solution would eventually have emerged through private negotiations” because Santa Anna and Bowie were seasoned battle veterans.  (62-63) 

Gould thinks this letter gets ignored because it reflects Bowie’s attempt to find a sensible alternate solution with less bloodshed, instead of promoting the canon of the defenders’ valor and honorable death.  (63)

In the Bill Buckner story, the stage is set with “the curse of the Bambino.”  (63)  The Red Sox had been losing World Series championships throughout the decades.  (64)  In 1986, however, it seemed like luck was changing for the Red Sox.  They were up three games to two going into game six — which meant that if they won game six, they would win the series.  The Red Sox led by two going into the last inning.  (64)  With the Mets at bat and two outs, the Mets managed to tie up the game.  (64)  At the fateful moment for Bill Buckner, Mookie Wilson from the Mets hit a ground ball that bounced through Buckner’s legs, bringing in the winning run.  (64-65)  The Mets went on to win game seven, continuing the curse of the Bambino.  (65)  The canon generally pins the World Series loss on Bill Buckner as a “but for” situation:  but for Bill Buckner’s mistake, the Red Sox would have won the series.  (66)  However, the Red Sox had other opportunities — after all, they could have won game seven. 

Gould uses these stories to illustrate how canonical stories can ignore or misstate key facts.  Adherence to canonical stories in science can cause problems because scientists may try to fit evidence into a preferred storyline, instead of allowing the evidence to speak for itself. 

This same point applies in legal advocacy.  On one hand, it’s crucial to create a strong theory of the case and to create a compelling story.  But one has to be cautious at all points in the litigation process of creating a canonical story that fails to incorporate or address key pieces of evidence.  One place where this pitfall can happen is in discovery.  An engaged lawyer should constantly be sorting through the evidence, trying to create a cohesive story.  If a fact does not seem to fit, however, it is important to keep that fact in the forefront, not to forget about it.  A lawyer also has to obey the ethics rules regarding the representation of facts.  As the story officially emerges in the pretrial and trial stages of the case, a lawyer needs to be mindful that the other side will always be ready to point out the adverse facts.  It’s best to have a strategy to deal with adverse facts.

In her article, Professor Robbins suggests that archetypes, as universally recognized symbols, can be used to create a compelling image of a client.  As Professor Robbins states, “Because people respond — instinctively and intuitively — to certain recurring story patterns and character archetypes, lawyers should systematically and deliberately integrate into their storytelling the larger picture of their clients’ goals by subtly portraying their individual clients as heroes on a particular life path.”  (768-69.)  The key to using archetypes is to tap into a judge or jury’s unconscious to align the client’s story with a hero’s transformative journey. 

How do you put your client on the path of a hero’s journey? 

The first step is to assign a “cast of characters,” and the most important roles are that of the judge (or jury) and the client.  (775.)  Through the story you tell of your client, the client will transform him or herself into a hero.  The benefit of telling a client’s story as a hero’s journey is that heroes, like real life clients, have flaws.  Heroes are not perfect; in fact, what makes the story compelling is that the hero must work through or conquer those flaws.    

The article lists and describes twelve different hero archetypes from which to choose, such as a “caregiver” (caring for a family against all odds), or an “every person/orphan” (searching for an identity).  (778.)  Professor Robbins recommends casting a judge as the hero’s mentor.  In archetypal stories, a hero like Harry Potter or Frodo Baggins needs a mentor like Dumbledore or Gandalf.  The article also explains how to cast other characters or identity traits such as the villain (not necessarily the opposing party, Professor Robbins notes) and the guardian.

Besides casting the characters, a lawyer needs to understand the stages of an archetypal hero’s journey:  the departure, the initiation, and the return.  The departure is the start of the quest with a “road of trials.”  (792-93.)  Departure reminds me of Frodo Baggins’ trek to the town of Bree, where he first encounters a Ringwraith.  During the initiation, a hero learns lessons to help him or her “to reach the ultimate goal.”  (795.)  During this phase, the hero faces his or her fears and finally slays the proverbial “dragon.”  Those hearing the story of initiation are reminded of their own mortality in the hero’s “ritual injury or dismemberment.”  (796.)  In the return, the hero is transformed and “achieves bliss” — “the hero has conquered the fears that previously hindered him or her from growth as an individual.”  (800.)

The hero’s journey can work very well with the traditional concept of building a theory of the case.  The theory of a case melds narrative/storytelling with the law to create a cohesive case presentation.  The hero’s journey strengthens the narrative component of a case.  Has anyone tried to use a hero’s journey in developing a case?  What storytelling techniques do you use?

It took Judge Benjamin Cardozo about two and a half pages to write Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928). Less than forty years later, it took Justice Roger Traynor only about one page more to write Greenman v. Yuba Power Products, 59 Cal.2d 57, 377 P.2d 897 (1963). Shortly thereafter, here in Wisconsin, it took Justice Bruce Beilfuss only eight pages to write Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). All three are landmark opinions in their respective jurisdictions, with the first two having national status. [All references here are to West reporter pages.] 

In 1978 volume 83 of the second series of the Wisconsin Reporter was published. The average opinion length of Wisconsin Supreme Court cases in that volume was a bit under twelve and a quarter pages. The longest opinion was thirty-nine and a half pages. Twenty years later in 2008, the average length of the court’s opinions in volume 312 of the same reporter was a bit over fifty pages. The longest was eighty-four. On July 14, a unanimous court decided a relatively easy issue, but there were also two concurring opinions going on and on about an issue not even before the court. [2009 WI 78] WHY?!

It is obvious that the advent of computers and word processing has had an impact on the length of judicial opinions today.  Now, a jurist need not worry about asking an administrative assistant to retype significant portions of an opinion after editing.  The jurist need not proof read various revised copies of an opinion or ask a law clerk to do so.  Now it is easy for a jurist to pull quotes from half a dozen or more authorities that support his or her position, instead of one.  With computerized legal research, the quoted material can be pulled from its original source and easily placed into the opinion – no retyping or proof reading involved.

Nevertheless, today’s appellate jurist should be able to make a concise statement of involved facts; state the issue or issues posed; and, apply old law or fashion new law to resolve the case in a lot less space than they are taking.  Sometimes one comes away from examining a court’s advance sheets with the impression that the various jurists on the court are playing a form of “can you top this” as to opinion page length: “Mine was seventy pages long, yours was only sixty.”

Verbosity reduction would be a boon to the bar.  The cost to clients for legal research could be reduced.  It would also ease the minds of law faculty members who like to have their students read and analyze cases other than the highly edited ones that appear in casebooks.  This is especially so in Wisconsin due to the diploma privilege.  Professors seeking tenure could avoid concern about “assigns too much outside work” appearing on their evaluations by students.

Now some may say it is strange for the co-author of a two volume treatise on punitive damages to be a critic of the length of other peoples writing.  That work, however, has twenty-four chapters and attempts to analyze various aspects of the law in each jurisdiction in the country.  Law firms and lawyers need not buy it or study annual supplements or chapter revisions.  They do, however, have to review advance sheets of opinions of the courts in their jurisdictions to stay abreast of changes in the law and attempt to understand those changes.  Jurists should follow the advice often given to speakers at luncheons or dinners:  Be brief and be seated!

What I have grown to appreciate is how difficult it is to maintain contract templates and to ensure that Sales has all the right schedules and exhibits. It seems like every week I am getting requests for reviews, redlines, or amendments, all of which have to be done ASAP. I cringe a little when I hear someone jokingly say “Talk to our resident contract expert” because I know that means me and I know the next contract “fire drill” is about to come my way.In reality, I don’t mind dropping everything I am doing to work on contract language for a couple of hours. It’s a ton of work and requires meticulous attention to detail (with my comma problems I sometimes wonder if I am really the best person to do edits, as the last thing I want to do is repeat a contract fiasco like Rogers Communications). And, I would be lying if I said working on contract language is a creative or imaginative process, because it is not. Really, from my own experiences, day-to-day transactional contracts are just boilerplate indemnity language and seemingly ever changing “standard” business terms. Maybe that’s why contract drafting is usually left to a contract administrator or a paralegal . . . or a Marketing Coordinator who goes to law school in her spare time.

What’s enjoyable about the process is simply how complex contracts are. Even if written in plain language, which most are, they usually contain numerous references to other sections, or to acts and laws to derive meaning. Once you learn how to read them you can gain a great understanding of the business you are in. And, as a little side perk, people really respect you when you are able to decipher contract language.

Today though, as I was finishing up a redline, I had a humbling thought: “what if this contract ends up as evidence in court and I did something that is really stupid.” It is kind of a silly thought, since I draft the templates and do initial redlines that will probably go through numerous rounds of negotiations. But I wonder if someone is really checking to make sure all of my commas are in the right place. I always provide my standard CYA disclaimer: “I’m not a lawyer and I don’t work in Legal so make sure this gets reviewed before it goes out the door,” but maybe that’s not enough.
Does anyone have any suggestions of how to improve my contract drafting skills (beyond taking the Contract Drafting Workshop, which I already plan to do)?

(Editor’s note:  This is a delayed posting from last month’s student blogger, with the delay attributable to the editor and not to the blogger.)

 What follows is a deconstruction of my own op ed piece.  The final product as it appeared in the newspaper has its origins in the fundamentals of logic and rhetoric.  Law students, in particular, may be interested in the way in which I employ several classic techniques of persuasive writing in order to make my case.     

 Believe in Your Argument: It is not necessary to have an angel for a client, but it helps.  The most accomplished persuasive writing techniques will not hide the fact that your argument is a stinker.  My task is to persuade the reader that my belief – that Judge Sotomayor is a moderate jurist who should be confirmed to the Supreme Court-is one that they should adopt as well.  If I do not believe my own argument, I will not succeed in convincing the reader.  

 Know Your Audience:  My language is directed towards the non-specialist, so I consciously avoided legal technicalities.  Also, I assume that the average newspaper reader will be skimming the text rather than fully engaged in my arguments.  Therefore, I utilize simple and direct sentences as opposed to rhetorical questions or complex syllogisms that require greater concentration to follow.

 I also presume that a large segment of the public is already persuaded to either support or oppose the Sotomayor nomination.  This segment of the public is not likely to be swayed by my arguments.  Therefore, the tone and the specific arguments that I adopt are specifically designed to appeal to persuadable Republicans and/or wavering Democrats.  This leads to a focus on mainstream issues such as crime and away from “hot button” issues such as Affirmative Action.

 Establish Connection Between Reader and Subject Matter: Hispanics can be perceived as the “other” in our society, which immediately renders Hispanics as objects of suspicion or distrust in the media.  By opening with a Spanish phrase, I attempt to confront this perception by bringing it to the foreground.  However, I reveal that the Spanish phrase I invoke actually reflects a shared, non-threatening value (people should treat each other with common decency).  This invites the reader to focus on the commonalities between Hispanics and non-Hispanics, rather than on the differences.

 Maximize the Gender Gap:  Among my target audience, women are more likely to be open to persuasion given Judge Sotomayor’s position as the third woman nominated to the Supreme Court.  In my conversations with women about the nomination, I have noticed that the first subject that comes up is invariably the excellent qualifications of Judge Sotomayor.  Many women in the workplace feel that male co-workers ignore or minimize their qualifications, focusing on their gender rather than their talent.  These women will respond to arguments that Judge Sotomayor is being treated the same way.

 On the other hand, the “empathy” argument invoked against Judge Sotomayor plays on gender stereotypes.  Women are often portrayed in the media as nurturing and caring, and therefore not strong enough to protect society from threats such as violent crime.  At the same time, a fear of violent crime is often used as a rhetorical device to prevent wavering women voters from abandoning a political party’s preferred candidate (i.e., the Willie Horton example).

 By focusing on Judge Sotomayor’s “tough-on-crime” reputation, I anticipate and counter both the negative aspect of the “empathy” charge as well as a particular wedge issue of concern to many women.

 Appeal to the Reader’s Emotion: The piece makes a very clear and specific appeal to the emotions of the reader.  The words “shame” or shameless” are employed three times-twice in the opening paragraphs and again in the final paragraph.  The reader is asked to conclude that Judge Sotomayor is being subjected to unfair criticism, and to feel sympathy towards her.  

 Appeal to Authority: I do not expect the reader to believe my arguments based solely upon my own authority.  Therefore, I appeal to other sources of authority in order to support the point that Judge Sotomayor is a moderate judge.  I refer to objective reviewers of her record, and in fact there are many such objective reviews available on the internet (on SCOTUS Blog or from the Congressional Research Service).  I also consciously include a sentence that summarizes the results of a review of 100 opinions in which Judge Sotomayor participated involving race-based claims.  Used judiciously, numbers and statistics can impart an aura of objectivity to a piece of persuasive writing.  I also appeal to endorsements of Judge Sotomayor by national law enforcement organizations and by other appellate judges.        

 Do Not Dodge Your Opponent’s Best Argument: I do not find the “wise Latina” debate to be particularly interesting or significant.  However, given that those opposed to Judge Sotomayor’s nomination have made this the centerpiece of their campaign, it is necessary to raise and respond to this argument.  The most effective way to do this is to simply place her words back into the context from which they were severed.   I also try to turn the “empathy” criticism into a positive by invoking Judge Sotomayor’s empathy towards the victims of crime.  This signals to the reader that a judge’s empathy can benefit groups that are not defined along racial or gender lines, and that empathy can be a desirable attribute in a judge.

 Turn Your Opponents Rhetoric on Its Head:  The task of Judge Sotomayor’s opponents is to argue that she is an extremist and that the evidence supports this characterization of her record.  I argue that by opposing a true moderate, it is her opponents who are extreme.  I invite the reader to question the very ideological framework that conservative critics are using when they evaluate Judge Sotomayor.  If she is not acceptable to them, who is?

 Persuasive writing is a skill that is learned, and not a talent that comes naturally.  Go back and re-read the piece in light of this deconstruction.  By revealing the anatomy beneath my opinion piece, I hope that our students will understand why this is a skill worth developing.

When I was a young man, I worked briefly as a journalist, and all of my editors argued the active voice was a more direct and vigorous mode of expression.  The passive voice, they insisted, denied human agency by sticking a helping verb such as “is” or “was” between the subject of a sentence and an action verb.  Since becoming a legal academic, I have noticed the passive voice everywhere I look in legal prose, and I have struggled (with limited success) to stop the passive voice’s creeping incursion in my own writing.

Why is the passive voice so common in legal writing?  It would be too simple, I think, to say lawyers are lousy writers.  Surely we are no worse than accountants, bankers, doctors, and track coaches.  Perhaps the ubiquity of the passive voice in legal writing relates to the positivist assumptions most legalists internalize.  We like to believe laws, legal principles, and precedents stand tall and clear.  When we apply the law to controversies, neutral and certain answers emerge.  It is easy and ideologically convenient to announce, “It is so ordered.”   Might Sonia Sotomayor be prepared to say instead, “I think the correct result is . . . .” 

• First Prize: William K. Pridemore II, Foul Ball! Why the Digital Millennium Copyright Act Strikes Out on Fair Use
• Second Prize: Kevin P. Rizzuto, Just Say No (to Injunctions Enjoining Future Sale or Lease of Copyrighted Residential Homes)

First prize carries with it an award of $600, and second prize is awarded $250. Congratulations to Will and Kevin!

Today, in a 7-2 opinion authored by Justice Roberts, the Court announced its decision in favor of the alien, determining that the disputed 1996 statutory provision did not take away the appellate courts’ traditional stay power in appeals pending deportation.

Alito and Thomas, dissenting, argued that the majority’s interpretation of the statute “nullifies” (dissenting slip op. at 1) Congress’s effort to abolish the automatic stay in appeals pending deportation.

But the majority emphasizes that the traditional stay is not automatic, or, at least, should not be.  The Petitioner had come close to arguing that appeals in asylum cases should remain almost automatic, pointing  out in brief and argument that, for asylum seekers at least, the irreparable harm that could occur upon deportation–which for many asylum seekers includes torture, imprisonment, perhaps execution–is a heavy factor weighing in favor of granting a stay, and arguing that permitting the alien to remain in the United States pending the appeal causes little or no harm.  The majority disagreed with the latter point, observing,

Of course there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm. But that is no basis for the blithe assertion of an “absence of any injury to the public interest” when a stay is granted. Petitioner’s Emergency Motion for a Stay 13. There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and “permit[s] and pro-long[s] a continuing violation of United States law.”

The concurrence makes the point even more strongly, observing, “Under either standard, even the less stringent standard the Court adopts today, courts should not grant stays of removal on a routine basis.” (Concurring slip op. at 2.)

Justice Roberts is a good writer.  My favorite line appears on page 10 in the slip opinion.  In this passage, Justice Roberts is responding to the dissent’s argument that the statutory amendment limiting the availability of “injunctive relief” in these appeals should extend to “stays” because stays are, technically, a form of injunction:

Whether such a stay might technically be called an injunction is beside the point; that is not the label by which it is generally known. The sun may be a star, but “starry sky” does not refer to a bright summer day.

I agree very much.

I also want to point out that the Washington Post’s article about the decision, which seems to be getting the most play on the web right now, has a misleading headline, “Court makes it easier to fight deportation.”  As I stated above, and as both the concurrence and the majority observe, under either interpretation, the standard for a stay has become more narrow, making it more difficult to fight deportation since 1996.  Furthermore, the majority of the circuits were already following the interpretation that majority confirmed today, so the majority’s decision works less change than the dissent’s would have.

Professors, would like to retain more of the information that your students are presenting to you in their typed assignments, papers, briefs, and tests?

Then please read what the Seventh Circuit has to say about its “Requirements and Suggestions for Typography in Briefs and Other Papers.”

For starters, “[t]ypographic decisions should be made for a purpose. The Times of London chose the typeface Times New Roman to serve an audience looking for a quick read. Lawyers don’t want their audience to read fast and throw the document away; they want to maximize retention.”

Students don’t want their audience (professors) to read fast and throw the document away either. Maybe the fallback format requirements of “15 pages, double-spaced, Times New Roman, one inch margins” shouldn’t be the fallback? What else does the Seventh Circuit have to say about our old friend Times New Roman?

Professional typographers avoid using Times New Roman for book-length (or brief-length) documents. This face was designed for newspapers, which are printed in narrow columns, and has a small x-height in order to squeeze extra characters into the narrow space. Type with a small x-height functions well in columns that contain just a few words, but not when columns are wide (as in briefs and other legal papers). In the days before Rule 32, when briefs had page limits rather than word limits, a typeface such as Times New Roman enabled lawyers to shoehorn more argument into a brief. Now that only words count, however, everyone gains from a more legible typeface, even if that means extra pages.

So what typeface should we be using? The Seventh Circuit recommends a “proportionally spaced type.” What’s proportionally spaced type, you ask? “Proportionally spaced type uses different widths for different characters. . . . A monospaced face, by contrast, uses the same width for each character.”

Additionally the Seventh Circuit recommends “typefaces that were designed for books.” And what typefaces were designed for books? The obvious ones are the ones with “book” somewhere in the name. Examples of typefaces designed for books include “New Baskerville, Book Antiqua, Calisto, Century, Century Schoolbook, and Bookman Old Style.” Furthermore, “faces in the Bookman and Century families are preferable to faces in the Garamond and Times families.”

And what was that about Rule 32 and word limits instead of page limits? Federal Rule of Appellate Procedure 32(a)(7) allows principal briefs to exceed 30 pages if the brief “contains no more than 14,000 words” when the brief is accompanied by a certification by the attorney that the brief complies with the word limit.

I just checked my briefs and memos from my 1L Legal Writing classes and all of them were turned in with Times New Roman as the typeface and with a page limit. Maybe format requirements have changed in the two years since I took those classes. I know for a fact that some professors have gotten rid of the fallback format requirements. In my Copyright Seminar this semester, Professor Boyden’s format requirements mirror the Seventh Circuit’s recommendations: a proportionally spaced typeface and both a word limit and a page limit.

Instead of relying on the fallback format requirements, professors should allow students to use typeface selection to their advantage. A choice in typeface selection won’t be the difference between an A and a C, but, as the Seventh Circuit explains, “[y]ou can improve your chances by making your briefs typographically superior. It won’t make your arguments better, but it will ensure that judges grasp and retain your points with less struggle. That’s a valuable advantage, which you should seize.”

The city council in Birmingham, England, has banned the use of apostrophes in its street signs.  Evidently, the council members grew tired of using their meetings to debate whether various street names should include apostrophes.  One council member was quoted by MSNBC as follows:  “Apostrophes denote possessions that are no longer accurate, and are not needed.”  He continued, “More importantly, they confuse people. If I want to go to a restaurant, I don’t want to have an A-level (high school diploma) in English to find it.”  You can read more about the council’s decision here.

Not everyone has thrown in the towel, however. 

Two Dartmouth graduates, Jeff Deck and Benjamin Herson, formed a group called the Typo Eradication Advancement League (TEAL), and they travelled the country fixing typos along the way.  They, too, noted that one of the most common errors was the misused apostrophe.  Alas, TEAL’s quest came to an end last year after the two visited the Grand Canyon and corrected errors on what turned out to be a historic sign; they used a permanent marker to add a comma and an apostrophe, and they used Wite Out to delete a misplaced apostrophe.  What TEAL viewed as a public service, however, the government viewed as conspiracy to vandalize government property.  Deck and Herson were ordered to pay to restore the sign and sentenced to probation, and they are forbidden from entering any of the national parks during their probation.  The Chicago Tribune provides more details about the TEAL incident here.

Though I have no intent to pick up where TEAL left off, and I do not intend to take my permanent markers and Wite Out on the road, I will continue to fight the good fight in my classroom.  Long live the apostrophe!

Before we broke for conferences, we talked about counter-analysis in class.  I tried to impress upon students that they cannot be effective advocates simply by making their own affirmative arguments and ignoring their opponent’s likely arguments.  Instead, they need to anticipate their opponent’s likely arguments and address those arguments as well.  I get little to no push-back from the students on that point; they can see the benefit of trying to neutralize opposing arguments from the outset rather than allowing the opponent to control the arguments in the response brief. 

Where students and I sometimes disagree, however, is about how best to approach counter-analysis. 

We talk about assertive and defensive approaches, and we look at various examples of assertive and defensive analysis as a class.  Defensive counter-analysis first sets out the opponent’s argument and then knocks it down.  Playing defense might look something like this:

Defendant will assert that under Thing, Plaintiff cannot recover because the Plaintiff was required to perceive the event that caused the victim’s injury, not simply the consequences of that event.  Defendant will argue that here, just as in Thing, the Plaintiff perceived the consequences of the injury-producing event but did not perceive that event itself.  Defendant’s argument is misplaced, however, because unlike the car accident in Thing, which began and ended in an instant, here, the event was ongoing, and the Plaintiff witnessed at least part of that event. 

The other option is to address the opponent’s arguments in a more assertive way: to play offense rather than defense.  For example, the argument might look like this:

Under Thing, the Plaintiff can recover as long as she perceived at least some part of the event that caused the victim’s injury; Thing bars recovery only when the plaintiff arrived after the event had ended and witnessed just its consequences.  Here, the event that caused the victim’s injuries was ongoing, and the Plaintiff perceived part of that event.  Thus, . . . . 

I feel strongly that the assertive approach is more persuasive.  First, in a principal brief, you can never be certain what arguments your opponent will make.  The last thing you want to do is make the opponent’s arguments more articulately and convincingly than your opponent might.  Second, the principal brief is a place for telling your client’s version of the story, and to the extent that you can neutralize “bad” authority in the context of that story, you’re more likely to persuade.

A number of students, however, disagree with me every year.  They tell me that they like the “set ‘em up and knock ‘em down approach” even if it is more defensive. Given the number of practitioners’ briefs I have read that employ this approach, I have to conclude either that a number of practitioners agree or that they simply don’t consider the difference.  I wonder whether this preference for the more defensive approach comes from reading judicial opinions.  In an opinion, it makes sense for the court to set out the parties’ arguments and then indicate why it rejects one of those arguments.

So what about you? Do you play offense or defense?

To me, this is interesting and provocative stuff. I find the psychology of writing fascinating (put it together with the process of judging and I could maybe write a whole article about it). Having tried to teach a writing class once, I’ve experienced first hand just how difficult it is to articulate what makes for good writing. For me, at least, this is partly because I go about my own writing in a highly intuitive way. I don’t recall ever consistently thinking about IRAC when writing in a legal context, and I cannot articulate many of the rules of grammar (although I consciously violate some of the more ridiculous “rules,” such as the ones about split infinitives and prepositions at the end of sentences). Given all this, I share Professor Slavin’s sense that there’s something not quite right about a method of teaching writing that suggests that it is somehow a mechanical or rule-driven process. This is not (on my part, at least) to suggest that IRAC-like formulas are not useful, but rather that they are incomplete.

Lately my bedtime reading has included large helpings of the flat-out brilliant David Foster Wallace (R.I.P.). Wallace, in his essay “Authority and American Usage,*” provides perhaps the best statement I’ve seen about why it’s so hard to teach writing, and why constructs like IRAC seem to fall short. He writes of “the error that most Freshman Composition classes spend all semester trying to keep kids from making — the error of presuming the very audience-agreement that it is really their rhetorical job to earn.” He continues, characteristically, in a footnote:

Helping them eliminate the error involves drumming into student writers two big injunctions: (1) Do not presume that the reader can read your mind — anything you want the reader to visualize or consider or conclude, you must provide; (2) Do not presume that the reader feels the same way that you do about a given experience or issue — your argument cannot just assume as true the very things you’re trying to argue for.

Because (1) and (2) are so simple and obvious, it may surprise you to know that they are actually incredibly hard to get students to understand in such a way that the principles inform their writing. The reason for the difficulty is that, in the abstract, (1) and (2) are intellectual, whereas in practice they are more things of the spirit. The injunctions require of the student both the imagination to conceive of the reader as a separate human being and the empathy to realize that this separate person has preferences and confusions and beliefs of her own, p/c/b’s that are just as deserving of respectful consideration as the writer’s. More, (1) and (2) require of students the humility to distinguish between a universal truth (”This is the way things are, and only an idiot would disagree”) and something that the writer merely opines (”My reasons for recommending this are as follows:”). . . . I therefore submit that the hoary cliché “Teaching the student to write is teaching the student to think” sells the enterprise way short. Thinking isn’t even half of it.

Wallace seems to have nailed it, though he has perhaps sold his assessment short. This, it seems to me, is the trick not only to Freshman Composition, but to all effective writing. There’s more to it, of course — there’s organization, and at some point one moves from mere concerns about effectiveness to striving for some sort of euphony — but as a description of the basic struggle I find myself engaged in every time I sit down to write, it’s hard to do better. Viewed from that perspective, IRAC appears as the treatment of a symptom rather than the cause. Of course, that’s often all that one can reasonably do. To her great credit, Professor Slavin is struggling with the question of whether, and how, we might do more.

*This essay appears in the collection “Consider the Lobster.” The quoted material is at page 106. A shorter version, which does not include the quoted material, appeared in Harper’s as “Tense Present: Democracy, English, and the Wars over Usage.”

Cross posted at Ratio Juris.

I never once, however, discussed (or even considered) the possibility that a litigant would submit a brief in the form of a rap.   The pro se litigant submitted the “rap brief” and won.

As professional writers, should we lawyers be concerned?  I can’t imagine this form of writing starting a trend, but does its use suggest something about a changing level of formality in court documents?

I’m not sure.  I think it may be a fluke, but I’m troubled.   

[T]he 2009 Central States Regional LRW/Lawyering Skills Conference,”Climate Change: Alternative Sources of Energy in Legal Writing,” will be held on October 9-10 at Marquette University Law School in Milwaukee, Wisconsin. Central States is also planning a Scholars’ Forum, which will be held on October 9 in conjunction with the conference.  At the end of the Scholars’ Forum and just before the welcome reception for the conference, conference attendees will be able to participate in an hour-long discussion on getting published and giving effective presentations. 

First, Komie. I believe that I first read Komie’s stories because my colleague David Papke passed along a copy of one of his books to me. I really enjoyed the stories. I should explain that generally speaking, I am not much of a reader of contemporary fiction. Besides reading for work, I tend to read nonfiction and poetry. My fiction reading list is limited, most of the time, to science fiction novels and short stories, and a few of my favorite novels, which I read over and over.

But Komie’s work grabbed me. The stories were so much more human and interesting than the other popular law-related fiction I had read. Komie’s writing is spare but vibrant. He writes about the worlds he knows well, the worlds that Chicago lawyers inhabit, but he uses that particular world as a lens for viewing human nature and human experience. Probably many of Komie’s stories resonate with me because some of his best work centers on young lawyers entering, trying to enter, or working at, large law firms. As one reviewer stated, “[the Komie stories that focus on large law firm life] are exquisite in their attentiveness to detail and full of an engaging, melancholy wisdom.”

Professor James Elkins, editor of the Legal Studies Forum, has been a fan of Komie, and the essay I wrote about Komie’s work appeared in the LSF. Professor Elkins has published a number of the stories in the LSF, and made some of them available online, here. If you want to read just one, you might try Solo.

Speaking about Professor Elkins leads me to my second topic, poetry by lawyers. If you like poetry, you should be aware of Professor Elkins’ fantastically thorough website cataloging poetry by lawyers, Strangers to Us All. The world of lawyer poetry is so much more than just Wallace Stevens and Archibald Cox–which (in my view at least) is really saying something! In addition to maintaining that website, Professor Elkins has published a lot of poetry in the Legal Studies Forum over the past five years or so. If you scroll to the bottom of the “Strangers to Us All” page, you can see descriptions of the LSF issues that anthologize poetry, as well as links to some of the poetry from those volumes, made available online.

Occasionally I run across poems by lawyers elsewhere. For instance, a couple of years ago one of my sisters gave me a volume of the Grove Review for my birthday, and it contained this lovely poem by lawyer David Filer, titled “Sometimes at Sundown.”

Update January 12, 2009:  Just now I caught, and fixed, the misspelling of “phenomenology” I had inadvertently included in this post.  How ironic, given Williams’ subject matter, that I did so, inadvertently, and that Dean Strang noticed (see the comments).