When I was contacted about being an alumni blogger some time last year, I paused for a brief moment and then said yes. Like the bliss of pregnancy and the denial of eventual childbirth, blogging seemed painless. However, . . . it began to feel uncomfortable as February began to loom.

What could I possibly write about? And more . . . what can I write about that would be at all interesting to the readers, whoever they may be. I was reminded of the scene in “Planes, Trains and Automobiles” where Steve Martin’s character chides John Candy’s character as Candy blathers on and on endlessly. Martin advises Candy that when you tell a story, you should try to have a point because “it makes it so much more interesting for the listener.”

So with that in mind, I set about thinking of something with a point, something interesting. Since I (along with my dear colleague Andrea Schneider) teach one of the two sections of the Negotiation Workshop at MULS, I spend a lot of time thinking about skills related to successful negotiation, something lawyers do daily on any number of different planes. I have my own sense of what skills are important to being an effective lawyer, and certainly some of the recent criticisms of legal education present views on the skills needed to be an effective lawyer, so I decided to seek the input of my colleagues.

I sent out a very informal and un-scientific survey to my neighbors (swing a cat, hit a lawyer on my block!) and to the lawyers on my contact list (friends, colleagues and former students turned lawyers) asking each what they believed to be the most important skills to being an effective lawyer (with a maximum of five).

I got 38 responses back (thanks to all of you for taking the time) from lawyers in traditional private practice, from large and small firms and across all practice areas (IP, family, criminal, creditor’s right, employment, mental health, immigration, litigation of many types, appellate practice and estate planning to name a few); from public service lawyers (DAs, GALs, court commissioners, city attorneys, state appointees); from in-house counsel (manufacturing, real estate, sales support, medical ethics, athletics, and financial services); from ADR practitioners (mediators, trainers, RJ practitioners and conflict management consultants); and from academia (librarians, doctrinal law faculty, skills curriculum faculty).

I reviewed the responses and saw lots of agreement across practices and thought it would be most interesting to create a word map. So, I entered the responses into “Wordle”, a web tool and then this tool, created a visual collection of all the data and the relative size of a given response reflects the frequency of the data point.

From the 38 participants, the top five skills necessary to be an effective lawyer are:

1. Communication

2. Listening

3. Writing

4. Negotiation

5. Time Management

If you really think about it, this is not surprising, and interestingly, it is consistent with the critiques of legal education that we need to teach both analytical skills and skills deemed “soft” (and so somehow less meriting academic endeavor).

There are many other responses that provide insight into being an effective lawyer, and I found the responses to be simultaneously insightful and comforting. As a member of a much maligned profession, we all have had experiences that may support Shakespeare’s call to rid the world of lawyers (I am tempering his sentiment a bit!), and yet these responses showcase a different view of the effective lawyer.

If I have sufficiently piqued your curiosity, I invite you to take a look at the “map”. Simply paste this link into your Browser and enjoy.

http://www.wordle.net/show/wrdl/4811048/Effective_Lawyering_Skills

Until next time . . . Joanne Lipo Zovic

“We can rejoice that so many of the evils he assailed with his beautiful, ferocious quill – dismal debtors’ prisons, barefoot urchin labor, an indifferent nobility – have happily been reformed into oblivion.  But one form of wickedness he decried haunts us still, proud and unrepentant:  the lawyer.”

Dickens included lawyers in 11 of his 15 novels.  Perhaps they made so many appearances because he was enmeshed in England’s legal system.  According the New York Times, at 15 Dickens was hired as an “attorney’s clerk” and later became a court reporter.  “For three formative years he was surrounded by law students, law clerks, copying clerks, court clerks, magistrates, barristers and solicitors . . . .”  And for a time, he was a law student.  One scholar has framed Dickens as a legal historian and another has written a book that examines Dickens’ portrayal of lawyers and others in the legal system.

In honor of Dickens’ birth and his ties to our profession, please share your favorite Dickens quotes.

This was not Justice Eakin’s first foray into judicial versifying. While on the Superior Court of Pennsylvania he composed quatrains for a couple of opinions. In Busch v. Busch (1999) the entire opinion is in verse except for a recitation of the facts, and in Liddle v. Scholze (2001), several stanzas merely bookend more conventional text. Liddle is in many ways the more interesting case, as it deals with the sale of breeding emus. Appellant sued for breach of contract when they didn’t – breed, that is – but lost because she did not take advantage of the contractual remedy in a timely fashion and was thus presumed to have waived it. Perhaps she should have pursued a different cause of action and argued for rescission of the sale on the grounds Scholze was selling an unregistered security, under an investment contract theory. But this is all by the by. In Liddle, Eakin achieves a Coleridgean tone with his first line, “The emu’s a bird quite large and stately . . . .”

Elevated to the Pennsylvania Supreme Court in 2001, Eakin continues to occasionally express himself in verse from the bench. He is not unique in this regard. There are many examples of judicial prosody and even the tax court has tried its hand at the form. See Jenkins v. Comm’r, 47 T.C.M. (CCH) 238 (1983), “Ode to Conway Twitty.” The practice has not been immune from criticism, however. The main thrust of the criticism is that “rhymed verse trivializes the seriousness of the matter before the court and demeans the litigants.” Mary Kate Kearney, The Propriety of Poetry in Judicial Opinions, 12 Widener L.J. 597, 606-607 (2003). It has also been impugned as a waste of taxpayer money and for its tendency to produce not only bad law, but execrable poetry.

These criticisms strike me as not wholly persuasive. The assertion that rhymed verse is more likely to demean than other forms of writing is equivocal at best – on the one hand you have the aubade, on the other gangsta rap. It is true that rhymed judicial opinions are often jocular in tone. Justice Eakin admits he tends to use the form when “the subject of the case call[s] for a little grin here or there.” But could it be that some matters, though legally significant, are trivial in a broader sense? And if this is so, does the appearance of judicial propriety require learned men to pretend otherwise? Benjamin Cardozo, in Murphy v. Steeplechase Amusement Company (1929), is clearly having verbal fun. “The antics of the clown are not the paces of the cloistered cleric.” Is he trivializing the subject matter of the suit? Sure, but in a principled way.

As to the respect litigants are due, jurists have not been restrained in the exercise of their derision by prose. Oliver Wendell Holmes’ opinion in Buck v. Bell (1927) comes to mind. His disdain for the “feeble-minded” is palpable throughout the opinion and culminates in the grotesque: “Three generations of imbeciles are enough.” On the other hand, there are some parties whose actions are so reprehensible, or whose arguments are so frivolous, that they deserve censure; the law, in fact, demands it. In such cases, do they not forfeit the court’s respect? In any event, an adversarial system of justice inevitably demeans the loser in the sense that their dignity is reduced, at least to the extent their loss decreases their status.

In short, I would contend that there is nothing inherently wrong about an opinion that takes liberties with form, as long as it seriously resolves the issue before the court. The idea that a well-reasoned resolution can only be expressed in certain sober tones is belied by the many instances where wit and humor can reveal the weakness of a position or provide a more fitting context for the dispute. Judge Posner, for example, is a master of the well-placed barb that explodes an untenable position. In 2008, Chief Justice Roberts’ recitation of facts in Pennsylvania v. Dunlap is written in the style of a detective novel of the 30’s or 40’s. He described the neighborhood in which the alleged offense occurred as “[t]ough as a three-dollar steak.”

What is problematic about Eakin’s poetic opinions, perhaps, is their slavish insistence on rhyme. He relegates the form to those cases that are after all not very important, those one merely “grins” at. But if one takes seriously the claim that law is essentially a literary activity, then poetry, as the sine qua non of all such activity, is capable of being put to more varied uses. Would an opinion in blank verse on the legal consequences that flow from attempted murder, such as can be found in the Merchant of Venice, necessarily be out of place? Free verse seems particularly apt for intellectual property cases.

Certainly, given the traditions of the law, there is no need to fear that writing opinions in verse in any of its forms is likely to become commonplace. And there are undoubtedly good reasons for this. If nothing else, some uniformity of approach is indispensable to an efficient process. I am reminded of the saying that behind every lawyer is a failed poet, however, and wonder if those that would seek to prohibit its use by judges in the performance of their official duties needlessly restrict the possibilities of legal analysis and stifle its animating spirit. Perhaps that is overstating the case, but I could not resist a plug for poetry.

Congratulations to the participants in the 2012 Jenkins Honors Moot Court Competition: 

• Joseph Birdsall
• Bailey Briggs
• Clayton Britnell
• Nicole Cameli
• Mark Darnieder
• Dana Gilman
• Kristina Gordon
• Steven Gruber
• Nickolas Hagman
• Anne Halverson
• Matthew Hanson
• Nicholas Hermann
• Gabriel Houghton
• Nathan Imfeld
• Adam Koenings
• Jenna Leslie
• Jenna McConnell
• Sarah McNutt
• Matteo Reginato
• Patrick Ritter
• Brett Schnepper
• Max Stephenson
• Ariane Strombom
• Megan Zabkowicz

Students will begin writing their appellate briefs in January with the rounds of oral argument commencing later this spring.  The competition includes three preliminary oral argument rounds and a semifinal and final round.  

The Jenkins competitors are fortunate to have the opportunity to argue before distinguished members of the bench and bar from Wisconsin and beyond. The final round judges of the 2011 competition were the Honorable Carolyn Dineen King, the Honorable Barbara Brandriff Crabb, and the Honorable Patricia J. Gorence.

The competition is named after the James G. Jenkins, the first Marquette Law School dean. More can be read about Jenkins in Professor Gordon Hylton’s blog post.

A true discussion on the merits of these articles could easily lead to hours of debate. In fact, given the current job market, employment statistics, and the cost of a legal education, it might be easy to agree with these authors. But I think there are benefits to legal education that can’t be measured in dollars and cents, and for me these articles are discouraging and devalue a hard earned legal education.

Thus, as alumni blogger of the month, and an employed professional, I want to use my first blog post to remind myself and others of the many ways my education at MULS prepared me for work in the professional world. So, below is my personal list for your consideration, feel free to add to it in the comment section.

1. Legal Writing and Research. Much to my dismay, while at MULS I was forced to take two semesters of legal writing, and one advanced legal research course. I wanted to learn legal theory and have exciting debates. I did not want to spend my time studying legal writing and honing my research skills. These courses were the bane of my law school existence. However, after five years in the professional world, I can honestly say I would not have had some of the successes I’ve had without these skills. I write daily. Emails to clients, technical memos, presentations, the list goes on. Clear, concise legal writing is essential to my job, and my ability to write well has been a instrumental part of my career successes thus far.

2. Critical Thinking and Reading. I know this one seems obvious. One could argue that it’s impossible to do well on the LSAT and get into law school unless you already possess these skills. But, spending three years surrounded by people who also excel at these skills forces you to really practice them. By the time you graduate, these skills will be sharp, and these skills are extremely valuable for any client service professional. I read daily. My job requires me to critically read statutes, treaties, and secondary documents and to interpret them and apply them to my clients’ situations. My clients depend on this ability, and it is an essential part of legal education.

3. Legal Theory. Legal theory should not be underrated. Legal theory gives you the basics. A strong foundation of legal theory means that when I’m given a research task, I have a general idea of what I’m looking for, I know where to start looking, and I know the correct terminology to make my research efficient. Legal theory is important and should not be scoffed at as impractical.

4. Opportunity. This last point might seem vague and general, but in an effort at brevity I wanted to find one word that summed up all of the benefits of a legal education. For me, that word is opportunity. The opportunity to learn from, and really get to know, some of the best minds in the legal professtion (thank you professors!). The opportunity to network and meet interesting and accomplished people through various activities and events. The opportunity to form life long friendships.The opportunity to improve myself, and the world around me, through volunteer opportunities. The opportunity to work in a job I love, that challenges me every day. The opportunity to travel the world. My legal education opened up a world of opportunities, many of which would have remained closed without it.

Yes, law school is expensive. Yes, I will still be paying off my law school loans when my daughter goes to college. If I was asked today, I would advise any would-be law students to be sure they passionately desire a legal education before undertaking the expense. But for me, law school was a fantastic three years, full of wonderful memories that I look back upon with pride. I wouldn’t trade a minute of it, and I am proud of what I have accomplished because of it.

Does that sentence make any sense to you? If so, find Butterick’s book: you will love it.

If not, run out and get Butterick’s book: you need it.

After running a website on typography for lawyers, www.typographyforlawyers.com, Matthew Butterick last year published a book on the subject. The book seems designed to do for typography what Bryan Garner’s work has done on matters of style and usage—to convince more lawyers that this “small stuff” matters in their writing, in their approach to the practice.

Indeed, Butterick’s belief that “typography” should become part of the vocabulary and professional awareness of lawyers forms the “core principles” of his book:

1. Good typography is part of good lawyering.
2. Typography in legal documents should be held to the same standards as any professionally published material. Why? Because legal documents are professionally published material. (Corollary: much of what lawyers consider “proper” legal typography is an accumulation of bad habits and urban legends. These myths will be set aside in favor of professional typographic habits.)
3. Any lawyer can master the essentials of good typography.

To some extent, typography already is and always has been of concern to lawyers. Lawyers have always had to consider not only the words they write but the other communicative features of their documents. Legal writing professors have written articles on the subject, see, e.g., Ruth Anne Robbins, Painting with Print: Incorporating concepts of typographic and layout design into legal writing documents, 2 JALWD 108 (2004), http://works.bepress.com/ruth_anne_robbins/2/, and the Seventh Circuit Court of Appeals’ Practitioner’s Handbook, http://www.ca7.uscourts.gov/rules/handbook.pdf, which devotes an entire section to “Requirements and Suggestions for Typography in Briefs and Other Papers.”  And many lawyers have spent at least some time debating which font looks best for a printed brief, whether (when permitted to choose) one should select single- or double-spacing, and whether to leave one or two spaces at the end of every sentence.

Still, some not-insignificant proportion of lawyers has little patience for this kind of information, perhaps because the substance and style of most legal writing is so important, and already so challenging, in itself, to master.

To be honest, I myself did not warm to Butterick’s book right away. And although it has grown on me, I still cannot say I enjoy poring over, for instance, the “font samples” pages that make up one chapter of the book, offering the same text printed out in various similar-but-subtly-different fonts. Some of the fussier, more historical, and technical information in the book may be mostly of interest to specialists in typography.

But the same could be said about usage handbooks, like Bryan Garners’ books Modern American Usage and The Redbook: A Manual on Legal Style, and yet I still think that every lawyer should have a usage handbook on hand. In the same way, I think Typography for Lawyers does earn a place in law office libraries. The 28 “key rules” Butterick proposes are, in the end, fairly simple, and, if they were widely adopted, would certainly improve the readability of legal documents. While reading Butterick’s book, I thought of my experience reading hundreds of briefs during my year as a clerk at the Wisconsin Supreme Court. The briefs submitted by the state attorney general, unlike most other briefs, were formatted with single-spacing, double-sided pages, with wide margins. In addition to being so much lighter to carry around, the formatting of the pages (shorter line-lengths, more white space) made for more pleasant reading. In a long, hard day of reading, those typography choices did lighten the burden in a noticeable way.

So, I encourage you to review Butterick’s typography book, or at least his website. If you don’t know the difference between a serif and sans-serif font; if you don’t know the difference between mono-spaced and proportional fonts; if you don’t know why italicizing is probably better than underlining; and if you are still leaving two spaces after your sentences, inject some fresh energy into your practice (well, at least into your documents) by reading his advice and trying some of his suggestions in your own work. Take a quick look at his re-design of a caption page (http://www.typographyforlawyers.com/?page_id=1437), a resume (http://www.typographyforlawyers.com/?page_id=1655), or another legal document, and I think you will have to admit that this stuff does make a difference. Even if you wish it didn’t.

Though I am a convert on Butterick’s “rules” and his idea that lawyers should care (and know) about typography, I am not a whole-hearted fan of the book Typography for Lawyers. I think the reason Garner’s advice on style and usage in writing has become so authoritative is in large part because of his soft-sell approach on those matters. Garner persuades the reader that his judgment is worthy to be followed, rather than just assuming the position of The Authority on usage. As David Foster Wallace wrote, “A distinctive feature of ADMAU is that its author is willing to acknowledge that a usage dictionary is not a bible or even a textbook but rather just the record of one smart person’s attempts to work out answers to certain very difficult questions.”(http://instruct.westvalley.edu/lafave/DFW_present_tense.html)

Butterick’s approach is more like a traditional grammarian approach, presenting himself as The Authority for the Rules because “the rules here reflect the customs of professional typographers and the majority views of authorities on typography, filtered through my experience as a professional typographer and as a lawyer.” An example would be his response to one of the objections he has heard to the “one-space rule” for spacing after sentences. The two-space rule proponent says, “I think two spaces look better so that’s what I’m going to use.” Typography at 43. Butterick’s response? “I’m telling you the rule. If you want to put personal taste ahead of the rule, I can’t stop you. But personal taste does not neutralize the rule. It’s like saying, ‘I don’t like how the subjective tense sounds, so I’m never going to use it.’” (p. 43)

I find that exchange unhelpful. For one thing, refusing to change from one to two spaces, when most lawyers currently use two, is not really like refusing to use the subjective tense, which is part of the grammar of the English language. Instead, it’s more like the debate about whether to use the Oxford comma (see http://www.npr.org/blogs/monkeysee/2011/06/30/137525211/going-going-and-gone-no-the-oxford-comma-is-safe-for-now). That’s a question of usage, and one about which reasonable minds differ.

More importantly, even if the consensus on the one-space/two-space debate is clearer than the Oxford comma consensus, his failure to provide the reasons that the professional consensus has developed leaves the reader feeling scolded, more than persuaded. Especially when he says,

Similar objections [to the one-space/two-space objections] could be made against any rule in this book. This is the only time I will indulge them at length. These objections only serve to impede learning and preserve bad habits. If you’re afflicted by the urge to protest, suppress it. That way, you can approach the rest of these rules with an open mind. (p.44)

What I do not like is the underlying vision of the lawyer as uncurious and unqualified to enter the debate about professional typography that Butterick seems to have in mind. It’s such a contrast to the bright, persuadable lawyer audience that Garner seems to presume in his books.

Still, in any event, I did use one space after all the sentences in this post.

As a general matter, the phenomenon is a product of (or is at the very least related to) what psychologists call the confirmation bias. That’s our tendency to assimilate new information in such a way as to confirm our pre-existing beliefs. If I’m inclined to believe in the truth of Proposition X, then I will give relatively greater weight to new information that confirms that belief than to information that runs contrary to it.

It’s entirely natural for lawyers to identify with their client’s interests and perspective. When your job is to advance the most effective arguments you can on your client’s behalf, it becomes your business to appreciate where they are coming from. And as you start to do that, you are likely to become less effective at seeing where the other side is coming from.

Imagine you’re confronted with what at the outset appears to be a body of case law that is not clearly consistent, or is inconsistent, with the position you hope to advance. For you it’s a puzzle. You need to move the pieces around and to reorient the cases, emphasizing some of the themes and language in the opinions over the rest. Ultimately, you formulate an analysis in which everything points in a single direction: you win. In your mind, you will have offered the court the solution to the puzzle. In reality, you are much more likely to have provided a solution to the puzzle.

We do this all the time, as humans, as lawyers, and even as judges (ever notice how opinions consistently read as though there is but a single answer to the questions presented, even over a strenuous dissent?).

So what do we do about it? Clichéd as it may be to say it, recognizing the phenomenon is the first step to countering it. At that point, for me, it becomes about efforts to introduce distance and perspective. Setting a brief aside for a couple days or more seems best, though it’s not always possible. Other tricks involve re-reading it in a different place or in a different font. Reading aloud can help to uncover flaws in logic as well as linguistic inelegancies. The point, ultimately, is to read the words critically, and as though they are not my own. If I can manage that, then I will have a better chance of seeing the flaws that weren’t apparent to me the first time through.

[Editor's Note:  This month faculty members share their favorite brief writing or oral argument tip.  This is the third entry in the series.] 

Maybe it’s like your first kiss, or maybe I’m unusual this way, but I think I will always remember my first brief.  I was a new associate working with two partners on the defense of a federal securities lawsuit.  The litigation was just a minor skirmish in a larger war: the plaintiff was attempting a hostile takeover of our client, and the litigation was intended to bring some more pressure to bear on our recalcitrant board of directors. Could we do anything to relieve that pressure?

The senior partner asked me to research an obscure provision of securities law that he felt might provide a basis for a motion to dismiss under Rule 12(b)(6).  I prepared a memo that carefully assessed the strengths and weaknesses of his theory, ultimately concluding that it was viable.  ”Great memo,” he responded, “now rewrite your analysis as a brief in support of a motion to dismiss.”

I put a day into drafting the brief.  As I dispatched my draft to the partners, I felt quite pleased with how I had worked through a very technically complex legal argument, synthesizing a large body of legal authorities on a doctrine I had never even heard of just a few days earlier.

Back the draft came, covered with red ink.  I was crestfallen.  Did I misunderstand the law?  Had I missed a critical case?  Was the Bluebooking off?

As I reviewed the partner’s edits, it quickly became clear that all of his changes were stylistic — he had not even a quibble with the substance of the argument.

As we discussed the edits, I came to appreciate what he was up to: simplification.  Long paragraphs were split in two.  Long sentences were also chopped up, reduced as much as possible to noun-verb-object, noun-verb-object, noun-verb-object.  Unnecessary words and clauses were ruthlessly cut.  What was left reminded me of a newspaper article in the spareness of the prose.

This was all intended, of course, to convey the substance of the argument in as clear and concise a manner as possible, respecting the fact that a busy judge and her law clerk would not be inclined to devote a lot of time and attention to our brief.  Even in the best circumstances, a brief will be competing with many other demands on the judge’s time and attention.  But a brief asking for dismissal as a matter of law really had the deck stacked against it — this was long before Iqbal – and we knew the judge would pick up the brief with a strong expectation that the motion would be denied.  For that reason, it seemed especially important to capture the judge’s attention quickly and carry her swiftly through the main points of the argument.

The prose, as rewritten, had a distinct sense of rhythm, with short, similarly structured sentences assembled into short, similarly structured paragraphs, and strong topic sentences at the start of each paragraph to carry the reader forward.

The effect reminded me of something I had once heard about brief-writing: a good brief marches, and a great brief sings while it marches.  I didn’t know — and still don’t know — how to make a brief sing, but I think do have a feel for the sort of rhythm in sentence and paragraph structure that gives a brief a marching quality.

In any event, this experience with my first brief made me a ruthless editor of all of my subsequent briefs.  I’ve tried to read and re-read everything, always looking to remove what is unnecessary and to simplify the structure of my sentences and paragraphs.  (Needless to say, my editing style is a little different with blog posts!)

Not that I can say that all of the work on my first brief actually paid off.  The wise, old judge recognized that the case would go away on its own.  She took the motion on advisement and waited the few weeks that were necessary for the business people to consummate a deal that (as the press release said) “created value” for the shareholders of both companies.  Merger completed, the lawsuit was dropped with no resolution of the issue raised by the motion to dismiss.

NM: Stephen King wrote On Writing as a tool for budding writers to use in their exploits in constructing fiction, but the book’s wisdom translates to all forms of writing. I first read this book for fun, hoping just a little that it would also bolster my creative talents.

It wasn’t until I was fully immersed in the world of legal writing that I discovered myself using the very same fiction writing tricks set forth by King. King takes time to describe the most common and fundamental ingredients in all types of writing, such as proper word choice and sentence structure. By mixing in the anecdotal flavor of his own life, King succeeds in conveying these techniques in a clear and practical manner rarely seen in writing guides. King shares an entire “toolbox” of useful tricks.

MLG: My favorite trick from King’s toolbox is “The adverb is not your friend.”

[T]hey’re like dandelions. If you have one on your lawn, it looks pretty and unique. If you fail to root it out, however, you find five the next day . . . fifty the day after that . . . and then, my brothers and sisters, your lawn is totally, completely, and profligately covered with dandelions. By then you see them for the weeds they really are, but by then it’s—GASP!!—too late.

NM: One of the things I learned over the course of my first year of law school is that good legal writers are also good storytellers: a writer must know how to organize a complex series of facts to illustrate a particular event for a particular audience. I also discovered that success as a storyteller flows out of the ability to filter through an overabundance of information and pinpoint the most significant facts.

MLG: I always wondered about what goes on in Stephen King’s brain when he writes. This book gave me those insights, and one is about how King’s characters develop. Here’s a snippet of King’s thoughts on his characters: “For me, what happens to characters as a story progresses depends solely on what I discover about them as I go along—how they grow, in other words. Sometimes they grow a little. If they grow a lot, they begin to influence the course of the story instead of the other way around.” Take Annie Wilkes:

Annie Wilkes, the nurse who holds Paul Sheldon prisoner in Misery, may seem psychopathic to us, but it’s important to remember that she seems perfectly sane and reasonable to herself . . . . If I have to tell you [that], I lose. If, on the other hand, I can show you a silent, dirty-haired woman who compulsively gobbles cake and candy, then have you draw the conclusion that Annie is in the depressive part of a manic-depressive cycle, I win. And if I am able, even briefly, to give you a Wilkes’-eye-view of the world . . . [s]he’s more frightening than ever, because she’s close to real.

NM: I remember very clearly that the first draft of legal writing I ever completed for law school was almost twice the acceptable page limit. Twelve pages instead of six; talk about too much information. At first, I had no idea how I was going to cut anything out.

Stephen King confronts this challenge constantly. He calls it “diarrhea of the pen.” He chalks it up to an overactive imagination. But knowing this unavoidable truth about himself, he developed a very simple, creation/revision process centering on these words: “When you write a story, you’re telling yourself the story. When you rewrite, your main job is taking out all the things that are not the story.”

MLG: I like King’s formula for revising. His formula is from a message handwritten on one of his rejection notes. He taped the formula up on the wall next to his typewriter. The note said “Not bad, but PUFFY. You need to revise for length. Formula: 2nd Draft=1st Draft-10%. Good luck.”

NM: King’s one thousand page tome, The Stand, was originally an extra five hundred pages. But after his first draft, Stephen King didn’t fret because he had a system to follow.

And I didn’t fret over my double-the-length draft, because I was lucky enough to have read On Writing. Instead of getting overwhelmed, I remembered King’s words and realized that even though I needed twice as many pages to understand for myself the true extent of the issue at hand, my audience did not. And so, I had immediate direction to begin filtering out all the unnecessary information.

MLG: As King says, “If you want to be a writer, you must do two things above all others: read a lot and write a lot. There’s no way around these two things that I’m aware of, no shortcut.”

The most important word in the previous paragraph is the word skill. Legal writing is a skill, and as a skill, it can be developed through hours of deep practice, according to The Talent Code by Daniel Coyle.

The Talent Code starts with the question of how and why some environments, whether they are formal coaching programs or even informal family dynamics, produce people with exceptional skill sets.

The answer lies with two achievable techniques: deep practice and hours of work.

When you engage in deep practice you slow down your approach to studying a skill set. “Deep practice is built on a paradox: struggling in certain targeted ways—operating at the edges of your ability, where you make mistakes—makes you smarter.” “Effortless performance” is not the right way to learn a skill.

The struggle to work at the edge of one’s knowledge and “reach” for the next level is when a person best learns a skill. “You have positioned yourself at a place of leverage where you can capture failure and turn it into skill. The trick is to choose a goal just beyond your present abilities; to target the struggle. Thrashing blindly doesn’t help. Reaching does.”

And when you reach for the next level in your abilities through deep practice, your brain produces more myelin, the sheathing covering your neurons. Myelin makes you smarter by speeding up your neuroprocessing and helping your brain to forge new connections to facilitate your ability to learn a skill set.

Coyle likens myelin production to creating more bandwidth. “Struggle is not optional—it’s neurologically required: in order to get your skill circuit to fire optimally, you must by definition fire the circuit suboptimally; you must make mistakes and pay attention to those mistakes; you must slowly teach your circuit.” Coyle gives this equation for success: deep practice x 10,000 hours=world-class skill.

I found the story of the Brontë family (of Wuthering Heights and Jane Eyre fame) instructive. The Talent Code recounts that the Brontës as children wrote all the time, but their writing was not by any means perfect. The writing was (no surprise) childish and full of spelling and punctuation errors. But this writing was important because it gave the Brontës the chance to learn from their mistakes and test out storylines and techniques. “They became great writers not in spite of the fact that they started out immature and imitative but because they were willing to spend vast amounts of time and energy being immature and imitative, building myelin in the confined, safe space of their little books.”

The Talent Code gives three techniques for deep practice. The first is to “chunk” your learning, to break your learning into smaller skill sets for mastery. The second is to repeat your practice, especially to repeat the learning at the point where you have to reach. The third is to develop a feeling for when you are in deep practice, “of reaching, falling short, and reaching again.”

So, what does that mean for studying legal writing and law in general? It means that you can achieve your goal of excellent legal writing when you repeatedly make mistakes in your drafts and correct them until you learn how to auto correct your writing. It means that the process of learning legal writing should force you to reach, even if you have found previous writing experiences to be easy. It also means that you are not either born to be good at legal writing or doomed to failure. You have can have faith that you will get it if you keep practicing and fine tuning your efforts, and you will become smarter in the process.

We all know that topic sentences are extremely important. Together, they comprise a brief’s skeleton, without which the lawyer’s argument cannot take shape. They reflect the brief’s essential points, and clarify the relationships between its paragraphs. A reader should be able to understand the basic contours of the brief’s argument by reading nothing more than the topic sentence of each paragraph.

There are a couple of easy ways to improve the quality of topic sentences. First, make sure that all of your most important arguments make their way into one of them. Doing so improves clarity by enhancing the visibility of the key arguments. Second, reading only the topic sentences, ask whether they logically fit together, and make changes to the extent that they do not. This technique helps to ensure that the brief is well-organized and flows smoothly. Finally, as with all aspects of legal writing, prioritize simplicity. Focus on clarity and directness so that the topic sentences can effectively communicate your most important points.

[Editor's Note: This month faculty members share their favorite brief writing or oral argument tip. This is the first entry in the series.]

When people ask me about the most helpful tip I can give for writing a brief and appearing in front of the Wisconsin Supreme Court, my answer is always “preparation, preparation, preparation.” The most effective appellate lawyers have spent an incredible amount of time knowing and understanding their cases and the applicable and relevant law in the area. They have “mooted” their oral arguments a number of times in front of different lawyers or retired judges. Of course, appellate books and training programs tell you to do that as well.

I believe it is perhaps more helpful for me to write about a significant mistake I have seen very well prepared lawyers make. The biggest error by counsel appearing before the Court is to get too close to the case. They know how they want the case to turn out (although occasionally we had an attorney appear who could not exactly explain what he or she believed the mandate line should say if there is a reversal). We all understand that counsel’s objective (rightfully so) is to win it for the client.

However, some attorneys so strongly advocate for what they characterize as the righteous position of their clients, that they forget the role of the Court is to clarify, affirm, distinguish, create, redo, or change the law on one or more specific issues. The Court took the case to do just that. It is a big challenge for the justices to write an opinion that clearly, concisely describes what they believe is the appropriate law while not also creating unintended complications in other kinds of cases.

A good lawyer, in his or her brief and in preparation for the oral argument, has stepped back from the case and specifically is able to articulate what “the ripple” effect of any given decision might be. The attorney should be able to describe what the whole opinion should (and should not say). I can tell you from personal experience that the justices will listen to tapes of oral arguments several times over in hopes that there is a question and answer on the impact of a particular decision on an unrelated area of law. Nothing is more frustrating than to listen to the tape, to hear a justice ask the question, and for someone to have interrupted without the lawyer having answered. Unfortunately that does often happen.

That is why it is also critical to address those kinds of issues in the submitted briefs. A party’s counsel should serve as a tour guide for the justices, helping them understand the benefits of his or her position and the risks of the opposing party’s position. That ability is a sign of a highly skilled and prepared appellate attorney.

Many legal writing professors have moved to a live critique method for providing feedback on student drafts. Professors Alison Julien and Susan Bay presented the merits of doing a live critique about writing, including how best to approach a live critique. In a live critique, a professor provides oral and written feedback about the writing while a student is present at a conference with the professor. Live critique allows a professor to give real-time responses to writing, as well as a more holistic approach to assessment of the writing. A professor and student can engage in true dialogue in a live critique conference, as Professors Julien and Bay noted.

In a brief an attorney can use subtle changes in word choice to craft a persuasive statement of the law or the facts. Professor Rebecca Blemberg discussed how to use text, subtext, and context to develop persuasive word choices. Her presentation included practical exercises to help students appreciate the differences in text, subtext, and context, and a more theoretical explanation of the relationship between hermeneutics (interpretation) and word choice.

I discussed how to develop an argument for a new rule of law in an appellate brief. Legal writing students learn how to structure an argument using a paradigm of reasoning based on the classical syllogism. In an appellate brief, an advocate often argues for the court to modify or create new law. I described the technique I teach my appellate advocacy students for structuring their briefs to best advocate for a new rule of law within the framework of a syllogism.

1. Organization

Lawyers, judges, clients — pretty much everyone who is not reading while sitting on a beach — are busy people. They have limited time. Very limited time. It’s crucial that you give them some sort of sense immediately (1) why you are writing to them, and (2) what your message is. This applies to memos, letters, briefs, complaints, law review articles, essay exams, letters to the editor, even (or most especially) emails. Business documents often do this with an “executive summary,” but most of the executive summaries I see are mealy-mouthed mush. Be clear and concise; time is most definitely not on your side. You do not want your reader to get to the second paragraph and be wondering, “Who is this idiot and what is he/she prattling on about?”

This means that you must get to the point immediately. A MEMO/BRIEF/EXAM IS NOT A MYSTERY NOVEL. You are not writing in a genre in which the reader is willing to be strung along, tantalized by sporadic clues, until all is revealed in the last paragraph. Briefs written like that fail to persuade. Papers written like that typically fail to contain any analysis. Memos written like that are impenetrable.

Instead, you want to reveal all up front, as quickly as you can. If you’re worried about the reader concluding that you are making unsupported assertions, you can flag your more complete explanation with phrases like “as explained further below.” But your ultimate conclusion must be disclosed right away. Think newspaper article, not mystery novel. (Although don’t write in the objective, descriptive style of most newspaper articles — see below. You will typically be doing advocacy or analysis, neither of which is mere description of the facts.) Your first paragraph of any document–brief, paper, letter, email–is the lede. Look at the lede paragraph of almost any newspaper article, and see how it tries to suck you in by giving you the basics of the story, leaving you wanting more in the way of detail. Here’s a random example from a recent New York Times article:

Hip Implant Complaints Surge, Even as the Dangers Are Studied

The federal government has received a surge in complaints in recent months about failed hip replacements, suggesting that serious problems persist with some types of artificial hips even as researchers scramble to evaluate the health dangers.

A brief or paper should start off the same way. Not only does this indicate to the reader where you are headed, so that he or she can establish a framework for understanding everything that follows, but perhaps more importantly, it indicates to you where you will be headed. Everything in the document should serve that initial statement of your thesis. This goes not only for the beginning of your document, but also the beginning of each section, the beginning of each subsection, on down to the first sentence of every paragraph. Each section should start off with a paragraph indicating what the argument or point of the section is. Each subsection should begin with a paragraph that indicates what that subsection will do. Each paragraph should begin with a sentence that states the point of the paragraph. Writing structure scales: at each scale, from paragraph to book, the structure looks similar.

Organized in this way, the entire document argues for the ultimate conclusion you are trying to get the reader to reach with you: that you are correct about whatever it is you said in the introduction. Here are some warning signs that you may instead be writing a mystery novel: an introduction that says that you will “discuss,” “review,” “examine,” or “consider” cases, statutes, or other legal developments. Unless you are writing a piece of legal journalism, try to avoid those words. You should not be discussing or examining anything, except as a short prelude to the main attraction: your thesis, which should be a declarative statement of a conclusion that you have reached about the material that you have read. Again, this goes for each section and subsection. Even if you need to explain what a court did or what a statute says to critique it or use it as support, that explanation should be done with an eye on the key features that support your argument.

Other warning signs that you are describing and not arguing or analyzing:

• You write a conclusion to a document or section that makes an argument that you have not made anywhere in the document previously. It’s endings like that that gave deus ex machina a bad name.
• You write a section or an exam answer that says, “Some courts have held X; but other courts have held Y,” and then ends.
• You write a page that cites the same source, over and over again, resulting in a string of “id.s,” and it is not the decision below or the central focus of your paper.

I’ll talk a bit about the basic unit of writing, the paragraph, in the next installment.

In this essay, Orwell claims that the English language is in decline, and that the decline has “political and economic causes.” (156) Orwell asserts, however, that the “bad habits” in written English can be avoided. (157) He reasons that in getting rid of these habits, “one can think more clearly, and to think clearly is a necessary first step toward political regeneration: so that the fight against bad English is not frivolous and is not the exclusive concern of professional writers.” (157)

Orwell criticizes writing that is imprecise, stale, and lacks imagery. (158) He also criticizes writers for “gumming together” meaningless phrases. (164) For instance, Orwell prefers “I think” to “in my opinion it is not an unjustifiable assumption that.” (164) Using stale metaphors saves “mental effort,” but produces “vague” meaning for both the reader and the writer. (164)

Orwell claims that the language decay can be cured by taking “conscious action.” (169) He recommends the following six basic rules:

1. “Never use a metaphor, simile or other figure of speech which you are used to seeing in print.”

2. “Never use a long word where a short one will do.”

3. “If it is possible to cut a word out, always cut it out.”

4. “Never use the passive where you can use the active.”

5. “Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.”

6. “Break any of these rules sooner than say anything outright barbarous.” (170)

Professor Judith D. Fischer examines Orwell’s impact on legal writing in her article, Why George Orwell’s Ideas about Writing Still Matter for Lawyers, 68 Mont. L. Rev. 129 (2007). Professor Fischer describes how Orwell’s commentary on writing propelled the plain English movement and how Orwell’s six rules have influenced modern legal writers. (134-35)

Orwell’s comments on modern political writing struck a cord with me. His description of bad political writing reminds me of bad legal writing. I think the similarity exists because political writing, like most legal writing, is designed to persuade. The phrases that Orwell points out as particularly troubling are the same types of meaningless strung-together phrases found in bad legal writing. Nominalizations and passive voice would be at the top of my bad legal writing list.

A nominalization is when a verb, adjective, or adverb is used as a noun. For example, “her justification for being late was that the traffic was bad.” Justification is the nominalization in this sentence. The verb “to justify” is turned into a noun by adding “ion.” A writer can do an easy check for nominalizations by searching for “ion” words in a draft. This example could be strengthened by editing: “she justified being late by saying the traffic was bad.” The sentence is shorter, and the connection between the noun and verb is more evident in “she justified”. The verb “justified” also packs more impact than the verb “was.” The second sentence introduces the word “saying”, which adds more detail to the sentence.

In the active voice, the subject of the sentence comes first, then the verb, and then the object of the verb. For example, “the judge overruled the objection” is in the active voice. The same sentence in the passive voice is “the objection was overruled by the judge.” In the passive voice, the object of the verb comes first, then the verb, and then the subject. The passive voice can be effective when used to soften an action or tone. Generally, though, using the active voice will eliminate nominalizations and create a close connection between the noun and the verb.

In his essay, “Why I Write,” Orwell reflects that “one can write nothing readable unless one constantly struggles to efface one’s own personality. Good prose is like a window pane.” (316) Good, plain legal writing allows a reader to concentrate on the legal subject at hand.

Oseid starts with the premise that “[t]he goal of brevity should be clarity.” (29)  Lincoln, she says, described the opposite of brevity when he said that another lawyer could “’compress the most words into the smallest ideas of any man I ever met.’”  (29)  Brevity does not sacrifice precision, however, and a writer must be aware of concepts like the rhythm and sound in phrases like “’[f]our score and seven years ago.’”  (30)

Brevity has persuasive power.  (30)  Oseid quotes Justice Antonin Scalia and Bryan A. Garner on brevity in Making Your Case: The Art of Persuading Judges:  “’Judges often associate the brevity of the brief with the quality of the lawyer.  Many judges we’ve spoken with say that good lawyers often come in far below the page limits—and that bad lawyers almost never do.’”  (30)

Lincoln used brevity to persuade as a lawyer.  (33)  Oseid describes the language Lincoln used with a jury as clear, simple, and non-technical.  (35)  He used “common language to appeal to the average person.”  (35) 

Lincoln also used brevity to persuade as president.  (36-37)  The Gettysburg Address is only 272 words long, and 206 of those words are only one syllable long.  (41)  Similar to his days as a lawyer, in the Gettysburg Address Lincoln “used ordinary vocabulary to persuade his listening and reading audiences.”  (41)  Oseid explains that the Gettysburg audience of 15,000 to 20,000 people had been waiting for hours to hear him speak.  (48-49)  Lincoln’s Second Inaugural is 701 words long; “Lincoln delivered it in about six minutes.”  (42)  In this speech, Lincoln used brevity of language to distill his message of reconciliation for the war weary audience.  (44, 49) 

Oseid recommends adopting Lincoln’s writing habits.  (45)  Lincoln started writing his speeches early and diligently and learned to visualize his audience.  (46-48)  He emphasized those habits to other lawyers.  (47)  Lincoln himself said that the way to learn the law is “’very simple, though laborious and tedious.  It is only to get the books, and read, and study them carefully. . . . Work, work, work, is the main thing.’”  (47)  “He knew that diligence in refining his work would pay off with increased persuasiveness.”  (47)

The key to solid legal writing, per Judge Easterbrook, is to be brief and articulate: write in short, simple, straight-forward prose. Outline your problem as you would for an intelligent lay person, mindful of the fact that judges are generalists, not specialists. (Judge Easterbrook also noted that judges—unlike those drafting the statutes and regulations judges interpret—are supposed to be out of touch.) To sharpen your writing skills off the clock, read good novels. Read persuasive literature. Challenge your ideological predispositions: conservatives, read the New Republic; liberals, read the Weekly Standard. Don’t read the New Yorker, though: too many attorneys read this publication, according to the judge.

Specifically regarding legal writing, Judge Easterbrook opines that the following books should be present on every attorney’s bookshelf:

1. “Making Your Case: The Art of Persuading Judges,” by Antonin Scalia & Bryan Garner.

2. “The Elements of Style,” by William Strunk & E. B. White.

3. “The Elements of Legal Style,” by Bryan Garner.

4. “The Party of the First Part: The Curious World of Legalese,” by Adam Freedman.

Contrary to the judge’s advice, my legal writing can be overcomplicated and long-winded. The culprit is the way I think; to more fully understand an issue, I write. By allowing myself to formulate the best theories fully on paper, I can identify what works. Perhaps my self-diagnosis is simply a reflection of so often hearing advice like Judge Easterbrook’s. Or perhaps I am in good company? Judge Easterbrook joked about the style guides that Strunk & White could do in only 105 pages (Strunk’s original version? Just 56!) what took Garner 236—noting a lawyer’s tendency to overdo it. So I asked Judge Easterbrook about this problem, questioning whether he, too, has to draft several opinions before getting his mind around an issue. Do you, like me, judge, have to write up an issue to fully understand your own take? No, he answered flatly. Oh.

The thought of populating a blank screen with gold the first go-round daunts. For now, a mere year and a half into courting the jealous mistress, I take comfort in the fact that legal issues I explore will require less of a mental work-up with more practice and exposure. Or perhaps with a bookshelf lined by works of Judge Easterbrook’s writing gurus? Marquette community: what are your recommended legal writing guides?

*Judge Easterbrook reads materials in the following order to prepare an opinion: (1) the district court opinion (for sense); (2) the appellant’s brief—beginning with the summary of the argument section; (3) the facts and holding from the district court’s opinion, specifically checking whether the lower court addressed a different issue than that framed within the appellant’s brief; (4) cited opinions; (5) the appellee’s brief, which may, per Judge Easterbrook, provide answers absent in the district court’s opinion. On what the judge calls an “extended process of getting more information and doing more thinking,” a week before oral arguments—with his tentative views formed—Judge Easterbrook consults his clerks. The case is then argued, the panel meets and discusses the appeal, and then the writing judge goes to work on his or her portion of the legal writing conversation: the judicial opinion.

This year, the task was truly daunting — the family room had become nearly impassible, swamped by pile after pile of paper and other detritus related to serial family emergencies and funerals of the past few years.  And let’s face it, if the laws of physics dictate a that an object in motion tends to remain in motion, the rules of law and gravity at my house dictate that clutter tends to remain in place, and magnetically attracts more of the same.  Exponentially.

Still, the pool table and foosball tables weren’t going to excavate themselves for company, and so I parked the puppy in “doggie day-care” and rolled up my sleeves.  

Much of the “cleaning” involved simply moving assorted stacks and boxes to another room and making more efficient use of vertical placement.  But once in a while curiosity would get the better of me, and I would sit, cross-legged on the floor, to open a mystery portfolio or two with an eye on pitching things that were truly no longer needed.

Out went the collection of memos I had written about civil litigation during my four-month stretch working for an insurance defense firm, my first job out of law school.  Same for the memos I had written while a law student intern at the U.S. Attorney’s office.  Criminal law is such a changing, evolving field that anything I had looked up ten years ago or more would have to be researched from the ground up anyway.

A colorful two-pocket folder sporting a picture of  a red-eyed King Kong dunking a basketball with his index finger caught my eye.  If there were two things I could be counted on for in law school, it was that I wore a lot of “message” T-shirts, and I tended to pick cute folders for my law school classes.  This could be interesting, a trip through time.  As well as carbon-dating my flaws as a housekeeper.  I flipped it open.

There were only a few sheets of paper within, but it was the bright turquoise one that caught my eye.  On one side was an announcement for an “classroom to courtroom” seminar at the law school dating to my last year as a student.  Hoo boy.  But on the other side was a set of handwritten notes, indicating that I’d used the sheet for note-taking some time later.  And as I read, I realized that these were the notes I’d taken listening to Howard Eisenberg talking about appellate arguments.

As cosmic irony would have it, I was scheduled to speak to Melissa Greipp’s Appellate Advocacy class just two days later.  I smiled in gratitude and recognition.  The notes would be coming back to the law school with me.

My first thought was that this was the advice Howard had given me shortly after I graduated in 1999 when I was crafting my first brief to the Wisconsin Supreme Court and gearing up for my first oral argument.  The case was Sheboygan County DH&HS v. Julie A.B.

I had not been out of law school all that long — and been in my job as a prosecutor only nine months — when I drew the assignment of briefing a termination of parental rights case to the Court of Appeals.  We had lost the case in the trial court.  We followed with a loss in the Court of Appeals as well, and my boss gave me the green light to file a Petition for Review with the Wisconsin Supreme Court.

“Overwhelmed” would be too minor a word to describe my state of mind, and I sent an emergency appeal by email to Dean Eisenberg, who had taught my own Appellate Advocacy class.  Did he have any short and pithy advice to offer someone who was going to knock on the door of the highest court in the state?

He responded with a cornucopia of assistance.  His first words, in a quick response to my email, were to think big and not be afraid to argue public policy.  Some time after that, we sat down face to face at the law school and talked about the things that mattered in mounting a successful appeal.  And when the Wisconsin Supreme Court granted the Petition for Review and I was quaking in my boots at the thought of stepping up to the podium for the oral argument, he volunteered to put together a moot court for me at the law school to help me prepare for the big day.  He sat on the panel, of course, along with the professor who, at Howard’s passing soon after, would become the current dean, Joseph Kearney.

I’m pretty sure that the sheet of turquoise paper in the King Kong folder stems from the day Howard Eisenberg and I sat down in person to talk about the finer points of appellate advocacy.  On reflection, there’s an outside chance that I jotted these notes down during the moot court and after, rather than during our brainstorming session.  I will never really know.  But I can still remember the gratitude I felt both for his advice, and for the enthusiasm and generosity of spirit that accompanied it.  I was very happy to bring his words back to the law school nine years later, and share them with a classroom of students who were just beginning a voyage I still find quite thrilling.

And here, for the record, are some of the things I took to heart from Howard Eisenberg when my first state Supreme Court case was hurtling toward its opening curtain.  Take them and use them well!  I’ve followed them religiously in four more cases that made it to the high court.

• Think big.  The Court granted your Petition for Review for a reason, and it’s not about the individual merits of your case.  It’s to make some statement about the law.  Try to figure out what it is.
• In the vein of “thinking big,” don’t be afraid to argue public policy.  That can be extremely important.
• But while you’re arguing public policy, leave the “I think” and “I believe” and “I feel” statements behind you.  Nobody sitting on the bench deciding your case really cares what you think in this situation, they want to hear about what the law requires.
• Make your case seem as easy to decide as possible.  And argue what will give you your best relief first.
• Sarcasm is out . . . and attempts at humor are pretty “iffy” too.
• Think through what the possible holes in your arguments could be, and work this in somehow.  And don’t be afraid to concede what you can’t win.

Mary T. Wagner is an Assistant District Attorney in Sheboygan County, Wisconsin, and the author of “Running with Stilettos: Living a Balanced Life in Dangerous Shoes.”

The technology I used is TechSmith’s Jing.  There may well be other free software products that offer something similar, but Jing is the one that was brought to my attention (by a student, actually–thanks, Priya Barnes).  After viewing another educator’s blog post and video demonstrating his use of the product to give feedback, I thought I’d try it.

Here is how the video/audio method of commenting works:

1.  I read the student’s paper through, adding highlighting to the spots I wish to comment on, and sometimes adding some corrections or written feedback to remind me of what I want to bring to the student’s attention in the critique.

2.  I start up Jing, and create a short video of myself scrolling through the student’s paper and explaining and discussing the highlighted parts. Usually I begin the commentary with an overall assessment and then move on to explaining the highlighted areas, in the sequence in which they appear in the paper.

3.  I upload the recording via Jing, and Jing gives me a link to the video on the screencast.com website.  Then I paste that link into the student’s paper, for his or her viewing.

A couple of students gave me permission to share the video of my commenting on their anonymous papers.  Here is one and here is another.   A critique of someone else’s paper doesn’t exactly make for exciting viewing (and I suppose will make little sense to anyone who wasn’t working on the same memo), but it should give you some idea of the way the technology works.

As you may notice if you watch the second video, Jing videos are short–you cannot record more than five minutes of video at a time.  This meant that even for this short memo, in a couple of cases I needed to record two videos for one paper, in order to have time to explain all of my comments.  You’ll also notice that I use a color-coding system to categorize my comments (substance, organization, style, and usage/format).

From my point of view, the ability to give these video/audio comments simultaneously saved time and increased my ability to explain my comments.  Being able to just talk to the student was especially useful if I was confused or not sure about what a student intended to say in a particular spot.  The video/audio method also saved my hands from a lot of writing or typing that otherwise would have been necessary.  Finally, I love that the student can hear my tone of voice as I highlight the different comments.  It made it much easier to convey which comments were more and less important, etc.

Marquette Helps Students Master the Art of Legal Writing, by Emily Lonergan, 3L

Marquette University Law School presents students with the opportunity to master the art of appellate advocacy in both the classroom and the courtroom.

The typical law student hoping to participate in Moot Court starts with an Appellate Writing and Advocacy course, offered to second- and third-year students during the fall semester. While the course is open to everyone, regardless of their interest in the Moot Court program, it is a prerequisite for anyone who hopes to compete in a national competition. The goal of the course is first and foremost to teach appellate advocacy. It teaches students in a traditional lecture format everything from preserving the record to when to file notice of appeal.

But the course also has a hands-on approach as well. Students receive a problem before the first class even begins, and throughout the semester they take a shot at both written and oral advocacy by preparing appellate briefs and oral arguments. Just as in traditional moot court form, students work in partners throughout the semester. Each student works on one of two issues, and they develop the theme and the other parts of the brief together. Each team has an individual conference regarding the brief with the professor teaching the course, to aid them in the learning process. The students also participate in small group discussions during the class, to brainstorm and help articulate their thoughts on the brief.

Around the time of their individual conferences on the briefs, the students begin learning the art of oral advocacy. This aspect of the course starts with lectures, so that the students can learn the basics. Each team is then paired with a third-year moot court student, who works with them during the remainder of the semester as their coach. The goal of the coach is purely to help develop the form and style of oral argument. During class, the students present a portion of their argument to the class and receive feedback from the group. The students also have the opportunity to meet for practices with the professor and with other teams and coaches. Finally, at the end of the course, the students must present their oral argument to a panel of judges. They are timed and the judges interrupt with questions during the argument, just as if the students were in front of a true panel of judges. How the students score on their briefs and their oral arguments constitute their grade in the course.

The students who score in the top twenty percent of their class are then invited to participate in the Jenkins Honorary Intramural Moot Court Competition during their second semester. This exclusive competition offers the best students from the Appellate Writing and Advocacy program an opportunity to compete in an additional competition before competing in national competitions during their third year. The Jenkins Honorary Intramural Moot Court Competition was started during Dean Kearney’s tenure as dean, and the invitation to participate is rarely turned down. The students in that competition lose some of the teaching tools they were afforded during Appellate Writing and Advocacy, namely the individual brief conferences and the ability to discuss the issues with classmates and friends before the briefs are turned in. Each pairing of students in the competition receives two third-year coaches to help them prepare oral arguments.

The competition mirrors a national competition. Each team submits a brief, which is then graded anonymously by various attorneys and faculty members who volunteer their time. Each team then participates in three preliminary rounds, where the brief score constitutes half of their score for that round, and their oral argument score counts for the other half. Local attorneys step up to help judge the end result of each team’s hard work in oral argument practices. After each round, the judges’ scores are taken to the scoring room, where they are combined with the brief scores to determine a winner. The teams are power-matched in successive rounds. Four teams advance from the preliminary rounds to the semi-final round, and two of those teams advance to the final round. With students, family members, and faculty members (and even Dean Kearney) observing from the gallery, the final round competitors present their arguments in front of a distinguished panel of judges. Last year, the judging panel consisted of Judge Diane Sykes of the Seventh Circuit, Judge Jeffrey Sutton of the Sixth Circuit, and the Honorable Charles Clevert of the Eastern District of Wisconsin.

Any students who competed in the Jenkins Honorary Competition are eligible to run for the Moot Court Executive Board, and are automatically eligible for the Moot Court General Board. The Executive Board consists of six positions, each of which is filled by a third-year student. This year’s Executive Board includes: Peter Diercks, Association Justice of Administration, Meghan Risser, Associate Justice of Education, Sarah Knutson, Associate Justice of Intramural Competitions, April Ashby, Associate Justice of National Moot Court Competition, Kevin Terry, Associate Justice of National Competitions, and I serve as this year’s Chief Justice. The General Board is comprised of approximately twenty third-year students. These students coach the Appellate Writing and Advocacy second-year students, as well as the students involved in the Jenkins Honorary Intramural Competition, and they assist with bailiffing competitions and assisting the Executive Board.

Regardless of whether a student participates in the Jenkins Honorary Competition, the General Board, or the Executive Board, students who completed the Appellate Writing and Advocacy course are eligible to compete in National Competitions during their third year. This year, Marquette University Law School has forty-six students competing in competitions around the country. Teams compete at locations as far east as Boston, MA, and as far west as Malibu, CA. Several students this year will be hoping for the home-court advantage, competing right here at MULS. Marquette is a regional sponsor of the National Moot Court Competition, and two MULS teams of three will be battling for first with other top schools from the Midwest.

These students, along with all students competing in national competitions, receive both a faculty advisor as well as an alumni coach (abiding, of course, by the individual rules of each competition). Each team is assigned issues to appeal and a specific side (known in oral argument as the “on-brief” argument). Each team is required to attend a mandatory writing seminar to serve as a refresher on written advocacy. The team then submits a brief to the competition and begins with oral argument preparation. Between the contacts made by the faculty advisor and the alumni coach, the students set up numerous practices with faulty members and local practitioners. For instance, I am competing in the National Criminal Procedure Tournament in San Diego, CA from October 28-30, along with my teammate, Sarah Knutson. Between our faculty advisor and our alumni coach, both of whom have done an excellent job with setting up practices, Sarah and I will have given our argument in front of approximately twenty faculty members and local practitioners.

The Moot Court Program at MULS offers students countless opportunities to begin to master the art of appellate advocacy. From our third-floor office in the beautiful new Eckstein Hall, we are always looking for new ways to expand upon those opportunities. (And, as a shameless plug, we are always looking for the help of practitioners to aid us in judging competitions and helping teams prepare for national competitions!)

My contribution this week to our “best of the blogs” feature (which I have taken license to interpret as “best of the blogs and other news read online…”) is even more random than usual.

First, the drug-related story that caught my eye in the relatively recent past.  The Daily Beast Cheat Sheet reported on September 27th about a Cato Institute study showing that since Portugal decriminalized drug possession in 2001, drug use among adolescents has fallen, HIV infection rates fell, and addicts have increasingly sought help to overcome their addictions.  The full story was in Time, here. An excerpt:

The Cato paper reports that between 2001 and 2006 in Portugal, rates of lifetime use of any illegal drug among seventh through ninth graders fell from 14.1% to 10.6%; drug use in older teens also declined. Lifetime heroin use among 16-to-18-year-olds fell from 2.5% to 1.8% (although there was a slight increase in marijuana use in that age group). New HIV infections in drug users fell by 17% between 1999 and 2003, and deaths related to heroin and similar drugs were cut by more than half. In addition, the number of people on methadone and buprenorphine treatment for drug addiction rose to 14,877 from 6,040, after decriminalization, and money saved on enforcement allowed for increased funding of drug-free treatment as well.

The article notes that U.S. policymakers are taking notice of Portugal’s experience, especially in view of the spiking violence related to the drug trade in the U.S.-Mexico border region.  If you are interested in news and analysis of the situation in Mexico, you may want to read this piece in the New York Times.

It wouldn’t be a Jessica-Slavin-best-of-the-blogs post without some reference to an immigration-related story, would it?  The blogosphere took notice (and in some cases, an unfortunate degree of schadenfreude) of the Nation’s report that Lou Dobbs, well known for his concerns about the number of undocumented immigrants working in the United States, himself “has relied for years on undocumented labor for the upkeep of his multimillion-dollar estates and the horses he keeps for his 22-year-old daughter, Hillary, a champion show jumper.”

The title of the article labels Dobbs a hypocrite, but that kind of name-calling seems distracting and beside the point.  The larger and more important consideration that Dobbs’ situation highlights, to me, is how the attempt to brush this segment of our society out of the political picture with the label “illegal” is doomed, eventually, to failure, because it ignores reality:  these so-called “illegal” immigrants are deeply integrated into U.S. communities and the U.S. economy, to our mutual benefit.

Now, finally, the promised “death ray” story!  Engadget reported about the Vdara hotel on the Las Vegas strip and the unfortunately unforeseen side effect of its distinctive “curved mirror” design in the hot desert sun.  ABC News quoted one victim’s experience:

“I’m sitting there in the chair and all of the sudden my hair and the top of my head are burning,” Pintas told ABC News. “I’m rubbing my head and it felt like a chemical burn. I couldn’t imagine what it could be.”

It turns out that what Pintas felt was, as a reporter on a video on the ABC site called it, “laser-like beams” created when the hotel windows focus the sunlight and reflect it into the hotel’s outdoor pool area.

The ABC video includes footage of a plastic cup melted by the heat.  I am already dreaming of a legal writing problem focused on the potential legal claims that could arise from the unintended “death ray” effect created by this type of window….

We learned the basics — pronoun-antecedent agreement (her pet peeve), citation, punctuation, and CREAC. But we were taught something more that I will never be able to put a value on. Professor Julien helped us to become passionate about writing.  

She helped us to realize that it wasn’t just important in the classroom to write a proper sentence or cite a case correctly. She gave us the skills that we would need to be successful in practice and then she helped us to believe that if we really embraced what we were learning, we would actually be better lawyers. We would set ourselves apart from other lawyers in practice. Although I never doubted this, it became abundantly clear to me as I clerked over the summer. I was working with lawyers who could argue legal circles around me, but I had something that some of them didn’t. I had an arsenal of legal writing techniques that I wasn’t ever afraid to use. And I quickly realized how powerful the well-reasoned, clearly organized written word could be. I might not have had the most brilliant legal arguments to make, but every brief I wrote was precise and organized. My citations were accurate, my paragraphs had strong thesis sentences, and my analogies were powerful and relevant.

The first substantial project I was assigned was a brief in support of a motion for summary judgment. At first, I didn’t think that we’d win the motion. But I knew I had a job to do so I did my best to use the persuasion techniques I had learned to make the various rules I had researched sound more favorable to our position. I provided citations for almost every sentence I wrote, and I even pointed out to the court a few cases I had uncovered that hurt our side. A few months after submitting the brief, I got an email from my supervising attorney. He informed me that we had won the motion and the judge had granted summary judgment. Despite my inexperience, I knew that summary judgment motions weren’t granted every day and that this had been a major victory for us.  I am confident that we won not only because we had done our research and advanced a strong argument on behalf of our client, but also because we presented a stronger brief. I was somewhat shocked at the typos, the grammar mistakes, the lack of citations, and the complete absence of any semblance to CREAC that I found in the other side’s brief. I honestly think we won, in part, because our argument was that much was easier for the judge to read.

We’re required to take only two semesters of legal writing and research while we’re in law school. But I would highly recommend that you take more. In fact, take a legal writing class every semester if you can. Professor Julien and Professor Norton team-teach an ALR/ALW Seminar that is not only practical but fun. We learned how to write interrogatories, draft client letters, compose business emails, and conduct cost-effective research. We sharpened our citation and grammar skills by playing Legal Writing Jeopardy! And in terms of practical skills, I cannot imagine a class that will prepare you for practice more than this one will. But if the prospect of being a better and more articulate lawyer isn’t enough to convince you to embrace legal writing and take a course like this one, I would also suggest you show up for the cookies. Professor Norton has, on occasion, been known to provide the best oatmeal raisin cookies I’ve ever had.

Professor Julien, Professor Hayford, and Professor Norton all shared their passion (and oatmeal raisin cookies) with me; they went above and beyond what was asked of them to make sure I would be an excellent lawyer. And they gave me the tools that I could use to set myself apart in practice. Every time I refer to a court as an “it” and not a “they” or avoid starting a quotation with an ellipses, I will be grateful to these amazing professors for what they taught me. And I will be forever grateful to Marquette Law School for recognizing how important a strong legal writing education is in producing great lawyers and for giving us access to such inspired and passionate professors. Professor Fallone’s comment on my last post said it best: by valuing legal writing as we do here at Marquette, we absolutely got it right.

Professor Beazley is the author of numerous articles related to legal writing, and one of the most widely-used textbooks in law school Appellate Advocacy courses (including our own):  A Practical Guide to Appellate Advocacy . She served as the Legal Writing Institute’s President from 1998 until 2000; served as editor-in-chief (and member of the board of editors) for Legal Writing:  The Journal of the Legal Writing Institute. She is also the immediate past president of the Association of Legal Writing Directors (ALWD).

In 2006, Professor Beazley’s excellence in teaching, writing, and service earned her the prestigious Thomas F. Blackwell award, given each year by the Legal Writing Institute and ALWD, to recognize a person who has demonstrated  “an ability to create and integrate new ideas for teaching and motivating legal writing educators and students.” Furthermore, in 2008 she received the Burton Award for Outstanding Contributions to Legal Writing Education.

In short, she is one of the most-accomplished and well-regarded professors in the legal writing field.  It is a privilege to have her teaching here in our program for a semester.

I wouldn’t call it a “disagreement,” just a difference in preferences. And I doubt it needs to be resolved, at least at the present. When I came to the Court in 1987, the prevailing rule for a regular plural possessive was simply to add an apostrophe after the word’s final “s.” For example, “Congress’.” Over the years, however, four justices informed my office they preferred to add another “s” following the word’s final s-apostrophe — e.g., “Congress’s” — albeit each in slightly differing circumstances. The justices are all highly capable legal writers committed to maintaining their own individual writing styles. Thus, while we try to maintain a high degree of consistency as to style in the U.S. Reports, the Reporter’s Office has always kept a list, and has attempted to assure the incorporation, of each justice’s individual style preferences in his or her opinions. I have monitored the plural-possessives situation over the years, but because a majority of the Court has always continued to follow the original prevailing rule — which I prefer — I have never felt the need to poll the Court to try to achieve common ground. There seems even less reason to do so now, since only three of the four dissenters from the prevailing view are still on the Court.

As Legal Writing Prof blog points out, this interview should demonstrate to students that they must be prepared for grammar and punctuation sticklers at all levels.

My own view on this particular punctuation dilemma is that if you know the alternatives well enough to debate them intelligently, whichever one you prefer is fine by me.  You will usually be correct by paying attention to whether you pronounce an additional -s sound, or not, at the end of the word.

(Note: It is somewhat confusing that the example Wagner gives regarding a “plural possessive” was written as a singular possessive.  I.e., “Congresses” (not Congress) is the plural of Congress.)

In summing up the accomplishments of the Law School during the 1923-1924 academic year—the last in the old Mackie Mansion—the Hilltop (the university yearbook) noted:  “Prof. Willis E. Lang introduced a new course of Legal Research for the students.  It proved a most valuable subject as it teaches where and how to find the law.”

For a number of years prior to 1923, all Marquette Law students had been required to participate in the practice court program, which required them to draft pleadings and legal documents and do a certain amount of legal research.  The Law School also required a one-credit course in Legal Bibliography that focused primarily on the use of proper legal citation in brief writing.  However, Lang’s Legal Research course was apparently the school’s first attempt at systematic instruction in the mechanics of legal research and the entire canon of library resources. 

Willis Lang (pictured above in 1949 or 1950) was a fixture of the Marquette Law School for many years.  Born in Waushara County, Wisconsin in 1892, he earned both his bachelor of letters degree and his law degree from Marquette in 1916.  Although it was fairly common in the early 1900’s for Marquette students to earn both the Bachelor of Science degree and the M.D. degree at the same commencement, Lang appears to be the only person to have simultaneously received a law degree and any type of bachelor’s degree.

Lang  passed the bar in the summer following his graduation and then remained in Milwaukee to practice law.  From October 1916 until September 1921, he was in active practice, most of the time while affiliated with William L. Tibbs, special counsel for Milwaukee County.  He was also a notary.

Lang joined the Marquette law faculty as a full-time faculty member in the fall of 1921, when Marquette decided to add a fourth full-time member to the faculty.  In addition to teaching Corporations, Partnerships, Insurance, Agency, Personal Property, Wills and Administration, and Legal Bibliography, he also taught commercial law in what was then called the School of Economics (i.e., the Marquette business school). 

The 1921 appointment of Lang to the law faculty gave him the distinction of being the first graduate of the Marquette Law School to hold a full-time teaching position at the school.  Previous full-time professors and deans had received law degrees from the University of Wisconsin (Max Schoetz), Harvard (John McDill Fox), and the University of Chicago (Arthur Richter), or else had been admitted to the bar without attending law school (James Jenkins and Augustus Umbreit).

 During his tenure at the Law School, Lang taught a wide variety of courses and held a number of advisory and administrative positions.  He served as Law School secretary (a position that no longer exists, but was similar to the modern post of associate dean) from 1923-1951; as Assistant to the Dean from 1928 to 1951; and as Law School Registrar from 1946 to 1951.  He was also the faculty adviser to the Law Review from 1928 to 1941, and he regularly represented Marquette at the annual meetings of the Association of American Law Schools. 

During his career, Lang published a number of articles on various aspects of Wisconsin law, and he was a regular reviewer of legal treatises written by others.  Most of his publications appeared in the Marquette Law Review.  He had a longstanding interest in pedagogy, and in the 1930’s, he enrolled as a graduate student in education at Marquette while teaching full-time at the Law School.  He was awarded an M.Ed. degree in 1941, his twentieth year on the faculty. 

Lang remained on the faculty until his untimely death at age 58 on April 29, 1951.  His funeral was held in Gesu Church, and all six of his pallbearers were former students who had become judges.  He was survived by his wife and daughter and by his son, Willis Lang, Jr. (1923-1998), who was then a second-year law student and who went on to a long career as a lawyer in southeastern Wisconsin.  His Marquette colleagues at the time of his death included current Prof. Emeritus Jim Gihardi who joined the law faculty in 1946.  As a law student at Marquette from 1939 to 1942, Prof. Gihardi was also one of Lang’s students.