I’m just finishing two weeks of conferences with my students; we have been working through the drafts of their first trial briefs. One of the topics we have been talking about is how to effectively incorporate counter-analysis in a principal brief.
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. Continue reading “Do You Play Offense or Defense?”
This week’s faculty workshop presenter was our very own Professor Jessica Slavin, whose talk was entitled “Talking Back to IRAC: Legal Writing Beyond the Paradigm.” The project on which the talk was based has two components. First, Professor Slavin traced the history and questioned the utility of using IRAC and related formulas as vehicles for teaching legal writing. Second, she presented the results of her own empirical study of briefs submitted to the Wisconsin Supreme Court, which suggest that something other than strict adherence to IRAC characterizes the brief writing of at least one set of advocates.
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. Continue reading “How Lawyers Write”
In Advanced Legal Writing class, students discuss different persuasive techniques that lawyers and judges use in their writing. We debate the pros and cons of using literary references, illustrative narratives, pop culture references, historical examples, and unusual formats and organizations.
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.
As just reported on the Legal Writing Prof Blog, the law school will host this fall’s Central States Legal Writing Conference. The conference planning committee (led by our wonderful Alison Julien) met last Friday, and I am already excited for the event. The regional legal writing conferences tend to focus on ideas for improving our teaching, and the conference here next fall will especially emphasize reaching out to resources beyond the legal writing faculty–the librarians and other law school faculty. The blurb from the Legal Writing Prof blog website:
[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.
Like some of the other bloggers, I am interpreting this month’s question a little loosely. I don’t have a favorite law novel or film. Instead, I am going to recommend a book of law-related short stories, The Legal Fiction of Lowell B. Komie, and then talk a little about poetry by lawyers. Continue reading “Interesting Legal Writing: The Legal Fiction of Lowell B. Komie, and Poems by Lawyers”
Over at Language Log, they’ve been talking about one of my favorite articles about writing, Joseph Williams’ The Phenomenology of Error. If you think of yourself as a grammar expert but have never read Williams’ article, you should, and be sure you read it all the way through, to the end.
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).
Michael Sheehan at Wordmall has posted a very clear and helpful explanation of the conventions regarding use of colons and semicolons in English. These punctuation marks cause so many difficulties in my students’ writing. Probably the only mark that causes more trouble is the comma.
Over at the Language Log there is an interesting post about the word “inure.” The writer Roger Shuy is Professor Emeritus of Linguistics, at Georgetown. He now works as a linguistics expert, often, it seems, with lawyers.
In the post he first describes the ordinary use of the word “inure,” giving an example from a Newsweek article, “Shoppers seem inured to the relentless Christmas spirit.” Then he goes on to describe another use of “inure” that he found in a legal document, and attempted, unsuccessfully, to get the lawyers to change to something plainer, like “financially benefit.” Continue reading “Is “Inure” Really a Magic Word?”
As I just mentioned, the latest issue of JALWD, which was themed “Legal Writing Beyond Memos and Briefs,” has a number of really interesting articles. Another one I would recommend reading is Tom Cobb and Sarah Kaltsounis’s “Real Collaborative Context: Opinion Writing and the Appellate Process.”
I have experimented with collaboration in the classroom in a number of different ways, for a number of reasons. Most importantly, it seems to me that human beings think better in collaboration. That’s the case for me, anyway. I am able to think more carefully and critically when I bounce my thoughts off of someone else, preferably more than one person. Additionally, lawyers collaborate in practice, and students need practice working in those collaborative contexts. (Especially some students. Come to think of it, so do some lawyers.)
So, anyway, Cobb and Kaltsounis’s article was extremely interesting to me. I have to agree with their observation at the outset, that despite our best efforts,
something about the form of collaboration we typically adopt [in the legal writing classroom] has always produced the sense that collaborative learning has failed to achieve some of its most ambitious goals. Part of the problem is that collaboration is often not as engaging as it promises to be. For all it has to offer, the act of splitting into groups and working together in a room with other people who are working in small groups can seem contrived. Small-group work often seems to supplement rather than complement the learning process. When perceived as a contrivance, it can hinder full engagement with a complex legal problem — making the group’s legal analysis seem more like a classroom exercise than a method for learning sophisticated analytical and rhetorical techniques, or for engaging in jurisprudence. Such artificiality is intensified when small-group work is paired, as it ordinarily is in legal writing classes, with a task like memo writing, which is rarely approached in small groups in legal practice.
Continue reading “Cobb and Kaltsounis, “Real Collaborative Context””
The current issue of the Journal of the Association of Legal Writing Directors (JALWD) has a number of interesting articles. In this post I want to discuss one particular article that really made me think about how I assess my students’ legal writing: Roger Klurfeld and Steven Placek’s article, “Rhetorical Judgments: Using Holistic Assessment to Improve the Quality of Administrative Decisions.”
In this piece, Klurfeld and Placek describe their work to help improve the quality of written decisions issued by the National Appeals Division of the United States Department of Agriculture. Their observations and experience make me wonder whether a holistic, reliability-tested approach to assessing student writing would improve the students’ learning experience and the overall quality of their writing. Continue reading “What’s New in the Classroom: Holistic Assessment”
One of my biggest challenges in teaching students to write has been figuring out how best to teach “the basics”: grammar, punctuation, citation, and other sentence-level editing skills. Before this year, I always devoted several class periods to just those topics. Because students tend to enter law school with very different ability levels, however, those classes did not seem as effective as I would have liked. The students who needed little or no instruction about grammar and punctuation were invariably bored, and other students (many of whom have candidly admitted that they have not studied grammar in years, if ever) needed more than those few classes devoted to those topics. So how does the instructor effectively teach to the entire class? It is difficult, to say the least.
To remedy the problem, I decided to move all of my instruction about grammar, punctuation, precision, conciseness, and citation out of the classroom and onto the web. I find it difficult to teach writing without a visual, so I created PowerPoint presentations (or Word documents) with rules and examples, and I recorded short lectures over the top of the presentations or documents. When I was finished, I had a series of audio-visual presentations that students could watch at times convenient for them. If a student already understood how to identify and correct dangling modifiers, there was no need to watch the webcast about modifiers. If, however, the student had never heard of a dangling modifier and needed to go over the examples more than once, the webcast was there for repeated viewings.
I was concerned, however, that if I put the material on the web, students would simply ignore it, so I wanted some way to hold them responsible for learning the material. Out of that concern came my second teaching innovation: the Writing Bee. Continue reading “What’s New in the Classroom: Webcasts and Writing Bees”
I learned at yesterday’s faculty meeting that our Director of Student Affairs, Andrew Faltin, is maintaining a list of legal writing competitions on the law school web site. You can find it here. If you are a student, why not go check it out? A number of Marquette students have won prizes in these competitions.
You may also want to become a reader of the Legal Writing Competitions blog maintained by Kathryn Sampson at the University of Arkansas School of Law. It is thorough, and frequently updated. Another nice feature of that blog is that Kathryn includes nice photos with most of her posts. For instance, in her recent post about a tax-related competition, for which the prize includes a trip to DC, Kathryn includes a photo I took when I was in DC for a conference. (The conference was fantastic, and I still want to post about it, but I have not found the time yet.)