Do You Play Offense or Defense?

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 ReadingDo You Play Offense or Defense?

How Lawyers Write

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 ReadingHow Lawyers Write

It’s a Rap. Really.

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.   

Continue ReadingIt’s a Rap. Really.