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.

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War Stories

Yesterday, as part of our weekly faculty workshop series, we hosted Professor Julie Oseid of the University of St. Thomas. Her presentation was entitled “Show Me the Way: Mentoring Lawyers Through War Stories.” As the title suggests, her project is to consider, and to some extent justify, the use of war stories in legal education and more generally as a way to integrate new lawyers into the profession. Despite the fact that she was going head-to-head with Bud Selig, roughly twenty of our colleagues showed up to hear Julie’s thought-provoking talk.

For me, the topic ties in with some of the other discussions taking place on this blog, and elsewhere, concerning just how it is that we should go about the business of creating lawyers. I’m with Dean Strang in believing that technical proficiency is a necessary but hardly sufficient condition to being a good lawyer. Reflectiveness, judgment, and (this one is vastly underrated, in my view) creativity all have a role to play, along with some number of less tangible qualities.

Stories can help us pass along some of that information.

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Faculty Workshop on Criminal Procedure in Russia

Yesterday, our colleague Professor Olga Semukhina of the Marquette Department of Social and Cultural Sciences gave a presentation entitled Criminal Procedure in Modern Russia: The Path of Reforms as part of our faculty workshop series. She outlined the structure of the Russian Criminal Procedure Code (adopted in 2002), explained how the criminal process works, and offered her sense of the system’s shortcomings. Not surprisingly, the system looks very different from that in the United States. The Russian system has Continental roots, and consistent with that is considerably less adversarial than our own. Indeed, defense lawyers play an almost entirely reactive role. The defense has no ability to gather evidence, and until trial (which is the only adversarial component of the system) is limited to lodging objections to the work of the criminal investigator (a lawyer who is in theory an independent investigator, but whose physical location amongst the police and prosecutors tends to generate an affinity for the state). Plea bargaining is non-existent. Every case goes to trial, and 99 percent of those result in convictions.

For me, the presentation underscored the value of the comparative perspective. It is easy to conflate familiarity with necessity, and exposure to the workings of another system has the tendency to dislodge some of our assumptions about the way the world works. Another example: in Russia, a crime victim’s claim for restitution is part of the same case as the criminal prosecution, and the victim has a right to appeal the verdict in the criminal portion of the appeal. It’s an intriguing process to someone, like me, who is interested in the boundaries between the civil and criminal processes.

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