Ariana R. Levinson's blog
This week, the students in my class edited each others' briefs. As discussed in Editing Tips for the Busy Attorney, having a colleague edit one's work can help an attorney "avoid small errors, and eliminate the potential for a big negative impact."
Tactic One: Ask a colleague, friend, or
relative to swap editing
Often attorneys are hesitant to ask a
colleague to edit because it "wastes" the
colleague's time. Yet an agreement with
a colleague to edit each others' work is a
valuable trade for both people. It is difficult
for a reader to catch her own errors
because she understands the ideas she
hopes to convey and is familiar with the
document. Someone else is likely to
catch errors that the author will not
notice. The author, thus, benefits
immensely from a colleague's edits. The
editor too benefits, as each opportunity is
one to hone her own editing skills.
Interested in other tactics? The article discusses three others.
I just now had the chance to read Preston v. Ferrer, No. 06-1463 (U.S. Feb. 20, 2008). In Preston, the Court held "when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA." The Court mentions that when a contract incorporates the rules of a private arbitration service, such as the American Arbitration Association, those rules "trump" a choice-of-law clause. This discussion is a nice reminder that you should be familiar with the rules of any designated private arbitration service when representing a party drafting or entering into an arbitration agreement. (For discussion of some rules you might consider adopting based on lawyering skills, see my forthcoming article on the subject.)
This week my class looked at a sample set of Statements of Facts in opposing briefs. We identified some fact persuasion techniques that were used well. They are all good techniques to consider using if you are writing a Statement of Facts.
1. Writing the statement of facts from the client's viewpoint.
2. Juxtaposing material adverse facts with material favorable facts in order to deemphasize the adverse facts.
3. Using name and title to humanize the client.
4. Using a descriptive term rather than names to dehumanize certain people or entities related to the opposing party.
5. Using detailed description to emphasize favorable facts.
6. Using concrete nouns and verbs to emphasize favorable facts.
7. Using the passive voice to intentionally hide the actor.
8. Using a brief quotation for emphasis.
Generally, repetition can also be used as a fact persuasion technique. We noticed, however, that one brief had repeatedly used a specific adjective to describe the opposing party. We felt the adjective was overused. This serves as a reminder that fact persuasion techniques should be used judiciously to be effective; if the technique is apparent to the reader, it may fail to persuade.
I would like to thank all of my students for identifying these techniques in use!
This week my class discussed writing a persuasive Statement of Facts. We talked about what to include (and what not to include), how to organize a Statement of Facts, and different writing techniques available to increase the likelihood that the reader will find the story persuasive.
We again focused on the "primacy effect." (For prior discussion of the "primacy effect," click here.) We also discussed the "recency effect." The "recency effect" is a cognitive psychological principle that the last information discussed lingers in the reader or listener's mind and is remembered well.
Based on these principles, we discussed the persuasive value of structuring a Statement of Facts to lead with a paragraph focused on legally relevant facts favorable to the client and to conclude with a paragraph focused on the same type of facts. On the flip side, including material adverse facts in middle paragraphs de-emphasizes those facts.
Similarly, using clauses with favorable facts to begin and end paragraphs is an easy-to-use persuasive writing technique. Placing adverse facts in the middle of the paragraph is a related persuasive writing technique.
"The Faculty of Writing is attainable, by Art, Practice, and Habit only. The sooner, therefore the Practice begins, the more likely it will be to succeed. Have no Mercy upon an affected Phrase, any more than an affected, Air, Gate, Dress, or Manners."
excerpt from letter from John Adams to Abigail Adams, July 7, 1776
My Dearest Friend: Letters of Abigail and John Adams (Margaret A. Hogan & C. James Taylor eds., 2007)
This week my class discussed different forums available for our use on a collaborative project (TWEN, Googledocs, wikis, and Facebook). We also discussed Questions Presented, a topic I will write more about in March after we complete our briefs.
In his article, Public Interest Research, Collaboration, and the Promise of Wikis, Tom Cobb describes how his team-taught class used a wiki to design materials intended to advance representation of people with the disability of "compulsive hoarding and cluttering" in landlord-tenant disputes. The Northwest Justice Project, a legal services office, provided the problem and relevant materials with which to start. After extensive and exhaustive research, the class was able to draft a desk book for legal professionals, educational materials for family members and landlords, a lobbyist's guide, and two articles. The class appears to have been a great way to combine legal writing and clinical education and to make use of an interesting technology.
Cobb has also taught an advanced legal writing class that functioned as a "research wing" for three clinics. In that class, the students prepared a litigation guide for post-conviction cases, drafted a comprehensive desk book analyzing the Washington Supreme Court's approach to statutory construction, and occasionally performed research related to the clinic's ongoing litigation.
The article contains other interesting information and ideas that professors, students, and practitioners interested in collaboration will doubtlessly enjoy reading.
This week my class continued to discuss writing a persuasive Argument section. One of the topics we discussed was the "primacy effect." The "primacy effect" is a cognitive psychology term for the principle that readers and listeners are likely to remember the information they read or hear first. Jansen Voss, Student Article, The Science of Persuasion: An Exploration of Advocacy and the Science Behind the Art of Persuasion in the Courtroom, 29 Law & Psychol. Rev. 301, 311 (2005).
Thus, when writing a brief, you are able to persuade merely by placing important information first. Placing important information first increases the likelihood that the reader (whether Judge or clerk) will read and remember the information. So, consider leading your Argument section with a summary of the conclusions you wish the Judge to reach. Placing the conclusion first aids the reader to remember it and also allows the hurried reader to immediately see the bottom-line. For the same reasons, it is a good idea to use conclusion sentences for your headings and sub-headings.
The primacy effect also indicates that leading the Argument with your strongest sub-section, leading your rule explanation with the most helpful authority for your client, and beginning your application with your strongest point can be effective persuasive techniques.
Consider using an umbrella section when you are writing a brief that addresses multiple points. An umbrella section is a short section at the start of the Argument. It can provide a roadmap for the reader about the components of the rule that the writer will address or the points the writer will make. An umbrella section helps the reader understand the points to be addressed and the structure of the brief because readers more easily follow short sections separated by white space. Following the umbrella section with sections or sub-sections for each rule component or point can further enhance the reader's understanding. For instance, Mark Herrman's sixth point for new associates is "use many headings and subheadings to break up your memorandum or brief. Little pieces are easier to read." Revisiting the Basics: How to Write: A Memorandum from a Curmudgeon, 44-SEP Advocate (Idaho) 28 (2001) (Westlaw subscription required to link).
If you are interested in reading more about umbrella sections, a good source is Linda Edwards, Legal Writing: Process, Analysis and Organization, 287-90 (4th ed. 2006). She has samples on page 289 & 387. Other uses for umbrella sections include summarizing the argument, setting out the standard of review, or discussing components of the rule that the brief will not address.
In their forthcoming article, Deborah L. Brake and Joanna L. Grossman detail how the assumptions that underlie the procedures for making a claim under Title VII do not coincide with how, according to social science research, people actually respond to discrimination. The Failure of Title VII as a Rights-Claiming System, 86 N.C. L. Rev. (forthcoming 2008).
Their thesis is three-fold. First, "The law's timely filing and reporting doctrines take as its worthy claimant a person who quickly and accurately perceives discrimination and responds by promptly challenging it." Yet, most employees do not initially recognize discrimination or are deterred from filing complaints quickly by the social costs of complaining. Second, "Employees who overcome these obstacles and manage to assert their rights are left without adequate protection from retaliation from doing so."
Third, "The increasing privatization of employment disputes - a recent trend noted by many scholars - adds to the severity and nature of the problems we identify." In relation to this point, Brake and Grossman discuss how Title VII's timely filing requirement is not tolled pending internal dispute resolution. Thus, employees who use internal dispute resolution systems may forfeit the right to pursue legal claims. Additionally, the protection against retaliation for internal complaints is much less than that for formal complaints.
Because the focus of the article is on the procedural rules by which an employee may claim discrimination, Brake and Grossman do not engage in any extended discussion of the pros and cons of internal dispute resolution systems. But they do raise some important points for anyone, like me, considering the efficacy of using an administrative agency, in contrast to other forms of dispute resolution, such as internal dispute resolution. For example, what period of time must a timely filing requirement permit in order to enable the average victim of discrimination to make a claim? Should continuing violations be recognized? Should any filing requirement be tolled while the employee pursues related internal dispute resolution? Should complainants be required to complain only to designated officials? Should anti-retaliation protections apply to complaints registered through internal dispute resolution proceedings? If individuals are unlikely to recognize when they are discriminated against, how can a statute or agency foster the ability to complain on behalf of another? What type of enforcement scheme might be available other than one that relies on individual enforcement?