Two students, Allison Currey and Dustin Bell, and I have an op-ed on the Employee Free Choice Act in the Courier-Journal today.

 

"Practice makes perfect."  This week my students will practice their oral arguments with moot court board members, with me, and with classmates.  Like many students across the nation, they will do so to prepare for their appellate oral argument in front of three practitioner judges.  These practitioners, like many others across the nation, volunteer their time to help the students, with whom the practitioners may someday work, hone their oral advocacy skills. 

And students are not alone in practicing to prepare for an oral presentation.  Appellate attorneys across the nation routinely hold moot court to prepare for oral argument.  Trial attorneys spend large sums to practice in front of arbitrators.

Most of these students and attorneys realize, however, that their written work product is often as, if not more, important than their oral advocacy.  Why then do we not hold "mock judicial readings"?  This is the question Bryan Garner poses in his essay, Debriefing Your Briefs (adapted from Winning Brief (2d ed. 2004)). 

He offers an innovative method to test a brief, and it could certainly be adapted to test other types of legal writing.  You hire five attorneys for two hours of time to meet in a "focus group" about a week before the brief is due.  A neutral moderator should run the focus group while the brief writer observes.  The attorneys play "the role of appellate judges."  They first read a final version of the appellant's brief for fifteen minutes.  The moderator and the attorneys then discuss the brief and the attorney's impressions of the case for fifteen minutes.  They read the appellant's brief for ten more minutes, and discuss for ten more minutes.  The same process is repeated with a final version of the appellee's brief.  (If you represent the appellant, you will have to prepare an appellee's brief to test your own brief by this method.)  The neutral moderator then asks "each participant to say how he or she would vote in the case and to explain why."

What a great idea!  I encourage practitioners to use the method. 

Moreover, we should extend the method to the classroom.  Just as practitioners volunteer to judge moot court, they could volunteer to judge "mock judicial readings."  A seminar in which a "mock judicial reading" was integrated would make a great upper level writing course.

 

 

As I mentioned previously, this year's Warns Institute will be held June 18 & 19.  Cynthia Estlund will give the Carl A. Warns, Jr. Lecture.  Other confirmed speakers include: David Leightty, Ken Dau-Schmidt, Mark Rothstein, Robert Hillman, James Fogle, Tom Williams, Ann McGinley, Marty Malin, Vickie Lipnic, Barry Kearny, Bonnie Glantz Fatell, Paul Friedman, Carolyn Wheeler, and Charles Powell.

 

Click here to register. 

 

I enjoyed spending the day at the Louisville Law Review Symposium on Free Speech and the Challenge of Advancing Technology.  The speakers were great and raised a range of timely and important topics. 

One presentation would be of particular interest to those who practice labor and employment law.  (And so, of course, was the highlight of the Symposium for me.)  Paul Secunda presented his article Blogging While (Publicly) Employed:  Some First Amendment Implications.  He discussed a case of particular interest to those of us here in Kentucky, Nickolas v. Fletcher, 2007 WL 1035012 (E.D. Ky. 2007), a suit challenging the state of Kentucky's prohibition on state employees accessing blogs from state-owned computers.

The Student Bar Foundation will host its Annual Charity Auction on March 11th, 2009 from 5:00-8:00. We will have a live and silent auction, drinks, entertainment and hors d'oeuvres to raise money for legal, public service fellowships.

We are currently soliciting donations and would love to have your donated items or in kind donations (dinner with a Professor, law books, hornbooks, etc.) as well as your participation at the event! Please contact Andrea Vetter at anhubb01@gwise.louisville.edu if you have a donation, or any questions.

The Student Bar Foundation is the charitable giving arm of the Student Bar Association. This student run organization helps raise money and distribute funds for student fellowships or travel stipends for law-related public service work with a focus on delivery of legal services to the poor and indigent, law related public education and improvement of the judiciary, the legal profession, and citizen access to the justice system.

Since its inception in 2002, the Student Bar Foundation has distributed funds to students completing public service work at the Legal Aid Societies in Louisville, New Orleans and Cincinnati, the Louisville Center for Women and Families, Whitman Walker Clinic in Washington D.C., and even a project in Rwanda where a student interned with the Gacaca courts that prosecute cases from the genocide. In 2008, the Student Bar Foundation gave $5,000 for the opening of the law school clinic.

Thank you!

Andrea Vetter

To those interested in improving their writing, Bryan Garner recommends not only just a little bit of reading but also just a little bit of writing and just a little bit of editing.  Two of his especially innovative and useful ideas are to keep a daily journal and to form a writing group.

In the essay The Benefits of Keeping a Daily Journal (adapted from Student Lawyer (Sept. 2004), Garner suggests that you will dramatically improve your writing if you spend ten minutes each day writing a factual description of some of the day's events.  He states,

You may think that a journal like this is simply too far removed from "legal" writing to do you much good.  Don't make this mistake.  In chronicling your daily routine, you'll be drawing on your powers of description and analysis.  The better you become at it, the better you'll become at writing legal memos, client letters, briefs, and even contracts.  You'll be developing deftness with the written word.

In the article Why You Should Start a Writing Group (adapted from Student Lawyer (Jan. 2006)), Garner recommends to new lawyers that they spend ninety minutes once a month meeting to edit each others' writing.  Four lawyers should spend approximately five minutes reading another young lawyer's writing.  The four lawyers then spend approximately another five minutes providing verbal feedback to the writer.  They also provide the writer written comments.  The same approximately ten-minute process is then followed for the writing of each other lawyer.

Garner concludes, "You'll see in almost every session how a piece of writing can be analyzed on many levels.  And you'll begin to analyze on those levels yourself." 

 

 

As I mentioned before, the Warns Conference will be June 18 & 19.  The confirmed key note speaker is Cynthia Estlund.  I have had the privilege of hearing Professor Estlund speak twice before, and this will be a talk you do not want to miss.  She will be discussing workplace self-governance.

 

Also confirmed are several other engaging speakers.  Carolyn Wheeler will give the EEOC update; Jim Fogle will discuss recent developments in Kentucky workers' compensation, and David Leighty will discuss other recent Kentucky cases; Ann McGinley will update us on the ADA amendments; Marty Malin will speak about public sector employment; and Mark Rothstein will discuss GINA.

 

I will post again when registration is open with instructions on how to register and will provide a further update on confirmed speakers at that point.

Would you like to improve your legal writing?  If so, be sure to read a little bit each week!

I tell my first-year students that just a little bit of easy reading every week can greatly improve their legal writing.  I recommend sources about legal writing that are easy reads, like Garner and Scalia's Making Your Case: The Art of Persuading Judges and The Scribes Journal on Legal Writing.   And, I always recommend Richard Wydick's Plain English for Lawyers, noting that the ten minute exercises are well worth the weekly time.  

Beyond reading about legal writing, I also recommend reading just a little bit of non-case book reading each week--preferably something easy to read, enjoyable, and well written.  The magazines I tend to think of are the ABA Journal and Sports Illustrated.  While admittedly the quality isn't consistently high, the pieces are usually well written and interesting.

In Garner on Language and Writing, Bryan Garner shares some of the well written writings that he recommends reading.  So far, I've found the following recommendations.

In the essay, The Importance of Attentive Reading, Garner recommends The New Yorker and The Economist.   He quotes Judge Easterbrook as suggesting The Atlantic or Commentary. 

And in the essay Finding Good Models of Writing, Garner recommends several models of legal writing, including his samples in Legal Writing in Plain English and The Redbook: A Manual on Legal Style.  He also recommends the briefs from the Solicitor General's website and the Supreme Court briefs of Walter Dellinger,  Clifton Elgarten,  Miguel Estrada, Theodore B. Olson, Evan M. Tager, and Charles Alan Wright.

Additionally, he recommends Green Bag and the Green Bag Almanac.

I'll post again with any additional recommendations I find later in the book.

I recently had the good fortune of obtaining a copy of Bryan Garner's new book Garner on Language and Writing, which is a collection of many of his essays and speeches.  While I've previously read many of his essays, I certainly have not read all of them.  I am enjoying reading those new to me, and love having so many of the essays accessible in one place.

 

As I read, I will share some of his tips with you.  One of his tips is to perform legal writing in stages.  Writing in stages is one of the foundational skills that I share with my legal writing students.  One of the reasons that I use Linda Edwards' text, Legal Writing, is because she discusses the process of legal writing and the stages involved.    

 

I like the vivid imagery Garner uses to describe the stages of writing in his essay Using the Flowers Paradigm to Write More Efficiently (adapted from Trial (May 1997)).  Garner adopts Dr. Betty S. Flowers's names to describe a four stage process to writing.  The first stage is the "madman" stage during which you brainstorm and put all your ideas down in a free flowing format.  The second stage is the "architect" stage in which you bring order to the ideas, outlining and structuring the paper in a way that will be easy for the reader to follow.  The third stage is the "carpenter" stage.  In the carpenter stage, you craft the sentences and paragraphs of the paper.  The final stage is the "judge" stage in which you critique and proofread the paper.

I have one final practical lesson from the Labor Law Stories to share this year.  The lesson is from the last two chapters on which my labor law class presented, chapter four, Katherine V.W. Stone's The Steelworkers' Trilogy:  The Evolution of Labor Arbitration and chapter two, Deborah C. Malamud's The Story of Steele v. Louisville & Nashville Railroad:  White Unions, Black Unions, and the Struggle for Racial Justice on the Rails.

I very much enjoyed reading both these chapters and each contains many practical lessons, but I will focus on only one:  the importance of having a long term strategy when  litigating to make a real world impact.* 

The Steelworkers' Trilogy established arbitration as the primary means for resolving workplace disputes in the unionized setting.  This development was a result of the "vision and strategy" of Arthur Goldberg, "then General Counsel for the Congress of Industrial Organization."  Before winning the victories in the Steelworkers' Trilogy, Goldberg and his associates had actually lost a related case, Westinghouse Employees.  But despite the loss, he pushed on with his vision of a rule-bound unionized private sector where arbitrators decided workplace disputes.  He and his associates succeeded in distinguishing Westinghouse and persuading the Supreme Court to partially adopt Goldberg's vision in the Lincoln Mills decision.  He and his associates continued to closely follow the cases coming out of the lower courts. They handpicked the three that are now known as the Steelworkers' Trilogy to appeal to the Supreme Court.  They timed the petitions for certiorari strategically, in a manner most likely to result in a grant. 

Stone explains the significant impact of the Steelworkers' Trilogy.  While Stone notes that the long term effects of the trilogy are not yet clear and there have certainly been some negative results, overall the Steelworkers' Trilogy "opened up a world of informal, accessible, inexpensive tribunals" because "arbitration became a near-universal feature of collective agreements." The Steelworkers' Trilogy "gave unions the clout to enforce just cause clauses and other employee shop floor protections."  Additionally, "[t]he analogy of the workplace to a mini-democracy gave the labor movement a new mantle of respectability in the public mind."

Like Goldberg, Charles Hamilton Houston had a long term litigation strategy.  Malamud explains how Houston took an incremental approach to challenging the racism in the railroad industry, which was enforced by the union that legally represented all of the firemen but was comprised only of white members.  Houston's strategy led the Supreme Court to hold, in the Steele case, that unions owe a duty to represent all members of the bargaining unit in good faith and without discrimination.  With Steele and related cases, Houston proceeded strategically.  Houston did not file suits naming as a party the union representing black firemen that was funding the litigation.  Instead, Houston filed each case as an individual and class action suit because he knew "the Supreme Court had no interest whatsoever in involving the federal courts in inter-union disputes."  And he limited the type of relief he requested in Steele so as not to upset the employer, Louisville and Nashville Railroad Company.   

Prior to winning Steele in front of the Supreme Court, Houston faced losses.   He lost a related case, Teague v. Gulf, Mobile & Northern Railroad Company, in front of the Sixth Circuit on the basis of lack of federal jurisdiction.  127 F.2d 53 (6th Cir. 1942).  In response, he filed the case that would ultimately be heard in front of the Supreme Court in conjunction with Steele, Tunstall, in a different jurisdiction.  Approximately a year after losing Teague, both Tunstall and Steele were lost at the trial court level.  And then both were lost at the appellate level.  Moreover, even after the win in the Supreme Court, there was more work to be done.  In response to the decision and at the urging of the all white union, the railroads adopted a rule that black firemen of a certain seniority level must pass an engineering test or be terminated.  It wasn't until after Houston's death that a federal district court held, in another similar case, that the requirement that the black firemen pass an engineering test or be terminated was invalid.  Mitchell v. Gulf, Mobile & Ohio R.R. Co., 91 F. Supp. 175, 182 (N.D. Ala. 1950), aff'd in relevant part, BFE v. Mitchell, 190 F.2d 308 (5^th Cir. 1951).

The impact of Steele was arguably not as great as that of the Steelworkers' Trilogy.  But, as Malamud states, "for the twenty years between Steele and the passage of the Civil Rights Act of 1964," Steele "stood as the federal government's best and most conspicuous effort to make room for racial minorities in white-dominated unions." 

Moral of the Stories:  When without a crystal ball, a long term strategy increases your chances of success.

While I have not yet read the article, but look forward to doing so, I believe Ellen Dannin's recent article takes this tip to heart and sets out a long term strategy for the litigators representing working people today.

 

*Deborah was the professor who taught me employment law, employment discrimination, and advanced labor law topics in law school, and she has been an excellent mentor.  Also, I had the pleasure of working with Kathy at UCLA.