I recently read Ruth Ann Robbins, Painting with print:  Incorporating concepts of typographic and layout design into the text of legal writing documents, 2 JALWD 108 (2004).   As I mentioned in an earlier post, I had the opportunity to attend a session on using visuals in legal writing at the LWI Biennial Conference.  This piqued my interest and led me to Ruth Ann's article.

The article has tips that are already widely recognized by legal writers, such as advising the use of headings to create "chunks" of information.  It has tips that many experienced practitioners have intuitively figured out, such as avoiding putting headings in all caps, although the standard practice may be to the contrary.  And it contains some novel suggestions, such as varying the actual font size of the headings to show hierarchy moving from larger to smaller.

A summary of tips is provided on pages 133-34.  An appendix of which courts permit using the recommended layout begins on page 135. 

Even if you are reluctant to experiment with your legal documents, read the article and start experimenting with the newsletters, training documents, e-mails, and other non-legal documents you likely regularly produce.

The most recent volume of The Scribes Journal of Legal Writing contains a wealth of helpful information for legal writers. 

If, like me, you sometimes need a refresher on the distinction between "that" and "which," the article by Richard C. Wydick, author of the well-known text Plain English for Lawyers, is the one to read.  (Hint:  "That" is for restrictive clauses and "which" is for nonrestrictive clauses.)  He also provides guidance on the more complicated issues of when dropping the word "which" or "that" can mislead the reader (termed "whiz deletion") and when the term "hereby" should be used.  Better yet, he includes practice exercises (and answers) at the end of the article!  True Confessions of a Diddle-Diddle Dumb-Head, 11 Scribes J. Legal Writing 57 (2007).

I've read about half of the articles in the volume so far.  Other articles that may be of interest to practitioners include the following:  one on drafting legal documents intended for lay readers by Wayne Schiess (page 1), one on mistakes to avoid when drafting contracts by Duke McDonald (page 25), two on ejusdem generis by Preston M. Torbert and by Gregory R. Englert (page 41 & 51), one, which also contains practice exercises, on nominalizations by Joseph Kimble (page 79), and one on Reducing Citation Anxiety by Darby Dickerson (page 85).

The Journal can be ordered here.  It is also available on LEXIS and Westlaw.

Attached please find the first page of the "2008 LWI Biennial Conference Handout."  The remainder of the handout is an article that can be downloaded here. 

Wednesday afternoon, I attended a session on using web-based technology to record and comment on oral arguments.  The technology, CommuniCoach, might be of interest to appellate attorneys.  I then represented the LWI Committee on Cooperation Among Clinical, Pro Bono, and Legal Writing Faculty at the Committee Fair.  (For those interested in further information, the handout I prepared will be posted in a separate blog entry.)

Thursday morning I attended my favorite session of the conference entitled, "Co-dependent No More?  When Teaching Becomes Enabling."  It was a discussion about various teaching techniques.  I also attended a session on race and gender in the classroom, geared toward outlining ways that professors can help "bolster the performance of women" and minority law students.  I then attended "Beyond Powerpoint and Movie Clips:  How to Reach Your Full Potential as a Teacher." 

Finally, I attended "Why & How to Incorporate Visuals:  Poster Presentations, Handouts and Beyond," presented by Ruth Ann Robbins and Alison Julien.  Much of the information I learned in this session would be of value to practitioners.  Professors Robbins and Julien discussed the importance of using visuals in presentations.  For instance, the visual impact of the words "We the People," is little when using the font I am currently using, but great when using the font actually used in the Constitution.  This illustrates the importance of the font a practitioner chooses to use.  Indeed, the Seventh Circuit gives advice about using a visually appealing and professional font.  Another interesting tip is that free images are available on flickr.com.

If you are interested in learning more about any of the sessions I attended, information is available here.  Also, more extensive information about the conference is available here.  You can also feel free to contact me.

 

I attended another morning of great sessions, including one on "Using Technology Effectively" and one on "Bringing Persuasive Techniques Alive in the Classroom."  Of particular interest to practitioners, however, was the session on "Playing with Fire:  The Science of Confronting Negative Information in Persuasive Legal Writing" presented by Kathy Stanchi.  Professor Stanchi has concluded that the available social science supports the position that it is more effective to present negative information and refute it than to ignore negative information altogether.  She discussed the psychology behind this finding and its applicability to brief writing.  Her research will be published by Rutgers Law Review and is available here.  I am looking forward to reading the full article.

  Yesterday evening, the conference kicked off with a reception and awards ceremony at the Arts Garden in Indianapolis.  This morning, the plenary "Divine Secrets of HaHa Sisterhood," a presentation by Beth Beazley, Sheila Simon & Hollee Temple, kicked off a day of great presentations.  At the plenary, we learned a good point to share with your younger associates.   Remind them that the person they are writing for reads like they do.  Ask them, "when you can't understand something, do you diagram the sentence, research the terms you can't understand, or simply skip that part."  What a great point about focusing on making writing easy for the reader to understand.

I then attended a session on "An Exploration of the Elements of Expert Performance in Legal Writing" a presentation by Erika Abner and Shelley Kierstead.  They conducted focus groups of expert attorneys who discussed their own writing processes and their views of the legal skills of new attorneys.  The study produced a wealth of data.  One important finding is the significant number of drafts that expert legal writers draft before finalizing a document.

Next, I attended a session on "The Future's So Bright, I Gotta Wear Shades":  A Study of Hope, Optimism and Well-Being in Law School," by Allison Martin and Kevin Rand.  They surveyed a sample of students at IUPUI to see if either hope or optimism correlated with first-semester grades.  While both correlated with life satisfaction, only hope correlated with first-semester grades.  Because lawyers suffer from higher rates of depression than those in other professions, this study promises to be the first in a series that will reveal how legal education can be changed to minimize this result.

Finally, I attended sessions on moot court programs, on integrating statutory interpretation into a first-year legal writing class, and on developing memo and brief problems.  These sessions raise interesting issues about the larger debate on what skills are demanded in the current practice of law and what we should be teaching in law school.

Marcia L. McCormick's The Truth Is Out There:  Revamping Federal Antidiscrimination Enforcement for the Twenty-First Century proposes a modified truth commission to address "private sector employment discrimination."  She proposes that the new agency be staffed with not only lawyers but cognitive psychologists and sociologists.  The agency will identify and publicly condemn violations of norms.  But it will also serve as an adjudicatory forum, possess broad prosecutorial powers, and perform community outreach.  The current requirement of reporting diversity statistics will be extended to smaller employers. 

 

The proposal is an interesting one.  A detailed comparison to the National Labor Relations Board (NLRB) might provide insight on the types of agency functions that would be necessary to ensure the agency actually protected employees rather than being generally viewed as a failure, as the NLRB has come to be by many.  Because the NLRB possesses similar adjudicatory and prosecutorial powers to those proposed, but lacks the regulatory and expert investigative functions, such a comparison could shed light on whether agency adjudication cannot "create enough accountability to create real change" rendering such a function impracticable and, therefore, unnecessary.

Now is the time of summer you may be thinking about explaining to your first-year law clerks how they can take their analysis and writing to the next level.  Or perhaps you are thinking about how to better explain case synthesis to next summer's law clerks.  One helpful recent article is Jane Kent Gionfriddo's, Thinking Like a Lawyer:  The Heuristics of Case Synthesis, 40 Tex. Tech L. Rev. 1 (2007).

It's always helpful to see how someone else uses different terms to explain a process--terms that might click with a law clerk who thinks differently than oneself.  And Part IV of the article which uses "a group of hypothetical cases that have been carefully designed to demonstrate the complex permutations of synthesizing cases in an actual problem-solving context" might be a useful exercise for initial training of law clerks, even if you don't find the article's terminology helpful.

Previously, when discussing Sachs's article on Labor Law Renewal, I mentioned the Brown case. The Supreme Court issued the decision last week. The practical outcome of the decision, which holds that California's legislation is preempted, is to somewhat restrict the ability of states to experiment with enacting labor standards. As to whether California was acting in a proprietary capacity, which would permit it to enact labor standards, the Court states the following:

 

It is beyond dispute that California enacted AB 1889 in
its capacity as a regulator rather than a market participant.
AB 1889 is neither "specifically tailored to one
particular job" nor a "legitimate response to state procurement
constraints or to local economic needs." Gould,
475 U. S., at 291. As the statute's preamble candidly
acknowledges, the legislative purpose is not the efficient
procurement of goods and services, but the furtherance of
a labor policy.

The Harvard Law & Policy Review recently published two articles, which while not technically labor articles, may be of interest to labor law practitioners and academics (as well as to fans of Justice Brandeis).

The premise of the first, Kent Greenfields' Reclaiming Corporate Law in a New Gilded Age, is that "[t]he time has come to reclaim corporate law as a topic of wide debate and progressive concern."  He argues that "while corporations should be appreciated for their special ability to create wealth, they should also be treated warily, given the form and power bestowed on them."

He quotes Justice Brandeis,

The prevalence of the corporation in America has led men of this generation . . . to accept the evils attendant upon the free and unrestricted use of the corporate mechanism as if these evils were the inescapable price of civilized life and, hence, to be borne with resignation.  Throughout the greater part of our history a different view prevailed.  Although the value of this instrumentality in commerce and industry was fully recognized, incorporation for business was commonly denied long after it had been freely granted for religious, educational and charitable purposes.  It was denied because of fear.  Fear of encroachment upon the liberties and opportunities of the individual.  Fear of the subjection of labor to capital.  Fear of monopoly.  Fear that the absorption of capital by corporations, and their perpetual life, might bring evils . . . . There was a sense of some insidious menace inherent in large aggregations of capital, particularly when held by corporations.

Liggett v. Lee, 288 U.S. 517, 548 (1933) (Brandeis, J., dissenting).

The premise of the second, Joseph W. Singer's Things that We Would Like to Take for Granted:  Minimum Standards for the Legal Framework of a Free and Democratic Society, is "freedom without law is not liberty, and the free market without a legal structure is not a market in any sense we would recognize."  He argues that big government is not the most significant threat to liberty in the United States.  "The far greater worry is that we will fail to give people what they want by authorizing contracting parties to give up basic rights or to impose externalities on others."

He concludes,

John Rawls might ask:  "What would the contract have said if the parties did not know on which side of the bargaining table they would be sitting?"  When we ask the Rawlsian question, it is possible we will conclude that a particular contract term does violate the minimum standards of a free and democratic society.  And when that happens, our questions may become more pointed and confrontational.  Instead of asking:  "What are the minimum standards for this kind of transaction?" we might find ourselves asking:  "What gives you the right to treat your workers so badly?  Or perhaps even:  "Would you want your son or your daughter to work under conditions like this?"